Startup Basics: Legal, Business, and Financing Strategies

Idea To IPO
Startup Basics: Legal,
Business, and Financing
Strategies
Roger Royse
@rroyse00

Disclaimer
No information contained in this presentation is to be construed as legal advice. No
information contained in this presentation is intended or related to any particular factual
situation. Nothing herein forms an attorney-client relationship. If legal advice or other
expert assistance is required, the services of a competent professional should be sought.

People
Money
Tech
The Startup Triangle

PEOPLE
Advisors
Founders
Employees &
Consultants

• Limited Liability Company (LLC)
• S Corporation (S Corp)
• C Corporation (C Corp)
• Foreign Corporation
Choice of Entity

 Vesting
 Equal Percentages
 Subjective
 Formula
Founder’s Equity

FAST Model
Valuation
Milestones and
Deliverables
Vesting Stock v.
Options
Advisors

CURRENCY
• Options
• RSUs
• Restricted Stock
• Phantom Plan Units
Currency

Tax Issues:
• 409A
• Common stock grants
• Accounting and cheap stock
• Deferred Salary
Stock Valuation

www.startuprounds.com
• Who should vest
• How long?
• Acceleration?
• Change of control
• Termination without cause
• Double and single triggers
VESTING Vesting

• Form of Election
• Timing
• Whose Obligation?
83 (b)

• Employee vs Independent Contractor
• Wage & Hour Laws
• Intellectual Property Issues
• Prior Employer’s Facilities
• Invention Assignments
VESTINGAdditional Considerations

• Market Strategy
• Competition
• IP Strategy

TECHNOLOGY AND MARKET STRATEGY
Market Entry
Options
Third Party
Presence
Sales Rep
Distributor
OEM/VAR
Direct
Presence
Branch
Office
Subsidiary
Market Strategy

POSITIVE
CASHFLOW
NEGATIVE
CASHFLOW
IDEA GENERATION DEVELOPMENT COMMERCIALIZATION SALES / REALIZATION
PRODUCT LAUNCH
MANUFACTURING
L.ICENSING
Cashflow Comparison: Licensing Vs. Manufacturing

JV, JDA, License, Manufacture
• Joint Venture
• Joint Development
• License
• Manufacture

IP Strategy
• Trade Secret
• Patent
• Trademark
• Copyright
TM R

PATENT STRATEGY
Big
Sound
Duplex
Good
Recep-
tion
Feedback
Noise Filter
(Trade Secret)
Triangular
Shape
D 222,306
Microphone
Locations
US 7,321,856
Microphone
Shape
60/000,842
Speaker
Chamber
US 7,123,456
Remote
Microphones
60/334,856
Dual Pipeline
Signal Proc.
US 7,321,856
Motherboard
Design
US 7,222,387
Notch Filters
60/993,000
Patent Strategy

• Founders
• Family & Friends
• Angel Investors
• Private Equity Funds
• Banks
• Venture Capital
Early Stage Investment Sources

SAFE Priced roundsConvertible Debt
Seed Funding

• Common Stock
• Options
• Warrants
• Convertibles
• Preferred Stock
Cap Table

Founders 5,000,000 38% 5,000,000 45%
Stock Pool 2,000,000 15% n/a
Series A 3,000,000 23% 3,000,000 27%
Series B 3,000,000 23% 3,000,000 27%
total 13,000,000 100% 11,000,000 100%
Capitalization

Founders 5,000,000 50% 5,000,000 63%
Stock Pool 2,000,000 20% n/a
Series A 3,000,000 30% 3,000,000 38%
Series B 0% 0 0%
total 10,000,000 100% 8,000,000 100%
Capitalization

Founders 5,000,000 71% 5,000,000 100%
Stock Pool 2,000,000 29% n/a
Series A
Series B
total 7,000,000 100% 5,000,000 100%
Capitalization

Founders 5,000,000 100% 5,000,000 100%
Stock Pool 0% n/a
Series A 0%
Series B 0%
total 10,000,000 100% 5,000,000 100%
Capitalization

• VC or Institutional Investor
• Preferred Stock
• Valuation Methods
• Score Card
• Venture Capital Method
• Berkus Method
• Cayenne Calculator
• Risk Factor Summation
• Negotiation
The Priced Round

• When to mention valuation
• Staged Investment
• Liquidation Preference
• Control
• Blocking rights
• Drags and tags
• Anti-Dilution protection
VC Negotiations

Other Financiers
• Private Equity
• Crowdfunding
• Strategic Investors

• Total global crowdfunding volume $34B (2015)*
• P2P lending: $25B
• Reward and donation crowdfunding: $5.5B
• Equity crowdfunding: $2.5B
• North America crowdfunding $17.2B
• World Bank estimated total crowdfunding market $90B by 2020, however, trend of
crowdfunding doubling year over year reach this level by 2017.**
• Comparison –
• Venture capital industry invests an average of $30B annually**
• Angels invest an average of $20B annually**
* Massolution Crowdfunding Industry 2015 Report
** Forbes “Trends Show Crowdfunding to Surpass VC in 2016”
Crowdfunding by the Numbers
Slide provided by:
Dawn Rhea, Moss Adams
Carolyn Lee, Morgan, Lewis & Bockius
Annette Nellen, San Jose State University

• Campaign owner selects crowdfunding platform (e.g., Kickstarter.com, Indiegogo.com,
GoFundMe.com).
• Differences exist such as whether must hit target to get funds, whether for business or
personal, others.
• Campaign owner creates a campaign, telling the story of their product, idea, concept or
reason for fundraising.
• Third-parties “contribute” funds to the campaigns.
• Funds raised are distributed to campaign owner less any applicable fees assessed (e.g., by
the platform itself, credit card processors, foreign currency conversion, etc.).
• Some sites require that “target” be met to get the funds.
• Campaign owner, in exchange for this contribution may:
• Do nothing, including provide nothing in return to the contributors
• Provide a product or ownership interest
• Provide a nominal value perk such as a logo tee shirt/tickets to an event
Crowdfunding Campaign Overview
Slide provided by:
Dawn Rhea, Moss Adams
Carolyn Lee, Morgan, Lewis & Bockius
Annette Nellen, San Jose State University

• Improves access to capital markets for emerging growth companies
o Relaxes reporting and disclosure requirements for public companies
with less than $1 billion in gross revenues
• Crowdfunding/Crowdfinancing
o Exemption from registration for issuance of securities
o Securities issued through crowdfunding do not count towards
registration threshold
o Possible Problems
 Fraud
 Costs
 Unsophisticated nature of investors
• Increases 500 shareholder registration threshold
• General solicitation in Rule 506 offerings, provided that all investors
are accredited
JOBS Act Overview

• Crowdfunding (Title III of the JOBS Act)
o Allows companies to raise a limited amount of funds from the
general public (Effective as of May 16, 2016)
o Investment must be through an intermediary broker or funding
portal
• General Solicitation (Title II of the JOBS Act)
o The SEC has extended the exemption for private offerings under
Rule 506 to allow for general solicitation providing certain
requirements are satisfied
o Can only issue securities to accredited investors and there are
additional filing requirements
• New Regulation A, nicknamed “Regulation A+” (Title IV of the JOBS Act)
o Preempts state registration, allow for what some call a “mini-IPO”
JOBS Act – Key Provisions

Exemption from Registration
• The private company issuer (aggregated with predecessors and companies under
common control) may sell up to $1.07 million of securities in a 12-month period
[adjusted for inflation]
• Individual investments in all crowdfunding issuers in a 12-month period are limited
to:
o If either their annual income or net worth is less than $107,000, then the greater
of:
 $2,200 or
 5 percent of the lesser of their annual income or net worth
o If both their annual income and net worth are equal to or more than $107,000,
then
 10 percent of the lesser of their annual income or net worth (up to a
maximum of $107,000)
o Issuer may rely on intermediary’s calculation of investor limits, unless issuer
knew it was or would be wrong
• Process is likely to prove expensive and overly burdensome
• Effective as of May 16th, 2016
Crowdfunding

• Investment must be through the online platform of an “intermediary”
broker or funding portal
o Intermediary must register with the SEC and FINRA
o Issuer can only use one intermediary in any concurrent offerings based off of
crowdfunding exemption; however, multiple crowdfunding offerings may be
conducted using different portals so long as the aggregate amount in the
same 12-month period does not exceed the 1.07 million limit
o Many limitations on what entities can be intermediaries (e.g., must be good
actor)
o Stringent limitations on having financial interests in issuers using platform
o Only allow issuers if reasonable to believe they are compliant, and there is no
reasonable basis to think there is a potential for fraud
o Cannot accept commitment from investor until investor has account with
platform, and platform provides needed information
o Must make sure investors aren’t exceeding their caps, and that they
acknowledge and understand the risks
o Must provide communication services between investors and issuer
o Many other requirements and filings
Crowdfunding

• No integration with non-crowdfunding offers
o Be careful to ensure crowdfunding communications do not go to wrong
offerees who are not supposed to receive them (e.g., Rule 506(c) offerees)
• Limits on advertising and compensation for promoters
o Limited to brief notice that directs investors to the intermediary’s platform
o Issuer must take reasonable steps to ensure that any promoter clearly
discloses compensation for promotional communications
• Post fundraising
o Securities cannot be resold within 12 months (unless to an accredited
investor)
o Private right of action for material misstatements/personal liability
Crowdfunding

• Issuer disclosure requirements
o File basic business, offering details in Form C with SEC; then display publicly
o Amend Form C if any material changes occur via Form C/A
o File updates (Form C-U) with SEC within five days of certain milestones
(such as enough commitments, offers, or closing of issuance)
o File financial statements meeting GAAP, and GAAS or PCAOB if applicable
 Audited if offering exceeds $500,000, except first time issuers need only have
independent CPA review
 Reviewed by an independent CPA if offering is between $100,000 and $500,000
 If $100,000 or less, certain information from tax forms and CEO-certified financials
 In any event, if more trustworthy financials available than are required (i.e., if
audited or CPA-reviewed are available), use those instead
o File annual SEC reports via Form C-AR
o File Form C-TR to terminate annual reporting obligations in five days of
eligibility (e.g., became Exchange Act issuer, has fewer than 300 recorded
holders or not more than $10 million total assets)
Crowdfunding

Proposed Changes
• The Small Business Capital Formation Enhancement Act (H.R. 4168)
• The Supporting America’s Innovators Act (H.R. 4854)
• The Fix Crowdfunding Act (H.R. 4855)
• The Fair Investment Opportunities for Professional Experts Act (H.R. 2187)
• Crowdfunding Enhancement Act (S. 3453)
 Allow Testing the Waters
 Raise the Funding Cap From $1M to $5M
 Clear Funding Portal’s Liability
 Remove the current prohibition on crowdfunding by SPVs
 Revise SEC registration requirements to exempt securities issued in
crowdfunding transactions
Crowdfunding

Data of 2016
• As of December 31, 2016, 169 companies had filed a Form C to offer
securities under the Title III exemption.
• The average minimum raise sought is $100,000 and the average
maximum raise is $647,000.
• The average time period has been between four and six months.
• Among the issuers, Delaware entities accounted for nearly half (81) of all
filers, with California (21) and Texas (10) entities a distant second and
third, respectively.
• Compliance rate is very low - 15%.
 By January 9, 2017, only 39 issuers had filed a Form C-U. Among those 39 filings,
only 14 were filed within the five business day time period, representing a 15
percent compliance rate.
Source: Drinker Biddle Crowdfunding Report
Crowdfunding

Data of 2016
There are 21 registered funding portals as of December 2016. Wefunder portal
continues to hold a majority of the market share, with 70 of the year’s 169 offerings
hosted on its platform. The StartEngine portal maintained the second spot, hosting
29 offerings in 2016.
41.7%
17.2%
41.1%
2016 Funding Portal Market Share
Wefunder
StartEngine
Others
43
Crowdfunding

Data of 2016
Crowdfunding

Points for Consideration
• Crowdsourcing through donations (e.g., IndieGoGo and Kickstarter) may be
cheaper and easier, and does not require the company to issue equity
• Advertising terms of offer is restricted
o Issuer can only direct investors to broker/funding portal
• Costs of disclosure and reporting (15%)
• Use of intermediary
• Risk of fraud
• High number of unsophisticated investors
o Fiduciary duties to all investors
o Could be a concern for VCs in future fundraisings
• Liability
o Rule 10b-5 liability
o New Section 4A(c) liability for issuer, its officers and directors and anyone
“selling” including promoting the offering
Crowdfunding

• Rule 506 now provides for two different types of private offering:
o Rule 506(b) is essentially the same as the old Rule 506, providing an
exemption for non-public offerings but prohibiting general
solicitation
o Rule 506(c) is a new exemption that allows general solicitation, but
with certain restrictions and filing requirements
• Rule 506(c): issuers can offer securities through means of general
solicitation as long as:
o All purchasers are accredited investors; and
o The issuer takes “reasonable steps” to verify the purchasers’
accredited investor status
General Solicitation

• A determination of “reasonable steps” requires consideration of:
o Nature of the purchaser;
o Amount of information the issuer has about the purchaser; and
o Nature of the offering, terms, amount, and method of solicitation
• The SEC has provided a non-exhaustive list of methods to verify status:
o Review IRS forms that report income e.g. Form W-2 or K-1;
o Review documents for asset details e.g. bank or brokerage
statements; or
o Obtain confirmation from CPA, lawyer, SEC-registered investment
advisor, or broker-dealer that reasonable steps were taken to verify
accredited investor status
General Solicitation

• Form D Filing
o Under the current rules only one Form D filing is required (within 15
days of the first sale of securities)
o Under the Proposed Rules a Rule 506(c) issuer must file:
Advance Form D at least 15 days prior to the first use of general
solicitation materials in an offering;
Full Form D within 15 days of the first sale of securities; and
Form D Closing Amendment within 30 days of the termination of
the offering
o Rule 506(b) issuers must file the Full Form D and Closing
Amendment
General Solicitation – Proposed Rules

• Filing of General Solicitation Materials
o Proposed Rule 510T requires 506(c) issuers to electronically
submit general solicitation materials to the SEC
o Current intention is for this requirement to expire within 2
years
o Submissions would not be made publically available
• Legends – all general solicitation materials will need a legend that
states the following:
o The securities may only be sold to accredited investors;
o The securities are offered under an exemption to the
Securities Act and therefore certain disclosure requirements
do not apply;
o The SEC has not given approval to the securities, terms of the
offering, or the accuracy of the offering materials;
o The securities are subject to legal restrictions on resale; and
o Investing in securities involves risk and investors should be
able to bear a loss
General Solicitation – Proposed Rules

• Under what is now Rule 506(b), issuers are prohibited from making
general solicitations
o The emergence of internet funding websites creates some potential
problems for issuers relying on Rule 506(b)
• A communication that is publically available (e.g. on a website that is not
password protected) is a general solicitation
o This can be avoided by only providing access to accredited investors
• Direct communications to persons with whom the issuer or its broker has
a “pre-existing, substantive relationship” are not considered general
solicitations
o However, the SEC believes that such a pre-existing relationship
usually only exists where the communication is from a registered
broker-dealer
Private Offerings Under Rule 506(b)

• In 2013, the SEC released two no-action letters confirming that certain fund-
raising websites did not need to register as broker-dealers:
o AngelList LLC
Matches investors with companies
Exclusively available to accredited investors
No transaction-based compensation
o FundersClub Inc
Posts details of companies to its website after they pass initial due
diligence
Exclusively available to accredited investors
No transaction-based compensation
• In 2012, the SEC charged some companies operating secondary markets for
private stock
o SecondMarket escaped unscathed which it puts down to its
transparency, rigid accreditation process, and strict adherence to rules
on general solicitation
SEC No Action Letters

• The proposed regulations pose a number of potential problems to pitch
competitions, for example:
o The pitch could be considered a general solicitation and therefore
any presentation materials would need to be filed with the SEC
o If the pitch is amended after feedback from judges then the new
presentation would need to be filed with the SEC before the next
pitch
• Issuers that break the rules are subject to a one year penalty
o Very onerous and essentially a death penalty for early stage
companies
Pitch Competitions

• SEC has proposed updates to Rule 147 with new exemption, and to expand
Rule 504 of Regulation D to have higher limits (up to $5M from $1M), to
facilitate the use of these new state laws
• The North American Security Administrator Association (NASAA) has released
a model rule for states to use in implementing crowdfunding
• As of late 2016, 32 states have finalized legislation granting crowdfunding
exemptions
o Others are in the final leg of passing the legislation
o Others yet in the early stages of considering legislation
o A few have rejected crowdfunding legislation
Intrastate Crowdfunding

• Per NASAA, these exemptions from state securities rules tend to involve:
o Qualifying for the federal intrastate offering exemption from Federal
registration (if intrastate offer to intrastate buyers, Federal securities
rules do not apply)
o Wide ranging offering caps ($100k-$5M over 12 months)
o Wide-ranging investment limits ($100-$100k, with increase for accredited
investors)
o Internet-based offerings and platforms are increasingly important to new
exemptions, as are broker-dealers
o Registration-lite and periodic reporting-lite
Intrastate Crowdfunding

• The oldest exemption issued by the SEC
• Although it allowed non-accredited investors to invest, was rarely used,
because of high compliance costs relative to the maximum funds raised
o $5 million maximum offering
o Did not preempt state law registration, requiring registrations in many states
• The JOBS Act included legislation to create what is nicknamed
“Regulation A+”, an upgrade to Regulation A
• The new Regulation A keeps the allowance of non-accredited investors,
and features two kinds of Regulation A offerings, called “Tiers”:
o Tier 1, with a $20 M maximum, does not preempt state law registration, but has low
federal compliance burdens
o Tier 2, with a $50 M maximum, preempts state law registration, but has high federal
compliance burdens including ongoing semi-annual, annual, and current disclosures
Reg. A – History

• Went into effect June 19th
• States do not like Tier 2
o Tier 2, per the JOBS Act, only preempts state registration for “qualified
purchasers” with the seeming intent to not totally preempt the states
o However, the SEC defined “qualified purchasers” to mean all Tier 2
purchasers
o State securities regulators resent this loss of power
• States have been creating a multistate single-registration process to make
Tier 1 more palatable, and to show they deserve to not be preempted
• The “mini-IPO” of the new Regulation A has excited investors, and for many
companies may be better than relying on the crowdfunding exemption
o Including for offerings done via Internet portals
Reg. A – History (cont.)

Data of 2016
Source: http://www.mofojumpstarter.com/2017/02/08/updated-market-statistics/#
• From its effective date in June 2015 through December 2016, there
were 171 Regulation A offerings filed. Of these, 76 were Tier 1
offerings and 95 were Tier 2 offerings.
• The aggregate proceeds sought to be raised in the filed deals was
approximately $3 billion.
• There were 97 offerings qualified. Thus far, $238 million has been
reported sold, though more complete data will be available when
issuers file their reports in a few months.
Regulation A+

• Two kinds of Reg. A offerings, called “tiers”, with different qualities:
Issue Tier 1 Tier 2
State law regulations? Not preempted;
multistate
coordinated review
program to help
Preempted
Maximum amount raised? $20 M in 12 months,
up to $6M of which
from current holders
$50 M in 12 months, up to $15M
of which from current holders
Per investor maximums? None Up to 10% of greater of non-
accredited investor’s net worth or
net income; unlimited for
accredited
Investor limitations Accredited and non-accredited okay
Issuer limitations Cannot be public, shell company, bad actor, those failing
certain SEC compliance rules
Reg. A – Two Options (“Tiers”)

Issue Tier 1 Tier 2
Solicitation, advertising Testing for interest, soliciting OK, though notices needed
and materials may be exhibits on SEC filing; potential to
keep confidential SEC filings during this time
Initial disclosures Financial statements
for past two years,
plus offering circular
Same as tier 1, plus audited
financials
Disclosure to buyers? Circular or most recent Tier 2 report due to buyers by
specific time before sale
Ongoing disclosures File exit report at
end of offering
Yes, if 300+ holders; annual,
semiannual, and current events.
Limitation on need for full
Exchange Act registration
Securities restriction Unrestricted; affiliates have some limitations
Allowed securities? Asset backed-securities banned
Integration safe harbor Exists; allows non-US and crowd-funding to be separate
Reg. A – Continued

Issue 506(b) 506(c) Reg. A Tier 2
State law
regulations?
Preempted Preempted Preempted
Maximum amount
raised?
Unlimited Unlimited $50 M in 12 months, up to
$15M of which from
current holders
Per investor
maximums?
Unlimited Unlimited Up to 10% of greater of
unaccredited investor’s
net worth or net income;
unlimited for accredited
Investor limitations Unlimited
accredited, and
35 sophisticated
non-accredited;
self-certification
standard
Accredited
only, and issuer
must take
steps to certify
they are
accredited
Unlimited accredited (self-
certified), unlimited non-
accredited
506(b), 506(c), and Reg. A Tier 2

Issue 506(b) 506(c) Reg. A Tier 2
Issuer limitations No bad actors No bad
actors
Cannot be public,
shell company, bad
actor, those failing
certain SEC
compliance rules
Solicitation,
advertising
Banned Soliciting of
anyone is
allowed
Testing for interest,
soliciting OK
Initial disclosures Non-accredited:
Equivalents of what they
get in registered offering,
plus anything accredited
investor can get
For accredited, see 506(c)
Optional;
must be
available to
answer
questions
Financial statements
for past two years
disclosed, plus
offering circular
with audited
financials
506(b), 506(c), and Reg. A Tier 2 (cont.)

Issue 506(b) 506(c) Tier 2
Ongoing disclosures Form Ds Form Ds Yes, if 300+ holders;
annual, semiannual, and
current events. But special
exemption from Exchange
Act registration until over
$75M float.
Share restriction Restricted for a
year
Restricted for a
year
Unrestricted; affiliates still
have some limits
Allowed securities? ABS not
specifically
banned
ABS not
specifically
banned
Asset backed-securities
banned
506(b), 506(c), and Reg. A Tier 2 (cont.)

• Blockchain is a shared unalterable ledger for recording the history
of transactions
• Trust, accountability and transparency
• Decentralized, permanent, unalterable
• Banking and Payments, Cyber security, Shipping and Logistics
Supply Chain, Agriculture, Forecasting and prediction, ride
sharing, cloud storage, charity, voting and government, public
benefits, energy management
Blockchain Technologies

Blockchain Technologies
• Banking and Payments
• Cyber Security
• Agriculture
• Shipping and Logistics
• Supply Chain
• Forecasting/Prediction
• Crowdfunding
• Healthcare
• Energy
• Securities ownership
• Insurance
• Real Estate
• Ride sharing
• Cloud storage
• Charity
• Voting
• Government
• Public benefits
• Online music
• Retail

• Traceability
• Order + Inventory
• IOT Integration
• Transportation Management
• Certification
Organic Food
Grower
Certified
Organic
Shippers Wholesaler Retailer Consumer
$
Products
$
Products
$
Products
Blockchain Use Case: Smart Contract

• Community supported crowd sale of cryptocurrency tokens issued
by startups based on private Blockchain technology
• Creates liquidity and growth equity without giving up equity in a
company
• Tokens are sold in exchange for Bitcoin, Ether, and government fiat
• No clear tax guidance
Initial Coin Offering (“ICO”)

• In certain cases, the tokens or coins will be securities and may not
be lawfully sold without registration with the SEC or pursuant to
an exemption from registration
• Will depend on the facts and circumstances including the economic
realities of the transaction
• Tokens can have different utilities and rights
• Regulation A, Regulation D, or Regulation CF can be used
• Potential CFTC and FinCEN Compliance
• US vs. Offshore Offering
ICOs (cont.)

Utility
• Use of Token
• Secondary Trading
• Scarcity
• Voting + Democratized
Issuer
Law
• Securities Law
• Regulatory
• Tax
• AML/KYC
• Anti Fraud
$
Step 2: Build
Platform
Step 1:
Pre-Sale
$orCrypto
SAFT
Investors
Step 3: ICO
Tokens
Investors
The ICO: The Internet Boom on Steroids

• SEC Chairman and CFTC Chairman’s February Testimony before the Committee of Banking, Housing, and Urban
Affairs: “…structures of ICOs that I have seen involve the offer and sale of securities and directly implicate the
securities registration requirements and other investor protection provisions of our federal securities laws.”
• SEC Chairman Clayton: Market professionals and gatekeepers must act responsibly and hold themselves to high
standards. In the ICO space "they can do better”.
• SEC warned against ICO Sponsors not making adequate disclosures and cautioned market participants against
promoting or touting the offer and sale of coins without first determining whether the securities laws apply to
those actions.
• Howey Test
• An investment of money, in a common enterprise, with a reasonable expectation of profits, and to be
derived from the entrepreneurial or managerial efforts of others.
• The Risk Capital Test
• The sale of membership to a country club was a security; substance over form
• Investors were risking their capital in expectation of receiving the benefits of club membership, which was in
the control of the issuers of the membership
Is my token a security?

• The SEC’s Cyber Unit - Division of Enforcement
• focused on misconduct involving distributed ledger technology and ICOs, the spread of
false information through electronic and social media, brokerage account takeovers,
hacking to obtain nonpublic information and threats to trading platforms and works
closely with the SEC’s cross-divisional Distributed Ledger Technology Working Group
• DAO Token – model described by one of the DAO founders as similar to “buying shares in a
company and getting…dividends”
• Munchee - restaurant meal reviews
• SEC halted cease and desist – unregistered securities
• ICO targeted investors, who had an expectation of future profits, rather than users of
the products, with intention to use proceeds to develop application and future
“ecosystem”, which would increase the value the MUN token
• Marketing materials stated additional development and ecosystem would increase
the price of the MUN token and could trade on secondary market within 30 day after
ICO
Enforcement Actions

o Rule 506
o 506(b): No general solicitation/advertising; accredited and 35 sophisticated
unaccredited investors; preempt state law regulations
o 506(c): Broad solicitation/general advertising; all accredited investors; issuer
takes “reasonable steps” to verify accredited status; preempt state law
regulations
o Reg A
o Tier 1: $20M in 12-month period; unlimited accredited and unaccredited
investors; state laws not preempted (Blue Sky laws); unlimited accredited and
unaccredited investors
o Tier 2: $50M in 12-month period; unlimited accredited and unaccredited
investors; solicitation okay for testing interest; all investors; state law
regulations preempted
o SAFTs
o Securities law compliance: allow exempt offering
o Redeem for utility token once platform is functional
Rule 506 and Reg A

• Equity?
• Debt?
• Capital asset?
• Barter exchange?
• Prepaid goods or services?
• Subpart F Issues: CFC/PFIC?
• Deferral?
• Open - transaction?
• Forward contract ?
• Executory Agreement to Sell?
• Information Reporting
• FATCA
• FBAR
Tax Considerations

• Commodity Futures Trading Commission (“CFTC”)
• Commodity “Interests”
• Financial Crimes Enforcement Network (“FinCEN”)
• Money Services Business: user, administrator, exchanger
• Money transmitters licenses: state-by-state requirement
• IRS: Tax Considerations
• Consumer Protections
• Breach of contract, false advertising, fraudulent or negligent
inducement
• Industry Specific Regulations
• Global Regulatory Regimes
Other Interested Agencies

ROYSE LAW FIRM, PC
Contact Us
PALO ALTO
1717 Embarcadero Road
Palo Alto, CA 94303
LOS ANGELES
11150 Santa Monica Blvd.
Suite 1200
Los Angeles, CA 90025
SAN FRANCISCO
135 Main Street
12th Floor
San Francisco, CA 94105
Palo Alto Office: 650-813-9700
CONTACT US
www.rroyselaw.co
m
@RoyseLaw
MENLO PARK
149 Commonwealth Drive,
Suite 1001
Menlo Park, CA 94025
SANTA MONICA
520 Broadway
Suite 200
Santa Monica, CA 90401
SAN FRANCISCO
135 Main Street
12th Floor
San Francisco, CA 94105
Menlo Park Office: 650-813-9700
CONTACT US
www.rroyselaw.com
@RoyseLaw
ORANGE COUNTY
135 S. State College Blvd
Suite 200
Brea, CA 92821

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