Structuring an At-The-Market Securities Offering: Key Terms and Best Practices

Form S-3 Eligibility, SEC Filing Requirements, Equity Distribution Terms, Sales Agents and Due Diligence

A live 90-minute CLE webinar with interactive Q&A

Thursday, January 17, 2019

1:00pm-2:30pm EST, 10:00am-11:30am PST

Early Registration Discount Deadline, Friday, December 21, 2018

or call 1-800-926-7926

This CLE webinar will provide securities counsel with a step-by-step framework for executing an effective at-the-market (ATM) securities offering. The panel will discuss filing and due diligence requirements, reps and warranties, and best practices in dealing with offering agents and other parties.


ATM offerings have increased steadily in volume during the economic recovery, from $8 billion in 2013 to $28 billion in 2017. Much of the growth can be attributed to the flexibility and cost-effectiveness an ATM offering provides compared with other funding alternatives. ATM offerings can be used months or even years after their creation, allowing issuers to raise capital during upswings in their stock price and trading volume.

Counsel must consider several factors in advising on an ATM offering. An issuer must be eligible to use a shelf registration statement on Form S-3 on a primary basis and must have an effective shelf registration statement on file with the SEC. If not already included in the shelf registration, counsel should prepare a prospectus supplement describing the terms of the offering and include the terms and conditions of the equity distribution agreement.

There are several structuring concerns for the issuer to consider, including whether its stock actively traded as defined under Regulation M, whether to engage one or more sales agents, and how frequently and to what extent shares may be offered.

The issuer will need to make certain reps and warranties in connection with an ATM offering and will need to be able to respond to ongoing due diligence requirements of sales agents before each takedown of securities. Ongoing repurchase programs or dividend reinvestment plans must be suspended.

Listen as our authoritative panel discusses the structuring and securities compliance issues associated with ATM offerings. The panel will provide a practical framework for initial offering and subsequent takedown of ATM securities.



  1. At-the-market eligibility requirements, advantages of being a well-known seasoned issuer (WKSI)
  2. SEC filing requirements
  3. Engagement of sales agents—the equity distribution agreement
    1. Determing limitations, flexibility on shares to be sold
    2. Representations and warranties
  4. Suspension of repurchase and dividend reinvestment plans
  5. Managing ongoing due diligence requirements
  6. Using an ATM offering for selling stockholder: Rule 144


The panel will review these and other notable issues:

  • What kinds of companies can make the best use of an ATM offering?
  • How should an issuer go about engaging sales agents and what is the appropriate number?
  • What are the key distribution terms to include in an equity distribution agreement?
  • What are the best practices for managing due diligence requests in connection with takedowns after the initial offering?


Hirshberg, Brian
Brian D. Hirshberg

Mayer Brown

Mr. Hirshberg focuses on representing issuer, sponsor and investment bank clients in registered and unregistered...  |  Read More

Additional faculty
to be announced.

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