Issuers Entering Into Forward Sales Agreements for Shelf Offerings

NiSource Inc. Form 424B2 on 9/9/10 (SEC file no. 333-148239)
Xcel Energy Inc. Form 424B2 on 8/4/10 (file no. 333-161521)
Regency Centers Corp. Form 424B5 on 12/7/09 (file no. 333-158635)

In connection with equity shelf takedown offerings of common stock, each filer of the prospectus supplements listed above entered into forward sales agreements with affiliates of the underwriters (the "forward purchaser").  At the request of the issuer, the underwriter, acting as agent for the forward purchaser (the "forward seller" in such agency capacity), borrows a fixed number of common shares from third parties which are sold to underwriters.  If the forward sellers are unable to borrow all of these shares of common stock, the company will issue and sell a number of shares equal to the number of shares that the forward sellers do not borrow and sell.

Peer-To-Peer Social Lending Platform Seeks to Offer Notes to Lender Members

Seeking to become the third P2P Internet-based platform to complete registration of notes with the SEC, United Power and Media, Inc. (UPM) filed Form S-1 on Sept. 3 (SEC file no. 333-169240).

UPM lender members would be eligible to buy Borrower Member Payment Dependent Notes issued by the company.  By making an offer on a borrower member loan request posted on the UPM platform, a lender member is committing to purchase a Note equal in principal amount to the dollar value of that offer at the stated interest rate and term, if the loan is funded and subsequently originated by UPM, or by an alternate institution to be selected in the future.  The proceeds of the Notes will be designated by the lender members to fund corresponding borrower loans and subsequently allocated to a trust account for the benefit of the borrower.

Community Development Banks Exchange TARP Preferred With U.S. Treasury

Carver Bancorp, Inc. Form 8-K on 9/2/10 (SEC file no. 001-13007)
M&F Bancorp, Inc /NC/ Form 8-K on 8/23/10 (file no. 000-27307)
Citizens Bancshares Corp /GA/ Form 8-K on 8/18/10 (001-14913)

Each of the bank holding companies has exchanged preferred stock previously issued under the Troubled Asset Relief Program Capital Purchase Program (TARP CPP) for an equivalent amount under the Community Development Capital Initiative (CDCI).  The CPP program carried a preferred dividend rate of 5% for 5 years, after which the dividend rate increased to 9%. Under the CDCI program, the preferred dividend rate is 2% for 8 years.

The Treasury Department established the CDCI program in February 2010 to invest lower cost capital in Community Development Financial Institutions (CDFI), supporting their lending activities to small businesses or disadvantaged communities.  Participation in TARP CDCI is limited to financial institutions certified by the Community Development Financial Institution Fund as a CDFI.  The Letter Agreement and Exchange Agreement with the United States Department of the Treasury is included as Exhibit 10.1 of each Form 8-K listed above.

IPO Auditing Fees In the Third Year of Market Uncertainty

Average auditor fees paid by issuers that have completed initial public offerings on U.S. exchanges or the OTC Bulletin Board have been on a steady rise since 2005.  Despite economic turmoil, the average amount paid to accounting firms by issuers that completed IPOs in 2008 and 2009 exceeded $1 million.  Through August, however, 2010 is shaping up to look more like 2007 when the average cost of getting the IPO books in order was $892,000.

Among underwritten IPOs launched this year, the $5.55 million auditor fee paid to Ernst & Young Hua Ming by China Hydroelectric Corp. in connection with its $96 million offer is the largest (SEC file no. 333-163558).  However, it is the only deal so far this year where the auditor fee has exceed $3 million.  In 2009, eight of the 63 companies that completed IPOs in U.S. markets paid auditor fees above $3 million. 

Prior to China Hyro, the last IPO with a larger auditor fee was Visa Inc.'s $17.86 billion deal in 2008, for which KPMG earned $13 million (file no. 333-147296).   2008 saw an unusual concentration of IPO auditor fees below the $200,000 threshold, encompassing approximately 45% of the companies that went public.  By contrast approximately 24% of the 2009 and 21% of 2010 deals have auditor fees that fall below the $200K level, which is more in line with recent historical experience.

The information reported herein was gathered using IPO Vital Signs, a Web-based system that includes all SEC registered IPOs, including REITs and those non-U.S. IPO filers seeking to list in the U.S. markets. IPO Vital Signs does not track closed-end funds, best efforts or non-underwritten deals, or IPO offerings for amounts less than $5 million.

AbitibiBowater Inc. to Withdraw NAFTA Notice of Arbitration

Following AbitibiBowater's December 2008 announcement of the permanent closure of its Grand Falls newsprint mill, the Government of Newfoundland and Labrador, Canada passed legislation to expropriate all of the company's timber rights, water rights, leases and hydroelectric assets in the province, whether partially or wholly owned through subsidiaries and affiliated entities.  As a result of the expropriation, in the fourth quarter of 2008, the company recorded, as an extraordinary loss, a non-cash write-off of the carrying value of the expropriated assets of $256 million.

AbitibiBowater filed a Form 8-K on August 30, 2010 (SEC file no. 001-33776) to announce a formal settlement agreement with the government of Canada whereby the government has agreed to pay the company’s post-emergence Canadian operating entity CAD$130 million (approximately USD$123 million) following the emergence from the creditor protection proceedings under Chapter 11 of the U.S. Bankruptcy Code and the Companies’ Creditors Arrangement Act (Canada), as applicable.  The settlement agreement is subject to approval by each of the U.S. Bankruptcy Court for the District of Delaware and the Superior Court of Quebec in Canada, and the Courts’ approval of the company’s plans of reorganization.