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    IndianaStartup.com is a site created by Brian Powers as a resource for start-ups, entrepreneurs and small business.  

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    Wednesday
    Aug042010

    The Change to the Accredited Investor Definition - Exclusion of Primary Residence from Calculation of Net Worth

    On July 21, 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) was signed into law.  Among the slew of provisions contained in the legislation, is a change to what constitutes an accredited investor under the Securities Act of 1933.  

    As I have blogged about in the past, one way to qualify as an accredited investor under Rule 501 of Regulation D is to be:

    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

    Section 413 of the Dodd Frank Act changes that, by requiring the SEC to adjust the definition of “accredited investor” under Regulation D to exclude the value of a natural person’s primary residence when calculating that person’s net worth (emphasis added):

    The Commission shall adjust any net worth standard for an accredited investor, as set forth in the rules of the Commission under the Securities Act of 1933, so that the individual net worth of any natural person, or joint net worth with the spouse of that person, at the time of purchase, is more than $1,000,000 (as such amount is adjusted periodically by rule of the Commission), excluding the value of the primary residence of such natural person, except that during the 4-year period that begins on the date of enactment of this Act, any net worth standard shall be $1,000,000, excluding the value of the primary residence of such natural person

    This is obviously an important change for anyone out there with a private placement of securities - who should seek legal counsel to make sure they are obtaining the appropriate representations from individual investors.

    It will be interesting to see exactly how the SEC implements this, and how it will treat, for example, a mortgage on a primary residence in the determination of person's net worth.  There are a lot of people out west with upside down mortgages - so this change may actually help some people qualify as accredited investors depending on how the SEC interprets and acts on this.

    Wednesday
    Jun232010

    Indianapolis Attorney Brian Powers (that's me) Quoted in Article Regarding Equity Financing

    Bank of America has a website called Small Business Online Community, the mission of which is to "create a thriving online community that empowers people in building a successful business."  A few weeks ago, a gentlemen called me, after reading some of my posts on IndianaStartup.com and interviewed me regarding the raising capital and potentially giving up control in the process.  The article, which you can find in its entirety here, is pretty good, and give some interesting perspectives (other than just mine). 

    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/.

     

     

    Thursday
    Jun102010

    My Law Practice - Through the Eyes of Google.

    Thursday
    May272010

    Simple Estate Planning and Last Wills - Online - myIndianaWill.com

    Today I am launching a new website that provides online simple estate planning services to Indiana residents - myIndianaWill.com.  Simple estate planning is essentially estate planning for people with - well - simple estates.  A simple estate plan is a great way to make sure that your wishes are carried out in the event of death or disability.  myIndianaWill.com provides documents that can help you create your simple estate plan, including:

    Last Will and Testament

    With this Indiana Last Will and Testament, you can leave specific property to certain people or children via a written list or memo that you attach to your will. From there, this Indiana Will contemplates that the remainder of your estate be distributed to your surviving spouse, and if no spouse survives you, then to your surviving children.

    Living Will / Advance Directives / Healthcare Directive

    A Living Will / Healthcare Directive / Advance Directive protects your right to refuse any medical treatment you do not want, or to request any treatment that you do want, in the event that you lose the ability to make decisions for yourself.

    Power of Attorney

    A Power of Attorney lets you name someone to make certain decisions (healthcare, financial...etc) on your behalf in the event you are unavailable or not able to speak for yourself.

    Simple Estate Planning Packages

    Our Indiana Simple Estate Planning Packages provide essential documents for you to create a simple estate plan to ensure that your estate is handled properly in the event you become disabled, incapacitated, otherwise unable to manage you estate yourself, or pass away. The Indiana Simple Estate Planning Packages include:

    • Indiana Last Will and Testament (for Married individuals).
    • Indiana Living Will Declaration.
    • Indiana Durable Power of Attorney.
    • Indiana Healthcare Power of Attorney (with optional appointment of Healthcare Representative).
    • Indiana Life Prolonging Procedures Declaration.
    Tuesday
    May182010

    Affordable PPM Attorney / Private Placement Attorney Services? Why Not!

    I hear from entrepreneurs all the time who are trying to raise capital - either for a business start-up or to expand an existing and established business.  Many usually dread picking up the phone to speak with an attorney about preparing a PPM - due to the notion that such an endeavor will cost them upwards of $20,000 - $40,000!  Sure, there are some transactions that could merit legal fees in that range and possibly above - especially when you consider that most law firms will prepare a PPM on an hourly basis (which is always an expensive and intimidating proposition for the business owner/client).  

    I don't do it that way.  Entrepreneurs raising capital need to focus on successfully raising capital while also running a business (after all, the business doesn't just shut down while the founders and officers are out raising capital) - the last thing they need on their mind is the uncertainty of mounting PPM related legal fees that may actually lure them into avoiding legal counsel during portions of the capital raising process.   It is crucial that businesses raising private capital work with legal counsel throughout the entire private placement process to make sure they remain in compliance with federal and state securities laws.  

    If you are looking for a securities attorney to help you with a PPM and advise you through the private placement, capital raising process, here are a few ways you can help make you fees more affordable / predictable:

     

    1. Have a good thorough business plan prepared - in writing.  This saves an attorney lots of time trying to learn about your business - which is crucial to the preparation of a good private placement memorandum.  A good portion of the business plan might also be used in the body of the PPM.
    2. Do some upfront research on securities laws so you know what questions to ask.  Your attorney most likely (and should) give you a thorough run down of the legal restrictions involved in raising private capital using a private placement / PPM, but doing a little reading up front will let the attorney know you are serious about your capital raising project and that you have some sophistication in the matter.
    3. Ask for a fixed fee.  If your attorney is like me, you won't need to since I almost always provide a fixed fee to prepare a PPM and provide certain other private placement legal services. 

     

    Monday
    May102010

    Why form an LLC in Indiana? | LLC Attorney

    There are lots of reasons and advantages to setting up an LLC for your business.  Lots of times people wonder, though, which state is the best in which to form an LLC.  I usually recommend that people form an LLC in their home state, although that advice can vary from time to time depending on the exact circumstances. For Indiana businesses, forming an LLC in Indiana is a no brainer for a few reasons, as I detailed in a recent post on myIndianaLLC.com:

     

    • Forming an Indiana LLC is fast!  The process of filing articles of organization with the Indiana Secretary of State can be done electronically – and in most cases – your Indiana LLC can be up and running within 24 hours.  Some states require documents to be mailed to the state, while other require that certain notifications be published in the newspaper – all of which can take weeks!
    • Forming an Indiana LLC is can be a private and confidential process.  Most other states require that the name and address of members, managers and/or officers of the LLC be filed as a matter of public record.  Indiana only requires that the name and address of the registered agent of an Indiana LLC be filed (which can be anyone located in the state of Indiana – typically an attorney or registered agent service provider).
    • Forming an Indiana LLC only requires a $87.00 filing fee with the state (which is included in in all of our LLC formation packages).  Some other states charge double, triple, and even quadruple that amount.

     

     

    Wednesday
    Apr212010

    Form an LLC Online. Fast. Using an attorney.

    A good first step for anyone starting a business is to form a separate legal entity through which to conduct business.  Usually this means that a limited liability company or corporation is formed.  Except in certain instances, I usually recommend that an LLC be formed.  The business owner then has a choice to make - how to form the entity.  

     

    • Do it yourself?
    • Use a non-attorney legal forms provider like legalzoom.com?
    • Retain the services of an attorney?

     

    This decision usually comes down to one factor - cost.  Most people, in the absence of the typical relatively high cost of using an attorney to set up an LLC, would likely use an attorney.  This is why non-attorney legal forms providers have become so prevalent and successful - the provide a pseudo-legal service at a much lower cost that an actual attorney. In the past, I myself have lost clients seeking to form an LLC when opted to use a legal forms provide rather than retaining my services - simply due to cost.

    That is what inspired me to launch myIndianaLLC.com - which is designed to give clients the best of both worlds - the LLC formation services of an attorney with the afford-ability and speed (although our services are much faster than most legal forms providers).  myIndianaLLC.com allows you to create single and multiple member Indiana LLCs online by walking you through an interactive questionnaire that has been carefully crafted by me to mimic the exact same process I use when setting up an LLC for a client in the traditional manner.  The system then analyzes the answers provided and generates a set of documents that are sent to me for my review.  After I review them, I make th appropriate filings with the Indiana Secretary of State, send the documents back to the client, and POOF - a brand new Indiana LLC has been formed!  All of this can be done in as fast as 1 business day.

    If you are interested, check out myIndianaLLC.com.  

    Monday
    Apr192010

    IndianaOnlineLegal.com - Fixed Fee Online Legal Services

    Today I launched a couple of new websites, one of which is IndianaOnlineLegal.com. Over the past year, a good deal of my solo legal practice has been driven by the various blogs and sites I maintain on the internet.  One thing I have learned is that not everyone that finds me wants a "traditional" experience with an attorney.  They know what they want in terms of legal advice or documents.  They want it quick, and they want it to be affordable.  They don't need or want to meet face to face.  They don't want to visit an office.  They don't want broad representation.  Some of them need an LLC formed.  Some of then need a power of attorney.

    IndianaOnlineLegal.com caters to the needs of these people.  By using carefully designed, interactive questionnaires that help me quickly assemble documents, I am able to provide certain legal services and legal documents at a fraction of the cost that some other attorneys charge. In fact, the prices on IndianaOnlineLegal.com are right on par with non-attorney legal form sites such as LegalZoom.com. Keep in mind that LegalZoom.com is not an attorney and may not give you legal advice - I can.  And the option to receive legal advise regarding your documents is available (sometimes bundled with the price of your document, sometimes at an additional cost).  

    Below is some information that I posted directly from IndianaOnlinelegal.com.  Check it out!  The menu of legal services and documents is not quite complete - but I plan on adding documents on a daily basis.

    The internet has changed the way people do business – and it is changing the expectations people have about receiving legal services.  People want legal services fast, without paying an arm and a leg. While there will always be a time and place for traditional, hourly legal services, certain transactional legal services lend themselves very effectively to being offered over the internet.  Some people resort to legal forms companies, such as LegalZoom, to obtain “online legal services.”  Forms companies can’t provide legal advice, only a lawyer can.  IndianaOnlineLegal.com is a service from the Law Office of Brian V Powers, a licensed attorney in the State of Indiana.

    The process is quick, and very easy:

    1. Select the legal service you would like.
    2. Create an account with IndianaOnlineLegal.com (subject to Terms of Use).
    3. Purchase your Online Legal Service.
    4. Complete the questionnaire.

    Once you complete the questionnaire, the documents associated with your online legal services will be sent to the Law Office of Brian V. Powers for review.  The Law Office of Brian V. Powers will review them, follow up with any questions, and when they are complete, upload them to the site where they will be available for your download.

    Why Are Online Legal Services Fast and Affordable?

    Its the technology of course!  By using the latest in online document automation technology, your documents are prepared quickly without the need to a paralegal or legal secretary to key in your information.  Our technology is smart too – it knows how to assemble your document based on the answer you provide.  Answers are collected online.  Payments are collected online.  Documents and advice are delivered online (and by phone from time to time).  Most lawyers waste a lot of time and money on expensive offices, unnecessary staff & overhead, and client meetings.  Not here.  We focus on you and your legal needs – which saves you time and money!

    Compare Us to Others – A Licensed Attorney vs Legal Forms Providers

    Our fees are fixed and significantly lower than other attorneys.  We challenge you to find a better value anywhere. In fact, here is a link to the “leading” online document-preparation service: LegalZoom(tm). We put that link there hoping you will click on it, and knowing that you’ll be back.  We spend a lot of time fixing the mistakes they, and other non-attorney document preparation services, make.

    The advantage of using us – you’ll have the advantage of a real lawyer personally reviewing and analyzing your documents, instead of some non-attorney clerk on the other side of the country.

    Wednesday
    Jan132010

    Do I need a PPM to offer notes? (Private Placement Attorney - Debt PPM)

    This is a question I get from so many clients and potential clients that have the misconception that only stock in a corporation, membership interests in an LLC, or partnership interests in a partnership are "securities."  Under the Securities Act of 1933, a security is defined as:

    ...any note, stock, treasury stock, security future, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, any put, call, straddle, option, or privilege on any security, certificate of deposit, or group or index of securities (including any interest therein or based on the value thereof), or any put, call, straddle, option, or privilege entered into on a national securities exchange relating to foreign currency, or, in general, any interest or instrument commonly known as a "security", or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.

    Notice the first word is NOTE.  The words "EVIDENCE OF INDEBTEDNESS" are also used.  Notes, bonds, and indebtedness in general are a form of a security, and as such, any offering involving them must be handled and scrutinized in the same manner as an offering for equity (stock...etc).  This doesn't necessarily mean that you need a private placement memorandum (PPM) depending on the specifics of the offering, the types of investors you seek, or the securities law registration exemption you will pursue - but that is a determination that should be made by an attorney with experience in those matters.  

    So don't make the mistake of believing that debt instruments are not securities!

    Tuesday
    Nov242009

    Private Placement / PPM Attorney - Comparing 504, 505, and 506

    When raising capital via the private placement process, a business will typically use one of three exemptions to the registration requirements under federal securities laws.  In this post, I briefly summarize and compare each of the exemptions.

    Rule 504

    One of the exemptions from the federal securities laws regarding the registration of offerings of securitiescomes in Rule 504Rule 504 provides an exemption for the offer and sale of up to $1MM of securities in a single twelve month period. In general, an issuer of securities may not advertise, market or otherwise publicly solicit the sale the securities. Purchasers must receive restricted securities, meaning that the securities may not be sold without either registration or an exemption. Unlike some other exemptions, Rule 504 allows for a private sale without any specific disclosure requirements, although care should be taken to provide sufficient information to investors to avoid violating the anti-fraud provisions of the federal securities laws – as I mentioned in an earlier post – disclose, disclose disclose. Make sure there are no false statements, no misleading statements either, and no omissions that might make what you have disclosed misleading.

    Rule 505

    Another exemptions from the federal securities laws regarding the registration of offerings of securities comes in Rule 505.  Rule 505 allows a company to raise an aggregate amount of $5,000,000 over a twelve-month period.  Similar to Rule 504, Rule 505 does not permit an issuer to use general advertising or general solicitation to market its offering.  A Rule 505 offering is available to an unlimited number of accredited investors and up to 35 non-accredited investors.  Unlike a Rule 504 offering, nonaccredited investors must receive a substantive disclosure document that includes financial statements, although even if only accredited investors are involved, care must be taken such that the anti-fraud requirements are met and that there are no false statements, no misleading statements, and no omissions that might make what you have disclosed misleading.   Purchasers must receive restricted securities, meaning that the securities may not be sold without either registration or an exemption.

    Rule 506

    The final exemption I will discuss here comes in Rule 506.   Rule 506 contains no limit on the amount of capital that can be raised in an offering. Similar to other exemptions, an issuer using Rule 506 cannot use general advertising or general solicitation to market its offering.  Rule 506 is available to an unlimited number of accredited investors and up to 35 non-accredited investors.  Unlike Rule 505, all nonaccredited investors, either alone or via a purchaser representative, must be sophisticated, that is, they must have sufficient knowledge and experience in financial and business matters to make them capable of evaluating the merits and risks of the prospective investment.  Just as with Rule 505, nonaccredited investors must receive a substantive disclosure document that includes financial statements, although even if only accredited investors are involved, care must be taken such that the anti-fraud requirements are met and that there are no false statements, no misleading statements, and no omissions that might make what you have disclosed misleading.  Purchasers must receive restricted securities, meaning that the securities may not be sold without either registration or an exemption.

    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.