Private Placement Offering Memorandum Experts: Over-Subscribed!

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Private Placement Offerings Surge as Demand for Offering Memorandum Document Experts Follows Along

Whether due to improving economic conditions in the US as well as various other parts of the world, or due to technology advancements that serve as the catalyst to innovative products and services that solve legacy business challenges, the global private placement marketplace is surging. With this new era of entrepreneurship, the need for investor offering memorandum experts is likewise cascading. In Wall Street parlance, the demand for such experts is nearly “over-subscribed,” meaning the supply of capable professionals who specialize in preparing fully-compliant investor offering documents is being stretched thin. But, at least one firm within the professional services sector is addressing the investor documentation needs of forward-thinking business enterprises and they are situated neatly within the “curl of the wave”-all you need to find them is a search engine and the right key words/phrases.

Operating under the web banner OfferingMemorandum.com, the firm behind this portal is NY-based Broker Dealer LLC and with footprints in various cities across the global financial services ecosystem, they are leading the pack by making it simple and easy for broker-dealers*, captive business advisors and corporate lawyers for companies of any size and located in nearly every geographic location of the world to engage local securities law professionals and investor offering document experts who specialize in preparing preliminary offering memorandums, red herrings and final offering prospectus documents that conform to financial industry best practices and comply with local regulatory guidelines that govern investor solicitations. (*For various reasons, registered broker-dealers do not prepare the investor offering memorandum or an offering prospectus, and it is therefore incumbent on the Issuer to provide the investor offering documents.)

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Ryan Gorman, Prospectus.com

According to Ryan Gorman, a PR-IR-Corporate Communications expert who works with many startup companies, “While some capital markets  professionals will attribute the continued spike in private placement issuance to the ‘Trump Bump”,others will credit the evolution of the JOBS Act [the US legislation spearheaded by former President Obama intended to make the regulatory steps more simple for small companies in the US to raise capital], global macro gurus point to the rising economic tides in various regions of the globe. That said, nobody disputes the number of new companies and latter-stage funding initiatives for small, medium and large companies remains in an unobstructed uptrend.

Private Placement offerings are surging and direct IPOs are gathering steam. But, for those seeking to raise capital for a start-up or to fuel expansion for a fast-growing business, any entrepreneur worth his salt knows their first step is preparing a cogent business plan, then consolidating that blueprint into a short-form ‘pitch deck’ and once prospective investors have expressed interest in the investment opportunity, the enterprise seeking capital (aka “Issuer”) provides the investor with an offering memorandum or an offering prospectus. Simple as this process might sound, offering memorandum preparation is non-trivial and is typically performed by securities attorneys who specialize in investor offering documents. Also known as an “OM”, the offering memorandum is perhaps the most critical document, as it frames the terms and conditions of the investment, and when prepared within the context of best practices, the offering memorandum is the document that both Issuer and Investor can hang their hats on. Somewhere in the mix, the enterprise that seeks funding (also known as the Issuer) might engage a registered broker-dealer to serve as a placement-agent aka underwriter for the financing round, or the Issuer may already have identified investors and has determined there is no need to engage a broker-dealer

*Registered broker-dealers generally serve as a placement agent or underwriter for a capital raise, but typically defer to the Issuer to provide them with the investor offering documents, as such it is the obligation of the Issuer or their corporate counsel to create an offering memorandum or a prospectus. In most instances the Issuer will engage their law firm to prepare these documents, and increasingly, law firms that do not have a securities law practice will outsource or sub-contract to firms that dedicated to this type of work. As the number of private placement offerings and direct IPOs via Regulation A+ continues to grow, portals such as OfferingMemorandum.com and Prospectus.com provide a unique solution.

US SEC Brings in Top Gun Lawyer to Promote IPOs, Expand JOBS Act

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May 15–The US Securities & Exchange Commission (SEC), following policy goals advanced by the Trump administration, is sharpening its focus on encouraging private companies to go public via IPOs. Towards that effort, veteran Silicon Valley tech deal lawyer Bill Hinman, a former partner of Simpson Thacher & Bartlett who has guided the likes of among others, Apple Inc (NASDAQ:AAPL), Alphabet Inc. (NASDAQ: GOOGL) and Facebook Inc (NYSE:FB)  has been appointed Director of the SEC’s Corporation Finance division; the unit that oversees initial public offerings.  SEC Commissioner  Jay Clayton, who has called for scaling back requirements on listed firms and argued the government should make it “more attractive” to go public and according to Clayton, “Bill Hinman is the ideal man for the job.”

The top Corporation Finance Division post will be crucial because of the unit’s role in writing rules that govern public and private capital-raising.

In an interview, Mr. Hinman said “spurring more public offerings is a worthy goal of regulators, because investors benefit from the detailed public disclosures.” Hinman has also voiced his view towards further expanding the 2012 Jumpstart Our Business Startups Act. The law, also known as the JOBS Act, passed with bipartisan support and was hailed as the first sign that Washington understood how the internet could be used to help smaller companies raise money without turning to Wall Street.

“To the extent the SEC can make it more attractive and efficient to raise capital here, we are going to want to do that,” he said. “That is our primary focus and challenge going forward.”

Companies raised $2.1 trillion in private placements of stocks and bonds in 2014, compared with about $1.35 trillion for public sales of equity and debt, according to SEC figures. The decline in U.S. public listings has happened as fast-growing startups such as Uber Technologies Inc. and other “unicorns” have been able to get the cash they need from venture capitalists.

However much deal makers have lauded the SEC’s new-found resolve to promote public offerings, some market participants say they don’t see the problem that Mr. Clayton has said he wants to solve. “The real question is do small-growth companies have access to capital, and they do,” according to Robin Graham, managing director and head of technology, media and communications at Oppenheimer & Co. Inc. “It’s just in the private markets.”

According to Samuel Goldberg, a senior partner at Prospectus.com, a firm that specializes in business plan writing, feasibility studies and the preparation of investor offering documents and guiding private companies throughout the course of both private placements and public capital raising initiatives, “Public markets are ultimately the holy grail for start-up companies; easing the complexities of public listing can prove helpful for those who have private investors seeking exit strategies and enabling share Issuers to attract a new and much broader universe of investors.”

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MiFID II: Broker-Dealers Still Vexed re Unbundling Research

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As the Jan 2018 deadline for full implementation of MiFID II approaches, US broker-dealers and their EU counterparts remain vexed by looming regulations that seek to parse buy-side client payment for research content and commission payments tied to actual trade execution.  In an effort to distill the confusion, ESMA, the UK regulator has provided a recent update to the new regulatory scheme, including a highlight of topics such as how/where global macroeconomic research, FICC markets corporate access, RPA and CSA arrangements and the distinction between ‘free research’ and paid-for research.

Courtesy of insight from Rebecca Healey of Liquidnet, the equities trading platform that connects buyside and sell-side traders from across the globe, “the latest FCA summary, published on March 3, 2017, highlights just how far the UK regulator believes firms are falling short of expectations in unbundling research and execution services. The regulator’s opinion is that poor market practice remains commonplace despite rules that have been in place for more than a decade. In particular, firms are still failing to adequately assess and budget for substantive research that is of value to their end clients’ investments.” Ms. Healey’s coverage is excerpted below, with a link to her recent posting in Tabb Forum.

Corporate Access

ESMA is of the view that arranging a meeting itself is not providing material or services which “explicitly or implicitly recommend or suggest an investment strategy and provide a substantiated opinion as to the present or future value or price of such instruments or assets.” (Recital 28) As such, Corporate Access is not to be considered “research” but as a separate service to be paid for commercially.

However, ESMA notes that it is important that the Corporate Access provider prices services at commercial levels and any access provided is not linked to or dependent on payments for research or execution services. Under Article 13(9), each benefit or service an investment firm provides must be “subject to a separately identifiable charge.”

ESMA is of the view that corporate access such as arranging meetings or field trips could involve the allocation of valuable resources by the provider and could influence the recipient’s behavior (Article 12(3)). As such, ESMA expects firms to assess whether corporate access services facilitated by an investment firm are material or of minor non-monetary benefit, and therefore, whether these services can be accepted. If the investor “road show” is freely and publicly open to analysts from investment firms and other investors, it could be considered acceptable minor non-monetary benefits under Article 12(3).

However, to avoid any conflict of interest, an investment firm wishing to meet a corporate issuer can approach the firm directly and/or pay for a third-party corporate access service provider that does not provide other MiFID investment services.

Macro-Economic Research

In ESMA’s opinion whether macro-economic analysis can be considered research should be weighed against the criteria set out in Recital 28. In particular, whether the research in question “informs views on financial instruments, assets or issuers within that sector or market” and whether “this material or service explicitly or implicitly recommends or suggests an investment strategy … could be used to inform an investment strategy.”

In ESMA’s view most macro-economic analysis is likely to suggest an investment strategy, unless it is sufficiently general to fall outside the definition of research. If it is considered research, it is then capable of being received (and paid for) by an investment firm, under Article 13.

If not, it does not automatically classify as a minor non-monetary benefit, and portfolio managers and independent advisors would need to make a commercial decision either to pay for this or not accept the service.

Prospectus.com team of capital markets experts and securities lawyers specialize in real estate investment trusts (REIT), preliminary offering prospectus, secondary offering prospectus and full menu of financial offering memorandum document preparation.For more info, visit www.Prospectus.com

No Carve Out for FICC

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Retrial Starts for Jefferies’ Former Bond Trader

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U.S. Federal Prosecutors Hope that Second Time is Charm in Case Against Bond Trader Alleged to Have Deceived Savvy Clients

(Reuters) Jan 3 – A former Jefferies Group Inc bond trader is going back on trial in federal court in Connecticut over whether he lied to customers about mortgage bond prices to boost profit. (Photo/Douglas Healey for Bloomberg)

The retrial of Jesse Litvak, with jury selection set for Wednesday and opening arguments for Thursday, comes 13 months after a federal appeals court voided his original conviction and two-year prison sentence.

But it gives U.S. prosecutors a fresh chance to crack down on alleged deceptive Wall Street sales tactics in the bond market, and could bolster cases against several other traders.

“The retrial will clear the air over whether bond traders can increase margins by falsely representing prices, which can distort trading and capital formation,” said James Cox, a Duke University law professor. “Whether someone relied on the information is irrelevant to prosecutions; it’s all about whether the underlying conduct is condemnable.”

C.J. Mahoney, a lawyer for Litvak, declined to comment, as did a spokesman for U.S. Attorney Deirdre Daly in Connecticut.

Litvak, who worked for Jefferies in Stamford, Connecticut, was charged in January 2013 with misleading customers about bond prices from 2009 to 2011.

Prospectus.com team of capital markets experts and international securities lawyers specialize in preliminary offering prospectus, secondary offering prospectus and full menu of financial offering memorandum document preparation.
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This allegedly boosted the Leucadia National Corp unit’s profit by about $2.25 million, and his own pay.

Litvak has said his customers were sophisticated investors who were “inherently skeptical” of what counterparties tell them, and would have known if he were cheating them.

Convicted in March 2014, Litvak won a reprieve from the 2nd U.S. Circuit Court of Appeals in December 2015.

That court threw out fraud accusations related to the federal bailout known as the Troubled Asset Relief Program, and said Chief Judge Janet Hall, who oversaw the trial, wrongly excluded expert testimony for the defense.

BrokerDealer.com thanks Reuters and WSJ for providing source material-to continue reading the Reuters coverage, click here

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2017 Best Practices for Private Placement Memorandums

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With 2017 just hours away, Broker-Dealers anticipate the new year will include a resurgence of IPO activity as well as a material uptick in private placement offerings, stimulated in part by initiatives led by the Trump Administration. With this refreshing outlook, BrokerDealer.com curators will be providing a series of thought-leadership articles submitted by financial industry experts and professional service providers who counsel industry innovators and accomplished entrepreneurs. Below “2017 Best Practices for Private Placement Memorandums” is the first of weekly articles that will be posted via BrokerDealer.com..

 

Private Placement Memorandum: A Startup’s best friend for attracting investment.

If you are looking to raise capital for your business, you will inevitably need to utilize a document known as a private placement memorandum (PPM). This is a legal document that you can use to list down disclosures and selling points of your business for prospective investors. It is also known as offering document or offering memorandum.

When do you use a Private Placement Memorandum?

When it comes to selling equity in your company or raising capital via a debt offering for private enterprises in the United States, one needs to be more than familiar with and to follow the rules set forth by the Securities Act of 1933. This requires you to register yourself with the Securities and Exchange Commission (SEC). One of the core elements of the documents you must submit is to explain why the offering made by the business complies with SEC Regulation D, which allows exemption for some companies from registering with the SEC. Regulators in Europe and other regions typically impose similar and sometimes more rigorous standards.

Paul Azous, the Founder/CEO of Broker Dealer LLC, which operates private placement advisory firm Prospectus.com  “The PPM lists down the securities being sold, the terms set by the company and numerous other elements. Also included are the disclosures according to the exemptions used, investor profiles and detailed information of the terms. It will however not include a general offer for investment, making it the perfect tool for attracting investment.

Where to start from?

Believe it or not, many businesses that rely on PPMs tend to work with templates found online, such as the PPM library, which contains more than 10,000 actual offering documents from companies in more than 100 countries and dozens of industries. Noted Azous, “In many cases, entrepreneurs seeking to raise capital will find themselves engaging a law firm that will charge anywhere from USD $25000 to upwards of USD $50,000 to create a PPM; but those legacy fees often prove to be out-sized when considering the deliverables.”

A PPM is a serious invitation for thoughtful and focused investors who want to know about your business, its future and most important, the profits that they can earn from it. If you go for ready-to-use templates from unreliable sources, you will likely end up with a dry, conventional PPM that will have numerous legal loopholes, which in turn can get you into trouble.

There are a variety of professional services focused on creating a bespoke PPM. This document will be tailored for your business and its prospective investors. The writer will work with you directly and use the information that you provide, ensuring that the final product highlights your company, its potential and why investors should take it seriously.

When you enlist professional PPM writing services, your business will be thoroughly analyzed by experts who will have a full understanding about your enterprise, along with identification of all the legal risks that can be obstacles for investment. They will also be able to identify the best possible approach for your business under the Regulation D of the SEC.

Will my lawyer help me in creating PPM?

A Private Placement Memorandum is a legal document. Using an experienced securities lawyer or a professional service provider specializing in the creation of investor documents makes good sense. However, while the PPM serves as a legal document; it is also a business marketing tool for you to attract investors. A lawyer should be able to draft a foolproof legal document, but in many cases they will lack in the creative thinking that is required to make your PPM attractive.

Professional service providers who specialize in private offerings should offer you advice, consultancy and insight about the best practices when it comes to attracting investors. They have presumably worked on PPMs for companies across a variety of industries, and ideally have cross-border experience to address the needs of Issuers based not only in the United States, but in multiple global jurisdictions as well. By choosing the right professional consultant, you will be working with people who actually know how to leverage a PPM document to raise equity for your company.

Contributor Samuel Goldberg is a 20 year private finance and investment banking veteran who currently serves as an independent consultant and a Board Advisor to PPM Group, a global advisory with offices in New York, London, Hong Kong and Tel Aviv. His knowledge base with respect to private placement documentation, capital formation and business consulting is based on dozens of projects in which he helped negotiate term sheets for multiple public offerings and private issuances that have raised nearly USD $2.5billion for a broad spectrum of companies. Mr. Goldberg’s area of expertise encompasses Reg D, Reg S and 144A issuance, stock exchange listing services, as well as the EB5 market.

2017 Best Practices for Private Placement Memorandums