United States securities and exchange commission logo
August 10, 2023
Brad K. Heppner
Chief Executive Officer
Beneficient
325 North St. Paul Street, Suite 4850
Dallas, TX 75201
Re: Beneficient
Registration
Statement on Form S-1
Filed July 19, 2023
File No. 333-273322
Dear Brad K. Heppner:
We have limited our review of your registration statement to
those issues we have
addressed in our comments. In some of our comments, we may ask you to
provide us with
information so we may better understand your disclosure.
Please respond to this letter by amending your registration
statement and providing the
requested information. If you do not believe our comments apply to your
facts and
circumstances or do not believe an amendment is appropriate, please tell
us why in your
response.
After reviewing any amendment to your registration statement and
the information you
provide in response to these comments, we may have additional comments.
Registration Statement on Form S-1
General
1. Please disclose in the
prospectus summary, risk factors and MD&A sections, the exercise
price of the warrants
compared to the market price of the underlying securities. Because
the warrants are out
the money, please disclose the likelihood that warrant holders will not
exercise their
warrants. Please also disclose that cash proceeds associated with the
exercises of the
warrants are dependent on the stock price. As applicable, describe the
impact on your
liquidity and update the discussion on the ability of your company to fund
your operations on a
prospective basis with your current cash on hand.
2. Please revise your
prospectus to disclose that while the sponsor, private placement
investors or other
selling shareholders may experience a positive rate of return based on
the current trading
price, the public securityholders may not experience a similar rate of
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return on the securities they purchased due to differences in the
purchase prices and the
current trading price. Please also include appropriate risk factor
disclosure.
3. In light of the significant number of redemptions and the unlikelihood
that the company
will receive significant proceeds from exercises of the warrants
because of the disparity
between the exercise price of the warrants and the current trading
price of the Class A
common stock, expand your discussion of capital resources to address
any changes in the
company s liquidity position since the business combination. If the
company is likely to
have to seek additional capital, discuss the effect of this offering
on the company s ability
to raise additional capital.
4. Please expand your discussion to reflect the fact that this offering
and the two
additional registration statements on Form S-1 filed on July 19, 2023
involve the potential
sale of a substantial portion of shares for resale and discuss how
such sales could impact
the market price of the company s common stock. Your discussion
should highlight the
fact that selling shareholders will be able to sell all of their
shares for so long as the
registration statements are available for use.
5. On July 28, 2023, the Wall Street Journal article entitled "2 Billion
Default Followed
Warnings to Everyone but Investors" reported that millions of dollars
in payments were
made from you to your CEO, Brad Heppner, and his related entities
including:
$156.5 million to HCLP Nominees, L.L.C, a Hepner-related financial
trust;
$14.2 million to Bradley Capital Company, L.L.C., which was used
to pay for a
private jet; and
$3.1 million to The Heppner Endowment for Research Organizations,
L.L.C.
( HERO ) and Research Ranch Operating Company, L.L.C.
("RROC"), which are
related to the Bradley Oaks Ranch (Mr. Hepner's ranch).
We also note that you disclose a number of related party transactions
with entities that Mr.
Heppner has an interest. In order for investors to better understand
the extent of Mr.
Heppner's interest my be different from your shareholders, provide a
tabular presentation
detailing all payments made to Mr. Heppner as well as to present any
rights to payments,
securities or other cash flows that are senior to those of your common
shareholders.
6. Please provide all of the information required by the applicable
provisions of Item 404 of
Regulation S-K, including the following:
On page 170 of your annual report on Form 10-K for fiscal year
ended March 31,
2023, you stated that Messrs. Jon and Steven Sabes contributed
1,452,155 shares of
GWG s common stock to a limited liability company ( SPV )
owned by a Related
Entity and an entity held by one of the current directors of Ben
Management, the
general partner of BCG, in exchange for certain equity interests
in the SPV. Related
Entity or "Related Entities" include certain trusts that are
directly or indirectly
controlled by your CEO, Brad Heppner, and those entities are
directly or indirectly
held by such trusts. Please disclose the names of the Related
Entities, Mr. Heppner's
relationship with the Related Entities, and the amount of shares
received by each
Related Entity.
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On pages 170 to 171 of your annual report on Form 10-K for
fiscal year ended March
31, 2023, you stated that on May 31, 2019, certain trusts
included in the ExAlt Plan
(the LiquidTrust Borrowers ) executed a Promissory Note
payable to GWG Life for
a principal amount of $65.0 million that matures on June 30,
2023. Please disclose
the names of the trusts and the basis on which such trusts are
related persons.
On pages 172 of your annual report on Form 10-K for fiscal year
ended March 31,
2023, you stated that on May 15, 2020, you, through your BCC
subsidiary, executed
a term sheet with the lender, HCLP, a Related Entity, to amend
the First Lien Credit
Agreement and Second Lien Credit Agreement dated September 1,
2017 and
December 28, 2018, respectively. Please disclose the basis on
which HCLP is a
related person.
On page 174 of your annual report on Form 10-K for fiscal year
ended March 31,
2023, you stated that in connection with the Second Amended and
Restated
Agreements, BHI, a Related Entity that owns a majority of the
Class S Ordinary
Units, Class S Preferred Units, Preferred A-0 Unit Accounts,
Preferred A-1 Unit
Accounts, and BCH FLP-1 Unit Accounts issued by BCH, will grant
certain tax-
related concessions to HCLP as may be mutually agreed upon
between the parties.
Please disclose the basis on which BHI is a related person.
On page 175 of your annual report on Form 10-K for fiscal year
ended March 31,
2023, under the heading "Relationship with Ben Securities," you
made a general
statement that Ben Securities creates various conflicts of
interest and incentives
because, through your ownership of Ben Securities, you and your
owners and
employees receive profit participation, equity incentives or
similar benefits, including
your CEO, Ben Heppner. Please disclose names of the related
persons, and the
approximate dollar amount involved in the transactions, as
required by Item 404 of
Regulation S-K.
On page 178 of your annual report on Form 10-K for fiscal year
ended March 31,
2023, under the heading "Administrative Services Agreement
between Constitution
Private Capital Company, L.L.C. ('Constitution') and Beneficient
USA," you stated
that Constitution is an entity owned 50.5% by BHI and 49.5% by
BMP and that it
was acquired by a Related Entity in 1996. You further state on
page 20 of your Form
10-K that BMP is owned by certain of your directors and senior
employees. Please
disclose the Related Entity that purchased Constitution, the
identity and ownership
percentages of the directors/employees that own BMP, as well as
any relationship
between Constitution/BMP and your CEO, Brad Heppner.
On page 178 of your annual report on Form 10-K for fiscal year
ended March 31,
2023, under the heading "Relationship with The Heppner Endowment
for Research
Organizations, L.L.C. ('HERO') and Research Ranch Operating
Company, L.L.C.
('RROC')," you stated that HERO and RROC are indirectly owned by
a Related
Entity. Please disclose the Related Entity, any relationship
between the Related Entity
and your CEO, Brad Heppner.
On page 179 of your annual report on Form 10-K for fiscal year
ended March 31,
2023, under the heading "Relationship between Ben and Hicks
Holdings LLC," you
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stated that Hicks Holdings LLC, an entity associated with one of
your current
directors, is one of the owners and serves as the manager of a
limited liability
company and that a Related Entity also has ownership in the
limited liability
company. Please disclose the director associated with Hicks
Holdings, the name of
the limited liability company Hicks Holdings serves as a manager
of, and the name of
the Related Entity that has any ownership in the limited
liability company.
On page 180 of your annual report on Form 10-K for fiscal year
ended March 31,
2023, under the heading "Services provided by representatives of
Ben and the trusts
associated with the loans," you stated that an independent party
currently serves as
trustee for the LiquidTrusts and certain of the other trusts in
the associated ExAlt
Plan but that previously an employee of yours and another
individual served as co-
trustees for these trusts. Please disclose the names of the other
trusts, the names of the
employee and the other individual that served as co-trustees if
those parties remain
your related parties to or any of your subsidiaries.
On page 185 of your annual report on Form 10-K for fiscal year
ended March 31,
2023, under the heading "BCH FLP Unit Accounts," you stated that
BCH issued the
BCH FLP-3 Unit Accounts to an entity controlled and directly or
indirectly owned by
your CEO, Brad Heppner. Please disclose the name of the entity in
question and Mr.
Heppner's role in and ownership of such entity.
Prospectus Summary
Forward Purchase Agreement, page 5
7. We note your disclosure related to the Prepaid Forward Purchase
Agreement between you
and RiverNorth SPAC Arbitrage Fund. Please revise to disclose who
RiverNorth agreed to
purchase the shares from. In this regard we note that Section
(1)(a)(i) of the Form of
Prepaid Forward Purchase Agreement filed as Exhibit 10.27 refers to
"redeeming
shareholders" without identifying the shareholders. In addition,
disclose if any of the
redeeming shareholders are your related parties. If applicable,
include this agreement in
the related party transactions section of the registration statement
or advise.
Risk Factors, page 9
8. Please include an additional risk factor highlighting the negative
pressure potential sales
of shares pursuant to this registration statement could have on the
public trading price of
the Class A common stock. To illustrate this risk, disclose the purchase
price of the
securities being registered for resale on the two additional
registration statements on Form
S-1 filed on July 19, 2023, as well as the securities that may be sold
by RiverNorth under
the forward purchase agreement. Also disclose that even though the
current trading price
FirstName LastNameBrad K. Heppner
is significantly below the SPAC IPO price, some of the selling
securityholders have an
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incentive to sell because they will still profit on sales because of
the lower price that they
Augustpurchased their 4shares than the public investors.
10, 2023 Page
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9. We note that on page 55 of your Annual Report on Form 10-K for fiscal
year ended
March 31, 2023, you stated that on June 29, 2023 you had received a
Wells Notice from
the staff of the SEC s Division of Enforcement, "stating that the
Staff has made a
preliminary determination to recommend that the SEC file a civil
enforcement action
against [you] alleging violations of certain provisions of the
Securities Act and the
Securities Exchange Act relating to [your] association with GWG
Holdings." We further
note that you stated other parties, including your CEO, Brad Heppner,
also received Wells
Notices related to the investigation of GWG Holdings. Please revise
your description of
the SEC investigation to provide the information required under Item
103 of Regulation S-
K, in particular a description of the factual basis alleged to
underlie the contemplated
proceedings. Please also revise to include a separate risk factor that
discusses any
potential material consequences and penalties you may face if the SEC
proceeds with
enforcement actions related to the Wells Notice, including financial
penalties and
sanctions and the risk of losing the ability to sell securities using
the Regulation D
exemption.
10. Please provide a separate risk factor that discusses, in detail, the
related party transfer of
funds received by you to related parties. In particular, the revised
risk factor should
address any payments or other interests held by your CEO, Brad
Heppner, directly or as a
beneficial owner/beneficiary, whether held through trusts, or other
holdings. The
disclosure should address both material holdings and aggregate
holdings that:
have an ownership interest in Beneficient; or
have provided credit or funds that have a priority interest in
Beneficient or its
component parts, or in the event of bankruptcy, compared to the
common
shareholders.
Please further discuss the conflict of interest that would arise.
11. We note your disclosure on page iv that GWG Holdings Inc., one of your
significant
equity holders, filed a voluntary petition for reorganization under
Chapter 11 of the United
States Bankruptcy Code, and the Bankruptcy Court for the Southern
District of Texas
confirmed GWG Holdings Inc. s bankruptcy plan. We further note that
per your annual
report on Form 10-K for fiscal year ended March 31, 2023, GWG Holdings
Inc. as of July
10, 2023 owned 169,751,487 shares or 72.4% of your Class A common
stock. Please
include a separate risk factor discussing both quantitatively and
qualitatively the possible
dilutive effect on your shares that could occur if the court orders
the liquidation of GWG
Holdings Inc.'s assets, including its holdings of your Class A common
stock, and the
selling of those shares in the open market.
12. We also note that you did not timely file a Form 10-K for the year
ended March 31, 2023.
Please update and revise your risk factor section to state that you
did not timely file the
report and that you may not be able to file timely in the future.
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13. Because simultaneously with this offering your are also registering
over 91 million shares
of Class A Common Stock under the equity line purchase agreement with
YA II PN, Ltd.,
please add risk factor disclosure to describe the dilutive effect of
the formula or pricing
mechanist on your share price as the result of the equity line
purchase agreement.
14. Revise to add a risk factor to disclose that the securities obtained
by RiverNorth may
create an artificial ceiling for your securities, as the purchaser has
an incentive to recover
its investment. Also note that, if the market price for your
securities remains below the
designated price, you may be obligated to issue senior preferred
securities to RiverNorth,
and you may never gain access to the full $20 million in reserved
funds.
Incorporation by Reference, page 57
15. Please revise your prospectus to remove this section or provide us
with your analysis
regarding your eligibility to incorporate by reference on Form S-1. In
this regard, we note
that companies that were either shell companies or blank check
companies during the past
three years are ineligible to incorporate by reference on Form S-1.
Please refer to General
Instruction VII.D of Form S-1. Revise Form S-1 to provide all
disclosure required by the
form that currently is incorporated by reference, including, but not
limited to the
management's discussion and analysis, financial statements, risk
factors and the
description of your business.
We remind you that the company and its management are responsible for
the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action
or absence of
action by the staff.
Refer to Rules 460 and 461 regarding requests for acceleration. Please
allow adequate
time for us to review any amendment prior to the requested effective date of
the registration
statement.
Please contact Robert Arzonetti at (202) 551-8819 or Tonya Aldave at
(202) 551-
3601 with any questions.
Sincerely,
Division of
Corporation Finance
Office of
Finance
cc: Matthew L. Fry, Esq.