I wish I could say that I wasn’t writing this article from experience but that would be a lie. I wish I could say that chemistry is never an issue between the consultant, S1 attorney and newly elected board members but that would be nave.

The truth is some attorneys who perform great on some public offerings are an absolute nightmare on other transactions. Some board members with a gargantuan size portfolio of contacts are worth the aggravation on some deals but on others fall flat on their face as they try to take the whole company to the ground with them. The reality is qualifying an attorney for the process of an S1 filing goes far beyond whether they’ve got time and experience under their belt. You need to ask the more difficult questions that are almost impossible to test for such as, how do they react in stressful situations? Are they open to stepping outside of their comfort zone to engage in cutting edge filing strategies to speed up the offering process? Do they help with the fundraising? Are they able to refer a PCAOB auditor and a market maker to file the 15c211? These are things that need to be addressed with your S1 attorney but are difficult to actually test beforehand.

Each lawyer is different and all I can say is sit down with them and drill them with a million different questions from a multitude of angles to test their knowledge and their patience. Watch their facial expressions, hand gestures, eye and forehead shift. Look for a bouncing leg or foot and other nervous habits and what questions did you ask to trigger this nervous twitch?

The same techniques can be used for qualifying a board member. The only way to get the best idea of whether there is a fit is to push them to the brink during the interview?

Be careful with this as many qualified professionals could easily take this challenge as disrespect and they’ll walk so don’t be rude or arrogant but with a placid look on your face and a calm voice, drill them and drill them hard.

Many consultants in this industry, myself included had to learn this lesson the hard way and took a lot of time and effort to correct the mistake of bringing on the wrong individual for the solution we were seeking. This is an extremely high stress industry and the environment is constantly at 100 degrees.

Concentrate on being calm, forward thinking, compromising on some issues and uncompromising on others, write down 10 pages of questions and when you sit down with the candidate ask all those questions and other questions that come to mind during the meeting. Test them, push them and get the right person for the job.

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I deal with S1 attorneys all day every day and most of them are entrepreneurial, hard working and interested in helping you in any way they can but there are also a lot of bad ones out there. If you are taking your company public the last thing you want is a broke as a joke s1 filing agent.

I recently had the misfortune of working with (for a very short time I might add) a New Jersey lawyer who had us all convinced by her pepper gray hair and fluency of legal jargon as a second language and quick calls to what she had us convinced where big shot investors who had millions to put into this and other transactions we brought her way.

During initial negotiations she and I sat down in a coffee shop and went over her equity position and fees in the transactions that she’d be working on for us and it was pretty simple and straight forward. I would have my team organize and structure the company and transaction and she would simply file the s1 in exchange for 2% to 3% equity. Pretty nice payday for minimal work and gaining equity in an average company producing $5m+ per year.

Ah yes, but when it sounds too good to be true it is and when it seems too easy of a negotiation…it is! When she sent us the contract she felt the need to add a few percentage points to the tune of 7%, making a total of 10% equity and she also was charging an extra $10k to fill in the blanks on your prototypical PPM doc. Why did she jack up the price? Her response was, “This S1 will have comments”. I almost died laughing. Of course it’s going to have comments with the SEC, that’s why it’s called the ‘comments’ stage.

We talked her into taking 2 payments for the $10k, half upfront and half on completion but we really should have dumped her right there. She didn’t want to keep her word on that either so I paid her the last payment before the fee was due and just got rid of her.

Turns out she never filed an s1 before and her whole act was a sham. She was desperate for cash and nickled and dimed us the whole time. I laugh about it now but it wasn’t funny when it happened. We lost over a month of transaction time because she couldn’t tell the truth.

The client was going public on the OTCBB with a valuation of around $5m, her suggestion was to raise capital pre public for $1 per share because the company would have a hard time qualifying for the NASDAQ if it started at anything less than $1. This company was years away from even considering the NASDAQ as an option but her in experience and need to prolong the deal to rape us for fees was so blatant and careless that she did everything she could to add as much confusion to the deal as possible so that no one knew what was going on, therefore she got away with a lot and was able to pick our pockets for weeks before we got rid of her.

The moral of the story is this: not all attorneys are rich. The truth is, most are very modest as far as their earnings. There is too much competition these days so there are predatory lawyers out there that will lie, double talk, triple talk and run you around in circles. All the while the clock is ticking and they are billing you like it’s going out of style. Watch your back with the dead broke S1 lawyer.

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Ok so your company is growing and to keep that growth perpetuating you need capital. You’re a solid business; you have nice profits, hey, why not take your company public? Just get a structuring consultant, PCAOB auditor, line up your post public investor relations and don’t forget to find a good S1 filing attorney that can get back to the SEC during the comments phase and get you to FINRA for a trading symbol ASAP.

You meet with the attorney; she’s a sweet little old lady in her late 50’s. She tells you how great it is to work with you and she loves your company. You decide her office is too far for your first face to face meeting so you meet her at a slurpy shop. She gets a large orange tasty freeze, you get pineapple and she grabs the bill and there you sit, slurping away as you chat about how your company is about to go big time. First you’ll conquer the OTCBB, then the NASDAQ blah, blah, blah.

You get to the awkward part of the conversation where you start to discuss fees. She tells you she loves your deal so much that she’ll do it in exchange for straight up equity, 3% of the company and she’ll even throw in 10k and 10q filings and general contract review for one year after you go public at no additional fee. After all, your company is worth $10 million, you’ve spent 9 years building the company; it seems she appreciates that and you grab the contract and feverishly sign and initial all pages. You slap the pen down, take one last gulp of the, now melted, pineapple tasty freeze and you slap hands, heck you run around the slurpy shop throwing high fives at anyone willing to get into the madness.

You drive home with dollar signs in your eyes and a week later you get the ‘real’ contract, you realize that what you signed in the slurpy shack was just a letter of intent and this paperwork has numbers that you never discussed such as ‘10% equity’, ‘$10,000 PPM Fee’, ‘DPO’, ‘100% Restricted Shares’. You think there is a mistake so you reach for the phone to call this sweetheart lawyer who bought you that luscious slurpy to remind her of your conversation about 3% equity, no upfront fees, IPO and Free Trading Shares. You dial the number on her business card “beep, beep, beep” ah nuts you called the fax number. you dial again and this time you get through, she picks right up and says in a sweet voice, “oh how are you? I was just talking about you to my neighbor with Alzheimer’s and a lazy eye from her recent hip replacement surgery which was supposed to be a consultation for an eye exam so she could get contact lenses…”.

You tell her that you got her invoice and there must be some mistake, “oh no mistake sweetheart, those are my fees” she says. “But you told me something completely different at the Slurpy Shack! You told me that I only had to give up 3% of my company to your firm and that there were no additional fees because of the revenues from my company and that we would do an IPO instead of a DPO because I needed capital to run my business post public”.

“Oh I’m sorry”, she says, “those are my fees, your deal will take a little more work than I thought”. You look at the phone and hang it up. You’re dreams are shattered, you just paid off a big line of credit so you don’t have the $10k and you can’t give her 10% instead of 3% that just doesn’t make sense and why in the heck would you do a DPO when you need the capital in the public markets to fund your business in a way that only an IPO can? This attorney just doesn’t get it. Instead of giving you what you need, she’s giving you what her limited technical capabilities enable her to give. She doesn’t even know how to do an IPO, only DPO’s and she needs the 10K upfront because she’s not even writing the PPM, she’s outsourcing that. She lied, she misled you but hey, all is fare in love and S1 filings.

Congratulations! You’ve just been through ‘S1 Attorney 101′. Believe none of what you hear and half of what you see and when you get a great deal with from an S1 filing lawyer, pinch yourself because you’re only dreaming.

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For companies wanting to go public the basic understanding is to find an S1 attorney that will look out for your best interest and make the process easy. But what you’re not thinking about is the sub-sector of predatory attorneys that just look at you as easy prey. They’ll jump into your company, distract you by confusing you with technical jargon, fast talking and stressful scenarios that could never happen and when you’re not looking they’ll carve out a nice fat piece of equity on top of their excessive fees that pile up as they rob you blind with their insularely fees.

Qualify your S1 lawyer the way you would a blind, deaf, mute, quadriplegic proctologist before you go in for surgery. The fact that they can do what you’ve read in their promotional material is possible but most likely won’t happen, not that it can’t happen it’s just they can’t make it happen. Got it?

Be wary of S1 attorneys that will try to confuse you and distract you from your original goal. Let’s say it was your goal to go public on the OTCBB, the attorney who wants to take you for a ride will distract you with statements geared towards far fetched issues to scare you into submitting to their, not so far off, actions of adding fees, slicing off equity and other things of this nature. A perfect example is an attorney who gets involved with the client’s PPM share price with oppressive authority. If you’re company has a valuation of $3m they are trying to tell you to sell shares pre public for $1.00 or so which is absolutely, completely unrealistic, especially when you look at existing in the post public arena. They will tell you that at .20 cents per share pre public your pre revenue company will never have a chance to get on the NASDAQ (NASDAQ should be the furthest thing from your mind at this stage as you should be focusing on your pre public share price and post public IR). If the predator S1 lawyer sees you’re organized and have a solid comprehension of the process they will take away your confidence in those around you to gain more dependence by you. They will tell you that you can’t pay your IR firm the way you’ve already pre negotiated or that they are dirty or whatever.

When it comes to the PCAOB audit they will absolutely insist on you using their guy even though he charges twice the amount of other firms that gave you a quote and you can rest assured that the markup is their commission for scaring you into using this firm.

At the end of the day the predatory S1 attorney will confuse you, up-sell, over charge, scare, belittle and whatever else they have to do to make sure that at the end of the day they can get away with charging and taking everything without having to deliver anything and it will be structured so that the blame falls on you for not fulfilling the obligations set on you by the attorney. Good luck out there!

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