The Nevada IPO Alternative For Small Business Entities

You don't have to be rich to start your own"We had good growth, positive cash flow, visibility
company. In fact, about 17% of all businesses nowand networking opportunities that translated into the
worth more than $1 million were launched with lesskind of sales we'd never have gotten if we hadn't
than $5,000, according to Wachovia (NYSE: WB),gone public," he said.
America's fourth largest bank by assets."People who invested with me had a chance to make
Still, for your company to survive and grow, youmoney - doubling and tripling their investments within
need capital. Your savings, credit cards, loans anda relatively short period of time," he added. "As for
investments from family and friends can take youme, personally, it was a wealth builder - a good,
only so far.wealth-building mechanism that also benefited my
But in the lingering wake of the dot-com debacle, it'sfamily and children."
a particularly tough market out there. "Today, evenAnd the Downside of Going Public?o Need to share
veteran CEOs are having a hard time raising funds,profits. If your firm is a highly successful venture,
and what money they do raise comes with a lot offuture success (and profit) has to be shared with
strings attached," said Jill Andresky Fraser, financeoutsiders. After the typical traditional IPO, for
editor of Inc magazine.example, about 40% of the company remains with
Venture capitalists have, for the most part, vacatedinsiders, but this can vary from 1% to 88%, with
the $500,000 to $5 million-investment range, leaving a20% to 60% falling within the "comfortably normal"
huge gap for SMEs that seek an infusion of capital atrange. (A Registration-by-Qualification, however,
those levels.virtually eliminates this drawback.)o Loss of
SBA study numbers indicate that more than halfconfidentiality. A major reason firms resist going public
(56,000) of the 100,000 small businesses requiringis the loss of confidentiality in company operations
equity capital to execute their business plans areand policies. For instance, some businesses could be
unable to raise what they need through traditionaldestroyed if they were to disclose their technologies
approaches and private sources. And a full-scale,or profitability to competitors.
national-level, Independent Public Offering (IPO) is tooPublic companies must also disclose names and
lengthy and costly for most small businesses,company addresses of officers and directors, along
assuming they can even meet all the requirements.with considerable other data about the corporation
So, what's the answer?and its operations.o Reporting and fiduciary
One answer - an increasingly popular, butresponsibilities. Public companies must continuously file
less-well-known strategy for financing SME growth -reports with the SEC. They must comply with certain
is presented in this white paper:state securities laws ("blue sky" laws), plus guidelines
Forming a Nevada corporation and, with no minimumof FINRA (Financial Industry Regulatory Authority,
investment required, bringing your corporation public,formerly known as NASD). These disclosures cost
raising up to $1 million initially (later you have themoney and provide information to competitors.o
prospect of raising more) by means of aPotential Loss of control. Outsiders are often in a
Registration-by-Qualification Offering in the state ofposition to take control of corporate management
Nevada, in which you sell unrestricted shares that canand might even fire the entrepreneur/company
generally be sold to any Nevada resident.founder. While there are effective anti-takeover
Why Incorporate in Nevada?measures (especially as allowed in Nevada), investors
Some of the tax and operating benefits mentioned inare unwilling to pay a high price for a company in
this section may depend upon provisions of yourwhich poor management cannot be replaced. (Again,
corporate bylaws or require you to live in and/orwith the Nevada IPO Alternative for SMEs, there
maintain a business office in Nevada. So, it is best toneed be no loss of control.)o IPO expenses. An initial
check with your accountant and legal counsel topublic offering is a costly undertaking. A typical firm
determine which of the many tax and other benefitsmay spend 15% to 25% of the money raised on
mentioned in this section apply specifically to you, anddirect expenses. Even more resources are spent
to what extent.indirectly in terms of, for example, management time
That said, however, Nevada is widely acknowledgedand disruption of business.
to be the corporate capital of the United StatesWith a successful capital campaign, these expenses
because of its well-established reputation forare paid out of new capital received. However, if
business-friendly laws: no corporate income tax -your campaign goals are not met, you may not raise
even on Nevada corporations that do not conductenough capital to cover the costs of doing the IPO.
business in Nevada - no taxes on corporate shares,In that case, the shortfall comes out of your
and no franchise or personal income tax, either.pocket.o Increased liability. The company, its
Nevada assesses no inheritance or gift tax, nomanagement and other participants may be subject
admissions tax, no unitary tax, and virtually no estateto liability for false or misleading statements and
tax.omissions in the registration documents or in the
Its regulations offer flexibility to directors, which needreports filed by the company after it becomes public.
not be stockholders, in managing corporate affairs;In addition, management may be subject to lawsuits
and they permit management to establish strongby the stockholders for breaches of fiduciary duty,
protection from hostile takeovers.self-dealing and other claims, whether true or not.
Unlike other states, Nevada permits a corporation'sHowever, here, too, Nevada does a good job of
articles of incorporation to vest authority to adopt,keeping these vulnerabilities to a minimum.o The
amend or repeal bylaws exclusively with the board ofchallenge. Selling your own stock to family, friends
directors, thus denying shareholders the ability toand business associates is a challenge. You will need a
change the bylaws.number of independent investors willing to purchase
Nevada has nominal annual business fees, competitiveyour shares and a market maker (see below) willing
sales and property tax rates, minimal reporting andto accept your stock.
disclosure requirements, minimal requirements forWhy Should I Consider the Nevada IPO Alternative
capital, a minimal employer payroll tax rate - 0.7% offor SMEs?
gross wages, with deductions for employer-paidThe Nevada IPO Alternative for SMEs extends the
health insurance - and no information-sharingupside of going public and minimizes - in some cases
agreement with the I.R.S.negates - the downside.
Nevada, unlike many other states, allows one-personIt allows your company to approach prospective
corporations.investors (including customers) by means of:o
Business litigation runs on a faster, more efficientCold-callingo Newspaper advertisemento Direct mailo
track than in other states because Nevada maintainsRadioo Internet radio/podcastingo Seminars
a court system for business. Moreover, officers andAlthough most states allow state-registered
directors of Nevada corporations gain lawsuitofferings, they impose so many restrictions that small
protection because they can be protected frombusinesses find the process impractical to pursue.
personal liability for lawful acts of the corporation.Nevada, however, has a straightforward process
Nevada corporations may purchase, hold, sell orknown as "registration by qualification" that is quite
transfer shares of their own stock, and may issuefriendly to business, especially small business.
stock for capital, services, personal property, or realSome of the most important features of a
estate, including leases and options. The directorsregistration by qualification in Nevada are:o You can
may determine the value of any of thesesell securities to an unlimited number of both
transactions, and their decision is final.accredited and unaccredited investors, so long as
The state's package of economic developmentpurchasers are either Nevada residents or certain
incentive programs includes:o Sales and Use Taxqualified visitors from out of state.o You can use
Deferral Programo Sales and Use Tax Abatementogeneral solicitation or advertising to market the
Modified Business Tax Abatemento Property Taxsecurities, but you may only distribute prospectuses
Abatemento Train Employees Now (TEN)owithin Nevada (subject to possible additional
Renewable Energy Abatementsrestrictions).o You can use general solicitation or
As a result, many major corporations are chartered inadvertising to market the securities, but you may
Nevada - particularly corporations whoseonly distribute prospectuses within Nevada (subject
headquarters are located in California and otherto possible additional restrictions). Holding a seminar to
western states.sell your securities is allowed. And you may also hold
According to statistics from the Nevada Secretary ofthe seminar at one of the hotels and sell the
State, 300,000 companies are currently incorporatedsecurities to visitors who did not come to Nevada to
in Nevada, with new Nevada corporations showing apurchase securities. This is a wide-open possibility for
consistent uptrend over the past three years:stock distribution.o When the offering has been
- all evidence of Nevada's growing popularity as aclosed and the securities (normally common stock)
home for American corporations.have been issued and rest in the hands of an
What's the Upside of Going Public?o Raise capital.investor, they are considered to be "free trading."o
Going public is often the best way for a successfulFree-trading stock status allows the company to
business to raise capital. If your cash flow isn'tapply for quotation on a medium such as the Over
generating the capital you need to grow yourthe Counter Bulletin Board (OTCBB - see later
business, taking your company public allows othersexplanation of this venue).o You may hire what is
who believe in your potential to demonstrate theircalled a Series 63 agent and pay him a commission to
support of your goals by tapping their wallets.raise up to $1 million within the state,.o You may also
A public offering of your company's stock can resultraise the funds on your own by marketing the stock
in raising significantly more capital than a privateto your database or the general public.o The
placement because it may allow the offer and sale ofpossibility of becoming public in half the time of any
securities to a broader group of potential investors.other type of self-distribution program with stock is
If a company needs to raise more capital later, it canincreased by the use of Nevada's RBQ process,
always sell stock (equity) or issue bonds (debtallowing for the distribution of free-trading stock and
securities). And, subject to the requirements offiling of Form 10 instead of other registration
individual lenders, publicly traded stock can be used asstatements.o This also allows you to file a 15c211
collateral to secure loans.directly with the OTCBB Compliance Unit, and bypass
Going public in Nevada requires that only a reasonablecorporate finance requirements.
amount of the company's ownership be put into playHow Does the Nevada IPO Alternative for SMEs
for public investors.Work?
Compare this to the ownership stake ventureHere are the basic steps involved in a Registration by
capitalists typically require for their investments -Qualification and getting to traded status, but it's best
sometimes upwards of 90%, not to mention theirto commission qualified consultants or advisors to
rigorous management controls and requiredhelp you through the process.
representation on the board of directors - and you1. Form a Nevada corporation. Registration by
see how substantial ownership can be preserved viaQualification is only available to corporations that can
the Nevada state-registered offering process.oissue stock - not to partnerships nor LLCs. The
Create liquidity. To sell the stock of a privateprocess is also not available to entities incorporated
company, a stockholder must find another personunder Subchapter S ("S-Corps"), but only to those
interested in owning the shares. This is especiallyincorporated under Subchapter C ("C-Corps"). It is,
difficult for people who hold minority stock positions.however, available to one-person corporations.
However, by going public, a company creates aOfferings are subject to the laws of not only the
market for its stock in which buyers and sellersstate in which the offering is made, but also the
participate and stock can be freely bought and sold.state in which the company is incorporated. So, while
Generally speaking, stock in a public company is muchfirms incorporated in other states can also do a
more liquid than stock in a private enterprise.Registration-by-Qualification in Nevada, being
Liquidity is important and created primarily for theincorporated in Nevada makes the process
benefit of owners and investors, since they may becost-effective and business-friendly because of its
able to buy or sell the stock more readily once thecorporate laws.
public offering is completed.For instance, most states do not permit two of the
Liquidity can also elevate the value of themost important advantages of state-registered
corporation. Although a stock's liquidity depends on aofferings:o Allowing general advertising and
variety of factors, including:o Registration rightsosolicitation.o Allowing disclosure to be the basis for
Lock-up agreement restrictions**o Holding periodsclearing the state-registered offering.
** Lock-up agreements prohibit company insiders -But Nevada does. In fact, Nevada is one of the few
including employees, their friends and family, andstates that allow companies to take advantage of
venture capitalists - from selling their shares for a setthese benefits without imposing restrictions that
period of time without the underwriter's permission.would make the placement impractical. However, all
While the underwriter can choose to end a lock-upregistered offerings in the state are subject to
period early - whether because of market conditions,clearance by the Securities Division of Nevada.
the performance of the offering, or other factors -2. Prepare prospectus and audit. The prospectus is a
lock-ups generally last for 180 days after thecomplete overview of the company, its business
offering's registration statement becomes effective.model, competitors, management, history, and risks,
A public company has a greater opportunity to sellalong with a summary of the offering and
stock to investors than a private one.o Improvecapitalization of the company following the issuance
compensation. Public companies can use their stockof shares.
and stock option plans to attract and retain talentedAudited financial statements, together with a legal
employees and key personnel - a reward which isopinion, must also be submitted to the state. During
more desirable if the stock has a public market.its review process, the state will often provide
A stock plan for all employees not only demonstratescomment letters, which ask questions or point out
corporate goodwill by allowing them to become partelements of the prospectus that need to be clarified
owners, it can also motivate increased productivity,or explained in more detail.
morale and loyalty by connecting the employees'This process can take months; however, the timing is
financial future to the company's success.largely within your control. It depends, in significant
Well-motivated employees create more efficient andpart, on your ability to promptly respond with the
effective operations, which may translate into higherrequested information.
corporate earnings. These, in turn, potentially, boost3. Conduct the offering. The offering circular and
share price.other required documents must be filed with the
Higher earnings also attract investors because theystate, and specified fees paid. After the documents
lower the price-earnings (P/E) ratio. Investors mayhave been cleared by the state, the small business
buy your stock, which may increase in price underissuer may then go out to the general Nevada public
the economic laws of supply and demand, raising it toand make its securities offering.
a new point of equilibrium.Each company has a minimum and a maximum
A higher stock price may mean a higher net worthoffering amount. All funds are held in escrow until the
for you and for your company's investors.o Gainminimum is reached; if the minimum is not reached,
prestige, credibility and visibility. Status as a publicthen funds are returned to investors. Once the
company is more prestigious than that of a privatemaximum is reached, there can be no additional
company. Don't just think of this as ego strokes;security sales for six months from the data of
there are tangible benefits to you and your businessoffering close, if it is the same type of offering. This
in being a public company.is normally not what happens. For instance, this kind
Ownership of stock in a public company may help theof offering falls under 504 registration rules, and once
principals to eliminate personal guarantees made toyou became public you would normally not do
lenders on behalf of the company.another 504 during the life of the company.
Often, because of the greater transparency andDevelopment-stage companies are subject to
increased credibility of public companies, lenders,additional restrictions.
vendors and suppliers are more apt to do businessWhile there are restrictions on how the offering can
with them.be advertised, generally speaking, any Nevada
A public stock offering enhances a company'sresident can buy shares.
prestige by conveying a perception of stability - aHowever, only an officer or director of the company,
useful tool in recruiting key employees, as well as ina Series 63-licensed Agent of the Issuer, or a
marketing products and services.FINRA-licensed broker/dealer can represent your
Sharing ownership with the public enhances theoffering and sell securities in your behalf.
company's recognition and reputation, and increasesTo qualify as an Agent of the Issuer, an individual
its business opportunities through the heightenedmust pass Nevada's licensed security Series 63 or 66
visibility it gains as a result of having its stock tradingexamination, complete and file its Form U-4 (Uniform
in the public markets.Application for Securities Industry Registration or
Public status can be leveraged when marketing goodsTransfer), and pay a filing fee determined by state
and services. Often, a company's suppliers andregulations, currently $110. The preparation for this
consumers become shareholders, which maylicense takes eight hours of on-line study, and the
encourage continued or even increased business, andexamination is a one-hour test. Most applicants pass
thus offer an advantage over a private enterprise.on the first try.
Lenders and suppliers may perceive the publicLicensed agents and broker/dealers may charge a
company as a safer credit risk, enhancing itscommission of up to 10% on each stock sale;
opportunities for favorable financing terms.officers and directors of the company may not
Public firms tend to have higher profiles than privatereceive a commission.
ones. Therefore, a public offering can generate4. Complete the paperwork. Once the offering is
publicity that is helpful when marketing yourclosed and funds have been released to the issuing
company. This is especially important in industriescompany, the company must promptly sign all
where success requires customers and suppliers toexecuted stock subscription agreements, returning a
make long-term commitments - as is the case in thecopy to each investor.
software industry.A stock certificate, with a CUSIP number, must also
Public companies are more likely to receive mediabe provided to the investor. A CUSIP number is an
attention than are private ones. A strong adindustry code that uniquely identifies stocks and
campaign, coupled with media initiatives, has thebonds and appears on the face of publicly traded
potential to increase sales and revenue, new businesssecurities. The Committee on Uniform Securities
development and strategic alliances. In other words, aIdentification Procedures oversees the entire system,
successful public offering can get your story out towhich is used in Canada and the U.S. These identifiers
the world, and attract the attention of potentialare used to record all stock buy and sell orders.
customers, partners or merger candidates.Typically, some additional forms and paperwork must
Let us not forget the ego strokes. The number ofalso be completed and filed.
public companies is only a small fraction of theIt is important to find a reputable stock transfer
plethora of private firms, so being the CEO of aagent who is experienced at working with small,
public company vaults you into an elite class ofpublicly traded companies to avoid problems on stock
executives. The networking opportunities thisissuance to shareholders, and assure that your
connection creates can pay great social andoffering close goes as cleanly and smoothly as
economic dividends.o Improve opportunities forpossible. Nevada has several stock transfer agency
mergers, acquisitions. Once a company is public andcompanies with excellent reputations.
the market for its stock established, the stock can5. Become a listed company. When the offering has
be considered as valuable as cash when acquiringbeen completed and the company has accepted the
other businesses.subscription agreements, you will want to become a
A successful IPO can have a dramatic effect on afully reporting company with the SEC by the filing of
company's profile, as well as its perceiveda Form 10-SB, and finding a market maker to sponsor
competitiveness and stability. These perceptions canyour company for trade on the OTCBB (see below).
lead to expanded business relationships and addedYou will go effective with in 60 days of filing the
consumer confidence.10SB or Form 10; however, your company will not be
Value assessments of private companies oftenapproved for trading until you clear the comments
reflect illiquidity, which depresses their valuations; butissued by the SEC.
a successful public offering may increase a company'sBefore being cleared to sell their securities and again
valuation. This, in turn, may lead to a variety ofafter the offering has closed, they must file what is
opportunities for mergers and acquisitions.known as a "Form D" with the SEC. Form D is simply
A public company is better able to capitalize on thosea brief notice that includes the names and addresses
opportunities via a return to the public markets forof the company's officers, directors and shareholders,
another offering. With this added ability to raise morebut contains little other information about the
capital, a public company has a better chance tocompany.
finance a cash acquisition.The OTC Bulletin Board is a regulated stock quotation
A public company also has the advantage of usingservice in the U.S., managed by FINRA, for stocks
the market's valuation when exchanging stock in anthat are not listed on one of the major U.S.
acquisition. Legal disclosure requirements offer mergerexchanges. It displays real-time quotes, last-sale
candidates the assurance of shareholder scrutiny andprices, and volume information in over-the-counter
accurate reporting of the financial condition and(OTC) equity securities that do not meet the market
solvency of the public company. Moreover, usingcapitalization, ownership, or other requirements of
stock to acquire another company can be simpler andmajor stock exchanges - or for companies that
less costly than other methods.o Build an exitchoose not to have their shares listed on such
strategy. One of the key benefits of a public offeringexchanges. You can go to to learn more about this
is that the company's stock may eventually becomeregulated stock market.
liquid, offering rewards and financial freedom, as wellWith new rules in place, the OTC Bulletin Board today
as an exit strategy for the founders, employees andis home only to fully reporting companies.
investors.Your company must secure a market maker or
When the time is right for you, you may distributedealer to sponsor it for trade on the OTCBB, The
some of your shares in your company to your heirs,market maker files with FINRA a "Form15c2-11,"
protect your assets using powerful strategieswhich provides all the filings and disclosures that will
available only to owners of private and publicallow a reporting public company's securities to be
companies, and plan for your retirement. Do plan toquoted on the OTCBB.
take advantage of Nevada's asset protection laws,6. The brass ring. Once your company has its ticker
which are some of the best in the country. (Forsymbol and is quoted - perhaps even trading - on the
details, see our white paper "Asset Protection.")oOTCBB, your shareholders will have a potential
Increase personal wealth. There's a psychologicalmarket for the shares they purchased in the
sense of financial success that results from bringingstate-registered direct public offering.
your company public, but the personal benefits areRemember, now that you are a fully reporting
even more tangible. Going public makes you rich - atcompany, you are subject to all of the SEC filing
least on paper.requirements, including, but not limited to:o Annual
Take one example. Founded in 2000 with the ownerreport (Form 10-K)o Annual audit by an independent
working out of his home, a small S corporationaccounting firmo Quarterly reports (Form 10-Q) and
became a C corporation, was capitalized ataccounting reviewso Disclosure of material events
approximately $85,000 and generated revenues of(Form 8-K)o Section 16 filings for officers and
$30,000 for the first year of operations, $131,000 fordirectors disclosing stock ownership in the company
the second.(Forms 3, 4, 13D, 13G).
The owner then decided to seek additional capital forClosing Thoughts
his business.The Nevada Affordable IPO Alternative for SMEs fills
"For years I had watched companies with publiclythe demanding gap in capital-raising between a
traded stock, especially the small ones," he said.friends-and-family private offering and a lengthy,
"Some of them were smaller than my business andexpensive, full-blown, traditional IPO.
yet were listed on the OTCBB." So he thought, "WhyBy making the process available, Nevada has created
not my company?" even though he didn't know athis steppingstone to help small businesses reach the
thing about a state-registered offering at the time."national public capital markets. It allows you to work
Working with a knowledgeable, experienced,through the issues on a smaller, more manageable
Nevada-based consulting firm, the owner filed for ascale first, and can provide the capital needed for the
self-distributed sale of securities via aremainder of the journey.
Registration-by-Qualification in the state of Nevada.The list of benefits - for incorporating in Nevada ... for
He began the process in March 2001, took sixraising capital for your company ... and for getting to
months to complete all the paperwork, and closeda trading platform via the Nevada Affordable IPO
the offering in March 2002.Alternative for SMEs - is long and varied:o
"It's not hard," he said. "It just takes some time toPro-business securities lawso Favorable corporate tax
prepare, and you need to work with people wholawso No corporate taxeso Pro-active positive
know what they're doing."regulations for small businesseso ... and more
According to the owner, his offering raised $105,000On the other hand, the list of potential objections,
from sales of unrestricted common stock at $0.10while not to be taken lightly, is comparatively short.
per share. This brought his company's paid-in capitalObviously it takes time to evaluate such an important
to just under $200,000.decision - time and information. Although this white
With hard work and the boost gained from its publicpaper is a good start, if you're seriously interested
status, his company's 2002 revenues jumped toyou might want to contact an experienced,
$209,000. By 2004, the company's year-endknowledgeable and reputable consultant who can
revenues had reached approximately $550,000,inform you in depth and guide you through your next
according to the owner.steps, whatever they might be.