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Go Public Scams Exposed |
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“Go Public” and “Reverse Merger” Scams EXPOSED.
Not only are there con-artists, there are legitimate “legal scams” that are run on innocent victims every day.
SO BEFORE YOU PAY OUT ANY MONEY FOR “GOING PUBLIC” or a “REVERSE MERGER” do yourself a favor and read this report.
I have been taking companies public for over 20 years now. I’ve seen a lot of scams, and have been scammed a few times myself by people I trusted. However, you live and you learn. And now with a lot of experience under my belt, I will educate you about the different types of scams and how they will take advantage of you. The “Going Public” process and Reverse Merger process are expensive. Don’t throw your money away to some con-men who will never achieve your business purpose.
Practically every week I have at least one person referred to me who was ripped off. I am asked to see if I can help them. Just last week a typical fellow was referred to me to move his Pink Sheet company that he just bough for $225,000 up to the OTCBB. Within 30 minutes of phone due diligence questions, I recommended that his best course of action was to throw his vehicle away and start all over again. WHY? Too many problems. He could clean it up – any vehicle can be cleaned up, but it would have taken too long and been too complicated, and cost too much. It was simpler and quicker to start all over again.
WHAT IS A SCAM? – a scam is anyone or any group that uses you and your company to achieve their own objectives - (usually to make money for themselves very quickly) - and NOT your own objectives - (usually to grow your company, create some decent products for society, and make a few bucks for your own hard work over a period of time.)
What do scam artists have in common?
They are in it for the short term – a quick buck. They are not in it to support the
long term growth of a company and its products.
Most commonly, they structure deals so they have all or a lot of free trading stock they can sell quickly and you have none or are restricted from selling.
They take advantage of people or companies that need money. They often give
away their services or public vehicles for “no” or “little” money to attract desperate people who can’t afford a “market value” deal.
They give away something so they have the right to demand how the deal must be structured. And of course the structure they chose ultimately only benefits them - not you.
They misrepresent things to get you to go with them. Some out and out lie. Others exaggerate things. For example, if something takes in the range of three to six months to do, they will always tell you they can do it in three. (And then make excuses afterwards when things take longer.) Others will use well know attorneys or other names to make it look like they know what they are doing.
Don’t be a victim of any of the following common scams:
1) The “Pump and Dump” Con-Men.
2) The problem “reverse merger” vehicles – Know what to look out for!
3) The legal “Pump and Dump”
4) The Incompetent
5) The “Tag On” Scam
6) The Competent with limited or no connections
Let’s take them up one by one.
1) The “Pump and Dump” Con-Men. Most people who are considering going public have heard of this one. But how is it done? How is it set up? What should you watch out for.
Well usually these guys approach you and offer you their services or their public vehicle at a very good price or for “equity only.” You know… no money out of your pocket. Now considering most people looking to go public don’t have enough money anyway, it is very easy to find a company with a great potential who will fall for this one.
What they do is set up a transaction where you get the majority of the company – maybe even the vast majority – like 90%, but they get all or most of the free trading stock. Occasionally they will let your group have some free trading stock, but they will usually insist that your group is locked up and can’t sell for awhile or can only sell a little bit. After all they are putting up a vehicle worth $250,000 to $800,000 shouldn’t they be in the first position to recoup?
It is hard for a novice to argue with that logic.
Now after you agree and sign the transaction, they will very quickly start putting out promotion and press releases on your company. They will tell you it is for your benefit that they need to get the company trading in order to attract investment bankers and other investors to your company.
Now all of the above logic isn’t far from the truth. Honest people can tell you the same thing. The difference is the intention. The con-man isn’t a long term player, he is in it for the short term – the quick buck. So he will often be very proactive. He will write your business plan. He will write your press releases, etc.
If he is a real sophisticated con-man, he might not even do any of the above. Instead you might see your company trading without any press releases or any news. He will tell you he knows a lot of people or is telling all his friends. If he is a stupid con-man he might even tell you the truth: He and a bunch of friends are just cross trading with each other to get the stock trading and drive up the price. (Of course this is illegal and he won’t tell you that.)
All the press releases, all the news, all the trading activity with the stock going up is the “pump.” The net phase is the dump – when the con-man or his group sell ALL their stock into the artificially inflated market they created.
Next stage is when they split. They are done and now looking for the next victim. They no longer need you or care about you. They will disappear along with all the support they have been giving you. Your stock will steadily decline and you may or may not have ever gotten a penny out of the deal. Ultimately, you will be left with a vehicle with which you cannot raise any money. YOU’VE BEEN HAD!
Now there are many variations on the above theme. Some guys will get you a little money, some guys will let your group sell a little stock, some guys will take their time to set up the dump, but the result is the same. These guys are greedy and they don’t ever let you have very much.
How do you protect against these kinds of people?
Look at the market value of the transaction. Good clean PINK SHEET public vehicles are going for around $175,000 - $200,000+ maybe 5% -10% of the stock in your company. Good clean OTCBB public vehicles are going for around $375,000 - $ 400,000 + 5% -10% of the stock in your company. However these kinds of transactions are negotiated. The former shell shareholders usually have to lock-up or restrict the 5% -10% they keep so that they CAN’T dump a lot of stock into the market and wreck the new little public company.
When someone wants to give or sell you something way below market value, be automatically suspicious. The chances of you just happening to find a good deal are slim. The chances of you getting something with problems you are unaware of is high. It has problems and that is why it can’t get top value. All of this would be fine if the sellers disclosed what the problems are.
If someone offered you a Real Estate property that is worth $500,000 for $50,000 wouldn’t you be very suspicious. Wouldn’t you be worried that they don’t own the property, or it has “mold” in the walls or something like that.?
Of course you would because you know people just don’t give away something for nothing. When they look like they are, there is ALWAYS a hidden price.
Look at the market value of your own company and look at its story. If you have a company doing 40 million in revenue and someone wants to give you a public vehicle, well that is one thing. But if you have essentially a business plan or even a well established business doing say 1 million a year in revenue and need to raise 5 million dollars to expand your business plan or business, that is another thing.
Most of the hedge funds and top investment bankers I deal with won’t even consider an equity deal unless a company has 3 million in EBITDA. Legitimate investment banking groups that do equity deals are very difficult to work with. They typically will look at hundreds if not thousands of deals before they chose one.
So if some guy just chooses to do an equity deal (or other below market value deal) with you….. real fast, with out much due diligence and not much competition; and your company is EXTREMELY newsworthy either to the general public or the investment community; and he is keeping most or all of the free trading stock without any restriction….well you might want to call in the troops. Good chance you are being set up for the old “pump and dump.”
Who are the troops? Find a good experienced consulting investment banker like myself and perhaps a criminal SEC attorney. A good experienced consulting investment banker usually has the experience to tell if you are being set up, or can talk to the parties and then determine if you are being set up, etc.
If you have already done the deal, then make sure you hire a good criminal SEC attorney to review any and ALL materials (press releases, business plan, web site, etc.) that your new friends want you to put out. You do NOT want a transactional attorney in this role.
Transactional attorneys are NOT familiar with what is going on behind the scenes with the SEC – what they are going after, what they are looking to bust people for, what they are suing people for these days, etc. Criminal litigating attorneys who are going up against the SEC every day are. “Pump and dumpers” usually put out exaggerated and hyped up information to “pump up” the stock. Your criminal SEC attorney will not allow this and this will keep you safe. Of course, the con-men will probably now want to rescind the deal – but who cares. You will be a lot better off if you do.
2) The problem “reverse merger” vehicles – Know what to look out for! – This is one of the scams I see the most - People in my industry selling off problem public vehicles to the inexperienced without disclosing the problems.
Here is what you currently need to watch out for when trying to do a reverse merger into a public vehicle – 1) “grey sheet” shells, 2) companies that were once SEC reporting companies and fell behind in their reporting, and 3) companies that were once “shell” companies with no significant operations.
The Grey Sheet scam got real popular about four or five years ago and the industry is still suffering from it. It started like this. Some greedy guys found a loop hole that had been around for ages and gave a company the appearance of being quoted on the PINK SHEETS.
Now at the time PINK SHEET COMPANIES were selling for about $200,000 and took about nine months to a year to form through filings.
So what they would do is form a company in a day with as little as two shareholders. They then would take advantage of a little known procedure. They would ask a market maker that they had a relationship with to post a “bid” and an “ask” quote on behalf of them – a shareholder of the corporation. Now anyone with access to the deeper broker dealer levels of quotes could see that this was not a market maker quote, but a quote by a market maker acting as a broker dealer for a client.
However, the PINK SHEETS would automatically (at the time) pick up the quote and show it on their records. So in a matter of days a person could create what looked like a PINK SHEET company (that sold for $200,000).
The next phase of the scam is that the scam artists offered the “grey sheet” companies at a substantially cheaper price usually in the $50,000 to $150,000 range. Now all of this would actually be okay if the parties who did this disclosed that is was a “grey sheet” company and not a pink sheet company.
However, what they usually did is represent it as a pink sheet company and found suckers who thought they were getting a good deal.
The problem with “grey sheet” shells is that they are not “piggy back qualified” (means other broker dealers can’t jump on a trade them) and are often improperly structured and can never become a pink sheet or reporting company. So if you want to move on up to a higher exchange you literally have to throw them away. Instead of saving $75,000 you lose $125,000 or whatever you paid for it.
Eventually the PINK SHEETS stopped listing these shells on their records but because some of these “grey sheets’ actually effected trades years ago, they are still picked up by all the stock quotation services and still are a problem today because a scam artist can throw out a symbol, you can look it up on Yahoo Finance and there it is.
Of course he says it is on the PINK SHEETS, but it is not. So the novice buyer gets ripped off. I picked up a client a month ago that bought a grey sheet for $50,000. After examining the structure, my advice: throw it away and start over again.
The second thing to watch out for is PINK SHEET companies that were formerly reporting companies. My staff has had many discussions with the SEC regarding this yet there still seems to be a lot of misunderstanding, incompetency, and out and out fraud going on when it comes to these vehicles.
Here is the problem. (Now keep in mind I am not an attorney and what I am telling you here is not legal advice but information that was explained to me by conversations with the SEC’s staff.) When you are a reporting company and you cease to file reports the SEC can technically de-list you from quotation. In, I believe, 2004 the SEC put together a unit that does nothing else than file suits against former reporting companies that are behind in their filings, and request that the stock be deregistered and the companies be de-listed from the OTC quotation services such as the PINK SHEETS.
So if you buy or merge with a public vehicle that was once reporting but is behind in its reports you could be de-listed by the SEC at any time. If you paid $200,000 for this vehicle and the next day it is de-listed, you won’t be happy. Moreover, you could recover your quotation by bringing your filings current, but if the records are not attainable (as is often the case with some of these old pinks) you may never be able to recover your listing.
The scam that is going around now is that you can file a Form 15 that and this stops your liability as stated above. The Form 15 only stops your reporting requirements from the day that you file it. So if you are behind in your reporting requirements since 2002, and you file it today 10/13/08, you no longer have to file any reports after 10/13/08. However, as long as you are not current on your reports prior to 10/13/08 the SEC can still de-list you for being delinquent in your reporting requirements. And the only way you can move a pink sheet company back up to the OTCBB in most cases is by bringing all those past due filings current along with your new filing.
Scam artists and uninformed incompetent investment bankers and attorneys are representing that the company is completely without risk even though it is behind in its SEC reports as it has filed its form 15 to stop reporting. This is false information as directly told to us by the SEC staff.
Now in February of this year, 2008, the SEC introduced some new rules. One of them essentially made rule 144 unavailable for the shareholders of a company that has ever been a shell. Rule 144 is the “safe harbor” rule which allow stockholders can take the restrictive legend off of their stock after they have held it for a year. Without rule 144 theoretically you could be stuck with restricted stock forever, or at least until that stock is registered – if ever.
A company that has been a shell has to become a reporting company and then wait a year before rule 144 is again available to its shareholders.
If you bought or merged into a company that did not have rule 144 available to it, you may find it difficult to sell your stock to investors. Investors don’t mind waiting a year to get free trading stock but who wants to wait ….forever?
Now all three of these problems wouldn’t be that big of a deal for some people and companies if these potential problems were properly disclosed. The scam artists don’t disclose these potential problems however. They simply try to sell these vehicles for a lower price and thereby attract “suckers.”
So how do you protect yourself from these scams?
Well first of all, if there is one thing I have learned about the investment banking business it is that you usually get what you pay for. So when something is under priced there is usually a good reason for it – the people owning it can’t sell it for any more.
So if you are offered something under price, I suggest you really, really check it out.
Secondly, you should hire an experienced consulting investment banker like myself, or an experienced SEC attorney to check out your deal and give you guidance through the process. The problem is finding the experienced people. I know many SEC attorneys that don’t catch these problems, and many others that know of the problems but won’t educate the buyer when representing the seller of these problem companies.
At least once a week I bump into someone who was ripped off and sold a bad shell for from $50,000 to $250,000. If they had consulted me before they bought the vehicle it may have cost them $5,000 or $10,000 for me and my attorneys to check it out. But they would have saved themselves from losing $50,000 to $250,000.
3) The legal “Pump and Dump” - Well you have seen this one. Take a look at the internet craze of the late 1990’s and the early 2000’s. We all knew it didn’t make good business sense that these large broker-dealers would give 50 million dollars to some kids with no business experience for “Some-Sort-Of-Fantistic-But-Untried-WebSite-Idea.com,” but they were doing it every day.
What was the scam? All America and the world was pumped up on the internet stocks. So these guys would look for a patsy – some young business men and offer them 50 million dollars for their brilliant idea. They would then take them public and do everything legal and forthright.
When the day of the IPO came, they of course would buy all of the stock - say 50,000,000 shares - at their underwriting price of $ 1.00 a share (minus their say 12% commission) and then dump it on America the same day knowing full well the general public would take it up to $200 a share by days end. So for their $ 50,000,000 investment, they would make $ 5,000,000,000 by days end. (That’s 5 billion for those of you who get lost on zeroes.)
Not bad by any “pump and dumper’s” standards.
Now just like any “pump and dumper” these major firms were short term players. They didn’t care much about the firm after that first day. They were now looking for the next victim. However, since they do things legally, they kept a semblance of support and attention on the company and of course if there was another opportunity to do another money raise they would surely agree to stick it to America again.
But you see because it was all hype and the majority of these businesses had no real substance to them, it all came tumbling down.
Are they still doing it? Of course. They are not as blatant. But many an investment banker (large and small) will do everything legal to make a quick buck. This is usually not as quick as the illegal “pump and dump” schemes, but they end result is the same.
They will raise money for you based on a very newsworthy idea. They will do everything legal. They will use their vast resources and wealth to support the company while the stock price is going up, then at a certain point they will sell, reap their profit and take all their support and run. Then look for their next victim.
You are then left on your own. The only difference is this time you will have a little money in the kitty, but your stock price will slowly drift down to nothing after they pull their support. If you trusted them, thought they would always be there for you, you are caught a little bit off guard when they disappear. You may not know how to recover.
What is your defense against the legal “pump and dump”? You always want an experienced senior consulting investment banker like myself between you and the large or small investment bank you are dealing with.
NEVER, NEVER, NEVER let the investment banker who is giving you the money also be your senior consultant. WHY? Because they don’t care about you or your company. Every piece of advice they give you is for their benefit not yours. Every piece of advice they give you is designed first to get their money back (and a profit) and second to help you and your company.
If you don’t have an experienced consulting investment banker on your team, then do some research on your own. Ask for references. Look up the long term track record of the companies they did. See how long it takes them to pull their support and what happens to the companies after that.
4) The “incompetent” scam. Not every con-man is a crook. Some people are just incompetent and are trying to con you into believing that they are competent at what they do.
I get these “incompetent” kinds of deals referred to me all the time. Someone was contracted to take some one public. Either it never gets done, or they do it wrong and it has to be done all over again.
Here are a few examples. A market maker referred a client to me because the client came to him asking him to file a form 211 to quote him on the OTC.
He had gone to a fairly well known attorney who had charged him $ 10,000 to take him public. Now, most attorneys at that time would have charged about $50,000 to take someone public. (Remember what I said about getting things below market value above. It applies to situations like this too.)
When I examined what the attorney had done, I was outraged. He had simply done what $10,000 actually buys you - a private placement document. Worse yet he hadn’t even formed and structured the company correctly and the client now owned only 10% of his company. He had sold off 90% of his company to the private placement investors for $50,000.
Since it was a recently completed private placement there was no stock eligible for “free trading” status and thus this company couldn’t go public at this time via a form 211 filing.
My advice to the client - Throw it away and start over again. This time don’t be cheap and hire someone who knows what they are doing.
Unfortunately there are many, many incompetent people in the investment banking field. When you go public you are going to need market makers, broker dealers, investment bankers, investor relation firms, public relations firms, several SEC attorneys, accountants, etc. on your team. An experienced consulting investment banker is the person who will introduce you to competent people and help you put your team together. Trying to save a buck and doing it on your own can be a disaster.
Just because someone is an SEC attorney, or accountant, or a broker doesn’t mean he is competent. Attorneys who only work on a few deals SEC deals a year (while they simultaneously practice in another area of law), still represent themselves as SEC attorneys, but most of the time they don’t have enough experience and flow to be current on what is happening in the industry.
It isn’t all about laws. There is a lot of unwritten policy in this industry that one has to know. You only get to know this stuff because you deal with the agencies frequently and know what the latest change in policy or enforcement is.
There are a lot of people who are just salesmen and hire other people, like myself, who are experienced to get the job done. The funniest example I have is about 10 years ago. One of my clients paid this investment banker $250,000 to take him public. This investment banker hired some cheap attorney to do a private placement to raise $ 200,000 and take the company public.
They sold about $50,000 of stock, but he offering was done in violation of many laws and the client never got any of the money. The original investment banker then hired a well known attorney and paid him $75,000 to correct the situation and get the company public. This well known and respected attorney was really not an SEC attorney but was smart enough to know this so he turned around and hired me for $50,000 to do the clean up. This whole chain of events prior to me had taken about a year with no results (This was at a time when we could get someone public in about three months.)
After examining every thing my advice was to throw it all away and start all over again. The client listened to me and I had him public in three months.
How do you defend against the incompetent scam? Ask for references. Ask to see if a person has actually done this before. I, for example, will give a client links to SEC filing on EDGAR showing I was the incorporator of a PUBLIC company that went public 10 years ago. I was also give them referrals of clients I took public that they can talk to. Anyone who is legitimate in this industry can show you age old filings and give you references.
Why do you want age old filings? Well, if someone has been doing this for 10 years or more and they are using the same name and phone number and they are not in jail, chances are they know what they are doing and they are not a crook. The incompetent don’t last 10 years and the con-men don’t use the same name and address and phone number for 10 years.
Now,
5) The “Tag On” Scam, and 6) “The Competent with limited or no connections” are variations of the “Incompetent” scam.
The “Tag On” scam is the professional who you ask for references and he says I did ABC Co. and JKL Co. and XYZ Co. A lot of people just buy that without checking. But when you ask for names and numbers he gives them to you and hedges it with, “Now he won’t know my name because I was actually hired by Joe Smo who was hired by him. But you can ask him about Joe Smo and that is the same as me.”
When all a professional can give you is “Tag On” references it means he most likely is inexperienced and he has aligned himself with someone who has given him permission to use their name. This is always a bad thing, but it is certainly a sales scam if it is not disclosed to you, and most of the time you would be better served dealing with Joe Smo directly.
An example of “The Competent with limited or no connections” scam would be an attorney who promises to take you public and does all the legal work very professionally, but doesn’t know any market makers who are willing to sponsor you for quotation or any investment bankers who are willing for raise money for you.
So he does the legal work, but then leaves you high and dry and can’t get the rest done, or even refer you to anyone who can. So eventually he tells you the rest is up to you.
How do you defend against these kinds of scams? The same way you defend against the incompetent scams. Get references and ask to see some old filings a person has actually done.
There of course are more scams, but these are the most common you will see when you are going to hire someone to take you public or to do a reverse merger.
Of course if you want help with any of this, check out our website and give us a call.
I hope this had been of help to you.
Stan Medley
updated 1/1/09 |
