STOs and ICOs are two fundraising mechanisms with functional similarities and differences. Due to an overwhelming amount of recent questions regarding the topic at hand, today we’re going to talk about the difference between STOs and ICOs. OUR SHORT ANSWER: STOs: Security Token Offerings   When you invest in a Security Token, you’re investing in something that has something tangible behind it already because they are actual financial securities backed by the assets, profits, and revenue of a company. You’re not taking as much of a risk and essentially investing into‘GoFundMe’ like you would be with an ICO.  ICOs: Initial Coin Offerings Most of the Cryptocurrencies that you know started out as an ICO in which people could invest money in hopes that the value would go up. An ICO is a security which means it needs to fall under one of the exemptions to the SEC (or otherwise be registered) such as Regulation D, Regulation A, Regulation CF and Regulation S which each have their own set of requirements according to the Jobs Act. If you want to launch an ICO, it’s not that you can’t do it, it’s just that you have to do it right. But just think of ICOs as the ‘Kickstarter’ of coins. There is not enough room in the market for ALL ICOs to do well! Now let’s talk about Utility Tokens. The major differences between Security Tokens and Utility Tokens are: Security Token: Ownership of assetInvestorsRegulated Offerings With Security Tokens, you’re buying a share of the project.  Utility Token: Access to protocolPurchasersUnregulated Crowdsales With Utility Tokens, you’re buying a token of the platform with the promise that once the platform is functioning you will have access to the platform through your token.  NOTE:The SEC does not recognize the term “Utility Token.” In fact, Chairman of the SEC, Jay Clayton, is on record saying that he has never seen an offering that he thought was not a Security. Therefore, in order to be on the safe side, all ICOs and STOs should be treated as a security until the law is clear about the defining factors.  Bottom Line: Because STOs are backed by something tangible, there is much less of a risk of fraud which makes STOs the safer option. In 2018 and 2019 you can expect to see a major rise in STOs!   If you still have questions on this topic, reaching out to a lawyer for advice is recommended. At Benemerito Attorneys at Law, we offer free consultations and would love to help guide you toward the right decision for your business.  Let’s talk >>> 212-785-1528 This blog is for informative purposes only. This information does not constitute legal advice. You should consult with a licensed attorney that can advise you according to your particular circumstances.  

Startups raising money for the first time often ask us if it makes sense to raise capital from friends, relatives or other potential investors who are not considered an “accredited investors”.  Our short answer: It’s not that you can’t take money from unaccredited investors, it’s just more difficult and expensive with all of the hoops you have to jump through. If you’re raising money for your Startup, always try to go through accredited investors first! If you’re not an expert in securities law and are looking for a more in-depth answer to this question, we broke it down below.  The History Up until recently, only accredited investors were able to invest in privately held companies. Privately held companies, or Startups, are companies that aren’t listed on a stock exchange like the New York stock exchange or the Nasdaq. This history of this law dates back to 1933 after the Great Depression when individual investors were consistently being taken advantage of through get-rich-quick schemes.  Because many of these scams involved unregulated private investments, the US government established the Securities and Exchange Commission (SEC) and put it in charge of creating and enforcing Securities Laws. One of their very first actions was to prevent non-accredited investors from investing in private deals.   This all changed with the Jobs Act, which passed under President Barack Obama in 2012, permitting companies to offer and sell securities through crowdfunding regardless of their income or net worth. However, many capital raises do not meet the requirements of Regulation Crowdfunding. Who are Accredited Investors? Accredited investors are people that can invest in your Startup with little to no issue with the Securities and Exchange Commission (SEC).  The only problem is they make up less than 10% of the US Economy. Out of the 127 million households in the US, only 12.4 million of those are Accredited Investors.  What makes an Accredited Investor? Someone who makes more than $200,000 a year for two consecutive years with the expectation that they’ll make it again the third yearA couple who makes more than $300,000 for two consecutive years with the expectation they will make it again the third yearAn individual couple with a million dollars or more in net worth not including their primary residence  If you do want to include non-accredited investors in your funding, they must comply with detailed additional information requirements. These requirements are thorough, comprehensive, and too expensive for most Startups to prepare. Most companies find that raising money from non-accredited investors can result in gradual fees that wind up being even higher than the amount of money they would raise from the investors. This is a good reason to exclude all non-accredited investors from your fundraising as an early-stage company! If you still have questions about what type of investor is right for you, reaching out to a lawyer for advice is recommended. At Benemerito Attorneys at Law, we offer free consultations and would love to help guide you toward the right decision for your business.  Let’s talk >>> 212-785-1528 This blog is for informative purposes only. This information does not constitute legal advice. You should consult with a licensed attorney that can advise you according to your particular circumstances.

Should You Form An LLC Or A Corporation?

Ah yes, the Non-Disclosure Agreement. Most commonly referred to as the "NDA," this agreement has caused a universal paranoia amongst entrepreneurs. It's the agreement that every entrepreneur needs in order to ensure their idea is protected when dealing with anyone who can help them turn their dreams into a reality! I can't tell you how many times I've had potential clients make me sign an NDA before even sitting down with them. Although I'm bound by privilege to keep communication confidential as an attorney, if it helps my client sleep at night, I'm more than happy to sign. NDA in a Nutshell For those of you who are not sure what an NDA is, it’s essentially an agreement that states one or both parties will not use or share any of the information that is exchanged for a set period of time. Types of NDAs NDAs can come in one of two forms, Mutual or Unilateral. In a Mutual NDA, both parties are exchanging information with one another and agree to keep everything confidential. These types of NDAs are used mainly in mergers where a large amount of classified information is being shared in order to come to an agreement.  The other type of NDA is the Unilateral NDA. This is the one that every entrepreneur has in hand before they go and speak with third parties to help them turn their idea into a reality. In this agreement, only one party is sharing the confidential information. The other party agrees not to misuse or disclose any of the information they are given while working on the assignment.  NDA Elements Nowadays, with such easy access to information, anyone can go online and download an NDA to use, and most times it will be sufficient to achieve your goal. However, I have been presented with NDAs that lacked some of the four basic elements an NDA needs in order to be effective.  Before I get into the elements, I strongly advise consulting with an attorney before using or signing any type of document. Even though I agree that some attorneys are a bit out of touch with reality and want to charge ridiculous fees for something as simple as a basic NDA. I do not believe an attorney should charge their startup client for an NDA. Unless of course, it is the type of situation that requires a more complex NDA. If you find yourself stuck between paying a high fee for an NDA or rolling the dice on one downloaded from the Internet, contact me at and I'd happily give you one free of charge. Now for the elements: 1. Defines what is Confidential Information The NDA should clearly define what information needs to be kept confidential. The last thing anyone wants is ambiguity in this agreement. It is important to make sure this is clear because the parties may later disagree in what actually constitutes “confidential information.” A clear definition will avoid any confusion. 2. States what is NOT Confidential Information  Not everything exchanged can be considered confidential. A good NDA will have a list of things that will not be considered "confidential information". Usually, any information that can be obtained independently or that falls into the public domain will not be considered confidential for the purposes of the agreement. 3. Lays out the Receiving Parties Obligations A good NDA should state what the party who is receiving the information is expected to do or, better yet, not do. Generally, it is sufficient that agreement states that all the information must be kept confidential, that it must not be misused, and it must not be disclosed to any third parties. 4. Defines a Time Period In order to avoid any complications in the future, an NDA should separately define the time period for the agreement (usually called a “Term”) and the amount of time for which the information should remain confidential. These time periods may not be for the same amount of time, and as such, should be stated separately and not grouped together as one.  Conclusion Every entrepreneur I have worked with has had an extreme paranoia of protecting their ideas, and rightfully so. Everyone knows the story about Facebook and how this multi-billion-dollar company was founded on a “stolen idea” (or so it’s been told). Bottom line, you should always consult with an attorney before doing anything with your idea. All these do-it-yourself sites will never be able to offer the one thing that a great business lawyer can: counseling. But like I said before, don't get ripped off by a lawyer who is just in it for what they can get. Work with an attorney who believes in your idea and never pay your attorney for a basic NDA. At Benemerito Attorneys at Law, we would be more than happy to sit down and discuss this and any other concerns you have. We never charge our clients just to sit down and chat, so contact us today and let’s get started.

Whether you're opening a lemonade stand on the corner of your block or starting the next Fortune 500 Company, it is important to always remember one thing, "Business is Business". All Businesses have the same key elements. I like the lemonade stand analogy because it is the most basic business model that almost all entrepreneurs start with and the easiest one to draw references to. Here are 7 crucial business elements that will help ensure you succeed as an entrepreneur: 1. The IdeaBefore a business can be established it had to start as an idea in someone's head. Most great ideas are drawn from an entrepreneur's real life experiences. In this day and age, it is rare that someone will come up with an entirely unique idea. As a matter of fact, if you ever find yourself with a completely unique idea that has never been done, please contact me so I can be your attorney. For the most part, entrepreneurs are coming up with ways to"build a better mouse trap." Great entrepreneurs see a need for something that no one else can see. That ability to see what others cannot, even the when it's the most obvious thing, is what makes the difference between an average person and an entrepreneur. But an idea is not enough. Once you have this great idea to sell the world's most amazing lemonade ever what's next? It's time for a plan. 2. The Business PlanBenjamin Franklin once said that "failing to plan is planning to fail". These words couldn't be more true. What is an idea if there is no plan to carry it out? It is just an idea that will be one of the million that never make it past your brain. A business plan is a crucial part of the entrepreneurial process. You can have this great idea for a product, but the world will never see it if you don't know how to get it to them. When brainstorming about how to sell your amazing lemonade you must decide on a course of action. Where will you put your stand? How many lemons will you initially buy? What will you put in the lemonade to make it "the best lemonade ever?" All of these questions need to be decided and structured before any business can be successful.  3. The Product  Every business consists of either a product or a service. When developing a product or service it is important to balance the uniqueness of it with the competition that already exists. It is also important to determine your potential customer base. You want to create something that will appeal to the masses. This is important to ensure a steady growth and potential investors. No one wants to get behind a product that only appeals to a small subsection of people. You must determine who is going to be your target customer and try to develop a steady and loyal customer base. In order to create customer loyalty for your brand there must be a legitimate need for your product in the market. If there isn't a need then it is up to you to create one. Going back to the lemonade stand example, why should they buy your lemonade instead of going to the stand down the street? On a hot summer day people generally would like to drink something cool and refreshing, so you put a sign on your stand that says "Ice Cold Lemonade! Treat yourself to the best lemonade ever!" There is a need for the lemonade, and you have just created the desire to purchase it with your sign. You have effectively made your lemonade the most desirable on the block. 4. Cost StructureOkay, so you have this great idea for a product or service. You have figured out your potential customer and have formulated a plan on how to get it to them, what's next? Money. (perhaps the most important part of the entire entrepreneurial process). Let's face it, you can have the greatest idea since the internet, but if you don't have the working capital behind you, you will never be able to make it anymore than just an idea. At this point in the process, entrepreneurs will turn to their angel investors for their seed money. This usually consists of your family members and close friends, the people that believe in your crazy idea to sell lemonade on a street corner to people sitting in traffic. Once you have your first bit of money you can start on a proof of concept. It is critical that you use this money to show that your product or service works. You must be able to create a demand for your idea if you want to get more investors to back you. Once you have created a demand and a proof of concept you are ready to approach angel investors and venture capitalists to pitch your idea and try and raise more funding so you can take your business to the next level.  5. PeopleIn order for a business to ever grow past it's first stage you are going to need more people. But not just any people, you need the right people. No business ever failed because it had all the right people working to make it better. In order to be successful you need people that can contribute to the business's ability to serve it's customers. It is essential that you partner with the right suppliers, advertisers, and money management team. Let's go back to the lemonade stand for a minute. Your stand will fail if you do not get quality lemons to create your product. People need to know where your stand is, so maybe you hire someone to go around the neighborhood and put up flyers advertising the "best lemonade on the block". Now you have people coming from all over to purchase your lemonade, so you must have someone who can handle the money and make sure it is managed properly with enough allocated to the continual operation of the stand. At the end of the day, not having the right people can make or break a business.  6. Room for ImprovementA successful business is never done growing. As an entrepreneur you must be constantly thinking of ways to grow and expand your business. It is foolish to ever think the one idea you had when you wrote your first business plan is the one that will stay with you for the rest of your business's life. Once you have fully conquered the initial aspect of your business it is time to sit down and think how you will achieve the next step. Back to the lemonade stand, you've conquered the market and now have the best lemonade in the neighborhood. Customers are coming in every day and you have so many dollar bills that you don't have any more room to store them. But whats next? Maybe you think about selling apple juice now and try and conquer that market. Bottom line, if you ever come to a point that you can't think of anymore ways to grow and improve your business then maybe it's time you start a new business, because once a business plan has become static it is doomed to fail. 7. Tough SkinThis is the last element of being a successful entrepreneur, and in my opinion the most important to ensure you keep going. You have to understand that once you start down this path there is no turning back. Your relationships with your friends and family members become a constant barrage of questions about how you're doing and if you're sure you made the right decision. They will ask if you're thinking about going back to work or if you regret leaving your job. They will treat you as if you are crazy because you decided to step outside of the traditional "life's script." You have to understand that most people are content waking up everyday and going to work. They like the idea of a steady and consistent pay check. They couldn't dream of taking such a risk. Their lives are an endless cycle of rewind and repeat. This is why you are an entrepreneur and they are not. Being an entrepreneur is not for everyone. Making this decision is a huge risk. It's not easy to give up comfort and security for the slight possibility of success. Most people believe being successful is all about luck. A professor in law school once told me that there is no such thing as luck when it comes to business. He said that luck was nothing more than the point where opportunity and preparation meet. Opportunities pass us by everyday. Unfortunately, most people are ill prepared to handle them when they do, which is why they do not succeed. Almost everyone can draw back to a point in their life where they say: "if I only knew then what I know now, things would be so different." You must always be ready to strike when an opportunity comes your way. As long as you stay focused and hold on to these seven basic elements, you can have the most successful lemonade stand in your neighborhood. ​