CONTENT CENTER
The SEC Confirms the Limited Scope and Nature of Utility Tokens
By Marine Bouaziz and Dan DeWolf
On April 3, 2019, Finhub, the SEC’s Strategic Hub for Innovation and Financial Technology, released the “Framework for ‘Investment Contract’ analysis of digital assets” (the “Framework”) providing principles for analyzing whether a digital asset[1] constitutes an investment contract, and thus a security. The same day, the SEC’s Division of Corporation Finance (the “Division”) published its first No-Action Letter on digital tokens.
Can I Raise Venture Capital as a Public Benefit Corporation?
By Ben Stone
As societies and markets increasingly insist that corporations generate positive social impact alongside profit, investors have taken notice. The global impact investing market alone, for instance, doubled from $114 billion in 2017 to $228 billion in 2018, and will almost certainly continue to accelerate. [1]
10 Shortcuts Entrepreneurs Should Not Take When Starting a Company
By Robert Giachetti and Mark Higgins
Congratulations - you have done it! You had an idea, you built a product, you figured out how you want to go to market, and you created a company. With that tedious process complete, you are ready to find your first customer, iron the bugs out of your product, and start making money.
Is Your Commercial Co-Venture in Compliance in all 50 States?
Commercial co-venture arrangements are a great way to blend philanthropy and commercial activities, but the parties in such an arrangement need to be mindful of the rules in each of the 50 states that govern commercial co-venture arrangements. If a person or for-profit company joins forces with a charitable organization to benefit the charitable organization, usually via donations, the parties have entered into a commercial co-venture arrangement for a charitable sales promotion.
How to Distribute Equity in Your Start-Up
By Patrick Elahmadie
The purpose of granting equity to management, employees and certain consultants is to align the interests of the parties pivotal to the growth of your company with the interests of investors. There are a number of different ways to grant equity in a start-up, the most common of which is stock options
CAUTION: Director Veto Rights in Financing Documents May Constitute “Disproportionate Voting”
By Lewis Geffen
Section 141(d) of the Delaware General Corporations Law (DGCL) allows the certificate of incorporation (COI) of a Delaware corporation to confer upon one or more directors voting powers greater than or less than those of other directors, thus resulting in “disproportionate voting” rights amongst the Directors.
How To Get Started: Dividing Equity, Getting Incorporated and Other Details When Beginning Your Business!
By Dinesh Melwani and Will Perkins
Just about every emerging business/start-up lawyer could write a book (and many have!) on the topics of equity division, incorporation and the innumerable ‘other details’ founders need to keep in mind when starting a business!
LLCs and Convertible Debt – Too Good to be True?
By Scott Pinarchick and Will Bussiere
Founders choosing a structure for their business are often drawn to the limited liability company, or LLC, for its overall flexibility in both taxation and governance matters. And founders seeking access to early capital, not to mention seed investors themselves, are often drawn to the convertible note as a simple, less expensive means to raise funds.
Digital Tokens: Rethinking the Term “Cryptocurrency”
By Dan DeWolf, Rachel Gholston, and Marine Bouaziz
What are the similarities between a one dollar bill, a share of a company, and a pre-paid gift card? The answer is……..not so much! The same is true of the similarities between virtual currencies, security tokens, and utility tokens; in truth, not so much.
Issues in Chinese Foreign Direct Investment in U.S. Early Stage Biotechnology Companies
By Flora Brookfield
There has been a marked increase in the amount of money being invested by Chinese investors into U.S. early stage biotechnology companies since 2017, spurred on by direct encouragement from Beijing through its Made in China 2025 industrial policy, which specifically targets biotech as a strategic industry eligible for greater government backing. In the first half of 2018, Chinese venture capital funds and high net worth family offices invested $5.1 billion in US biotech companies, exceeding the $4 billion invested by Chinese investors in all of 2017.
Founder’s Stock – a Legal Fiction
By Michael Bill
In common usage, a founder is an individual who creates or helps create a company, but in legal terms, there is no such thing as a “founder” or “founder’s stock,” only early participants in a company’s organization and ownership of its initial equity capital. Why is this so? Because, for all practical purposes (from a startup’s point of view), there are two types of stock – common stock and preferred stock – and “founders” are just the initial holders of the company’s common stock, usually before any financing, in-licensing, or contribution of assets.
Liability Considerations for Delaware Public Benefit Corporations
By Will Perkins and Christina Bailey
A public benefit corporation (PBC) is a statutorily designated type of corporation in Delaware that melds two concepts that are often seen as opposites: maximizing profit and providing public benefit. This choice of entity presents a compromise for those companies who are committed to operating in a responsible and sustainable manner, while acting as a for-profit entity.
The Form is Always Wrong
By Dan DeWolf and Samuel Effron
Mintz attorneys are often asked as to why we don’t simply provide “forms” on our website that can be downloaded and used. After all, a number of law firms let you download term sheets and other forms such as SAFEs. Our simple answer is: THE FORM IS ALWAYS WRONG! Legal forms are merely starting points and most forms are typically only half an inch deep. A successful enterprise truly needs so much more depth than what is provided in a basic form.
What to Do Now if You Want to Sell Your Company
The global M&A market has remained strong from the end of 2017 into 2018. With stockholders pressuring larger companies to grow their revenues and the strong liquidity position of many companies, it is a sellers’ market. For companies looking to sell and participate in the global M&A market of $3.7 trillion in 2017[1] and $890.7 billion in Q1 2018[2], the toughest question is often how to start.
New Beneficial Owner Threshold Eases VC Fundraising
By Talia Primor, Rachel Gholston, and Dan DeWolf
Small venture capital funds and special purpose vehicles, which otherwise qualify as “venture capital funds,” can now raise money from up to 250 beneficial owners and remain within the 3(c)(1) exemption of the Investment Company Act of 1940 (the “Investment Company Act”).
How to Leverage Privacy as a Key Competitive Advantage
By Cynthia Larose and Brian Lam
“Privacy by design” – while not a new concept – is certainly enjoying a new spot in the sunshine thanks to the European Union’s General Data Protection Regulation (“GDPR”) (93 days and counting…) and its codification of “privacy by design and default” in Article 25.
Privacy can also be a key differentiator and a competitive advantage. Read on for some points that can help drive your data privacy/data management program.
New York City Bans Salary History Inquiries
By Alexander Song
In accordance with a new regulation that took effect on October 31st, 2017, New York City employers are now prohibited from inquiring about or relying on salary history during the hiring process.
Are You An Owner Or Employee? The Inflexibility of the Federal Tax Rules To Be Treated As Both
By Dan Wilcox and Scott Pinarchick
Over the last twenty years or so, the limited liability company (“LLC”) has become a popular entity choice as a business entity. An LLC offers a great deal of flexibility in how it is structured and operates, including the ability for its owners to decide to be classified as a partnership, S corporation, C corporation or, if there is only one owner, to be disregarded as an entity for federal income tax purposes.
Company “Branding” and the Benefits of Federal Trademark Registration
By Susan Neuberger Weller
Selecting and protecting your “brand” should begin from the very moment a business is in the process of being formed, whether that business is a sole proprietorship, partnership, corporation, limited liability company, or some other type of entity. It makes no difference whether the entity is a for-profit or not-for-profit organization, and the size of the entity is also irrelevant. Your “brand” is your public facing identity by which you will be known and through which your reputation will be developed. The goodwill you develop in your “brand” will be one of the most important and valuable assets you own.
Is a Series LLC Right for Your Business?
By Amy Burkhoff
The Series limited liability company (the “Series LLC”) is more nuanced than an ordinary limited liability company, and for the right user, it provides flexibility that will streamline administration better than other alternative entities. Although there are some risks and uncertainties relating to the Series LLC, as discussed further below, the Series LLC is a useful tool to create a series of limited liability companies in a single vehicle, preserving limited liability and reducing the administrative expenses necessary to organize different lines of business or manage different properties.
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