VAPE.LIQUID The Nevada IPO Alternative For Small Business Entities

You don’t have to be rich to start your own company. In fact, about 17% of all businesses now worth more than $1 million were launched with less than $5,000, according to Wachovia (NYSE: WB), America’s fourth largest bank by assets.

Still, for your company to survive and grow, you need capital. Your savings, credit cards, loans and investments from family and friends can take you only so far.

But in the lingering wake of the dot-com debacle, it’s a particularly tough market out there. “Today, even veteran CEOs are having a hard time raising funds, and what money they do raise comes with a lot of strings attached,” said Jill Andresky Fraser, finance editor of Inc magazine.

Venture capitalists have, for the most part, vacated the $500,000 to $5 million-investment range, leaving a huge gap for SMEs that seek an infusion of capital at those levels.

SBA study numbers indicate that more than half (56,000) of the 100,000 small businesses requiring equity capital to execute their business plans are unable to raise what they need through traditional approaches and private sources. And a full-scale, national-level, Independent Public Offering (IPO) is too lengthy and costly for most small businesses, assuming they can even meet all the requirements.

So, what’s the answer?

One answer – an increasingly popular, but less-well-known strategy for financing SME growth – is presented in this white paper:

Forming a Nevada corporation and, with no minimum investment required, bringing your corporation public, raising up to $1 million initially (later you have the prospect of raising more) by means of a Registration-by-Qualification Offering in the state of Nevada, in which you sell unrestricted shares that can generally be sold to any Nevada resident.

Why Incorporate in Nevada?

Some of the tax and operating benefits mentioned in this section may depend upon provisions of your corporate bylaws or require you to live in and/or maintain a business office in Nevada. So, it is best to check with your accountant and legal counsel to determine which of the many tax and other benefits mentioned in this section apply specifically to you, and to what extent.

That said, however, Nevada is widely acknowledged to be the corporate capital of the United States because of its well-established reputation for business-friendly laws: no corporate income tax – even on Nevada corporations that do not conduct business in Nevada – no taxes on corporate shares, and no franchise or personal income tax, either.

Nevada assesses no inheritance or gift tax, no admissions tax, no unitary tax, and virtually no estate tax.

Its regulations offer flexibility to directors, which need not be stockholders, in managing corporate affairs; and they permit management to establish strong protection from hostile takeovers.

Unlike other states, Nevada permits a corporation’s articles of incorporation to vest authority to adopt, amend or repeal bylaws exclusively with the board of directors, thus denying shareholders the ability to change the bylaws.

Nevada has nominal annual business fees, competitive sales and property tax rates, minimal reporting and disclosure requirements, minimal requirements for capital, a minimal employer payroll tax rate – 0.7% of gross wages, with deductions for employer-paid health insurance – and no information-sharing agreement with the I.R.S.

Nevada, unlike many other states, allows one-person corporations.

Business litigation runs on a faster, more efficient track than in other states because Nevada maintains a court system for business. Moreover, officers and directors of Nevada corporations gain lawsuit protection because they can be protected from personal liability for lawful acts of the corporation.

Nevada corporations may purchase, hold, sell or transfer shares of their own stock, and may issue stock for capital, services, personal property, or real estate, including leases and options. The directors may determine the value of any of these transactions, and their decision is final.

The state’s package of economic development incentive programs includes:

o Sales and Use Tax Deferral Program

o Sales and Use Tax Abatement

o Modified Business Tax Abatement

o Property Tax Abatement

o Train Employees Now (TEN)

o Renewable Energy Abatements

As a result, many major corporations are chartered in Nevada – particularly corporations whose headquarters are located in California and other western states.

According to statistics from the Nevada Secretary of State, 300,000 companies are currently incorporated in Nevada, with new Nevada corporations showing a consistent uptrend over the past three years:

– all evidence of Nevada’s growing popularity as a home for American corporations.

What’s the Upside of Going Public?

o Raise capital. Going public is often the best way for a successful business to raise capital. If your cash flow isn’t generating the capital you need to grow your business, taking your company public allows others who believe in your potential to demonstrate their support of your goals by tapping their wallets.

A public offering of your company’s stock can result in raising significantly more capital than a private placement because it may allow the offer and sale of securities to a broader group of potential investors.

If a company needs to raise more capital later, it can always sell stock (equity) or issue bonds (debt securities). And, subject to the requirements of individual lenders, publicly traded stock can be used as collateral to secure loans.

Going public in Nevada requires that only a reasonable amount of the company’s ownership be put into play for public investors.

Compare this to the ownership stake venture capitalists typically require for their investments – sometimes upwards of 90%, not to mention their rigorous management controls and required representation on the board of directors – and you see how substantial ownership can be preserved via the Nevada state-registered offering process.

o Create liquidity. To sell the stock of a private company, a stockholder must find another person interested in owning the shares. This is especially difficult for people who hold minority stock positions.

However, by going public, a company creates a market for its stock in which buyers and sellers participate and stock can be freely bought and sold. Generally speaking, stock in a public company is much more liquid than stock in a private enterprise.

Liquidity is important and created primarily for the benefit of owners and investors, since they may be able to buy or sell the stock more readily once the public offering is completed.

Liquidity can also elevate the value of the corporation. Although a stock’s liquidity depends on a variety of factors, including:

o Registration rights

o Lock-up agreement restrictions**

o Holding periods

** Lock-up agreements prohibit company insiders – including employees, their friends and family, and venture capitalists – from selling their shares for a set period of time without the underwriter’s permission. While the underwriter can choose to end a lock-up period early – whether because of market conditions, the performance of the offering, or other factors – lock-ups generally last for 180 days after the offering’s registration statement becomes effective.

A public company has a greater opportunity to sell stock to investors than a private one.

o Improve compensation. Public companies can use their stock and stock option plans to attract and retain talented employees and key personnel – a reward which is more desirable if the stock has a public market.

A stock plan for all employees not only demonstrates corporate goodwill by allowing them to become part owners, it can also motivate increased productivity, morale and loyalty by connecting the employees’ financial future to the company’s success.

Well-motivated employees create more efficient and effective operations, which may translate into higher corporate earnings. These, in turn, potentially, boost share price.

Higher earnings also attract investors because they lower the price-earnings (P/E) ratio. Investors may buy your stock, which may increase in price under the economic laws of supply and demand, raising it to a new point of equilibrium.

A higher stock price may mean a higher net worth for you and for your company’s investors.

o Gain prestige, credibility and visibility. Status as a public company is more prestigious than that of a private company. Don’t just think of this as ego strokes; there are tangible benefits to you and your business in being a public company.

Ownership of stock in a public company may help the principals to eliminate personal guarantees made to lenders on behalf of the company.

Often, because of the greater transparency and increased credibility of public companies, lenders, vendors and suppliers are more apt to do business with them.

A public stock offering enhances a company’s prestige by conveying a perception of stability – a useful tool in recruiting key employees, as well as in marketing products and services.

Sharing ownership with the public enhances the company’s recognition and reputation, and increases its business opportunities through the heightened visibility it gains as a result of having its stock trading in the public markets.

Public status can be leveraged when marketing goods and services. Often, a company’s suppliers and consumers become shareholders, which may encourage continued or even increased business, and thus offer an advantage over a private enterprise.

Lenders and suppliers may perceive the public company as a safer credit risk, enhancing its opportunities for favorable financing terms.

Public firms tend to have higher profiles than private ones. Therefore, a public offering can generate publicity that is helpful when marketing your company. This is especially important in industries where success requires customers and suppliers to make long-term commitments – as is the case in the software industry.

Public companies are more likely to receive media attention than are private ones. A strong ad campaign, coupled with media initiatives, has the potential to increase sales and revenue, new business development and strategic alliances. In other words, a successful public offering can get your story out to the world, and attract the attention of potential customers, partners or merger candidates.

Let us not forget the ego strokes. The number of public companies is only a small fraction of the plethora of private firms, so being the CEO of a public company vaults you into an elite class of executives. The networking opportunities this connection creates can pay great social and economic dividends.

o Improve opportunities for mergers, acquisitions. Once a company is public and the market for its stock established, the stock can be considered as valuable as cash when acquiring other businesses.

A successful IPO can have a dramatic effect on a company’s profile, as well as its perceived competitiveness and stability. These perceptions can lead to expanded business relationships and added consumer confidence.

Value assessments of private companies often reflect illiquidity, which depresses their valuations; but a successful public offering may increase a company’s valuation. This, in turn, may lead to a variety of opportunities for mergers and acquisitions.

A public company is better able to capitalize on those opportunities via a return to the public markets for another offering. With this added ability to raise more capital, a public company has a better chance to finance a cash acquisition.

A public company also has the advantage of using the market’s valuation when exchanging stock in an acquisition. Legal disclosure requirements offer merger candidates the assurance of shareholder scrutiny and accurate reporting of the financial condition and solvency of the public company. Moreover, using stock to acquire another company can be simpler and less costly than other methods.

o Build an exit strategy. One of the key benefits of a public offering is that the company’s stock may eventually become liquid, offering rewards and financial freedom, as well as an exit strategy for the founders, employees and investors.

When the time is right for you, you may distribute some of your shares in your company to your heirs, protect your assets using powerful strategies available only to owners of private and public companies, and plan for your retirement. Do plan to take advantage of Nevada’s asset protection laws, which are some of the best in the country. (For details, see our white paper “Asset Protection.”)

o Increase personal wealth. There’s a psychological sense of financial success that results from bringing your company public, but the personal benefits are even more tangible. Going public makes you rich – at least on paper.

Take one example. Founded in 2000 with the owner working out of his home, a small S corporation became a C corporation, was capitalized at approximately $85,000 and generated revenues of $30,000 for the first year of operations, $131,000 for the second.

The owner then decided to seek additional capital for his business.

“For years I had watched companies with publicly traded stock, especially the small ones,” he said. “Some of them were smaller than my business and yet were listed on the OTCBB.” So he thought, “Why not my company?” even though he didn’t know a thing about a state-registered offering at the time.”

Working with a knowledgeable, experienced, Nevada-based consulting firm, the owner filed for a self-distributed sale of securities via a Registration-by-Qualification in the state of Nevada.

He began the process in March 2001, took six months to complete all the paperwork, and closed the offering in March 2002.

“It’s not hard,” he said. “It just takes some time to prepare, and you need to work with people who know what they’re doing.”

According to the owner, his offering raised $105,000 from sales of unrestricted common stock at $0.10 per share. This brought his company’s paid-in capital to just under $200,000.

With hard work and the boost gained from its public status, his company’s 2002 revenues jumped to $209,000. By 2004, the company’s year-end revenues had reached approximately $550,000, according to the owner.

“We had good growth, positive cash flow, visibility and networking opportunities that translated into the kind of sales we’d never have gotten if we hadn’t gone public,” he said.

“People who invested with me had a chance to make money – doubling and tripling their investments within a relatively short period of time,” he added. “As for me, personally, it was a wealth builder – a good, wealth-building mechanism that also benefited my family and children.”

And the Downside of Going Public?

o Need to share profits. If your firm is a highly successful venture, future success (and profit) has to be shared with outsiders. After the typical traditional IPO, for example, about 40% of the company remains with insiders, but this can vary from 1% to 88%, with 20% to 60% falling within the “comfortably normal” range. (A Registration-by-Qualification, however, virtually eliminates this drawback.)

o Loss of confidentiality. A major reason firms resist going public is the loss of confidentiality in company operations and policies. For instance, some businesses could be destroyed if they were to disclose their technologies or profitability to competitors.

Public companies must also disclose names and company addresses of officers and directors, along with considerable other data about the corporation and its operations.

o Reporting and fiduciary responsibilities. Public companies must continuously file reports with the SEC. They must comply with certain state securities laws (“blue sky” laws), plus guidelines of FINRA (Financial Industry Regulatory Authority, formerly known as NASD). These disclosures cost money and provide information to competitors.

o Potential Loss of control. Outsiders are often in a position to take control of corporate management and might even fire the entrepreneur/company founder. While there are effective anti-takeover measures (especially as allowed in Nevada), investors are unwilling to pay a high price for a company in which poor management cannot be replaced. (Again, with the Nevada IPO Alternative for SMEs, there need be no loss of control.)

o IPO expenses. An initial public offering is a costly undertaking. A typical firm may spend 15% to 25% of the money raised on direct expenses. Even more resources are spent indirectly in terms of, for example, management time and disruption of business.

With a successful capital campaign, these expenses are paid out of new capital received. However, if your campaign goals are not met, you may not raise enough capital to cover the costs of doing the IPO. In that case, the shortfall comes out of your pocket.

o Increased liability. The company, its management and other participants may be subject to liability for false or misleading statements and omissions in the registration documents or in the reports filed by the company after it becomes public.

In addition, management may be subject to lawsuits by the stockholders for breaches of fiduciary duty, self-dealing and other claims, whether true or not.

However, here, too, Nevada does a good job of keeping these vulnerabilities to a minimum.

o The challenge. Selling your own stock to family, friends and business associates is a challenge. You will need a number of independent investors willing to purchase your shares and a market maker (see below) willing to accept your stock.

Why Should I Consider the Nevada IPO Alternative for SMEs?

The Nevada IPO Alternative for SMEs extends the upside of going public and minimizes – in some cases negates – the downside.

It allows your company to approach prospective investors (including customers) by means of:

o Cold-calling

o Newspaper advertisement

o Direct mail

o Radio

o Internet radio/podcasting

o Seminars

Although most states allow state-registered offerings, they impose so many restrictions that small businesses find the process impractical to pursue.

Nevada, however, has a straightforward process known as “registration by qualification” that is quite friendly to business, especially small business.

Some of the most important features of a registration by qualification in Nevada are:

o You can sell securities to an unlimited number of both accredited and unaccredited investors, so long as purchasers are either Nevada residents or certain qualified visitors from out of state.

o You can use general solicitation or advertising to market the securities, but you may only distribute prospectuses within Nevada (subject to possible additional restrictions).

o You can use general solicitation or advertising to market the securities, but you may only distribute prospectuses within Nevada (subject to possible additional restrictions). Holding a seminar to sell your securities is allowed. And you may also hold the seminar at one of the hotels and sell the securities to visitors who did not come to Nevada to purchase securities. This is a wide-open possibility for stock distribution.

o When the offering has been closed and the securities (normally common stock) have been issued and rest in the hands of an investor, they are considered to be “free trading.”

o Free-trading stock status allows the company to apply for quotation on a medium such as the Over the Counter Bulletin Board (OTCBB – see later explanation of this venue).

o You may hire what is called a Series 63 agent and pay him a commission to raise up to $1 million within the state,.

o You may also raise the funds on your own by marketing the stock to your database or the general public.

o The possibility of becoming public in half the time of any other type of self-distribution program with stock is increased by the use of Nevada’s RBQ process, allowing for the distribution of free-trading stock and filing of Form 10 instead of other registration statements.

o This also allows you to file a 15c211 directly with the OTCBB Compliance Unit, and bypass corporate finance requirements.

How Does the Nevada IPO Alternative for SMEs Work?

Here are the basic steps involved in a Registration by Qualification and getting to traded status, but it’s best to commission qualified consultants or advisors to help you through the process.

1. Form a Nevada corporation. Registration by Qualification is only available to corporations that can issue stock – not to partnerships nor LLCs. The process is also not available to entities incorporated under Subchapter S (“S-Corps”), but only to those incorporated under Subchapter C (“C-Corps”). It is, however, available to one-person corporations.

Offerings are subject to the laws of not only the state in which the offering is made, but also the state in which the company is incorporated. So, while firms incorporated in other states can also do a Registration-by-Qualification in Nevada, being incorporated in Nevada makes the process cost-effective and business-friendly because of its corporate laws.

For instance, most states do not permit two of the most important advantages of state-registered offerings:

o Allowing general advertising and solicitation.

o Allowing disclosure to be the basis for clearing the state-registered offering.

But Nevada does. In fact, Nevada is one of the few states that allow companies to take advantage of these benefits without imposing restrictions that would make the placement impractical. However, all registered offerings in the state are subject to clearance by the Securities Division of Nevada.

2. Prepare prospectus and audit. The prospectus is a complete overview of the company, its business model, competitors, management, history, and risks, along with a summary of the offering and capitalization of the company following the issuance of shares.

Audited financial statements, together with a legal opinion, must also be submitted to the state. During its review process, the state will often provide comment letters, which ask questions or point out elements of the prospectus that need to be clarified or explained in more detail.

This process can take months; however, the timing is largely within your control. It depends, in significant part, on your ability to promptly respond with the requested information.

3. Conduct the offering. The offering circular and other required documents must be filed with the state, and specified fees paid. After the documents have been cleared by the state, the small business issuer may then go out to the general Nevada public and make its securities offering.

Each company has a minimum and a maximum offering amount. All funds are held in escrow until the minimum is reached; if the minimum is not reached, then funds are returned to investors. Once the maximum is reached, there can be no additional security sales for six months from the data of offering close, if it is the same type of offering. This is normally not what happens. For instance, this kind of offering falls under 504 registration rules, and once you became public you would normally not do another 504 during the life of the company. Development-stage companies are subject to additional restrictions.

While there are restrictions on how the offering can be advertised, generally speaking, any Nevada resident can buy shares.

However, only an officer or director of the company, a Series 63-licensed Agent of the Issuer, or a FINRA-licensed broker/dealer can represent your offering and sell securities in your behalf.

To qualify as an Agent of the Issuer, an individual must pass Nevada’s licensed security Series 63 or 66 examination, complete and file its Form U-4 (Uniform Application for Securities Industry Registration or Transfer), and pay a filing fee determined by state regulations, currently $110. The preparation for this license takes eight hours of on-line study, and the examination is a one-hour test. Most applicants pass on the first try.

Licensed agents and broker/dealers may charge a commission of up to 10% on each stock sale; officers and directors of the company may not receive a commission.

4. Complete the paperwork. Once the offering is closed and funds have been released to the issuing company, the company must promptly sign all executed stock subscription agreements, returning a copy to each investor.

A stock certificate, with a CUSIP number, must also be provided to the investor. A CUSIP number is an industry code that uniquely identifies stocks and bonds and appears on the face of publicly traded securities. The Committee on Uniform Securities Identification Procedures oversees the entire system, which is used in Canada and the U.S. These identifiers are used to record all stock buy and sell orders.

Typically, some additional forms and paperwork must also be completed and filed.

It is important to find a reputable stock transfer agent who is experienced at working with small, publicly traded companies to avoid problems on stock issuance to shareholders, and assure that your offering close goes as cleanly and smoothly as possible. Nevada has several stock transfer agency companies with excellent reputations.

5. Become a listed company. When the offering has been completed and the company has accepted the subscription agreements, you will want to become a fully reporting company with the SEC by the filing of a Form 10-SB, and finding a market maker to sponsor your company for trade on the OTCBB (see below). You will go effective with in 60 days of filing the 10SB or Form 10; however, your company will not be approved for trading until you clear the comments issued by the SEC.

Before being cleared to sell their securities and again after the offering has closed, they must file what is known as a “Form D” with the SEC. Form D is simply a brief notice that includes the names and addresses of the company’s officers, directors and shareholders, but contains little other information about the company.

The OTC Bulletin Board is a regulated stock quotation service in the U.S., managed by FINRA, for stocks that are not listed on one of the major U.S. exchanges. It displays real-time quotes, last-sale prices, and volume information in over-the-counter (OTC) equity securities that do not meet the market capitalization, ownership, or other requirements of major stock exchanges – or for companies that choose not to have their shares listed on such exchanges. You can go to to learn more about this regulated stock market.

With new rules in place, the OTC Bulletin Board today is home only to fully reporting companies.

Your company must secure a market maker or dealer to sponsor it for trade on the OTCBB, The market maker files with FINRA a “Form15c2-11,” which provides all the filings and disclosures that will allow a reporting public company’s securities to be quoted on the OTCBB.

6. The brass ring. Once your company has its ticker symbol and is quoted – perhaps even trading – on the OTCBB, your shareholders will have a potential market for the shares they purchased in the state-registered direct public offering.

Remember, now that you are a fully reporting company, you are subject to all of the SEC filing requirements, including, but not limited to:

o Annual report (Form 10-K)

o Annual audit by an independent accounting firm

o Quarterly reports (Form 10-Q) and accounting reviews

o Disclosure of material events (Form 8-K)

o Section 16 filings for officers and directors disclosing stock ownership in the company (Forms 3, 4, 13D, 13G).

Closing Thoughts

The Nevada Affordable IPO Alternative for SMEs fills the demanding gap in capital-raising between a friends-and-family private offering and a lengthy, expensive, full-blown, traditional IPO.

By making the process available, Nevada has created this steppingstone to help small businesses reach the national public capital markets. It allows you to work through the issues on a smaller, more manageable scale first, and can provide the capital needed for the remainder of the journey.

The list of benefits – for incorporating in Nevada … for raising capital for your company … and for getting to a trading platform via the Nevada Affordable IPO Alternative for SMEs – is long and varied:

o Pro-business securities laws

o Favorable corporate tax laws

o No corporate taxes

o Pro-active positive regulations for small businesses

o … and more

On the other hand, the list of potential objections, while not to be taken lightly, is comparatively short.

Obviously it takes time to evaluate such an important decision – time and information. Although this white paper is a good start, if you’re seriously interested you might want to contact an experienced, knowledgeable and reputable consultant who can inform you in depth and guide you through your next steps, whatever they might be.

Source by Stephen Brock

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