| PREVIOUS PART 14 SHELF AND AUTOMATIC SHELF QUESTIONS NEXT | ||||||||||||||||||||||||||
| SECTION 1 HOME SECTION 2 SECTION 3 SECTION 4 Title 4 |
1. ABC Corp. is a reporting company, foresees the need down the road to
access the capital markets and raise about $100 million. It has no
arrangement with an investment banking firm to do such an offering, but
assumes Fox Corp. which handled it's IPO would be interested if the
company packaged it the way Fox would want. ABC would like to keep its
underwriting options open as it found Fox excessively demanding in its
due diligence demands. Can ABC Corp. file a registration statement
covering such an offering presently? See
Rule 415(a)(1)(x)What would be the advantage to
doing so? On what form could it be filed?
Form S-1? Form S-3?
What els e must you know to make that determination? Could it file it as
an automatic shelf registration? What else must you know? 2. Assume ABC Corp. is a reporting company, has been such for over 12 months, has filed all '34 Act reports timely, its common stock is listed on Nasdaq smallcap, its public float in its common stock is approximately $50 million. Can it file a delayed unallocated shelf? 3. If ABC Corp. under 2. above cannot assume whatever facts are necessary to assume that it can find an unallocated shelf, could its Calculation of Registration Fee on the cover page of the registration statement look like the following:
4. Assuming that ABC meets the qualifications to file an unallocated shelf (but not an automatic shelf) under Rule 430B can it omit the description of the securities to be offered? If not, how is it going to describe securities like preferred stock and debt securities that it does not know what will be acceptable to an underwriter when and if it finds one. See Telik shelf (use table of contents). Does it have to describe the underwriting arrangement even if it has none? See Telik shelf (use table of contents). 5. What qualifications must a company meet to be able to file an automatic shelf registration covering an unallocated shelf? Assuming that ABC meets the qualifications to file an unallocated shelf as an automatic shelf, under Rule 430B can it omit the description of the securities to be offered? Can it omit a description of the underwriting arrangement? . 6. Assume that ABC Corp. filed an unallocated shelf including a calculation of registration fees on the cover page similar to that in 3. above and it went effective 7 months ago. It has entered into a letter of intent with Fox Securities to takedown from the shelf of 10 million shares to be offered at a small discount from the current market price of approximately $20 a share. What did it undertake under Regulation S-K Item 512(a)(1) at the time it went effective and how was this proviso amended by SOR? How has the registration statement/prospectus been kept up to date since it went effective? See Form S-3, Item 12(b). How will Rule 424 as amended by SOR come into play in connection with the takedown agreed to with Fox Securities? To what extent will the process differ from that followed by Telik before SOR? See Telik takedown supp1 and supp2. How would the process differ if ABC Corp. where eligible to file an automatic shelf registration to cover the offering? 7. What is a PIPE? How does it differ from a typical private placement? Why is it attractive to private investors? 8. Assume that ABC Corp. completed an IPO in July of year 200X and has a calendar year fiscal year. It is now September of 200X. If it were to do a PIPE now would Rule 415 allow it to register a resale shelf covering the PIPE shares? Could it register the resale shelf on Form S-1? Form S-3? 9. It is now April of 200X+1. ABC Corp. is still thinking of doing a PIPE. Can it do it on a Form S-3? If you were advising ABC Corp., would you advise the company to delay doing the PIPE? Why? Until When? 10. A secondary shelf offering by selling shareholders, whether the result of a PIPE or otherwise generally extends over a substantial period of time as each selling shareholder is its own in disposing its shares into the market when and how he/she/it chooses. This aspect of the offering is appropriately referred to as an uncoordinated distribution. What does Regulation S-K Item 507 generally require the prospectus to disclose relating to the selling shareholders? How describe the plan of distribution when each shareholder is on its own? See InterChange prospect (use table of contents to go to Selling Security Holders and Plan of Distribution). 11. An uncoordinated shelf has to include the Item 512(a)(1) undertakng at the time it went effective. An uncoordinated shelf is likely to be outstanding for a long time until all of the selling shareholders have disposed of their shares. If we assume a Form S-1 registrant eligible under General Instruction VII to incorporate by reference, what advantage does a Form S-3 registrant have in terms of incorporation of '34 Act as a means of keeping the secondary shelf registration/prospectus current? How does the Item 512(a)(1) proviso as amended by SOR aid in keeping an S-3 prospectus up to date? Is it of any use, if the resale shelf is registered on a Form S-1. How is an S-1 registrant going to satisfy the Item 512(a)(1) undertaking? 12. Under what circumstances does Rule 430B permit the names of selling shareholders be omitted from S-3 registration statement in connection with a secondary shelf when the registration statement goes effective? What are the differences if any in this respect between a registrant that is a Form S-3 General Instruction I.B.1. and a General Instruction I.B.3 registrant? 13, Assuming ABC Corp. does a PIPE on Form S-3 as a General Instruction I.B.1 registrant, can it omit the names of selling shareholders or some of them in reliance on Rule 430B?
14. Can a smaller reporting company use Form S-3? If so, what is your authority for doing so?To what extent and how is it measured? 15. Walk through an example illustrating the limitations on the use of a smaller reporting company. 16. What is a smaller reporting company?.
|
|||||||||||||||||||||||||