Raising Up to $5 Million With an Internet Direct Public Offering

This handout is a primer only: it does not cover all of the many details concerning these exemptions and it generalizes in many places. You should not rely on this article as legal advice.

Why do a DPO (Direct Public Offering)?

Venture capital firms increasingly do not want to handle fund- raising of less than $5 million. In addition, the price of venture capital is often loss of control of the business. With DPO's, the founders can frequently retain control.

IPO's (Initial Public Offerings) are very expensive and time consuming because the securities must be fully registered on the state and federal levels. (Often it takes two years or more and the costs frequently exceed $250,000.) It IS possible to sell stock if the offering falls within an exemption to the registration requirements. The problem is that exemptions to registration generally don't allow any advertising. The primary exceptions are two types of DPO's:

  • SCOR, the Small Corporate Offering Registration exemption (also known as the Uniform Limited Offering Registration or ULOR), and
  • The California 25102(n) exemption, which does not have a catchy name, but which might be called the Qualified Purchaser DPO.

SCOR Offerings for California Companies

Advantages

  • The company can raise up to $1 million in 12 months.
  • Limited public advertising is permitted, but caution should be used.
  • There is no limit on the number or qualification of investors.
  • If the offering is "open" resale is not restricted. (A limited qualification is restricted to specified qualified investors.)

Restrictions on types of companies

  • The company cannot be a "blind pool" or "blank check" company (basically a company that has no specific business plan or purpose or that intends to merge with or acquire unidentified entities).
  • The company cannot be an investment company (primarily engaged in investing in securities of other companies or with 40% of assets invested in other companies).
  • Certain oil, gas or mineral companies cannot use the exemption.

Requirements

  • The minimum price is five dollars ($5) per share.
  • Only one class of stock is permitted.
  • There can be no stock splits, stock dividends, spinoffs, or mergers for a period of two years from the close of the offering
  • The net proceeds from the offering must be expended in the operations of the business (not, for example, for retirement of debt).

Financials

  • Financials must be audited and unqualified for an open qualification. (Again, a limited qualification is restricted to specified qualified investors.)
  • However, small business issuers (revenues of less than $12.5 million with more than half of the shareholders in California and meeting certain financial formulas) selling not more than $500,000 worth of stock may be able to use financials that are merely reviewed, even with an open qualification.

25102(n) Offerings for California Companies

Advantages

  • The company can raise up to $5 million.
  • Unaudited financials are permitted.
  • There is no minimum share price.
  • There is no limit on the number of investors.
  • The company can use "test the waters" advertising with little restriction prior to an offering to gauge interest.

Restrictions on types of companies

  • "Blind pool" ("blank check") companies and investment companies and certain oil, gas or mineral companies cannot use the exemption.

Requirements

  • Only one class of stock is allowed.
  • An announcement (tombstone) of the offering may be publicly advertised. However, only a brief description of the business of the issuer is allowed. (No financials, projections etc.) More specifically the following items are required:
    (1) The name of the issuer of the securities.
    (2) The full title of the security to be issued.
    (3) The anticipated suitability standards for prospective purchasers.
    (4) A statement that: (a) no money or other consideration is being solicited or will be accepted; (b) an indication of interest made by a prospective purchaser involves no obligation or commitment of any kind; and (c) no sales will be made or commitment to purchase accepted until five business days after delivery of a disclosure statement and subscription information to the prospective purchaser in accordance with the requirements.
    (5) The following legend: "For more complete information about (Name of Issuer) and (Full Title of Security), send for additional information from (Name and Address) by sending this coupon or calling (Telephone Number)." In addition, the announcement may also provide the following information:
    (6) A brief description of the business of the issuer.
    (7) The geographic location of the issuer and its business.
    (8) The price of the security to be issued, or, if the price is not known, the method of its determination or the probable price range as specified by the issuer, and the aggregate offering price.
  • Actual sales (and telephone or other contact) may only be made to "Qualified Purchasers" or to officers, directors and their spouses. Qualified Purchasers are businesses with more than $5 million dollars in assets, and individuals with either: (a) a minimum net worth (in conjunction with their spouses) of $250,000 and gross income in excess of $100,000 or (b) a minimum net worth of $500,000.

The value of the home must be excluded in both cases. Moreover, the amount of the investment of each individual cannot exceed 10 percent of the net worth of the individual.

Financials

Unaudited financials are allowed only for a limited (vs. an open) offering.

Selling across state lines

Other states.

  • Generally you have to file forms in each state where you make sales.

Regional registration of SCOR is possible.

  • If sales in another state are minimal, you may be able to get a waiver from the securities administrator.

Federal filing is required if you sell across state lines.

  • For less than $1 million, Regulation D (Rule 504; Form D) is often used.
  • For less than $5 million Regulation A (Form 1-A) is often used.

Electronic delivery of the prospectus

You must obtain the investor's informed consent that the investor wishes to receive the document electronically and be able to prove that the investor in fact has successfully received it.

Financials

Audited financials may be needed to attract qualified investors, to allow the shares to be freely traded or to allow listing on a stock exchange.

Listing methods

Ways to get word out on the offering (where the securities laws allow them):

  • Electronic press release companies, such as Business Wire and PR Wire, can issue a press release listing the offering Web site.
  • ACE-net (operated by the Small Business Administration) charges only $450 per year to list a SCOR offering http://acenet.csusb.edu/.

Mail can be sent to customers, vendors, potential joint venturers.

Brokers can be used; they will charge 7 to 20 percent in commissions.

Liquidity.

Questions

How long does it take to do the paperwork and get the money?

It varies, but generally four to six weeks on the paperwork, and 90 to 120 days to raise the money.

How easy is it to trade DPO stock?

It depends, but investors need to understand that it is nowhere near as easy as selling stock in a publicly traded company.

What's the cost?

This depends greatly on whether the amount is less than $1 million or less than $5 million, on the state where the company is located, on the states where sales will be made, etc. However figure $10,000 to $30,000 in attorneys' fees and filing costs. (Accounting fees are extra.)

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Methven & Associates
2232 Sixth Street Berkeley, CA 94710
Phone: (510) 649-4019 Fax: (510) 649-4024
Web Site: www.methvenlaw.com
Copyright 2004 Bruce E. Methven, All Rights Reserved.

The foregoing article constitutes general information only and should not be relied upon as legal advice.