Syndicate Legal Advisory Services prepares the complete legal documentation package required to conduct an offering of debt or equity securities to qualified institutional buyers under Rule 144A, whether structured through initial purchasers or as a direct placement to QIBs, and with or without a concurrent Regulation S tranche.
Working alongside the company’s management, its independent auditors, the trustee and paying agent for a debt offering, the transfer agent or depositary, and DTC, we draft, assemble, and organize every document the initial purchasers, the QIBs, the trustee, and the clearing systems require — the offering memorandum, the purchase agreement or subscription agreement and investor letters, the indenture or securities terms, the registration-rights agreement, the transfer-restriction and clearing documentation, and the closing set — so the transaction is documented complete, internally consistent, and ready to price.
Scope of work includes:
Transaction structure analysis — written assessment of the offering’s structure: the security to be offered (senior or subordinated notes, convertible notes, preferred stock, or common equity of an issuer whose class is not exchange-listed), the eligibility of the security under Rule 144A’s fungibility restriction, the choice between an initial-purchaser structure and a direct placement, the inclusion of a Regulation S tranche and the Category of issuer under Regulation S, whether registration rights or an exchange offer will be provided, the use of a global-note and DTC structure with restricted CUSIPs, the integration analysis for any concurrent offerings, and the covenant and governance package the investor base will expect, with a memo setting the structure and the preparation sequence.
Offering memorandum — drafting of the offering memorandum to registration-statement standards, covering the cover page and the required legends and notices to investors, the summary of the offering and the summary financial information, the risk factors, the use of proceeds, the capitalization, the selected and summary historical financial data, management’s discussion and analysis of financial condition and results of operations, the description of the business, management and principal securityholders, certain relationships and related-party transactions, the description of the securities (for a debt offering, the full description of the notes including covenants, events of default, redemption, and ranking), the book-entry and settlement description, U.S. federal income tax considerations, ERISA considerations where relevant, the plan of distribution, the transfer restrictions for Rule 144A and Regulation S, the legal matters and independent auditors sections, and the financial statements, with the pricing term sheet and the pricing supplement mechanics for the post-launch period.
Purchase agreement (initial-purchaser structure) — the purchase agreement between the issuer and the initial purchasers, with the issuer’s representations and warranties, covenants, conditions to closing, indemnification and contribution provisions, the initial purchasers’ resale undertakings under Rule 144A and Regulation S, and the deliverables schedule (legal opinions, negative-assurance letters, the auditors’ comfort letter, officers’ certificates, and secretary’s certificates), coordinated with counsel to the initial purchasers.
Subscription agreement and investor letters (direct-placement structure) — the subscription agreement between the issuer and each QIB with the investor’s representations and warranties (QIB status by category with the supporting statement of securities owned and invested, purchase for its own account or for the accounts of other QIBs, investment intent, acknowledgment of the restricted nature of the securities and the transfer restrictions, risk acknowledgments, and anti-money-laundering and sanctions representations), the QIB investor letter or certification, the Regulation S investor letter for non-U.S. purchasers, the subscription procedures and allocation mechanics, the wire and escrow instructions, and the closing and confirmation notices.
Indenture or securities terms and governing documents — for a debt offering, the indenture (or supplemental indenture) between the issuer and the trustee, the form of global note and the note legends, the guarantee provisions and any security documents, intercreditor arrangements where relevant, and the trustee, paying-agent, and registrar engagement; for an equity or convertible offering, the certificate of designation or charter amendment, the conversion mechanics, and the investor-rights provisions; in both cases, the board and shareholder resolutions authorizing the offering and the securities.
Registration-rights agreement — where registration rights are provided, the registration-rights agreement setting out the exchange-offer or shelf-registration undertaking, the filing and effectiveness deadlines, the additional-interest or penalty provisions for failure to meet them, and the holder procedures; or the documentation of a no-registration-rights structure and its disclosure.
Due-diligence and verification support — the due-diligence request lists and the data-room organization for the initial purchasers’ and their counsel’s review, the verification notes supporting the offering memorandum’s statements, the officers’ certificates and back-up certificates, the bring-down procedures for pricing and closing, and the coordination of the auditors’ comfort letter and its bring-down.
Financial-statement coordination — coordination with the company’s independent auditors on the audited and interim financial statements the offering memorandum requires (prepared to the standard the initial purchasers and the comfort letter require, including the age-of-financial-statements conventions the market applies), the pro forma financial information for an acquisition financing, and the presentation of the financial statements and the MD&A.
Closing and post-offering documentation — the closing memorandum and checklist, the executed closing set (purchase or subscription agreements, indenture, global notes, legal opinions and negative-assurance letters delivered by counsel, comfort letter, officers’ and secretary’s certificates, and cross-receipts), the settlement through DTC and the clearing systems, and the post-offering compliance toolkit: a calendar and template set for the registration-rights deadlines and the exchange-offer or shelf registration, the covenant-compliance reporting under the indenture, the information-delivery undertaking to holders and prospective purchasers under Rule 144A(d)(4) for a non-reporting issuer, and the legend-removal procedures as the securities become eligible for resale under Rule 144.
Deliverable: a fully assembled, indexed transaction binder (electronic and hard copy) containing the offering memorandum and pricing supplement, the purchase agreement or subscription package and investor letters, the indenture or securities instrument, the registration-rights agreement, the transfer-restriction and clearing documentation, the due-diligence and verification files, the closing set, and the compliance procedures, with a closing checklist and a reviewer-ready version of each document for execution by the company’s officers.