Recent Answers to Fundraising Contract Law Questions

Christopher N.

Answered Jul 1, 2025

You have two major considerations: what are your investors looking for in return and protections against failure (is this a good idea and will I get my money back); and, complying with state and federal securities law as it relates the sales of securities (which you will do because you are selling an interest, shares, etc. in your fund). There are some very significant issues you have prepare for both from the SEC and your investor point of view with whihc you have to deal. My thoughts on the work you have ahead of you (which I basic and not reflective of the many other options available): (1) draft the power point to describe the fund, target industries, etc.; (2) draft the offering memeorandum describing the fund, the risks, the investment strategy, risks, etc.; (3) the subscription agreement; and (4) filing the necessary forms and disclosures with New York and the SEC. GIven the complexity of drafting these documents and complying with the securities laws, you can expect to spend AT LEAST $25,000 for the attorneys to do the work -- but likely much more depending on the law firm. I recommend looking at a smaller form with the necessary experience as they can do the work just as well if not better and at a better price point. Good luck, and we are happy to answer more specific questions if you reach out to us.

John B.

Answered Jun 3, 2025

Raising funds through an ICO is legally possible —but only if you navigate securities laws, money‐transmission rules and (often) state “blue‐sky” requirements. Below is a roadmap to the U.S. legal framework you must consider; I’ve included statute citations and SEC guidance where relevant. 1. Determine Whether Your Token Is a “Security” Key Point: If your token meets the definition of an “investment contract” under U.S. law, it’s a security. Selling a security to U.S. investors without registration (or a valid exemption) violates the Securities Act of 1933 and the Securities Exchange Act of 1934. Conduct a “Howey analysis” for your token. Retain counsel to document why—factually and legally—you believe it’s not a security (if that’s your position). But be prepared that the SEC will likely view it as a security offering. 2. If It’s a Security, Register or Find an Exemption Choose the exemption that best fits (e.g., 506(c) if you have only accredited investors and want to market openly). File Form D for Reg D, or engage an SEC-registered crowdfunding portal for Reg CF, or go through Form 1-A for Reg A+. Each has different reporting burdens and limitations. 3. State (“Blue‐Sky”) Securities Laws Even if you rely on a federal exemption like Reg D Rule 506, most states impose their own registration or notice filings. For each state where you permit a sale, either file the required Form U-2 (for 506 offerings) or register/claim exemption. Most startups rely on the uniform notice procedure under 506 to simplify compliance. 4. Anti-Money Laundering (AML) / Know-Your-Customer (KYC) Rules Even if you structure your ICO as a non-security (which is rare), you must still comply with anti-money-laundering laws if your token is considered a “virtual currency” under FinCEN’s rules. If you accept USD (or other fiat) in exchange for tokens, register as an MSB with FinCEN, build out an AML compliance program, obtain state money-transmitter licenses where required (e.g., New York BitLicense), and integrate a robust KYC/AML vendor at token sale. I have been heavily involved in this space since 2017 - feel free to reach out John@BenemeritoLaw.com