The SEC created Regulation D, which creates certain rules for private offerings. By following these rules, an issuer (i.e. a company selling stock, LLC units, partnership interest, notes, or other forms of a security to raise capital) generally may raise capital without a public offering.

Generally, a private offering may have no more than 35 investors. On the federal level, though, certain high-net-worth investors defined as “accredited investors” may be excluded when calculating the number of investors. There must also be NO general solicitation of investors by the issuer – no advertising. Just this weekend I came across someone soliciting the “private” sale of securities on Twitter – definitely not a good idea if you are trying to comply with the registration exemptions under Regulation D.

The federal securities laws for both public and private offerings are based on the premise that investors in securities are best protected by the disclosure of all relevant information regarding the securities and the issuer. The underlying guideline in this respect is Rule 10b-5, which requires the issuer to disclose to investors anything material that a reasonable investor would want to know prior to making a decision to invest. This is why PPMs are stocked to the brim full of material facts, disclaimers, and lots and lots of risk factors. Failure to properly include these and other items may subject the issuer to serious liability, including being forced to buy back the securities from the investor, as well as damages. If you want to avoid liability, overdisclose, do not hide anything, and do not mislead (among other things of course).

Keep in mind that there are also state “blue sky” laws to comply with – and they will need to be complied with in every state that a security is offered and/or sold.

There are lots and lots of land-mines to avoid when raising money in a private offering – so make sure to consult a private placement attorney / securities law attorney before you raise capital for your business. Also, I may be a lawyer, but the above is not legal advice!

Related posts:

1. Private Placements – A Brief Overview of Rule 505
2. Private Placements – A Brief Overview of Rule 504
3. Private Placement – A Brief Overview of Rule 506

• IP Ownership – make sure it can be transferred to the startup.
• Choice of Entity – choose carefully.  They recommend a corporation instead of an LLC.  I disagree on a certain level, as I have stated before on this blog and my Indiana Law Practice Blog.
• Place of Incorporation – they say Delaware.  Again, I disagree to an extent (see this post).
• Vesting Restrictions – make sure founders stock vest over time, otherwise you run the risk of a founder leaving early on and keeping all of his /her stock.
• Securities Law Compliance – beware of not complying when issuing any securities to anyone, no matter who they are.
• Legalzoom – avoid like the plague.  Hire an attorney!

Related posts:

1. Should Founders Assign IP to Their Tech Startups?
2. Thinking about incorporating your business? Look no further than your home state.
3. What state should your business incoporate in?

1. 

   Don't expect a one page agreement.

   Venture Capital Term Sheet - These are typically non-binding outlines of the terms of a venture capital deal.  Don’t let the “non-binding” portion fool you, though.  Terms laid out in a term sheet serve as the basis for all future negotiations, and any attempt to deviate from those terms will not be met kindly during deal negotiations.

2. Stock Purchase Agreement – This is the definitive agreement setting forth the terms of the venture capital investment, such as the purchase price, the closing date, and the conditions surrounding the issuance of stock – which more likely than not will be preferred stock.   There will also be numerous representation and warranty provisions, among other provisions, that will need to be carefully crafted by a venture capital attorney.
3. An Amendment to the Bylaws – Assuming the company is a corporation and that the VC is conditioning its investment on the receipt of preferred stock (which it likely will), the bylaws of the corporation will need to be amended.  This amendment will create a new class of preferred stock and will include anti-dilution provisions. dividend rights, liquidation rights and conversion rights.  Some states require a “Certificate of Designation” to accomplish this, rather than an amendment to the bylaws.
4. Right of First Refusal / Voting Agreement – This agreement will grant the VC a right of first refusal to purchase any shares in the company that come available for sale.  It will also likely contain a number of restrictions on the transfer of common stock, as well as tag-along rights allowing the VC to participate in the sale of any common shares.  Finally, there will likely be a voting agreement requiring that the common shareholders elect the VC’s nominee(s) to the company’s board of directors.
5. Consulting Agreement – Often times a VC will require payment of a monthly fee by the company in return for certain management services provided by the VC.

These are just a few of the documents that a company might normally expect to see during the process of raising capital.  As always, you should consult an attorney with knowledge of the venture capital process.

What do you think?  Anything else to add to the checklist

Related posts:

1. Raising Venture Capital – How Much Should You Give Up?
2. Raising Venture Capital – What form of entity should I choose?
3. Good News for Start-ups – Venture Capital Investments on the Upswing!

Here are some excerpts quoting yours truly:

Still, Indiana business attorney Brian Powers, who also runs the blog http://Indianastartup.com, points out that such a power-sharing arrangement can work-it just depends upon the individual circumstances of the parties involved. “Investor control is not necessarily a bad thing, especially if you have a young business that will be gaining partners that have greater industry expertise and business connections than you do,” he explains. But if a business owner can’t take an emotionally detached look at his company’s real long-term needs, he or she might be better served by bringing in a third party to help facilitate offers and find the best match. “That’s what I often do,” Powers explains. “I end up helping companies through the process of figuring out that what they’re usually being offered is a pretty good tradeoff for the money.”

What helps Powers assess what is or isn’t a pretty good tradeoff is the fact that he’s been on the other side of the table. “In 1998, I was part of a dot-com startup company that raised $1 million in capital through an equity round,” he explains. “Back then, though, we got ridiculous valuations and didn’t have to give up control to get it. Those days are long gone now.” For a short primer on these valuations and their role in determining equity investment, check out Powers’ blog: http://indianastartup.com/business-funding/raising-venture-capital/raising-venture-capital-how-much-should-you-give-up/.)

Related posts:

1. Raising Venture Capital – How Much Should You Give Up?
2. Financing Your Business – SBA Interest Free Loan Program
3. Raising Venture Capital – A Checklist of Documents.

As always, make sure you get the advice of a securities attorney with private placement experience. There are lots of complicated regulatory requirements to comply with, both on the state and federal level.   A private placement attorney can help you navigate the regulations and to draft your private placement memorandum.

Related posts:

1. Private Placements – A Brief Overview of Rule 505
2. Private Placements – A Brief Overview of Rule 504
3. Private Placements – A Brief Overview of Raising Capital with a PPM

As always, make sure you get the advice of a securities attorney with private placement experience.   There are lots of complicated regulatory requirements to comply with, both on the state and federal level.   A private placement attorney can help you navigate the regulations and to draft your private placement memorandum.

Related posts:

1. Private Placement – A Brief Overview of Rule 506
2. Private Placements – A Brief Overview of Rule 504
3. Private Placements – A Brief Overview of Raising Capital with a PPM

a bank, insurance company, registered investment company, business development company, or small business investment company;

an employee benefit plan, within the meaning of the Employee Retirement Income Security Act, if a bank, insurance company, or registered investment adviser makes the investment decisions, or if the plan has total assets in excess of $5 million;

a charitable organization, corporation, or partnership with assets exceeding $5 million;

a director, executive officer, or general partner of the company selling the securities;

a business in which all the equity owners are accredited investors;

a natural person who has individual net worth, or joint net worth with the person’s spouse, that exceeds $1 million at the time of the purchase [08/05/2010 - See this link for a recent change to this portion of the definition];

a natural person with income exceeding $200,000 in each of the two most recent years or joint income with a spouse exceeding $300,000 for those years and a reasonable expectation of the same income level in the current year; or

a trust with assets in excess of $5 million, not formed to acquire the securities offered, whose purchases a sophisticated person makes.

In addition to understanding what it means to be an accredited investor, it is also important to understand how accredited investor status relates to the most common exemptions from the registration requirements of federal securities law. In a nutshell:

• Rule 504 permits allows a business to sell up to $1 Million in securities during a 12 month period to an unlimited number of non-accredited investors. Additionally, Rule 504 does not require the issuer to provide any specific disclosure to the offerees, regardless of whether they are accredited (but keep in mind the anti-fraud requirements).
• Rule 505 allows a business to sell up to $5 million in securities during a 12 month period to an unlimited number of accredited investors, and up to 35 non-accredited investors.  The big problem with selling to non-accredited investors is that the disclosure requirements are significantly more difficult to meet – very similar to the disclosures required in a public offering.
• Rule 506 allows a business to raise an unlimited amount of capital via the sale of securities to an unlimited number of accredited investors, and up to 35 non-accredited investors.  In addition to the substantial disclosure requirements discussed above for Rule 505, any non-accredited investors must also meet a “sophistication” standard, either themselves or via a qualified purchaser’s representative.  The status of an investor as “sophisticated” is a fairly high standard; investors who are merely knowledgeable about the particular industry are not necessarily sophisticated.

As you can see, raising capital from non-accredited investors puts a start-up in a much more tenuous position in terms of disclosure – which means substantially more legal and accounting fees.  Non-accredited investors also tend to be more difficult to deal with in the long term.  Consider carefully the decision to raise capital using non-accredited investors – and of course consult with a securities attorney.

One other thing to keep in mind is that the burden of establishing whether an investor is an accredited investor falls on the issuing company.  At a minimum, the issuing company must reasonably believe that the investor falls into one of the 8 categories in the definition of “accredited investor.”  This is typically accomplished using a carefully drafted investor questionnaire – make sure you use one and that you consult a securities attorney.

Related posts:

1. Private Placements – A Brief Overview of Rule 505
2. Private Placement – A Brief Overview of Rule 506
3. Private Placements – A Brief Overview of Raising Capital with a PPM

• Total deal value in Q2 of 2009 was $5.329 billion – up from $3.314 billion on Q2 2009.
• VC’s are investing across a wide geographic base – including Indiana.
• Venture Capital IS available for early stage companies – in fact – 35% of the deals in the report consitsed of seed funding or Series A rounds.
• Healthcare investments were – well – healthy.  Healthcare investments made up 37% of the deals in the report.

You can read the entire blog post here, or check out a PDF of the entire report below.

Related articles by Zemanta

• Startups: Venture Capital is Back! (startupprofessionals.com)
• Do You Really Even Need VC? (cloudave.com)
• Venture Capitalist Activity Up 61% in Q2 2009. Is the Worst Over? (myventurepad.com)
• Where Entrepreneurs Can Still Find Private Capital (businessweek.com)

Related posts:

1. Raising Venture Capital – How Much Should You Give Up?
2. The Indiana Venture Capital Tax Credit
3. Raising Venture Capital – What form of entity should I choose?

The 21 Fund provides financial support to highly innovative Indiana-based companies, thereby helping these firms make the transitional leap from general research and development to product development while also creating high-wage, high-skill, high-tech Indiana jobs and diversifying the state’s economy.

The site also says:

The 21 Fund seeks technology-based companies conducting business in Indiana and provides financial support to make the transitional leap from research to product development. By supporting high-tech companies during this crucial stage, the 21 Fund encourages entrepreneurial success and keeps Indiana’s most promising technologies in Indiana, leading to the creation of the high tech, high-paying jobs of tomorrow. The 21 Fund does not focus on a particular technology or application area in selecting awards. This allows Indiana’s strengths to identify themselves through successful completion of the 21 Fund’s rigorous review process. Avoiding pre-selection of technology focus areas ensures that the 21 Fund plays an unbiased central role in diversifying the State’s economy, a goal outlined in the 21 Fund’s legislation.

Sounds great, right?  Encouraging tech companies to start-up in Indiana, as well as stay here, has always been a minor challenge when compared to the tech start-up hotbeds around the country.  The 21 fund was supposed to be part of the solution to that problem.  Unfortunately, on July 1st, the budget for the 21 fund was cut by $35 million over the next two years.  David Castor, who’s Business and Culture Blog I subscribe to (and link to from the homepage of this site), sums up my feelings on this news:

This is an extremely short sighted move.  It has a negative impact on both attracting and promoting growth for emerging technology businesses – businesses which have proven to be high growth and high profit.  Promoting the success of these businesses leads to an increase in jobs, increase in average incomes, increase in consumer spending, and increase to tax dollars back to the state.  That is economic improvement.

It is odd that in the year of economic stimulus dollars being granted to the state to boost infrastructure and economy, our state takes a position to decrease funding to businesses that truly impact economic improvement.

Short sighted indeed. If anyone out there has some insight on this decision, or an opinion one way or another, please chime in below with a comment.

Related posts:

1. The Flagship Enterprise Center – An Indiana Technology Incubator
2. The Indiana Venture Capital Tax Credit
3. What Makes Indiana a Great Place to Start a Business – Part I

• Venture Capitalists like preferred stock, they are familiar with preferred stock, and will usually have already perfected terms for preferred stock.

• Venture Capitalists typically don’t care about / don’t want pass through losses from an LLC.

• Venture Capitalists will invest with an exit strategy in mind. That exit will likely either be an IPO, which is generally only available to “C” corporations, or sale of the company, which would preferably occur via a tax-free reorganization. Only corporations can participate in tax free reorganization.

So why not an “S” corporation? First, “S” corporations, under most circumstances, may not have a shareholder that is not a natural person; most Venture Capital funds are organized as limited partnerships. Second, “S” corporations may not have more than one class of stock. As I mentioned above, Venture Capital funds love preferred stock, and they can’t get it from an “S” corporation.

My business law practice can help you set up your business and plan for raising venture capital.

Related articles by Zemanta

• Why Can’t I Take My LLC Public? (dividendsandpreferences.blogspot.com)
• How Venture Capitalist (VC) Firms Screen Deals (slideshare.net)
• Big is Broken (newcommbiz.com)

Related posts:

1. Raising Venture Capital – A Checklist of Documents.
2. Raising Venture Capital – How Much Should You Give Up?
3. Private Placements – A Brief Overview of Raising Capital with a PPM