The firm represents both sponsors of, and investors in, hedge funds and other private equity vehicles. The firm’s practice includes: (i) formation of domestic investment vehicles of all types, including venture capital funds, and a sub-specialty in real estate opportunity funds, (ii) taxation of investment partnerships and other investment vehicles, and (iii) securities and corporate governance matters relating to portfolio companies (private and public) or real estate assets of the funds.
The firm represents public companies and their officers, directors and employees in investigations and enforcement proceedings before SEC, FINRA and other securities regulators. The firm also works with its clients to develop compliance programs in such areas as information barriers, insider trading and the purchase and sale of securities.
The firm has assisted issuers seeking listing on U.S. exchanges and markets, as well as U.S. issuers exploring foreign listings.
Crowdfunding describes the collective cooperation, attention and trust by people who network and pool their money and other resources together, usually via the Internet, to support efforts initiated by other people or organizations. Crowdfunding occurs for any variety of purposes, from disaster relief to citizen journalism to artists seeking support from fans, to political campaigns, to funding a startup company, movie or small business or creating free software.
Given the significant disruptions to the public markets and corresponding adjustments to the valuations of public companies and their securities in recent years, managers and investors are increasingly exploring the possibility of taking these entities private, in “going private” transactions. In general terms, a going private transaction is the exchange of cash for the shares of a company’s existing public shareholders so that, at the end of the transaction, the company is permitted to terminate its public company status. Forms of going private transactions include:
- mergers of the company with a newly-formed company owned by the manager/control group;
- tender offers by the newly-formed company; or
- a self-tender by the company for its own shares.
A going private transaction typically is initiated by a controlling shareholder or by a group of shareholders that either constitutes a majority or at least a control position in a company. Senior management of the company often comprises such a buyout group, often making going private transactions appear to be management buyouts.
The firm regularly advises clients in connection with contractual matters, including partnerships, strategic alliances, joint ventures, licenses, executive compensation, employment and consulting agreements, stock option plans and other routine business matters.
The firm acts as counsel to corporations and other entities in acquisition transactions, including strategic acquisitions and divestitures, mergers of public companies and privately negotiated sales. Transactions typically involve a wide variety of industries and range in size, with a focus on small to middle market companies. Additionally, we regularly are engaged by our existing public and private company clients, as well as, investor groups, to represent them in their purchase or sale of a business.
A Registered Direct offering is a negotiated sale by an issuer to one or more investors of securities that have been registered pursuant to an effective shelf registration statement on Form S-3 under Rule 415 of the Securities Act of 1933. Rule 415 permits an issuer to register a specific dollar or share amount of securities without specifying the amount of any particular class or type of security or the timing or method of the offering. The issuer may then sell any or all of the registered securities directly to investors at a later date or dates of its choosing. A Registered Direct is like a PIPE in that securities are typically sold through a placement agent on a “best efforts” basis. Unlike a PIPE transaction, investors in Registered Direct offerings receive free trading shares, and thus the pricing terms are typically more beneficial to the issuer than in a PIPE.
An ATM is the offering of securities by an issuer either directly or through an underwriter, which securities are offered and distributed at the existing trading price. In layman’s terms, an ATM occurs when an already public trading Issuer registers and sells additional securities to the public at the existing trading price, as opposed to a fixed price. Accordingly, the price that shares sell at in an ATM will vary with the market price on any given day, or even throughout the day.
A PIPE is a private investment, either common stock or a convertible instrument, in a public company at a discount to the current market value per share. Within a short period following the investment in the public company, usually 30 to 60 days, the public company is required to file a registration statement and register the shares that were sold in the PIPE. The public company is usually required to have the registration statement declared effective within 90 to 150 days. A PIPE is a type of financing transaction undertaken by a public company, normally with a small number of sophisticated investors. In a typical PIPE, the company relies on an exemption from SEC registration requirements to issue investors common stock or securities convertible into common stock for cash. The company then registers with the SEC the resale of the common stock issued in the private placement, or issued upon conversion of the convertible securities issued in the private placement.
For over 20 years, members of the Firm have participated in alternative means of going public, including SPACs and PIPE Offerings, Resale S-1 Registration Statements and Reverse Mergers.
A Reverse Merger is a transaction where whereby a private company becomes a public company by merging with a public shell company. A shell company is a company that has substantially no assets, except its corporate structure. A company can become a shell company by agreeing to spin off its current assets and liabilities at the time of the merger. Upon the merger, the private company shareholders receive a substantial majority of the shares of the public company (normally 90% to 95% or perhaps more) and the control of the board of directors, resulting in the private company becoming an operating public company. Prior to the merger, the transaction does not go through a review process with state and federal regulators. The transaction involves the private and shell company exchanging information on each other, negotiating the merger terms, and signing a share exchange agreement. At the closing, the public shell company issues a substantial majority of its shares and transfers the board control to the shareholders of the private company.
In these transactions, private businesses merge with operationally inactive public entities, enabling the private business to become publicly-traded on its own, without the need to either identify an underwriter or go through the formal process of an IPO.
We advise issuers on complying with the complex securities laws, rules and regulations that these companies must comply with, including proxy rules, other periodic reporting requirements under the Securities Exchange Act of 1934 (such as Forms 10-Q, 10-K and 8-K). We also advise our clients on other compliance matters such as FINRA regulation, blue sky, Sarbanes-Oxley, Dodd-Frank, general corporate governance matters, insider trading and conflicts of interest.