How the Silicon Valley Financing Model Works in Japan - Limitations and Alternatives - (AIS) John Y. Sasaki December 15, 2016 American Chamber of ...

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How the Silicon Valley Financing
    Model Works in Japan –
  Limitations and Alternatives

               John Y. Sasaki

             December 15, 2016

      American Chamber of Commerce
     Alternative Investment Subcommittee
                     (AIS)
John Y. Sasaki
1991      J.D., Boalt Hall, U.C. Berkeley
1994 - 1997 Komatsu & Koma, Anderson Mōri (Tokyo)
1997 - 2002 Wilson Sonsini Goodrich & Rosati (Palo Alto)
           v   start-up representation
           v   venture capital financing
           v   public offerings
           v   M&A
           v   U.S. - Japan transactions
2002 - 2006 Partner, Morgan Lewis & Bockius (Tokyo)
2006 – present
üPrincipal, JSV Foreign Law Office
    Gaikokuho Jimu Bengoshi (California)
    ü

üAdjunct Lecturer, Keio University
üMentor, Founder Institute, Tokyo
                                                           2
DISCLAIMER

This presentation is for informational purposes only, and any and
all information contained herein is not intended to constitute legal
advice. Accordingly, you should consult with your own attorneys
on all legal matters. In particular, JSV Foreign Law Office is not
licensed to advise on Japanese law, so you should consult with
your Japanese lawyers on matters of Japanese law. You should
not take, or refrain from taking action based on the content in this
presentation. We do not guarantee the accuracy of the
information in this presentation, and further assume no liability in
connection therewith.

                                                                   3
Today’s Agenda

u   Basic Financing Model Review
    v   Silicon Valley vs. Japan

u   Top 10 Legal Issues in Japan
    v   Limitations and Alternatives

                                       4
Some Basic Concepts

u   Common Stock vs. Preferred Stock
    v   Common Stock (= “sweat equity”)
         u   Founders
         u   Employees (stock options)
    v   Preferred Stock
         u   Outside Investors

                                          5
Some Basic Concepts

u   Private Financing vs. Public Financing
    v   Private Financing
         u   Venture Capital
    v   Public Financing
         u   Stock Markets

                                             6
Initial Capitalization
          (or Founders Capitalization)

u   Common Stock = “sweat equity”
u   Issuance of Stock to Founders
    v   Issue High Number of Shares
    v   Nominal Price

                                         7
Capital Requirements
               (United States)

u   No Minimum Par Value
    v   e.g., Price Per Share = $0.001

u   No Minimum Capital
    v   e.g., 3,000,000 Shares = $3,000

                                          8
Founders Capitalization
                       (United States)

u   Founders – 3,000,000 Common Shares
    v Price Per Share - $0.001
    v Total - $3,000

                        No. of     Stock    Price Per      Total
                        Shares     Type      Share      Investment
        Founders       3,000,000   Common    $0.001      $3,000

              Total:   3,000,000

                                                                     9
Capital Requirements
                      (Japan)

u   No “Par” or “Non-Par” Value Stock

u   No Minimum Price Per Share
     v   Price Per Share Can Be ¥1

u   No Minimum Capital Requirement
     v   Initial Capital Can Be ¥1

                                        10
Founders Capitalization
                             (Japan)

u   Founders – 500,000 Common Shares
    v Price Per Share - ¥1
    v Total - ¥500,000

                   No. of      Stock   Price Per      Total
                   Shares      Type     Share      Investment
    Founders       500,000    Common      ¥1        ¥500,000

          Total:   500,000

                                                                11
Founders Capitalization
                    (U.S. vs. Japan)

U.S.
                   No. of      Stock   Price Per      Total
                   Shares      Type     Share      Investment
       Founders   3,000,000   Common    $0.001      $3,000

Japan

                   No. of     Stock    Price Per      Total
                   Shares     Type      Share      Investment
       Founders   500,000     Common      ¥1       ¥500,000

                                                                12
Issue #1 – Contributions in Kind
                      (United States)

uGenerally permitted – no third party valuation
 required
BUT
u Services – must be past, not future, services

u   In Practice
    v   Founders pay cash ($0.001/share), plus all IP

                                                        13
Issue #1 – Contributions in Kind
                          (Japan)
u Third party valuation required
BUT
u Exception - if value of in-kind contribution is not

  more than 5,000,000 JPY
BUT
u Valuation cannot be 0

u   In Practice
    v   Founders pay cash (¥1/share), IP transferred
        separately                                      14
Issue #2 – Vesting/Repurchase Option
                         (United States)

u   Vesting is standard
    v   4 years, 1-year “cliff”
u Repurchase price is original purchase price
BUT
u Legal restrictions on repurchases (state-by-state)

u   In Practice
    v Legal restrictions are not an obstacle
    v Delaware – No impairment of capital
                                                       15
Issue #2 – Vesting/Repurchase Option
                               (Japan)

u   No vesting is typical, but changing
u   Repurchases are restricted – “surplus” is required
u   Statutory participation rights for other shareholders

u   In Practice
    v   Other founders have repurchase right
         u   1 founder, no vesting
    v   Purchase at original purchase price may raise tax
        issues if below fair market value
                                                            16
Stock Options
                    (United States)

u   Approvals Required
    v   Stockholders Approve Pool
    v   Board Approves Individual Grants
u   Size of Pool
    v   No Restriction (Generally)
u   Grants
    v   No Restrictions on Grantees
    v   Incentive Stock Options (ISOs) vs.
        Non-Incentive Stock Options (NSOs) vs. Warrants

                                                          17
Option Plan Capitalization
                         (United States)

u   Option Plan – 1,000,000 Common Shares
    v   Initial Exercise Price Per Share = $0.01

                           No. of         Stock         Value Per     Value of
                           Shares         Type           Share      Investment

         Founders         3,000,000     Common            $0.01     $30,000
         Option Plan      1,000,000     Common            $0.01     $10,000

                Total:    4,000,000   (fully diluted)

                                                                                 18
Stock Options
                           (Japan)

u   Issuing Options Is Generally Permitted
    v   Creation of “Shinkabu Yoyakuken”

u   No Limitation on Number of Options
u   No Limitation on Grantees
u   Shareholder Meeting Is Required
    v   Can Create Pool of Options Allocable by the Board over a
        One-Year Period

                                                                   19
Option Plan Capitalization
                               (Japan)

u   Option Plan – 100,000 Common Shares
    v   Initial Exercise Price Per Share = ¥10

                     No. of         Stock         Value Per   Value of
                     Shares         Type           Share    Investment

     Founders        500,000      Common            ¥10      ¥5,000,000
     Option Plan     100,000      Common            ¥10      ¥1,000,000
            Total:   600,000    (fully diluted)

                                                                          20
Option Plan Capitalization
                    (U.S. vs. Japan)

U.S.
                     No. of         Stock         Value Per     Value of
                     Shares         Type           Share      Investment

    Founders        3,000,000     Common            $0.01       $30,000
    Option Plan     1,000,000     Common            $0.01       $10,000

           Total:   4,000,000   (fully diluted)

Japan
                    No. of          Stock         Value Per      Value of
                    Shares          Type           Share       Investment

   Founders          500,000      Common             ¥10        ¥5,000,000
   Option Plan       100,000      Common             ¥10        ¥1,000,000
          Total:     600,000    (fully diluted)
                                                                             21
Issue #3 – Tax-Qualified Options
                          (United States)

u   Main ISO Requirements
    v   Stock Option Plan
    v   Employees
    v   Holding Periods
         u   2 years from grant to exercise
         u   1 year from exercise to sale
    v   Stockholder Approval

u   In Practice
    v   ISOs are converted into NSOs          22
Issue #3 – Tax-Qualified Options
                             (Japan)

u   Main Tax-Qualified Option Requirements
    v   Employee or director, not statutory auditor
    v   Exercise Period – only after 2 years from approval of
        grant

u   In Practice
    v No conversion of ISO into NSO
    v Additional Requirements

         u   No exercise until IPO
         u   No exercise after termination of employment        23
Venture Capital Financing
               (or Private Financing)

u   Equity vs. Debt
    v   Banks - Short-Term Capital
u   Common Stock vs. Preferred Stock
    v  1 to 10 Valuation Ratio
    v Preferences (in Articles/Certificate)

    v Contractual Rights

u   Convertible Debt or Equity

                                              24
Issue #4 – Convertible Debt
                       (United States)

u   Securities (under U.S. securities laws)
    v   Compliance with federal and state securities laws
AND
u Contract

    v   Terms negotiated between company and investor

u   In Practice
    v Simple Forms – Note Purchase Agreement,
      Convertible Promissory Note
    v Not heavily negotiated                                25
Issue #4 – Convertible Debt
                           (Japan)
u   Contract (U.S.-style Convertible Promissory Note)
    v   No automatic conversion
    v   Lender law compliance required
OR
u Convertible Bond (CB) with Warrant

    v   Corporate law-based – warrant terms are registered
    v   Warrant exercise is at investor’s option

u   In Practice
    v   CB w/Warrant is becoming more common                 26
Issue #5 – Convertible Equity
                   (United States)
u Securities (under U.S. Securities Laws)
AND
u Contract

BUT
u No repayment term

u   In Practice
    v Simple Forms – SAFE (Simple Agreement for
      Future Equity), KISS (Keep It Simple Security)
    v Not heavily negotiated                           27
Issue #5 – Convertible Equity
                          (Japan)

u   Contract (U.S.-style SAFE or KISS)
    v   No automatic conversion
u   No registered instrument per se
    v   But can use CB w/Warrant, with long term
u   Common Stock converted into Preferred Stock
    v   Tax issues

u   In Practice
    v   Not common
                                                   28
Preferred Stock Financing
                    (United States)
u   Valuation Ratio
    v   10 to1 (?) – 409A Valuation
u   Articles Provisions
    v   Dividend and Liquidation Preferences
    v   Anti-Dilution
    v   Class Voting
         u Board Election
         u Protective Provisions
u   Contractual Rights
    v   Registration Rights
    v   Right of First Refusal/Co-Sale Rights
    v   Preemptive Rights
                                                29
Series A Capitalization
                          (United States)
u   Pre-Money Valuation - $8,000,000
u   Investors – 1,000,000 Preferred Shares (20% -
    post-money, fully-diluted)
    v   Price Per Share - $2.00
    v   Total - $2,000,000

                                   No. of            Stock          Value Per     Value of
                                   Shares            Type            Share      Investment
              Founders             3,000,000       Common             $0.20      $600,000
              Option Plan          1,000,000       Common             $0.20      $200,000
              Investors            1,000,000   Series A Preferred     $2.00     $2,000,000

                          Total:   5,000,000

    u   Post-Money Valuation - $10,000,000
                                                                                         30
Preferred Stock Financing
                               (Japan)

u   Valuation Ratio
    v   5 to 1 (?)
u   Articles
    v   Dividend and Liquidation Preferences
    v   Anti-Dilution
    v   Class Voting
         u   Protective Provisions
         u   Board Election
u   Contractual Rights
    v   Right of First Refusal / Co-Sale Rights
    v   Preemptive Rights (plus statutory rights)

                                                    31
Series A Capitalization
                                   (Japan)
u   Pre-Money Valuation - ¥600,000,000
u   Investors – 100,000 Preferred Shares (14% - post-
    money, fully-diluted)
    v   Price Per Share - ¥1,000
    v   Total - ¥100,000,000

                              No. of          Stock          Value Per      Value of
                              Shares          Type            Share       Investment
         Founders             500,000       Common             ¥100       ¥50,000,000
         Option Plan          100,000       Common             ¥100       ¥10,000,000
         Investors            100,000   Series A Preferred    ¥1,000     ¥100,000,000

                     Total:   700,000     (fully diluted)

    u   Post-Money Valuation - ¥700,000,000
                                                                                        32
Series A Capitalization
                        (U.S. vs. Japan)

U.S.
                         No. of            Stock             Value Per        Value of
                         Shares            Type               Share         Investment
   Founders              3,000,000       Common                $0.20         $600,000
   Option Plan           1,000,000       Common                $0.20         $200,000
   Investors             1,000,000   Series A Preferred        $2.00        $2,000,000

               Total:    5,000,000

Japan
                         No. of         Stock             Value Per        Value of
                         Shares         Type               Share         Investment
   Founders               500,000      Common                 ¥100        ¥50,000,000
   Option Plan            100,000      Common                 ¥100        ¥10,000,000
   Investors              100,000 Series A Preferred        ¥1,000       ¥100,000,000

               Total:     700,000

                                                                                         33
Issue #6 – Deemed Liquidation
                (United States)

u   Deemed Liquidation = Sale of Company
    v   Corporate Transaction = Merger or Asset Sale
    v   Critical for Silicon Valley Model

u   In Practice
    v Permitted provision in Articles
    v Enforceable – Violation is Void

                                                       34
Issue #6 – Deemed Liquidation
                    (Japan)

u   Provision usually not registered
u   Articles or Contract provision
    v   Enforceability issue

u   In Practice
    v   Sometimes in Articles, sometimes in Contract
         u   Enforceable?

                                                       35
Issue #7 – Language
                  (United States)

u   English (of course)

u   In Practice
    v Stock Purchase Agreement
    v Certificate/Articles of Incorporation

    v Investors’ Rights Agreement

    v Shareholders Agreement

    v Voting Agreement

                                              36
Issue #7 – Language
                     (Japan)

u   Terms of Preferred Stock must be registered, so
    Japanese is required
u   Contracts can be in English (although governed by
    Japanese law), or in Japanese (of course)

u   In Practice (if foreigners involved)
    v Japanese – Terms of Preferred Stock
    v English – Contracts (but governed by Japanese
      law)
                                                        37
Issue #8 – Registration Rights
                (United States)
u   Securities laws – registration or exemption
    v   Exemption for “restricted shares” (Reg. D)
u   Restricted shares remain restricted after IPO
u   So registration rights required for VCs to sell shares
    after IPO
    v   Subject to exceptions, e.g., Rule 144

u   In Practice
    v   Registration rights are not necessary for minor
        investors                                            38
Issue #8 – Registration Rights
                    (Japan)

u   Securities laws – registration or exemption
    v   Exemption for private offerings
BUT
u All shares become publicly traded upon IPO

u   In Practice
    v   Registration rights are not necessary

                                                  39
Issue #9 – Valuation
                     (United States)

u   10-to-1 Rule
    v   Preferred Stock = 10 x Common Stock
    v   No longer applies
u   409A Compliance
    v   Valuation Report

u   In Practice
    v Still some flexibility at the early stages
    v 409A valuation after VC funding

                                                   40
Issue #9 – Valuation
                           (Japan)

u No 10-to-1 Rule
BUT
u No 409A requirement either

u Rule is uncertain, and NTA can be aggressive

    v   Valuation report

u   In Practice
    v Generally 5-to-1?
    v Maybe 1-to-1 after Preferred Stock financing
                                                     41
Exit Strategy

u   Initial Public Offering (IPO)
    v   Liquidity
u   Acquisition Target
    v   Market

                                    42
Show Me The Money! (U.S.)

u   Founders’ Initial Investment
    v   $3,000 (for 3,000,000 Shares)
u   Projected IPO Price or Acquisition Price
    v   $5 - $20 Per Share
u   Total Value of Founders’ Shares
    v   $15,000,000 - $60,000,000

                                           43
Show Me The Money! (Japan)

u   Founders’ Initial Investment
    v   ¥500,000 (for 500,000 Shares)
u   Projected IPO Price or Acquisition Price
    v   ¥500 - ¥2,000 Per Share
u   Total Value of Founders’ Shares
    v   ¥250,000,000 - ¥1,000,000,000

                                           44
M&A Structures
                   (United States)
u   Stock Purchase
    v   Target has few stockholders
    v   Liabilities kept in separate entity
u   Asset Purchase
    v   Liabilities not automatically included
    v   But may not be as tax efficient for seller
u   Merger
    v   Target has a lot of stockholders
    v   Triangular merger to keep liabilities separate (and for
        cross-border deals)                                     45
Triangular Merger
                (United States)
                  S   S    S          S      S      S

              $       B
S    S    S                                 B

     T                MS                  T or MS

u   Buyer establishes a new subsidiary (“Merger Sub”)
u   Merger is between Merger Sub and target.
M&A Structures
                    (Japan)
u Share Purchase
u Business (Asset) Purchase

u Merger (including triangular mergers)

u Share Exchange (kabushiki koukan)

    v   Corporate transaction (for shares)
u   Share Transfer (kabushiki iten)
    v   New company established
u   Corporate Split (kaisha bunkatsu)
    v   Target business is spun out and then acquired   47
Issue #10 – Triangular Mergers
                (United States)
u   Consideration can be paid directly from Buyer to
    Target stockholders (from U.S. law standpoint)
u   Works in cross-border situation
    v   Buyer establishes Merger Sub in country of Target
        (U.S.)

u   In Practice
    v   Triangular merger is commonly used if many
        stockholders, even in cross-border deal (for U.S.
        target)
                                                            48
Issue #10 – Triangular Mergers
                    (Japan)
u   Consideration must first be transferred to Merger Sub
    v   Consideration must be from merging entity
u So, share purchase or share exchange (kabushiki
  koukan) is more common
BUT
u Non-Japanese buyer cannot use share exchange to
  purchase Japanese target

u   In Practice
    v   Stock purchase is most common structure, even if
        many shareholders                                49
Summary of Issues

ISSUE                                 Problematic?
Issue #1: Contributions In Kind           No
Issue #2: Vesting/Repurchase Option       Yes
Issue #3: Tax Qualified Options           No
Issue #4: Convertible Debt                No
Issue #5: Convertible Equity              No
Issue #6: Deemed Liquidation              Yes
Issue #7: Language                        No
Issue #8: Registration Rights             No
Issue #9: Valuation                       Yes
Issue #10: Triangular Mergers             Yes
Other Issues in Japan

5   Lack of experienced entrepreneurs.
4   Is equity really an incentive in Japan?
3   Fear of failure.
2   Immature M&A market.
1   Lack of VCs with start-up experience.

                                              51
Conclusion

u   The Japanese legal system has become
    much more favorable to start-up
    companies in recent years.

u   However, certain legal and non-legal
    issues remain in Japan for start-ups.

                                            52
Thank you.
          Any Questions?

     E-mail: jsasaki@jsvlaw.com

For more information on these issues, go to

    http://www.jsvlaw.com/english/qa/
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