Form 8-K
Please provide us an analysis as to whether you meet the definition of an “investment company” under Section 3(a) of the Investment Company Act of 1940 following your investment in Coinsquare Ltd./goNumerical Ltd. and, if so, whether you are excepted from this definition or are otherwise exempt from registering with the Commission as an investment company.Rest of the question
In your response, please provide us with sufficient detail to assess your analysis. As part of your analysis, please be sure to address Section 3(a)(1)(A) in light of your October 2017 “Investor Presentation”, furnished as Exhibit 99.1 to your October 5, 2017 Form 8-K, which announces your "Corporate Shift in Focus."
The Company does not meet the definition of "investment company" under Section 3(a) of the Investment
Section 3(a) of the Investment Company Act of 1940 defines an "investment company" as an issuer which-
"(A) is or holds itself out as being engaged primarily, or proposes to engage primarily, in the business of investing, reinvesting, or trading in securities;
(B) is engaged or proposes to engage in the business of issuing face-amount certificates of the installment type, or has been engaged in such business and has any such certificate outstanding; or
(C) is engaged or proposes to engageRead in the reply ↗Rest of the answer
in the business of investing, reinvesting, owning, holding, or trading in securities, and owns or proposes to acquire investment securities having a value exceeding 40 per centum of the value of such issuer's total assets (exclusive of Government securities and cash items) on an unconsolidated basis."
Pursuant to the broad definition above, a company that holds substantial minority interests in other companies that it does not control, or an operating company that temporarily holds investment securities that constitute a large percentage of its assets may be deemed, inadvertently, to be an "investment company". However, the Company believes that its purchase of interests in other third party companies, should not be deemed to result in it being deemed an "investment company" because the Company's investment in a single passive investment (goNumerical/Coinsquare) is not intended to represent the Company being largely engaged in investments that are passive in nature and the Company owns and operates businesses that are not passive in nature such as its historical laboratory and veterinary businesses, and more recently the acquisition of a 52% interest in Tess Inc, which is actively engaged in developing blockchain solutions for telecommunications, whose operations are expected to be included on a consolidated basis within the financial statements of the Company. Additionally, the recently acquired 100% of Kairos Global Technology, Inc. and, consequently, certain computer equipment and other assets used for the mining of cryptocurrency, specifically servers consisting of 700 AntMiner S9s and 500 AntMiner L3s,whose operations are also expected to be reported on a consolidated basis. Accordingly, the Company is not largely engaged in holding substantial minority interests. Further, the Company intends to exercise some level of control over these entities. In addition, as discussed in more detail below, the Company intends to maintain and continue to grow its non-blockchain related business operations. As such, it does not engage, and does not seek to engage, in the activities listed under Section 3(a) quoted above.
To further clarify the Company's current strategy, and as stated in its October 2017 presentation, the Company "intends to gain exposure to the blockchain ecosystem through targeted investments in the sector, with a primary focus on the Bitcoin and Ethereum blockchains." The Company's strategy is to pursue opportunistic investments and controlling positions in these new and emerging technologies, with the end view of enabling the Company to operate blockchain technology. The October 2017 presentation was intended to provide information relating to blockchain technology and was not intended to imply that the Company intended or proposed to be "engaged primarily, or proposes to engage primarily, in the business of investing, reinvesting, or trading in securities."
We also deem it important to note that, as stated in the Company's Press Release dated October 17, 2017, despite the Company's entry into the blockchain space, the Company still intends to maintain its existing business operations and its royalty license stemming from its Exclusive License Agreement with Ceva Santé Animale S.A., which provides an exclusive worldwide royalty-bearing license, until December 31, 2028, to develop, seek regulatory approval for and offer to sell, market, distribute, import and export luteinizing hormone and/or follicle-stimulating hormone products for cattle, equine and swine for the assistance and facilitation of reproduction. This was also stressed in the Form 8-K filed by the Company on October 5, 2017 (in which the October 2017 Presentation was included as an exhibit).
Lastly, as noted above, and as reported in the Company's Current Report on Form 8-K dated October 23, 2017, on October 20, 2017 the Company acquired approximately 52% of Tess Inc., a private Ontario company ("TESS") which is developing blockchain solutions for telecommunications companies. Under the terms of its agreement with TESS, the Company invested $320,000 and issued 75,000 shares of its restricted common stock, in exchange for 2,708,333 shares of TESS' common stock. As a result, TESS became a majority-owned subsidiary of the Company. Further, the Company has also been granted the right to select a member of TESS's Board of Directors. Additionally, as reported in the Company's Current Report on Form 8-K dated November 3, 2017, on November 3, 2017, the Company acquired 100% of Kairos Global Technology, Inc. ("Kairos), and, consequently, computer equipment and other assets used for the mining of cryptocurrency, specifically servers consisting of 700 AntMiner S9s and 500 AntMiner L3s. The Company believes that its acquisitions of, 100% of Kairos's and 52% of TESS' common stock, respectively, along with the Company's investment in goNumerical Ltd./Coinsquare Ltd., further illustrates that the Company's intention is to become an active participant in the blockchain ecosystem. The Company further believes that this, coupled with the continuation of its business related to its Exclusive License Agreement discussed above, places the Company outside the definition of an "investment company" under Section 3(a) of the Investment Company Act of 1940.
We note your statement that you entered into a "series of agreements", including an Amended and Restated Unanimous Shareholder Agreement in connection with the goNumerical transaction. Please identify for us each of the agreements and provide us a brief description of the material terms and conditions contained in each referenced agreement.Rest of the question
Also, explain to us why each of these agreements has not been filed as an exhibit to date.
The Company entered into a subscription agreement whereby it purchased an approximate 10.9% ownership in goNumerical Ltd. In connection with the foregoing transaction, the Company also received warrants to purchase shares of Coinsquare's common stock, which would result in an additional 3.8% net ownership interest, if exercised in full. The subscription agreement was filed with the Commission on November 13, 2017 as an exhibit to the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2017.Read in the reply ↗Rest of the answer
The Amended and Restated Unanimous Shareholder Agreement, however, is an agreement that governs shareholders of goNumerical Ltd. Accordingly, the Company did not file such agreement because it believes the agreement to be immaterial to its minority interest in goNumerical Ltd.
Please provide us your analysis supporting your determination that financial statements of goNumerical Ltd./Coinsquare Ltd. are not required or tell us when you will provide them. Cite in your response all authority on which you rely, and show us your calculations supporting your analysis.
On October 4, 2017, the Company purchased a minority interest in goNumerical Ltd. ("Coinsquare") which operates a digital crypto-currency exchange platform operating in Canada. The Company has determined that the financial statements of goNumerical Ltd./Coinsquare Ltd. are not required pursuant to the equity method of accounting, which applies to investments in common stock or in-substance common stock, as is the case here, where the investor does not control an investee nor does it have the ability to exercise significant influence over the investee's operating and financial policies.
InRead in the reply ↗Rest of the answer
determining whether an investor has the ability to exercise significant influence over operating and financial policies of the investee is based on facts and circumstances but is presumed to exist for investment of 20% or more of the voting stock of the investee. In the current case, the Company only holds approximately 10% of the voting stock of Coinsquare. Under ASC 323-10-15-8, an investment of less than 20% of the investee's voting stock shall lead to a presumption that an investor does not have the ability to exercise significant influence.
Other ways that ASC states that significant influence over operating and financial policies of an investee may be indicated also include: representation on the board of directors; participation in policy-making processes; material intra-entity transactions; interchange of managerial personnel and technological dependency. None of the foregoing factors are present with respect to the Company's minority investment in Coinsquare. The Company holds no board of director seat, does not participate in policy-making policies, has not engaged in any other transaction with Coinsquare other than its initial investment, does not engage in any managerial role and it does not depend on Coinsquare's technology for the operation of its business.
As the Company neither controls Coinsquare nor does it have the ability to exercise significant influence over its operating and financial policies, financial statements of Coinsquare are not required pursuant to ASC 323.
We note your response to prior comment 1. Please provide further information needed to conduct an analysis under section 3(a)(1)(C) of the Investment Company Act of 1940 (the “Company Act”) with respect to the Company.Rest of the question
In particular, please identify and explain (including a detailed calculation on an unconsolidated basis) what assets held by the Company are "investment securities" for the purposes of Section 3 of the Company Act, as well as identifying the percentage of the value of the Company’s total assets that are "investment securities."
As of September 30, 2017 (the most recent 10-Q filed) the unconsolidated assets of the Company, removing cash items and comparing that total to the goNumerical/Coinsquare acquisition, results in a percentage of 34.49% (less than the 40%). Read in the reply ↗
We continue to evaluate your response to prior comment 2. Please explain the purpose of the Amended and Restated Unanimous Shareholder Agreement and describe the material terms and conditions contained in the agreement. Also, explain to us the reason for the amendment and restatement.
The Amended and Restated Unanimous Shareholder Agreement (the "Agreement") is a confidential agreement governing the rights and responsibilities among the owners of goNumerical that had been in effect prior to the Company's investment. The Agreement was amended to admit the Company as an owner of goNumerical. Section 6(2) of the Agreement, included within the table of contents of "Access to Information/Confidentiality", requires confidentiality as follows:
Confidentiality/Non-Disclosure.Read in the reply ↗Rest of the answer
Each Shareholder shall (a) hold all of the Company's proprietary information and information concerning its business and affairs in the strictest of confidence, and (b) not make any disclosure to third parties (other than its lawyers, financial advisors and accountants) or to the public of, or use or authorize anyone to use for any purposes other than for the private affairs of the Company, any information or data relating to the operations of the Company or of any other party, except with the approval of the BOD, but this provision shall not prohibit any disclosure to the extent required by governmental or regulatory authorities. Notwithstanding the foregoing, the BOD shall be entitled to make such disclosures as the BOD, in his sole discretion, deems appropriate in connection with a potential transaction or business opportunity involving the Company, provided that the recipient of any disclosed confidential information of the Company shall sign a confidentiality agreement approved by the BOD.
The Company considers the Agreement in connection with a minority held investment as immaterial and its contents confidential. The Company is contractually restricted from disclosure and for such reasons has not filed the Agreement as an exhibit to any filing or report. Supplementally, for the assistance of the Staff, the Agreement generally covers common restrictions on the rights of minority shareholders in a closely-held corporation. For illustration, the Company provides the Staff with the table of contents from the Agreement:
We note your response to prior comment 1. Please provide a more-detailed calculation on an unconsolidated basis for which assets held by the Company are “investment securities” for the purposes of Section 3 of the Company Act.Rest of the question
As part of such response, please explicitly list which of the securities recently acquired by the Company (e.g., goNumerical/Coinsquare, TESS, and Kairos) are (or are not) included as “investment securities” and why such securities have the applicable treatment for Company Act Section 3 purposes.
When calculated on an unconsolidated basis, none of the Company's assets constitute "investment securities" exceeding 40% of the value of issuers unconsolidated assets, as defined for purposes of Section 3 of the Company Act. Attached hereto as Exhibit A is a detail computation of the Company's investment securities as requested by the Staff.
Section 3 (a) of the Company Act defines "investment company" as an issuer which, among other things, is engaged or proposes to engage in the business of investing, reinvesting, owning, holding, or trading in securities, and owns or proposes to acquireRead in the reply ↗Rest of the answer
investment securities having a value exceeding 40 per centum of the value of such issuer's total assets (exclusive of Government securities and cash items) on an unconsolidated basis and defines "investment securities" as all securities except: (A) Government securities, (B) securities issued by employees' securities companies, and (C) securities issued by a majority-owned subsidiaries of the owner which (i) are not investment companies, and (ii) are not relying on the exception from the definition of investment company…".
As shown on Exhibit A, none of the Company's recent transactions involve investment securities of the Company having a value exceeding 40% of the value of the Company's total assets.
GoNumerical/Coinsquare
The Company owns an approximate 15% interest in goNumerical Ltd., (Coinsquare). GoNumerical investment would constitute an "investment security" under the Company Act.
Tess, Inc.("Tess")
The Company owns approximately 52% of the outstanding securities of Tess.
As a majority owned subsidiary, Tess is exempt under "C" above.
Kairos Global Technology, Inc. ("Kairos")
Kairos is the Company's wholly-owned subsidiary which owns computer equipment and other related assets used for the mining of cryptocurrency. As a wholly-owned subsidiary Kairos is exempt under "C" above.
See additional information under Response #3 below.
We refer to your January 24, 2018 press release announcing your recent acquisition of Bitcoins at auction. Please explain the Company’s treatment of Bitcoins (and any other crypto assets acquired by the Company since September 30, 2017, as applicable) for the purposes of Section 3(a)(1)(C) of the Company Act.
Attached as Exhibit B is a schedule of the Company's "crypto assets" acquired and mined as of December 31, 2017 and February 12, 2018. See response below with #4 for a further discussion on accounting for the Company's crypto assets. The Company does advise the staff that based upon its preliminary estimates, even if it is ultimately determined that crypto assets are determined to be investment securities, based upon current amounts, they are not expected to cause the Company to exceed the 40% threshold.
The key in assessing whether the Company is an investment company under ASC 946, isRead in the reply ↗Rest of the answer
found in ASC 946-10-15-6. By going through the analysis in ASC 946-10-55 the Company believes it has and will have another primary purpose, other than investing, reinvesting, owning, holding, or trading in securities exceeding 40 per centum of the value of its total assets (exclusive of Government securities and cash items). See response 4 below. In the event that the analysis fails to continue at any time to be accurate, due to fluctuating market pricing for crypto assets, or otherwise, after taking into account any regulatory statements regarding the classification of such crypto assets, the Company will, subject to any other applicable exemptions or interpretations by the SEC, register as an Investment Company if so required to do so.
We note your response to prior comment 1. Notwithstanding your determination as to whether you are an Investment Company under the Investment Company Act of 1940, please provide us with your analysis under ASC 946-10-15-5 through 15-9 in determining whether you meet the definition of an investment company for accounting purposes.
Whether the Company is an investment company for accounting purposes turns on the provisions of ASC 946-10-55. Pursuant to the "Implementation Guidance" of such ASC "This Section provides additional guidance for the assessment in paragraphs 946-10-15-5 through 15-9 to determine whether an entity that is not regulated under the Investment Company Act of 1940 is an investment company under this Topic".
Given that we are not regulated under the Investment Company Act of 1940, we note that ASC 946-10-15-5 requires further assessment of paragraphs 15-6 and 15-7 of the same section, whichRead in the reply ↗Rest of the answer
specify:
15-6 An investment company has the following fundamental characteristics:
a)
It is an entity that does both of the following:
i.
Obtains funds from one or more investors and provides the investor(s) with investment management services
Note: Company does not provide investors with investment management services ii.
Commits to its investor(s) that its business purpose and only substantive activities are investing the funds solely for returns from capital appreciation, investment income, or both.
Note: Company's business purposes are publicly disclosed and consist of both capital appreciation and investment income.
b)
The entity or its affiliates do not obtain or have the objective of obtaining returns or benefits from an investee or its affiliates that are not normally attributable to ownership interests or that are other than capital appreciation or investment income.
Note: The Company's objective with all of its investments are for obtaining returns attributable to ownership interests from capital appreciation and or investment income.
15-7 An investment company also has the following typical characteristics:
It has more than one investment.
Note: Company has one investment asset in Coinsquare
It has more than one investor.
Note: Company has multiple investors.
c)
It has investors that are not related parties of the parent (if there is a parent) or the investment manager.
Note: Company's investors are not related parties of the parent.
d)
It has ownership interests in the form of equity or partnership interests.
Note: Company's ownership interests are in the form of equity.
e)
It manages substantially all of its investments on a fair value basis.
Note: Company's investments to date have not been managed or reported on a fair value basis. Future periodic reports are expected to account for the Company's digital assets on a mark-to-market basis, as further discussed below.
15-8 To be an investment company, an entity shall possess the fundamental characteristics in paragraph 15-6. Typically, an investment company also has all of the characteristics in the preceding paragraph [15-7]. However, the absence of one of more of those typical characteristics does not necessarily preclude an entity from being an investment company. If an entity does not possess one or more of the typical characteristics, it shall apply judgment and determine, considering all facts and circumstances, how its activities continue to be consistent (or are not consistent) with those of an investment company.
Note: Company's assessment of the above criteria concludes that it does not meet the conditions of an investment company.
In your description of the accounting policy you propose to apply by analogy to digital assets you reference foreign currency, financial assets, and securities. In order to help us further evaluate your proposed accounting, please clarify for us to what the terms “digital assets” and “digital securities” relate and whether they meet the accounting definition of foreign currency, financial assets, or securities.Rest of the question
Provide a more detailed analysis supporting the appropriateness of your proposed analogy to ASC 825 and provide further elaboration as to the other analogies you considered and rejected and the reasons why.
While there are initiatives underway by financial and accounting bodies to address and develop guidelines, there is currently no authoritative literature under accounting principles generally accepted in the United States, which specifically addresses the accounting for digital assets, including digital currencies. In the Company's most recently reported financial results as of September 30, 2017, no bitcoin assets were held. The Company is currently in the process of closing its books and records to undertake its audit for the year ended December 31, 2017.Read in the reply ↗Rest of the answer
As of December 31, 2017, the total amount of bitcoin assets held were not material to the Company's assets. As part of its year-end financial reporting process the final accounting and financial reporting policies in connection with the Company's activities in the fourth quarter, including accounting and reporting for its bitcoin assets, will be finalized and are currently preliminary.
Digital Assets
Bitcoins are a type of Digital Asset, and generally the most commonly known. There are however, many other Digital Assets, which similar to Bitcoin are founded on mathematical algorithms and cryptographic security, the exchange of which are tracked in public transaction ledgers (commonly known as "Blockchain"). We consider the earning or acquisition of any such coin or token to be a Digital Asset. Specifically, through our mining operations we have earned Bitcoin, Bitcoin Cash and LiteCoin, we do not own any other Digital Assets.
Consideration of Accounting Treatment
In evaluating current literature regarding accounting for crypto-currency, including papers by the large accounting and audit firms, suggest evaluation of crypto-currency using exiting guidance for financial assets, intangibles or inventory, receivable or operational assets. Inserted below is a summary of such considerations:
Financial asset
Under ASC 825 the definition of a financial asset is that it is cash, evidence of an ownership interest in an entity, or a contract that conveys to the entity a right to do either of the following:
Receive cash or another financial instrument from a second entity
Exchange other financial instruments on potentially favorable terms with the second entity.
The definition of a financial instrument adds to this:
Conveys to that second entity a contractual right either:
To receive cash or another financial instrument from the first entity
To exchange other financial instruments on potentially favorable terms with the first entity.
The definition requires a chain of contractual obligations that ends with the delivery of cash or an ownership interest in an entity.
Digital Assets do not hold a contractual right to cash; however, through various means of exchange they can provide a store of value that can be converted into cash by the holder, or used in place of cash to make other purchases from vendors accepting Digital Assets as payment.
Management has drawn an analogy of this to foreign currencies whereby the holder may exchange U.S Dollars into a foreign currency, but then can only use that currency to transact with other parties willing to accept that currency. The holder then also bears the risk of appreciation and depreciation of that currency prior to their conversion back into U.S. Dollars, which in the most dramatic case could be a complete crash of the related foreign currency and theoretically a total loss, not dissimilar from the risks faced with Digital Assets
Intangibles
By their nature Digital Assets are intangible, following ASC 350 to recognize an internally developed identifiable intangible asset would contemplate capitalizing the costs of developing the intangible asset. However, ASC 350-25-3 then notes that internally developed intangible assets that have indeterminate lives would be expensed. Accordingly, under this approach we would recognize the current expense as we have, which is the cost of running our mining operations, but would effectively move Digital Assets that we have earned through mining off balance sheet.
If this approach was taken, then in order to present relevant data to users of the financial statements we would propose that the fair value information, as it is considered readily available should form part of the disclosure in the financial statements. However, there is no guidance within ASC 350 that would contemplate this form of disclosure. We again would consider applying by analogy the fair value disclosures of ASC 820.
Despite the above, we are of the opinion that this could then create misleading financial data when Digital Assets were then used to transact, since it would result in either a new asset (be it cash or otherwise) or a reduction in liability and the corresponding credit amount would then have to be recorded as a gain in the statements of operations. The consequence of following this method is that changes in the fair value and the potential impact on gain or loss are left unrecognized until a triggering event.
Inventory, receivable or operational asset
We have also considered whether Digital Assets earned through our mining activity represent inventory that can then be sold to other market participants in the course of the Company's business. Given that Digital Assets can be stored and thus bought and sold as in the case of the Bitcoin we acquired at auction in January 2018. However, we believe that in generating the Digital Assets that we currently hold as of December 31, 2017, those were earned in our ordinary course of business, being mining of Digital Assets.
As we require funds to fund operations we would then be capable of converting the Digital Assets into fiat currency for use in operations, or using the Digital Assets themselves permitting that there are counterparties willing to accept those Digital Assets as payment. However, the Digital Asset does not represent a contractual right to receive cash, accordingly, we have determined that it would not in effect represent a receivable by nature.
Please clarify whether you hold investments in digital assets other than bitcoin, for example as a result of your acquisitions of Tess, Inc. or Kairos Global Technology, Inc.
See response to 2 above. In addition to bitcoin, the company holds the following digital assets: litecoin and bitcoin cash. Apart from the 500 bitcoins the company holds from its winning bid in the U.S. Marshals Service auction, the remainder of the company's digital assets were generated from Kairos' mining operations. Tess does not hold any cryptocurrencies or touch any cryptocurrencies directly. Tess is developing its own closed loop blockchain technology platform as further described in response to comment #6. Read in the reply ↗
Please clarify the nature of Tess, Inc.’s business including what you mean when you state that Tess, Inc. is developing blockchain solutions for telecommunications companies.
Tess intends to develop blockchain technology and Tess Smart Contracts to create a paradigm shift in the process of settlements for Wholesale Telecom traffic between international carriers. Prepayments attached to immutable contractual obligations embedded in Tess Smart Contracts will guarantee daily payments upon fulfilment. It is anticipated that most carriers will not use their own capital to fund Tess Smart Contracts. Tess Smart Contract protocol is designed to facilitate lender participation in the Wholesale Telecom supply chain to securely fund prepaid settlements down the supply chain. Read in the reply ↗
Please clarify the nature of Kairos Global Technology, Inc.’s business and the extent to which its operations relate to the mining of cryptocurrency.
Kairos Global Technology, Inc's business is exclusively focused on cryptocurrency mining to verify transactions and generate newly issued cryptocurrency as payment. It is only mining cryptocurrencies that the company views as digital currencies, and nothing that has been associated with any "Initial Coin Offerings" or tokens. At present, Kairos has only mined bitcoin, bitcoin cash, and litecoin. Read in the reply ↗
We refer to your response to prior comment 2. Based on the response, it remains unclear why you believe the restrictions on your rights as a shareholder in Coinsquare are immaterial to an understanding of the investment.Rest of the question
In particular, we note that your response indicates that the shareholder agreement governs the management and operation of the Coinsquare business and also contains provisions restricting, and in certain cases mandating, transfer of your ownership interest. We further note that the Coinsquare investment, when undertaken, represented your sole asset reflective of your announced “shift in direction” to a “strategic investor and operator in the blockchain.” Accordingly, we believe the agreement is a material agreement that is required to be filed pursuant to Regulation S-K, Item 601(b)(10). Please file the agreement or advise.
The agreement will be filed as an Exhibit to the registration statement as other information in order to assist in an understanding of this matter. In advance of that filing the Company will be submitting a confidential treatment request for certain information disclosed in the agreement. Read in the reply ↗
We note your response to prior comment 3. Your determination that you do not meet the definition of an investment company under ASC 946 appears to hinge on your assertion that you do not provide your investors with investment management services. Please explain your consideration as to whether your significant business activities fit within the broader context of investment management services.Rest of the question
For example, ASC 946-10-55-16 illustrates that investment management services include providing access to investment opportunities unobtainable by individual investors. In this regard, your public disclosures have indicated that you are providing investors with investment exposure to the blockchain ecosystem through targeted investments in the sector, with a primary focus on the bitcoin and ethereum blockchains.
No numbered answer found in the reply. Read the reply ↗
You assert in your response to prior comment 3 that the company's business purposes are publicly disclosed and consist of both capital appreciation and investment income. Please address the following: • Describe for us the company’s design, business purpose(s), and how it holds itself out to investors.Rest of the question
• Identify for us examples of your public disclosure referenced in your response that indicates that the company’s business purposes consist of both capital appreciation and investment income. • Clarify for us whether you have identified or intend to identify potential exit strategies for the company’s investments through which the company can realize capital appreciation. • Provide us with a description of the various business activities performed by the company and each of its consolidated subsidiaries and the nature of the returns generated by such activities (e.g., capital appreciation, investment income or operating income). For each entity, clarify whether it develops, produces or markets products and services (other than investment management services) for/to its customers. • Describe for us the activities of the company’s officers and directors (e.g. seeking investments for capital appreciation and/or investment income or for the purpose of providing goods and services to customers). • Provide us with an analysis of the additional guidance in ASC 946-10-55-4 through ASC 946-10-55-10.
s #1 and #2:
Riot Blockchain Inc. (the "Riot" or "the Company") is not an "investment company" within the meaning of Section 3 of the Investment Company Act of 1940, as amended (the "Act"). Section 3 of the Act provides two definitions of "investment company" that could potentially relate to Riot. Section 3(a)(1)(A), a subjective test, applies to those issuers that intend to be investment companies and that are, or hold themselves out as being, primarily engaged in the business of investing in securities.Read in the reply ↗Rest of the answer
This definition does not apply to Riot because Riot is not and does not hold itself out as primarily engaged in the business of investing in securities. Section 3(a)(1)(C), is an objective test and applies to any issuer that is engaged in the business of investing, reinvesting, owning, holding or trading securities, and owns or proposes to acquire "investment securities" having a value in excess of 40% of the issuer's total assets. Riot does not meet this portion of the definition as its assets are predominantly its computer servers used to mine digital assets, which in essence is providing transaction verification services. In the future, regulatory interpretations may consider the digital assets themselves that are mined to be "investment securities". This possibility is addressed below and in the Company's SEC filings and reports as a significant risk
Section 3(a)(1)(A) Analysis
The Company describes itself in its public filings and presentations engaging in activities in which it aims to be a leader in developing and operating blockchain technologies through appropriately targeted investments and acquisitions. The Company has made significant strides in ramping up its internally owned and operated cryptocurrency mining operations in particular, which starting in March 2018 are projected to yield in excess of 2 bitcoins per day generated from running approximately 3,000 ASIC cryptocurrency mining servers located in its leased facility in Oklahoma City, Oklahoma. The Company presently restricts the digital assets it mines to bitcoin, bitcoin cash, and litecoin and anticipates growing its number of deployed mining servers in Oklahoma City to approximately 8,000 ASIC cryptocurrency mining servers by May 2018.
In addition, the Company has made several investments in other owned or controlled ventures developing blockchain technologies and holds several minority investments that could be considered "investment securities". In response to the Staff's reference to the Company's publicly disclosed stated purpose, the Company believes that just as any publicly traded company can provide investment exposure for investors for assets in other industries (consider for example, the ownership of uranium, gold, silver, copper, airplanes, drugs or real estate), investors can find a means to gain investment exposure to the emerging blockchain ecosystem through an investment in the Company's common stock which is publicly traded on NASDAQ. Since the Company owns various assets engaged in blockchain technology and owns cryptocurrency directly, both as a result of its cryptocurrency mining and transaction verification services and acquired from a one-time successful bid at a United States Marshall's service auction, investors can obtain "exposure to the blockchain ecosystem through the Company's targeted investments" in these assets. The Company has modified its presentations to better coalesce with its development and currently uses the following introductory overview in its investor presentations:
"Riot Blockchain intends to gain exposure to the blockchain ecosystem through its mining operations, internally developed businesses, joint ventures, and targeted investments in the sector. Its primary focus is on Bitcoin and general blockchain technology."
In further responding to the Staff's concerns that the Company may be an investment company the Company has performed an analysis of its operations against the five-factor test and determined that it is not. To determine whether an issuer is engaged primarily in investing in securities, the SEC generally has analyzed the company using the five-factor test enunciated in Tonopah Mining Company of Nevada (26 S.E.C. 426 (1947)). The five factors are: (i) the company's historical development, (ii) its public representations of policy, (iii) the activities of its officers and directors, (iv) the nature of its present assets and (v) the sources of its present income. Looking at these factors, Riot clearly is not primarily engaged in investing in securities. As discussed above, its historical development and public representations of policy illustrate that Riot is primarily engaged in the business of acquiring, operating and supporting (through management and investments) blockchain related non-investment company businesses, and its management spends the vast majority of its time overseeing and executing this strategy (i.e., not engaging in short-term securities trading or investing activities). Currently Riot and its majority owned subsidiaries employ a total of 24 employees, three of whom are less than full time. Of the total employees, seven are executives and officers (all hands-on in day-to-day operations), six are in finance, accounting and administrative, (including the Company's public reporting functions), five are focused on sales and marketing functions, four are dedicated to technical services for platform, web and software development and two are in business development, one of whom is part-time.
Section 3(a)(1)(C) Analysis
The second definition of "investment company" potentially applicable to Riot, Section 3(a)(1)(C), is an objective test and applies to any issuer that is engaged in the business of investing, reinvesting, owning, holding or trading securities, and owns or proposes to acquire "investment securities" having a value in excess of 40% of the issuer's total assets (exclusive of government securities and cash items) on an unconsolidated basis. For purposes of that definition, the term "investment securities" exempts majority-owned subsidiaries of the issuer that are not themselves investment companies. Under that analysis, our assets are dominated by equipment and related assets, the purpose of which is to mainly support Riot's mining operations for digital currency. In exchange for that service, the Company is rewarded (or compensated) in digital assets. The activities entail running specialized computer servers which solve a set of prescribed complex mathematical calculations in order to add a block to the Blockchain and thereby confirm digital currency transactions. When we are successful in adding a block to the Blockchain we are rewarded in digital assets (i.e. Bitcoin) for our effort. As of December 31, 2017, less than 40% of Riot's total assets (exclusive of government securities and cash items) consisted of digital assets or cost method investments accounted for under ASC subtopic 325-20, Investments-Other: Cost Method Investments which is expected to continue to be the case as of March 31, 2018. This assumes that the Bitcoin itself would be included in the definition of investment securities, which is a question that is as of yet unresolved by the regulatory interpretations applicable to the Company's business.
Conclusion
The Company has reviewed various additional related source materials and acknowledges that the absence of one or more of the typical investment company characteristics (as recited in our letter to the Staff dated March 8, 2018) does not necessarily prevent an entity from being an investment company. If an entity does not possess one or more of the typical characteristics, the guidance we have reviewed allows for judgment and some flexibility in assessing whether the entity's business activities, considering all facts and circumstances, are consistent with those of an investment company. In particular we are influenced by the accounting definition of an investment company contained in Accounting Standards Update No. 2013-08, Financial Services – Investment Companies (Topic 946): Amendments to the Scope, Measurement, and Disclosure Requirements, available at www.fasb.org.
When reviewing these measures relative to REITs, using principles which we believe are also applicable to our analysis of the Company's status as an investment company, KPMG LLP summarized the SEC literature as follows1:
An entity would not be an investment company if the entity or its affiliates obtain or have the objective of obtaining returns or benefits from an investee or its affiliate through operating or strategic activities. An investment company may be involved in day-to-day management activities of its investees and provide financial support to its investees if those services are provided to maximize the overall value or capital appreciation of the investment, and they do not represent a separate substantial business activity or separate substantial source of income for the investment company entity (or its affiliates in relation to the investing activities of the entity).
1 https://assets.kpmg.com/content/dam/kpmg/pdf/2013/12/new-investment-company-accounting-literature.pdf
Finally, we note that even an issuer that otherwise falls within the definition of "investment company" in Section 3(a)(1)(C) nonetheless is exempted from that definition by Section 3(b)(1) of the Act if it is primarily engaged, directly or through a wholly-owned subsidiary or subsidiaries, in a business or businesses other than that of investing, reinvesting, owning, holding, or trading in securities. See e.g., SEC v. National Presto Ind., Inc., 486 F.3d 305, 312-315 (7th Cir. 2007). The determination of a company's primary business under Section 3(b)(1) is generally made by application of the same five-factor test discussed above. As discussed above, applying that test to Riot demonstrates that Riot is primarily engaged in Bitcoin and general blockchain technology as evidenced by its operating activities, its public representations about its business, the day-to-day activities of its officers and directors, the sources of its income (Transaction Verification Services) and the nature of its assets.
Notwithstanding the foregoing, circumstances may arise where during a particular measurement cycle the Company may realize that more than 40% of its assets constitute investment securities, as such term is understood at the time, including as may arise as a result of holding cryptocurrency mined by the Company. In such event the Company would take steps to reduce such holdings to 40% or less, which could include liquidating cryptocurrency holdings for fiat currency for example. The Company has prepared additional risk factor disclosures describing the possibility of becoming an inadvertent investment company under the Commission's interpretations and the actions that may be taken which will be included in future filings as well as the impact on having to register as an investment company if no exemption is then available.
In your response to prior comment 4 you indicate that you have not yet finalized your accounting and financial reporting policies for your digital assets but expect to do so as part of your year-end financial reporting process. We are therefore not in a position to evaluate the accounting and financial reporting considerations included in your response at this time.Rest of the question
As a reminder, we do encourage companies and their auditors to consult with the Office of the Chief Accountant (OCA) on accounting and financial reporting matters, especially those involving unusual, complex, or innovative transactions for which no clear authoritative guidance exists. Instructions regarding pre-filing submissions to OCA can be found on our website at https://www.sec.gov/info/accountants/ocasubguidance.htm.
The Company has been advised that the fair value measurement model should be the accounting model used for the Company's digital assets and intends to proceed on that basis. This position is consistent with the following excerpt from PWC's Point of View Cryptocurrencies (March 2018):
While it is possible to fit cryptocurrency into the existing accounting model for intangible assets, this model does not best reflect the economics of these unique assets.
Unlike other intangible assets that are measured at cost (unless impaired), the fundamental nature of cryptocurrencies is different.Read in the reply ↗Rest of the answer
While these assets have no physical substance, many are traded on exchanges (unlike other intangibles), are designed to be accepted as payment for other goods and services (which is infrequent for intangibles), and subject to significant volatility.
We believe that a fair value measurement model, with both realized and unrealized changes reflected currently in the income statement, will best represent the economics associated with holding cryptocurrencies.
We acknowledge your response to prior comment 1. We note that Exhibit A, which is referenced in your response, values the Company’s investment in Coinsquare/goNumerical at $3,000,000 as of September 30, 2017. We note further that a shareholder letter dated February 16, 2018, filed with an 8-K on the same date, notes that the Company’s stake in Coinsquare is “now valued at CAD $50 million” which is “over 15x higherRest of the question
than the valuation at which Riot first invested.” Please provide a detailed calculation on an unconsolidated basis for a recent date (no earlier than February 28, 2018), for which assets held by the Company are included as “investment securities” for Company Act Section 3 purposes.
With respect to its other minority investments, the Company and its advisors believe that we should record our investments at cost in accordance with ASC subtopic 325-20, Investments-Other: Cost Method Investments, because the Company does not have significant influence or voting control over such minority investments and which do not have readily determinable fair value.Read in the reply ↗Rest of the answer
If the Company is deemed an investment company in the future, the Company will record its other minority investments at fair value.
As discussed in comment 1 & 2, we note that even an issuer that otherwise falls within the definition of an "investment company" in Section 3(a)(1)(C) nonetheless is exempted from that definition by Section 3(b)(1) of the Act if it is primarily engaged, directly or through a wholly-owned subsidiary or subsidiaries, in a business or businesses other than that of investing, reinvesting, owning, holding, or trading in securities. Therefore even if the value of the Company's stake in Coinsquare is "now valued at CAD $50 million and our "investment securities" have a value in excess of 40% of the issuer's total assets, we would not be required to quantify our fair value of investment securities as compared to total assets because Riot is primarily engaged in the business of acquiring, operating and supporting (through management and investments) blockchain related non-investment company businesses, and its management spends the vast majority of its time overseeing and executing this strategy (i.e., not engaging in short-term securities trading or investing activities).
We note your response to prior comment 8. Please file the agreement promptly.
This agreement was filed March 15, 2018, requesting confidential treatment for identified information. Read in the reply ↗
We note your response to prior comment 3. It appears from your response that you consider your digital assets (including bitcoin, bitcoin cash and litecoin) to be intangible assets but that you do not believe the existing accounting model for intangible assets best reflects the economics of these unique assets.Rest of the question
We do not believe you have provided a sufficient basis to justify a departure from the required accounting treatment for intangible assets under ASC 350. Please advise.
Digital assets technically meet the definition of an intangible asset, as intangible assets are those that lack physical substance. This model results in holdings of digital assets being recorded at the cost of acquisition, subject to impairment. That is, the model will only capture declines in the value of the digital assets, not increases.
In the Company's opinion, while digital assets meet the strict definition of intangible assets, this model does not best reflect the nature and economics of digital assets, which have unique characteristics that differ from most intangible assets.Read in the reply ↗Rest of the answer
While digital assets have no physical substance, many are traded on exchanges (unlike other intangibles), are designed to be accepted as payment for other goods and services (which is very infrequent for intangibles), and their value is subject to significant volatility. The Company believes these differences are fundamental, and point to the appropriateness of a fair value model.
This position is reflected in and consistent with "PWC's Point of View Cryptocurrencies" (March 2018).
We note your response to prior comment 2. Your response focuses on whether you meet the definition of an investment company under Section 3 of the Investment Company Act of 1940 ("40 Act"). Notwithstanding your determination of your 40 Act status, please provide specific responses to each bullet of prior comment 2 and any additional information necessary to understand your conclusion that you are not an investmentRest of the question
company for U.S. GAAP purposes under ASC 946.
Provided below are responses to each of the bullet points set forth in the comment letter of the Staff dated March 8, 2018 ("prior comment 2" referred to above). The Company notes that the bullet points set forth in that comment letter are consistent with the guidance in ASC 946-10-15-6 that sets forth the fundamental characteristics of an investment company under U.S. GAAP, and the Company has added the implementation guidance in ASC 946-10-55-4 through 55-10 that illustrates these concepts.Read in the reply ↗Rest of the answer
The Company has evaluated this accounting guidance in conjunction with its advisors who have addressed the bullet points set forth below and concludes that the Company does not have the fundamental characteristics of an investment company for U.S. GAAP purposes under ASC 946.
U.S. GAAP describes the following fundamental characteristics of an investment company:
946-10-15-6 An investment company has the following fundamental characteristics:
a. It is an entity that does both of the following:
1. Obtains funds from one or more investors and provides the investor(s) with investment management services
2. Commits to its investor(s) that its business purpose and only substantive activities are investing the funds solely for returns from capital appreciation, investment income, or both.
b. The entity or its affiliates do not obtain or have the objective of obtaining returns or benefits from an investee or its affiliates that are not normally attributable to ownership interests or that are other than capital appreciation or investment income.
946-10-55-4: An investment company should have no substantive activities other than its investing activities and should not have significant assets or liabilities other than those relating to its investing activities, subject to the exception in the following paragraph.
946-10-55-5: An investment company may provide investing-related services (for example, investment advisory or transfer agent services) to other entities, directly or indirectly through an investment in an entity that provides those services, as long as those services are not substantive. However, an investment company may provide substantive investing-related services, directly or indirectly through an investment in an entity that provides those services, if the substantive services are provided to the investment company only.
Responsive information below appears in the various Company public filings and reports, most recently as set forth in the Company's 2017 Annual Report filed with the SEC on April 17, 2018.
• Describe for us the company's design, business purpose(s), and how it holds itself out to investors.
The Company describes its business activities as follows in the Annual Report:
The Company, since late 2017, has directed its efforts towards blockchain and cryptocurrency businesses. Specifically, the Company has begun to enter businesses involving cryptocurrencies and intends, in the near, future, to consider entering and evolving businesses related to these types of cryptocurrencies. This strategy represents a departure from the Company's historical mission following several failed efforts to obtain regulatory approval for new drugs and the manufacture and distribution of specialized medical equipment. The Company experienced large accumulated losses from those efforts and determined to control expenses and seek to curtail ongoing losses expected from those efforts which were effectively ended after a new management team and board of directors joined the Company during 2017 and early 2018.
New Business Initiative in Blockchain and Cryptocurrency Mining.
The Company is building a cryptocurrency mining operation, operating specialized computers (also known as "miners") that generate cryptocurrency (primarily Bitcoin). As of December 31, 2017, the Company owned 1,200 miners acquired with the Kairos Global Technology, Inc., ("Kairos") acquisition in November 2017. During February 2018 in two separate transactions the Company acquired an additional 6,800 miners bringing the total miners owned to 8,000. During February 2018, Kairos entered into a lease agreement for approximately a 107,000-square foot facility in Oklahoma City, Oklahoma, which included data center improvements. Upon the execution of the facility lease the Company began consolidating all of its miners at the data center facility. As of March 31, 2018, approximately 3,500 of the miners were installed and operating.
The Company utilizes specialized servers manufactured by Bitmain. Many of these servers are in short supply and the cost of acquisition of servers especially in large quantities, when available, varies widely. The Company has acquired all of its servers from third parties, some of whom were shareholders in the Company as well, and certain of the acquisitions have included access to operating facilities, support and related equipment for which the Company has paid a premium over the listed retail cost from the manufacturers. The Company's current facility in Oklahoma was obtained as part of its overall transaction with Prive. It is expected that this shortage condition may continue and that in order to continue to grow the Company may need to continue to source mining equipment that may become available from third parties. We participate in mining pools wherein groups of miners associate to pool resources and earn cryptocurrency together allocated to each miner according to the "hashing" capacity they contribute to the pool. As it relates to Bitcoin, the hash rate is the speed at which a computer is completing an operation in the Bitcoin code, and hashing capacity would be a miner's total output. A higher hash rate increases the opportunity of solving the next block and receiving the mining reward. Mining pools were established to help limit the variance involved with competing to solve blocks. As more and more miners competed for the limited supply of blocks, individuals found that they were working for months without finding a block and receiving any reward for their mining efforts. To address this variance, miners started organizing into pools to share mining rewards more evenly on a pro rata basis based on total hashing capacity contributed to the mining pool.
In addition to mining, we are seeking to pursue our diversified blockchain and cryptocurrency focused strategy, in part through targeted investments in, and acquisitions of, businesses and assets within the blockchain ecosystem. As of December 31, 2017, we owned approximately 12.9% of goNumerical Ltd., (d/b/a "Coinsquare") which operates a leading Canadian exchange for purchasing and selling cryptocurrencies. We also subsequently invested $200,000 in a convertible note of Verady, LLC, which seeks to provide accounting, audit and verification services for blockchain based assets such as cryptocurrencies. We also own approximately 52% of Tess Inc., ("Tess") which is developing TessPay and other blockchain solutions for telecommunications companies. TessPay is a payments ecosystem for component and sub-component supply chain settlements (payments). Subsequent to December 31, 2017, we formed Digital Green Energy Corp., a wholly owned subsidiary, which is seeking to identify environmentally friendly projects with large energy capacity and a cost-effective rate for energy for cryptocurrency mining operations and data center projects.
Logical Brokerage Corp
On March 27, 2018 we acquired 92.5% of Logical Brokerage Corp. ("Logical Brokerage") for a $600,000 cash payment. Logical Brokerage is registered with the Commodity Futures Trading Commission ("CFTC") as an introducing broker and a member of the National Futures Association ("NFA"). The Company believes that Logical Brokerage will allow the Company to investigate the establishment of a futures brokerage operation and a U.S. digital currency exchange operating lawfully in several states, and a futures brokerage operation, although there can be no assurance the Company will be successful. Neither the CFTC nor the NFA regulate spot-market digital currency exchanges or activity, although the CFTC's jurisdiction is implicated when there is fraud or manipulation involving a virtual currency traded in interstate commerce.
As described above, the Company has substantive activities other than investing activities. Further, the Company does have significant assets or liabilities other than those relating to its investing activities. Such significant assets include data center locations performing mining activities and related infrastructure (electricity and cooling) for these properties and liabilities such as lease liabilities associated with such business. The Company does not provide investing-related services to other entities.
• Identify for us examples of your public disclosure referenced in your response that indicates that the company's business purposes consist of both capital appreciation and investment income.
1 Update includes the business activities described in the Annual Report continuing to be applicable to March 31, 2018, the end of the current fiscal quarter.
U.S. GAAP describes the following:
946-10-55-6: Evidence of the entity's business purpose and substantive activities may be included in the entity's offering memorandum, publications distributed by the entity, and other corporate or partnership documents that indicate the investment objectives of the entity. Evidence of the entity's business purpose and substantive activities also may include the manner in which the entity presents itself to other parties (such as potential investors or potential investees). For example, an entity that presents its business to its investors as having the objective of investing for realizable capital appreciation has characteristics that are consistent with the business purpose and substantive activities of an investment company. Alternatively, an entity that presents itself as an investor whose objective is jointly developing, producing, or marketing products with its investees has characteristics that are, the documents show that the Company's business purpose is inconsistent with the business purpose and substantive activities of an investment company.
See our response above, which quotes the descriptions of the Company's business purpose and substantive activities which appear in the Annual Report. In addition, in a Business Update press release issued April 17, 2018 the Company's business purpose is presented to investors and clearly identifies that the Company satisfies the business purposes that are inconsistent with the business purposes and substantive activities of an investment company. As stated therein the Company (via its leased datacenter facilities in which it consumes energy and computer services to generate cryptocurrency) had generated during March 2018 69 Bitcoins and 44 Bitcoin Cash from operations, owns interests in both goNumerical and Tess/Cresval which through jointly developing, producing or marketing, have significant value "step-ups" since the investments were made. The principal purpose of these investments is presented to investors as being the ability to enter into different channels related to the business purpose of investing in business opportunities covering a wide spectrum of the blockchain ecosystem. See Current Report on Form 8-K filed by the Company on April 19, 2018 with Business Update as Exhibit 99.1 thereto. Although these investments have capital appreciation, the documents show that the Company's business purpose is inconsistent with the business purpose and substantive activities of an investment company.
• Clarify for us whether you have identified or intend to identify potential exit strategies for the company's investments through which the company can realize capital appreciation.
U.S. GAAP provides the following additional guidance on exit strategies of investment companies:
946-10-55-7: An entity's investment plans also provide evidence of its business purpose and substantive activities. Accordingly, an investment company whose business purpose and substantive activities include realizing capital appreciation should have an exit strategy for how it plans to realize the capital appreciation of its investments. Although the entity may not yet have determined the specific method or timing of disposing of an investment, the fact that it has identified potential exit strategies through which it can realize capital appreciation provides evidence that its business purpose and substantive activities are consistent with those of an investment company. The entity need not document specific exit strategies for each individual investment held for the purpose of realizing capital appreciation but should identify potential exit strategies for different types or portfolios of investments held with the purpose of realizing capital appreciation.
Disposal of investments only during liquidation or to satisfy investor redemptions are not exit strategies. Therefore, an entity should have a plan to dispose of its investments before liquidation when its business purpose and substantive activities include realizing capital appreciation. An investment company whose business purpose and substantive activities are to invest for returns only from investment income does not require an exit strategy for its investments.
As discussed above, the Company presents to investors a strategy as one that "consists of operating one of the largest cryptocurrency mining operations owned by a publicly listed company; identifying unique projects which decentralize markets; combining real world applications with an active development team, strong fundamentals, and large addressable markets."
While the Company's business strategy consists of operating its businesses as activities, the Company has unrealized potential capital appreciation on several investments. While no determination has been made, the Company is monitoring developments around three investments which could generate returns from its investments that are not "exit strategies" of an investment company business. Even if exited, the Company's other activities, such as mining and expansion of its activities in other arenas, reflect a business purpose which is inconsistent with the business purpose and substantive activities of an investment company.
1. Several subsequent goNumerical financings have been at valuation increments reflecting an approximate 15 fold value increase over the value at which the Company's first investment was made, valuing goNumerical's Coinsquare at approximately CAD $430 million. Should an appropriate purchaser of goNumerical seek to acquire all or a controlling interest in goNumerical the Company would evaluate participating in such transaction as a full or partial exit strategy. These opportunities to provide returns on investment are not presented to investors for the purpose of describing the income or capital appreciation or exit strategies of an investment company. At the time of any partial or other disposition the Company would continue to own its other assets being operated for business purposes and would not liquidate or exit all of its investments so as to maintain and continue its business purpose.
2. In October 2017 the Company acquired 52% majority interest in Tess, Inc. ("Tess") for $320,000 cash plus 75,000 shares of Company stock. During the first quarter of 2018, Tess agreed to merge with a Canadian public company Cresval Capital Corp. ("Cresval") which was announced by the Company on January 17, 2018 (See https://www.prnewswire.com/news-releases/riot-blockchains-tesspay-enters-definitive-agreement-for-transaction-with-publicly-traded-cresval-capital-corp-300583740.html). The Company's efforts are consistent with ASC 946-10-55-6 in which with Tess it is "jointly developing, producing, or marketing products with its investees" reflect its business purpose and is inconsistent with the business purpose and substantive activities of an investment company.
The Company’s responses 2 and 4 state that the Company is exempted from the section 3(a)(1)(C) definition because the Company is primarily engaged, directly or through a wholly-owned subsidiary or subsidiaries, in a business or business other than that of investing, reinvesting, owning, holding, or trading in securities pursuant to section 3(b)(1) exemption.Rest of the question
In your response, please provide us with additional sufficient detail to assess your analysis of the exemption. Please include in your response additional sufficient detail on the Tonopah Mining Company of Nevada (26 S.E.C. 426 (1947)) factors you noted in your response. Please note that we are continuing to evaluate your responses, and may have additional comments.
We note for the Staff that this line of comments is directed to activities that only were commenced during the first quarter of 2018 and as such have yet to be included as results of oeprations in any required periodic report filed with the SEC. Accordingly, the Staff is requesting the forward looking views of the Company and its advisors while not considering thetiming disparity between the questions appearing in the Comment relative to reports that would include information requested.Read in the reply ↗Rest of the answer
As of December 31, 2017 the Company merely had purchased a 10.9% interest in an operating Canadian private company (with warrants to purchase an additional 3.8%) operating in the blockchain/cryptocurrency industry and it owned a revenue generating veterinary license and was evaluating steps associated with exiting from a failed investment in medical machinery and development businesses. The Company has never held itself out or presented itself as an investment manager or investment advisor with respect to any of these businesses, and does not believe its acquisitions and investment strategy to indicate to the contrary to investors.
The Staff seeks analysis of the five-part test in Tonopah Mining Company of Nevada. The SEC's 1947 decision in In re Tonopah Mining established a five factor test for determining whether a company is primarily engaged in the business of investing in securities. The factors are: 1) the company's history; 2) the way it presents itself to the public; 3) the activities of its officers and directors; 4) the nature of its assets; and 5) the sources of its income. In 2007 the Seventh Circuit decided against the SEC in an important ruling, SEC v. National Presto Industries2 qualifying the five factor test. None of the five factors would be applicable to the Company in the context of the October 2017 8-K, nor as of the Annual Report filing.
Medical and Drug Development Businesses. Prior to October 2017 and as described in each of the Company's periodic reports through and including the Quarterly Report on Form 10-Q for the period ended September 30, 2017 the Company was solely engaged with its own staff, management, assets and employees in drug development and medical equipment business and at no time within the periodic reporting period of the Staff comments had any investment company type activities appeared in its periodic reports.
1)
The company's history.
Drug development and medical equipment has been pursued since at least 2012 under various names. As stated in the Company's 2012 Registration Statement on Form S-1:
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2 2007 U.S. App. LEXIS 11345 (7th Cir. 2007).
We are developing a blood test, AppyScore™, that is intended to be used by emergency department physicians to aid them in the rule out decision of possible appendicitis in children, adolescent and young adult (ages 2-20) patients that present with abdominal pain. We are aware of no blood test that is cleared by the Food and Drug Administration (FDA) for the purpose of aiding in the ruling out of appendicitis and are not aware of any current competitors in this area. We expect the main benefit of AppyScore will be to provide the physician with objective information that will aid in the identification of patients at low risk for appendicitis and thereby potentially reducing the number of expensive and potentially hazardous computed tomography (CT) scans that are currently performed on these patients. In addition, we believe the test will potentially save significant costs through both the reduction of CT scans and improved patient throughput in crowded emergency departments. We are in the final stages of development and intend to commence an FDA pivotal trial in the summer of 2012 and potentially commence marketing AppyScore outside the United States in the second half of 2012.
As stated in the Company's Quarterly Report on Form 10-Q filed November 30, 2017:
Note 8. Animal Health License Agreements:
Effective May 1, 2004, Washington University in St. Louis ("WU") and the Company entered into an Exclusive License Agreement ("WU License Agreement"), which granted the Company exclusive license and right to sublicense WU's technology (as defined under the WU License Agreement) for veterinary products worldwide, except where such products are prohibited under U.S. laws for export. The term of the WU License Agreement continues until the expiration of the last of WU's patents (as defined in the WU License Agreement) expire. The Company agreed to pay minimum annual royalties of $20,000 during the term of the WU License Agreement and such amounts are creditable against future royalties. Royalties payable to WU under the WU License Agreement for covered product sales by the Company carry a mid-single digit royalty rate and for sublicense fees received by the Company carry a low double-digit royalty rate. The WU License Agreement contains customary terms for confidentiality, prosecution and infringement provisions for licensed patents, publication rights, indemnification and insurance coverage. The WU License Agreement is cancelable by the Company with ninety days advance notice at any time and by WU with sixty days advance notice if the Company materially breaches the WU License Agreement and fails to cure such breach.
In July 2012, the Company entered into an Exclusive License Agreement (the "License Agreement") with Ceva Santé Animale S.A. ("Licensee"), pursuant to which the Company granted the Licensee an exclusive royalty-bearing license, until December 31, 2028, to the Company's intellectual property and other assets, including patent rights and know-how, relating to recombinant single chain reproductive hormone technology for use in non-human mammals (the "Company's Animal Health Assets"). The License Agreement is subject to termination by the Licensee (a) for convenience on 180 days prior written notice, (b) in the Licensee's discretion in the event of a sale or other disposal of the Company's animal health assets, (c) in the Licensee's discretion upon a change in control of the Company, (d) for a material breach of the License Agreement by the Company, or (e) in the Licensee's discretion, if the Company becomes insolvent. The License Agreement is also terminable by the Company if there is a material breach of the License Agreement by the Licensee, or if the Licensee challenges the Company's ownership of designated intellectual property. The License Agreement includes a sublicense of the technology licensed to the Company by WU. Under the terms of the WU License Agreement, a portion of license fees and royalties the Company receives from sublicensing agreements will be paid to WU. The obligation for such license fees due to WU is included in accrued expenses at September 30, 2017.
Under the License Agreement, the Licensee obtained a worldwide exclusive license to develop, seek regulatory approval for and offer to sell, market, distribute, import and export luteinizing hormone ("LH") and/or follicle-stimulating hormone ("FSH") products for bovine (cattle), equine and swine in the field of the assistance and facilitation of reproduction in bovine, equine and swine animals.
Under the License Agreement, as of September 30, 2017, the following future milestone payments are provided, assuming future milestones are successfully achieved:
● milestone payments, totaling up to a potential of $1.1 million in the aggregate, based on the satisfactory conclusion of milestones as defined in the License Agreement;
potential for milestone payments of up to an additional $2 million for development and receipt of regulatory approval for additional licensed products; and royalties, at low double digit rates, based on sales of licensed products.
Revenue recognition related to the License Agreement and WU License Agreement is based primarily on the Company's consideration of ASC 808-10-45, "Accounting for Collaborative Arrangements." For financial reporting purposes, the license fees and milestone payments received from the License Agreement, net of the amounts due to third parties, including WU, have been recorded as deferred revenue and are amortized over the term of the License Agreement. License fees and milestone revenue currently totaling a net of approximately $1,556,000 commenced being amortized into income upon the July 2012 date of milestone achievement. As of September 30, 2017, deferred revenue of $96,698 has been classified as a current liability and $992,792 has been classified as a long-term liability. The current liability represents the next twelve months' portion of the amortizable milestone revenue. During each of the nine months ended September 30, 2017 and 2016, $72,524 was recorded as the amortized license fee revenue arising from the License Agreement.
During the quarter ended March 31, 2017, the Company made the decision to discontinue the operations of its wholly-owned subsidiary BDI. BDI had developed a proprietary Enhanced Surface Plasmon Resonance technology platform for the detection of molecular interactions. The decision to adopt this plan was made following an evaluation by the Company's Board of Directors in January 2017 of the estimated results of operations projected during the near to mid-term period for BDI, including consideration of product development required and updated sales forecasts, and estimated additional cash resources required. The Company expects to dispose of the assets and operations during 2017 by selling the assets and licensing the intellectual property rights. The Company has recognized the exit of BDI in accordance with Accounting Standards Codification (ASC) 205-20, Discontinued Operations. As such, the historical results of BDI, following its 2016 acquisition, have been classified as discontinued operations.
2)
The way it presents itself to the public.
In October 2017 the Company held itself out to the public with the following statements, as appeared in its press release. Investment exposure in blockchain technology (goNumerical and Tess) was first exposed to the risks and volatility enumerated in a new set of important Risk Factors which were filed October 23, 2017.
(See https://www.sec.gov/Archives/edgar/data/1167419/000107997317000595/riot_8k.htm).
About Riot Blockchain (October 17, 2017 press release) below also presents how the Company presents itself to the public:
Riot Blockchain Inc. (formerly Bioptix, Inc.) leverages its expertise and network to build and support blockchain technology companies. It is establishing an Advisory Board with technical experience intending to become a leading authority and supporter of blockchain and provides investment exposure3 to the rapidly growing blockchain ecosystem. For more information, visit http://www.riotblockchain.com/.
The company continues to generate revenues and expects to continue to generate revenues and maintain its existing Bioptix business line and its royalty license stemming from an Exclusive License Agreement with Ceva Santé Animale S.A. ("Licensee"), providing an exclusive worldwide royalty-bearing license, until December 31, 2028, to develop, seek regulatory approval for and offer to sell, market, distribute, import and export luteinizing hormone ("LH") and/or follicle-stimulating hormone ("FSH") products for cattle, equine and swine for the assistance and facilitation of reproduction.
(See https://www.riotblockchain.com/news-media/press-releases/detail/10/bioptix-changing-name-to-riot-blockchain-as-company-shifts)
3)
The activities of its officers and directors.
Through the first quarter of 2018 the officers and directors of the Company are actively engaged in running the majority and wholly-owned businesses, and not as mere investment managers. Their day to day jobs consist of overseeing the mining operation, hiring, financial reporting, acquisition of assets to be used in the business (servers) and their deployment, software, cybersecurity, and interacting with the managements of its subsidiary and minority owned businesses. Additionally, management participates in capital formation activities, legal and regulatory review and policy, efforts to launch new operating businesses (such as Tess and Logical) and other active management functions associated with the operation of the businesses.
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3 The Company believes this phrase was used once in a release and has since ceased using the phrase investment exposure to the rapidly growing blockchain ecosystem in its public filings and releases but asserts that the meaning was intended to reflect that an investor would be able to invest in a managed blockchain operating business.
4)
The nature of its assets.
As described above, the Company's consolidated subsidiaries as of the date hereof consist of Kairos Global Technology Inc. ("Kairos") (100%) whose activities consist of blockchain verification and transaction services generating cryptocurrency assets for the Company utilizing specialized computer equipment owned by the Company which are expected to be reported as fixed assets and the subsequent depreciation recorded as a component of operating activities, Tess (52%) involved in developing blockchain and payment solutions for the travel industry for further license or sale which is expected to be a component of the Company's core operating activities, Digital Green Energy, Inc. ("Green") (100%) seeking to identify environmentally friendly projects with large energy capacity and cost-effective rates for mining and data center projects which is expected to be a component of the Company's core operating activities, and Logical (92.5%) which is seeking to develop a licensed cryptocurrency exchange which is expected to be a component of the Company's core operating activities. As noted previously, each of these businesses develops, produces and markets or plans to develop, produce and market products and services (other than investment management services) for/to its customers and the Company does not provide any investment management services.
5)
The sources of its income.
Prior to the fourth quarter of 2017 all of the Company's income was from drug development, animal health licensing and medical equipment sales and services. During the fourth quarter of 2017 the Company began to realize revenues (and income) from operating its specialized servers generating cryptocurrency.
Prior to the "Presto" ruling, the most important factor in the eyes of the SEC was the nature of the company's assets. The Seventh Circuit, however, considered this focus to be too myopic. The court asked "[w]hat sense would it make to enact a law using 40 percent as a threshold in Section 3(a)(1)(C)," yet convert Section 3(b)(1) into still another purely numbers-based test? The court weighed all five factors in the Tonopah test to conclude that Presto was not an investment company. Unlike other companies that had been found to be inadvertent investment companies, Presto still had active business operations and its managers spent roughly 95 percent of their time running the company's consumer products and military ordnance business. In addition, although Presto's balance sheet may have been heavily weighted with investment securities, its public representations and business focus were those of an operating company. The court's analysis gave significant weight to this last point, looking closely at "the beliefs the company is likely to induce in investors." As in Presto, the Company's public representations and business focus are clearly those of an operating company. Investors are not likely to be induced into thinking the Company is an investment company. As discussed above, its historical development and public representations of policy illuminate how the Company is primarily engaged in the business of acquiring, operating and supporting (through management and investments) blockchain related non-investment company businesses and mining for its own account, and its management spends the vast majority of its time overseeing and executing this strategy (i.e., not engaging in short-term securities trading or investing activities). Currently Riot and its majority owned subsidiaries employ a total of approximately 24 employees, 3 of whom are less than full time. Of the total employees, 7 are executives and officers (all hands-on in day-to-day operations), 6 are in finance, accounting and administrative, (including the Company's public reporting functions), 5 are focused on sales and marketing like functions, 4 are dedicated to technical services for platform, web and software development and 2 are in business development, one of whom is part-time.
We note your response to comment 3 in your letter dated April 24, 2018. We are not issuing further comments related to your analysis of the section 3(b)(1) exemption at this time. Our decision not to issue additional comments should not be interpreted to mean that we agree with your analysis.
The Company notes the staff’s response. Read in the reply ↗
We note your assertion that your digital assets meet the definition of intangible assets, which suggests they are subject to ASC 350-30. We are unable to identify a scope exception in ASC 350-30 that permits accounting for intangible assets at fair value each reporting period. If your digital assets are within the scope of ASC 350-30, please revise your accounting to comply with those requirements
While digital assets may meet the definition of an intangible asset in ASC 350-30, paragraph 15-3 states that only the following transactions are within its scope:
a.
Intangible assets acquired individually or with a group of other assets (but not the recognition and initial measurement of those acquired in a business combination or an acquisition by a not-for-profit entity) b.
Intangible assets (other than goodwill) that an entity recognizes in accordance with Subtopic 805-20 or 958-805 after they have been initially recognized and measured, except for those identified in the followingRead in the reply ↗Rest of the answer
paragraph c.
Costs of internally developing identifiable intangible assets that an entity recognizes as assets
The Company notes that it is receiving consideration in exchange for providing verification services (a revenue transaction) rather than acquiring an intangible asset either individually, as a group, or part of a business combination. Therefore, the Company concluded that the revenue transaction is not within the scope of the transactions listed in ASC 350-30-15-3(a) and (b).
Under ASC 350-30-25-3, the costs of internally developing intangible assets are recognized as an expense when incurred. PwC’s Point of View, Cryptocurrencies Time to Consider Plan B (March 2018), provides the following further guidance that might apply to the recognition of intangible assets for miners:
When cryptocurrency is purchased, the intangible asset would be measured at the price paid or consideration given to obtain the cryptocurrency. However, the question for miners is more complicated. Unlike a direct purchase, miners are awarded units, but they incur costs of computing equipment, electricity, and other expenses. At issue for the miners is whether the associated costs should be capitalized as an intangible asset or expensed.
There is not a lot of guidance on accounting for the costs incurred to internally-develop intangible assets, but it generally limits capitalization. Notwithstanding, existing guidance may not preclude capitalization for certain costs incurred by miners to obtain cryptocurrencies. Miners may need to analogize to other areas of US GAAP where explicit guidance exists (e.g., internal-use software or film production).
For miners of digital assets, this would result in capitalizing the costs of the computing equipment, electricity, and other expenses incurred in performing the verification service as intangible assets. This would result in significant discrepancies in amounts recognized as intangible assets between a mining company and a company which purchases an equal amount of the digital currency on an exchange.
A further issue created by classifying digital currencies as an intangible asset is the impairment model associated with the subsequent accounting for intangible assets. Presumably, a digital asset would be subject to amortization, in which case it would be subject to impairment if it is subsequently determined to have a finite useful life. Because the prices of many cryptocurrencies are extremely volatile, there are practical challenges with making judgments associated with when the intangible assets are “more likely than not” to be impaired.
While digital assets meet the technical definition of intangible assets in ASC 350-30, that definition was developed based on guidance that was issued more than 40 years ago in APB Opinion No. 17, Intangible Assets, which did not contemplate the nature of digital currencies. Rather, the guidance focuses on intangible assets like trademarks, patents, and customer relationships that are typically held for long periods of time and do not have quoted prices in active markets.
Due to the issues noted above, the Company concluded that the digital currency received in exchange for performing a verification service is not within the scope of the three transactions listed in ASC 350-30 and that it would not be appropriate to analogize to the guidance in ASC 350-30 for the subsequent measurement of digital assets. Rather, the Company concluded that it is more appropriate to analogize to the guidance in ASC 825 on accounting for financial instruments in order to subsequently measure the digital assets that it receives in exchange for providing verification services.
To the extent the staff concludes further disclosure of the above is necessary, such information will be included in the Company’s Quarterly Report on Form 10-Q for the period ended June 30, 2018 and thereafter.
We refer to your statement in the penultimate paragraph on page 4 that you participate in mining pools. Please expand your discussion to disclose any pool fee that you are required to pay.
The following additional language will be added by amendment:
A mining pool is the pooling of resources by miners, who share their processing power over a network and split rewards according to the amount of work they contributed to the probability of finding a block. Mining pools emerged in response to the growing difficulty and available hashing power that competes to discover blocks on the Bitcoin blockchain. Riot participates in mining pools.
The mining pool operator provides a service that coordinates the workers.Read in the reply ↗Rest of the answer
Fees are paid to the mining pool operator to cover the costs of maintaining the pool. The pool uses software that coordinates the pool members’ hashing power, identifies new block rewards, records how much work all the participants are doing, and assigns block rewards in-proportion to the participants’ efforts. While we do not pay pool fees directly, pool fees are deducted from amounts we may otherwise earn.fees (and payouts) fluctuate and historically have been approximately 2% on average.
Mining pools are subject to various risks such as disruption and down time. Riot has software that monitors its pool performance and reward rates to monitor credits for our contributed hashing power. In the event that a pool experiences down time or not yielding returns, our results may be impacted.
We note your risk factor disclosures regarding the potential adverse effects that could occur to your business in case you suffer a loss of cryptocurrency as a result of hackers and other cybersecurity threats. Expand your disclosure to describe your custodial practices for digital assets.
Risks Due to Hacking or Adverse Software Event
In order to minimize risk, Riot has established processes to manage wallets that are associated with our cryptocurrency holdings. There can be no assurances that any processes we have adopted or will adopt in the future are or will be secure or effective, and we would suffer significant and immediate adverse effects if we suffered a loss of our cryptocurrency due to an adverse software or cybersecurity event.Read in the reply ↗Rest of the answer
Riot utilizes several layers of threat reduction techniques, including: (i) the use of hardware wallets to store sensitive private key information; (ii) performance of transactions offline; and (iii) offline generation and use of private keys.
At present, the Company is evaluating several third-party custodial wallet alternatives, but there can be no assurance Riot will utilize such services, as other new options may develop in the future, and if a custodial wallet is used there can be no assurance that such services will be more secure than those the Company presently employs.
You state in the fourth paragraph on page 4 that you are building a cryptocurrency mining operation for "primarily Bitcoin." You also state on page 5 that you believe Logical Brokerage will allow you to investigate the establishment of a digital currency exchange, and that in addition to Bitcoin, the exchange would provide services for other "digital currencies," such as Ethereum and Litecoin.Rest of the question
We also note that an investor presentation you have furnished with your March 14, 2018 Form 8-K references USD Minute-Tokens in connection with your TessPay business. Please disclose the types of cryptocurrencies that you are mining or expect to mine other than Bitcoin, or for which you expect Logical Brokerage or other subsidiaries will provide services, describe the nature and characteristics of each of these assets, and provide a detailed analysis explaining why you believe these other cryptocurrencies are not securities as defined in Section 2(a)(1) of the Securities Act.
On June 6, 2018 SEC Chairman Jay Clayton stated in a press interview that “Bitcoin” is not a security. This statement was closely followed by William Hinman, Director of the Division of Corporation Finance, who issued a statement on June 14, 2018 that “Ethereum” is also not a security. In light of similarities, we believe that the SEC will evaluate Bitcoin Cash and Litecoin and may similarly conclude these cryptocurrencies are not securities.Read in the reply ↗Rest of the answer
At the present time, Logical Brokerage is in the planning stage, and its plan of operation is not complete as it pursues regulatory authorization to perform exchange-type functions for digital assets. However, the Company will initially consider serving as an exchange for Bitcoin and Ethereum which as noted, the SEC has stated do not meet the United States Supreme Court Howey-test definition of security at this time. If the SEC takes a similar position the Company will consider evaluating the inclusion of Bitcoin Cash and Litecoin. Any future activities will necessarily be evaluated on a case by case basis as criteria are developed to evaluate digital assets seeking to utilize the platform and client certification processes.
The Company only mines Bitcoin, Bitcoin Cash, and Litecoin, which may be considered for RiotX and our TessPay’s proposed tokens are not presently being considered and do not presently exist while TessPay is developing its business. At the present time the inclusion of additional digital assets have not been addressed by the Company and when addressed will be the subject of review which would include evaluating whether additional digital assets that seek to be registered for sale on the exchange would be permitted, whether activities will require further licensing or regulation by Logical Brokerage, and future interpretations by regulators in order to comply with applicable rules and regulation in effect from time to time.
Please revise this section to also discuss the competition in the field of digital currency exchanges applicable to Logical Brokerage's business.
We believe there are several companies operating digital currency exchange operations in the United States that will be competitors to Logical Brokerage and more potential competitors are expected to emerge. Little information is known about these companies inasmuch as they are privately owned and reliable information about their size and operations is not known. The current known competitors include: Read in the reply ↗
Please revise your statement that Overstock.com Inc. is one of your competitors to distinguish the activities of its subsidiary, Medici Ventures, from the activities of its retail business and to clarify that Medici Ventures may be considered one of your competitors. Government Regulation, page 6
The following additional information will be added by amendment:
Of the competitors, we believe Overstock is among the best known as an e-retailer, Overstock has been investing in blockchain and cryptocurrency startups for several years through Medici Ventures, its wholly-owned subsidiary according to public reports by Overstock. Medici has more than a dozen portfolio companies, including tZero. T Zero is a wholly-owned subsidiary of Overstock.com that focuses on the development and commercialization of financial technology (“fintech”) with blockchain technology.Read in the reply ↗Rest of the answer
In doing so, tZero hopes to bring greater efficiency and transparency to capital markets. On April 8, 2018 tZero, the blockchain subsidiary of Overstock.com, announced the release of a demo version of the prototype of its security token trading software which demonstrates how security tokens may be traded on the platform. tZero’s trading platform has been developed to compete with traditional stock exchanges by integrating cryptographically-secured distributed ledgers with existing market processes to reduce settlement time and costs, and increase transparency and efficiency. tZero has not set a launch date.
Please expand your disclosure to discuss the effect of existing or probable governmental regulations on your Logical Brokerage business, including financial services and consumer protection laws, and any regulations relating to required state money transmitter licenses.Rest of the question
Please also discuss whether the operations of Logical Brokerage will trigger any obligations under the Securities Act or Securities Exchange Act, including any requirements to register as a national securities exchange, alternative trading system or broker-dealer, or any obligations to register with the CFTC as a futures exchange. Refer to Items 101(h)(4)(viii) and (ix) of Regulation S-K.
Exchanges for securities must be registered as a national securities exchange or must be exempt from such registration requirement (e.g., registered broker-dealers operating as alternative trading systems). As a result, we do not currently intend for our planned cryptocurrency exchange operations through our Logical Brokerage subsidiary to allow trading in cryptocurrencies (including cryptocurrencies issued in ICOs) that may be classified as securities.Read in the reply ↗Rest of the answer
Rather, we anticipate that such operations would, at least initially, facilitate the exchange of digital currencies like Bitcoin, Ethereum, and potentially Litecoin and Bitcoin Cash. Consistent with recent statements of SEC senior staff members, we do not believe that such digital currencies are securities. This sentiment is echoed in Notice 2014-21 published by the Internal Revenue Service (the “IRS”) on March 23, 2018 which calls for digital currency to be treated as property for U.S. federal tax purposes. However, if regulatory changes or interpretations were to require the regulation of Bitcoin or other digital currencies as securities under the U.S. securities laws or if the SEC were to otherwise take the position that digital currencies may only trade on or are otherwise subject to the rules of a national securities exchange unless exempt from such requirements, the required registrations and regulatory compliance steps could result in extraordinary expenses or burdens to us or potentially require us to discontinue (or cease pursuing) cryptocurrency exchange operations, which would have an adverse effect on our plans and our business or operations.
Logical Brokerage is a CFTC-registered introducing broker and is subject to oversight by the CFTC and the NFA. The CFTC and NFA do not have functional oversight over cryptocurrency exchanges, but the CFTC has authority to bring enforcement actions arising from perceived fraud and/or manipulation. As a result, we must comply with CFTC and NFA requirements applicable to introducing brokers, including complying with anti-money laundering requirements.
Because Logical Brokerage’s proposed activities will likely constitute a money services business (“MSB”) under regulations promulgated by the FinCEN under the authority of the Bank Secrecy Act, Logical Brokerage has registered with FinCEN as an MSB, is instituting an anti-money laundering program, and is adopting policies and procedures requiring it to make certain reports to FinCEN and maintain certain records. Logical Brokerage Corp (LBC) is presently registered as an Introducing Broker with the NFA and CFTC, NFA#0458756, an MSB # 31000125058756 and a Money Transmitter for the state of Florida, # FT230000224),
Further, it is likely that Logical Brokerage’s proposed activities will constitute "money transmitter" activities or be otherwise regulated (e.g., by New York under its so-called “Bitlicense” regime) under one or more state laws. As a result, Logical Brokerage will seek appropriate licenses or otherwise register with appropriate state regulators and comply with state regulations that may include the implementation of anti-money laundering programs, cyber security, consumer protection, financial and reporting requirements, and maintenance of certain records and other operational requirements, as required. Without a required money transmitter license, we could not engage in money transmitter activities with persons residing in the relevant state (or from such state), or engage in other activities (e.g., custody) requiring another license such as a Bitlicense. Logical Brokerage has already commenced applying for appropriate licenses in Florida and will continue to evaluate or seek to obtain state money transmitter licenses, as necessary, on a state by state basis. In addition, it is possible that other regulations may apply to our currency exchange operations, such as consumer protection laws, however we have not evaluated the impact or requirements of such other laws currently, as we are focused initially on compliance requirements of the various laws described above. Our inability to comply with any rules or regulations or federal or state laws applicable to our planned Logical Brokerage activities, or decision to discontinue to pursue or inability to continue such activities once commenced, would have a material adverse effect on our business and operations.
We refer to your disclosure here, on page 5 and elsewhere that you are investigating the establishment of a cryptocurrency exchange, which may also provide futures and securitized token trading. Please revise your disclosures to discuss the current operations of Logical Brokerage and provide details regarding your specific plan to establish a digital currency exchange, including whether the exchange will participateRest of the question
in initial coin offerings. Please also disclose the specific states in which you intend to operate and how you intend to limit trading to only participants from such states.
Logical Brokerage Corp (“LBC”) is presently registered as an Introducing Broker with the NFA and CFTC, NFA#0458756.* LBC has no customers and has done no business since it was acquired on March 23, 2018. LBC now has the dba of RIOTX. LBC is a 92.5% owned subsidiary of RIOT Blockchain Inc. LBC, under the dba RIOTX, is investigating the launch of a licensed cryptocurrency exchange in the United States focused on retail clients. Through multiple trusted and vetted third parties, LBC intends to offer retail clients the opportunity to safely buy and sell a variety of cryptocurrencies.Read in the reply ↗Rest of the answer
These would initially consist of Bitcoin, Bitcoin cash, Ethereum, and Litecoin.
LBC may in the future offer futures trading to qualified customers, but presently has no plans to do so. LBC presently has no plans to offer securitized token trading or participate in initial coin offerings in any way.
LBC intends to investigate proper licensing and suitability to be able to serve customers in all states except Wyoming and Hawaii. LBC intends to use vetted and licensed third-party companies for several features, including the latest identification and geo-location technology to ensure trading is limited to participants from states in which the Company may offer its services.
LBC has registered with FinCEN as a Money Service Business (“MSB”), MSB# 31000125058756, and has received a Money Transmitter License for the state of Florida, License Number FT230000224, from which operations would be based.
*Note: Neither the CFTC nor the NFA regulate spot-market cryptocurrency transactions.
Based on your Item 10 disclosures, it does not appear that your management team has specific experience in the cryptocurrency industry. If true, please expand this risk factor to highlight your management team's lack of industry experience.
Our management team suffers from limited experience in blockchain, digital assets and cryptocurrency. Inasmuch as the industry is in its infancy and few people would be able to describe themselves as having extensive experience when it comes to cryptocurrency, the Company nevertheless believes blockchain, digital assets and cryptocurrency are an emerging asset class.Read in the reply ↗Rest of the answer
The Company believes it has attracted persons from a diverse community of entrepreneurs, programmers and others who have embraced a common belief and value system that blockchain based transactions and digital assets including cryptocurrency can evolve into a means to conduct business and effect payments. Our employees and management team possess skillsets aligned with blockchain, digital assets and cryptocurrency, including Christopher Ensey, or Chief Operating Officer, experienced in cybersecurity, and employees who have experience managing and operating large data center sites and employment with Bitcoin computer manufacturing. Should these skills not be compatible with the needs of our business, and we cannot hire qualified personnel or management, the results could have a material adverse effect on our business and operations.
Please expand your disclosures regarding your director Remo Mancini to explain the principal business of Sandstone Strategies, and regarding your CFO Robby Chang to identify the organization in which he was part of the five-person multi-strategy hedge fund team.Rest of the question
We also refer to your statement that your director Jason Les is qualified as a director based on the fact that he has been active in the cryptocurrency industry and brings technical expertise in this industry. Please revise your disclosure to discuss the specific experience, qualifications, and skills Mr. Les has in this industry. Refer to Item 401(e) of Regulation S-K.
The following additional information will be filed by amendment.
Sandstone Strategies is a company wholly-owned by Remo Mancini ICD.D, our director. Sandstone Strategies is not paid any additional compensation by the Company and all compensation payable by the Company to Mr. Mancini for board fees and reimbursements have been paid directly to Sandstone which does not perform any other business services.
Robby Chang has served as our Chief Financial Officer since February 2018. On February 27, 2018 the Board of Directors appointed Mr.Read in the reply ↗Rest of the answer
Chang to the position of Chief Financial Officer and to serve as Principal Accounting Officer effective upon completion of the Company's 2017 audit and filing of its Annual Report on Form 10-K for the year ended December 31, 2017. Mr. Chang was employed by Cantor Fitzgerald Canada from 2011-2018 as Managing Director, Senior Analyst, and Head of Metals & Mining. Previously, Mr. Chang held various positions as Institutional Equity Research Analyst and Director, Research and Trading, and Portfolio Manager for several financial companies. While at Cantor Fitzgerald Canada, he provided research coverage in precious metals, base metals, lithium, and uranium. He was recognized by Bloomberg as the "Best Precious Metals Analyst" in Q1 2016. Mr. Chang has been frequently quoted by and has been a regular guest of several media outlets including: Bloomberg, Reuters, CNBC, and the Wall Street Journal. Mr. Chang has 23 years of experience in the financial services industry including as Director of Research/Portfolio Manager at a Canadian investment firm that managed $3 billion in assets and serving on a five-person multi-strategy hedge fund team for Blair Franklin Capital Partners where he specialized in equity and derivative investments. Mr. Chang holds a Masters of Business Administration from the University of Toronto. While Mr. Chang has not previously served as a chief financial officer of a public company and does not maintain a certified public accounting license or have experience in public accounting which present risks to the Company and requires that we utilize outside services for review and preparation of our financial statements and reports, Mr. Chang brings technical expertise with regards to institutional portfolio investing and relations and valuation skills applicable to comparable non cryptocurrency mining operations which we believe are valuable but necessarily require we incur additional costs associated with regulatory compliance and SEC reporting.
Jason Les has served as a Director of the Company since November 2017 and also serves on the Advisory Board. He is a certified Bitcoin developer and participates extensively in the Bitcoin development community. Mr. Les is a contributor to open source development for Bitcoin related software and has been selected by various media outlets as a commentator on Bitcoin. Mr. Les is lead technical consultant to CoinCentral.com, a popular Bitcoin and cryptocurrency news source and is a producer of technical Bitcoin education materials. Additionally, he is an active participant in cryptocurrency mining social networks and has operated a personal mining operation for the past 18 months.
Mr. Les played professional poker for over ten years where he has been regarded as one of the best in the game and twice selected as the human benchmark to test artificial intelligence in “Man vs Machine” at Carnegie Mellon University. After extensively studying game theory, Mr. Les developed mathematical models that were used to construct an approximation of a Nash equilibrium strategy for poker that was the foundation of his playing prior to transitioning to the Bitcoin industry. During the course of his poker career, Mr. Les first gained interest in Bitcoin in 2013. Mr. Les graduated from U.C. Irvine in 2010 with a B.S. in Information and Computer Science. Mr. Les is qualified as a director based on the fact that he has been active in the cryptocurrency industry and brings technical expertise with regards to cryptocurrency mining, protocol development, and general evaluation of the industry.
We note your disclosure that there were no related party transactions since January 1, 2017 except for certain employment agreements. However, we note that in Note 13 in your Form 10-K, you disclose that Barry Honig and Catherine DeFrancesco, who were each a beneficial owner of more than 5% of your common stock at the time, were also shareholders of Kairos at the time of its acquisition. We recognize that Mr.Rest of the question
Honig filed an amendment on February 13, 2018 to Schedule 13D stating that he ceased to be a beneficial owner of more than 5% of your common stock on November 28, 2017, which is subsequent to your acquisition of Kairos. Please revise your disclosure to include these transactions, or explain why each was not considered to be a related party transaction. Refer to Item 404 of Regulation S-K. Notes to Condensed Consolidated Financial Statements Note 2. Basis of presentation, summary of significant accounting policies and recent accounting pronouncements
The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017 filed April 17, 2018 included the following statement with respect to Note 13 and disclosed the interests of the named persons in the Kairos and other transactions, as follows:
Note 13. Related Party Transactions:
Per Schedules 13D filed with the Securities and Exchange Commission, each of Barry Honig (together with other group members) and Catherine Johanna DeFrancesco beneficially owned greater than 10% of the dispositive and voting power of the Company's common stock. Mr.Read in the reply ↗Rest of the answer
Honig reported beneficial ownership of approximately 11.2% of the Company's common stock as of January 5, 2017 and Ms. DeFrancesco reported beneficial ownership of approximately 11.45% of the Company's common stock as of January 10, 2017. Mr. Honig invested $1,750,000 in the March 2017 Convertible Note Private Placement (see Note 7). GRQ Consultants, Inc., a related party of Mr. Honig, received a cash payment of $50,000 for diligence services in connection with the Company's investment in Coinsquare (see Note 4). Each of Mr. Honig and Ms. DeFrancesco was a shareholder of Kairos at the time of its acquisition by the Company (see Note 2), with Mr. Honig having owned approximately 8.6% of Kairos and Ms. DeFrancesco having owned approximately 6.3% of Kairos. Each of Mr. Honig and Ms. DeFrancesco invested in the December 2017 Common Share Private Placement, with Mr. Honig investing $500,000 and Ms. DeFrancesco investing $360,000 (see Note 7).
We note the staff’s observation that the Company’s amended Form 10-K filed April 30, 2018 adding Part III information, Item 13, and will insert additional information in Item 13 from the above quoted language. The Company will add additional explanatory information by amendment to the amended Form 10-K by a further amendment to Item 13 of the amendment in accordance with “Smaller Reporting Company” requirements of Item 404(d) of Regulation S-K as follows1:
The below will be added by amendment:
Item 13.
As previously reported by us, per Schedules 13D filed with the Securities and Exchange Commission, certain persons reported that they had beneficially owned greater than 10% of the dispositive and voting power of the Company's common stock.
Mr. Barry Honig reported beneficial ownership of approximately 11.2% of the Company's common stock as of January 5, 2017 (based upon 4,503,971 shares outstanding at that time). Pursuant to Schedule 13D/A filed by Mr. Honig on February 12, 2018 Mr. Honig reported that he ceased to be the beneficial owner of more than 5% of the common stock of the Company on November 28, 2017. Mr. Honig invested $1,750,000 in the March 2017 Convertible Note Private Placement (see Note 7 of the 10-K) and $500,000 in the December 2017 Common Shares Private Placement (see Note 7 of the 10K). GRQ Consultants, Inc., a related party of Mr. Honig, received a cash payment of $50,000 for diligence services in connection with the Company's investment in Coinsquare (see Note 4 of the 10-K).
Ms. Catherine Joanna DeFrancesco reported beneficial ownership of approximately 11.45% of the Company's common stock as of January 10, 2017 (based upon 4,503,971 shares outstanding at that time). Per Schedule 13D/A filed by Ms. DeFrancesco with the SEC, Ms. DeFrancesco reported that she beneficially owned greater than 5% of the dispositive and voting power of the Company's common stock on January 10, 2017. Ms. DeFrancesco reported beneficial ownership of approximately 11.45% of the Company's common stock as of January 10, 2017. Ms. DeFrancesco invested $360,000 in the Company’s December 2017 Common Shares Private Placement (see Note 7 of the 10K).
1 (d) Smaller reporting companies. A registrant that qualifies as a “smaller reporting company,” as defined by § 229.10(f)(1), must provide the following information in order to comply with this Item:
(1) The information required by paragraph (a) of this Item for the period specified there for a transaction in which the amount involved exceeds the lesser of $120,000 or one percent of the average of the smaller reporting company's total assets at year-end for the last two completed fiscal years;
(2) The information required by paragraph (c) of this Item; and
(3) A list of all parents of the smaller reporting company showing the basis of control and as to each parent, the percentage of voting securities owned or other basis of control by its immediate parent, if any.
Instruction to Item 404(d). 2. For smaller reporting companies information shall be given for the period specified in paragraph (a) of this Item and, in addition, for the fiscal year preceding the small reporting company's last fiscal year.
As previously disclosed, on November 1, 2017, the Company entered into a business combination share exchange agreement (the “Agreement”) with Kairos Global Technology, Inc., a Nevada corporation (“Kairos”) and on November 3, 2017, closed on the agreement. Under the Agreement, the shareholders of Kairos agreed to exchange all outstanding shares of Kairos’ common stock to the Company and the Company agreed to issue an aggregate of 1,750,001 shares of Series B Convertible Preferred Stock (the “Series B Preferred Stock”) which are convertible into an aggregate of 1,750,001 shares of the Company’s common stock (the “Kairos Transaction”) to such shareholders. The shareholders of Kairos also will also be entitled to a royalty (the “Royalty”) to be paid from cash flow generated from operations, which shall entitle such shareholders to receive 40% of the gross profits generated on a monthly basis until they have received a total of $1,000,000, at which point the royalty is extinguished.
Mr. Honig was a shareholder of Kairos at the time of its acquisition by the Company on November 3, 2017 (see Note 2 of the 10-K). Based upon information provided by Kairos at the closing of the Kairos Transaction, Mr. Honig owned approximately 8.6% of Kairos. Accordingly, Mr. Honig would receive his proportionate allocation of the purchase price shares of Series B Preferred Stock and Royalty described above. As of November 3, 2017 the closing price per share of common stock of the Company as reported on NASDAQ was $6.75 per share. Accordingly, the pro rata consideration received by Mr. Honig in the transaction would have been equal to the value of approximately 150,500 shares of common stock upon conversion of Series B Preferred Stock.
Ms. DeFrancesco was a shareholder of Kairos at the time of its acquisition by the Company on November 3, 2017 (see Note 2 of the 10-K). Based upon information provided by Kairos at the closing of the Kairos Transaction Ms. DeFrancesco owned approximately 6.3% of Kairos. Accordingly, Ms. DeFrancesco would receive her proportionate allocation of the purchase price shares of Series B Preferred Stock and Royalty described above. As of November 3, 2017 the closing price per share of common stock of the Company as reported on NASDAQ was $6.75 per share. The pro rata consideration received by Ms. DeFrancesco in the transaction would have been equal to the value of approximately 110,250 shares of common stock upon conversion of Series B Preferred Stock.
Conversion of Series B Preferred Stock into common stock is subject to various restrictions and limitations including as set forth in the Certificate of Designation as well as restrictions and limitations on conversion pursuant to NASDAQ rules prior to shareholder approval of the Series B Preferred Stock.
Notes to Condensed Consolidated Financial Statements
Note 2. Basis of presentation, summary of significant accounting policies and recent accounting pronouncements
In order to help us evaluate your assertion that the bitcoin mining you do is within the scope of ASC 606, please address the following: • Describe for us the nature of the mining activities you perform, including a discussion of 1) any arrangements (explicit or implicit) related to these activities and counterparties involved with these activities and 2) any cash or non-cash consideration received by the company inRest of the question
connection with the mining activities; • Provide to us both your ASC 606-10-15 scoping analysis and your “Step 1: Identify the contract with the customer” analysis that identifies your customer and how you meet the criteria in ASC 606-10-25-1; and • Tell us the accounting alternatives you considered and rejected, and the reasons why, in arriving at your conclusion that your bitcoin mining is within the scope of ASC 606.
Mining cryptocurrency in exchange for consideration is an output of the Company’s ordinary business activities. Therefore, the Company determined that its transaction verification service is within the scope of ASC 606.
Transaction verification services are not governed by a written contract but rather by customary business practices as described in paragraph 606-10-25-2. The Company attempts to be the first vendor to solve an algorithm that verifies an individual transaction in exchange for cryptocurrency coins automatically awarded by the cryptocurrency system.Read in the reply ↗Rest of the answer
Each verified cryptocurrency transaction is a separate contract that is fulfilled when a vendor transfers the verified transaction to the blockchain, and receives the cryptocurrency coins, which is noncash consideration. The customer is the cryptocurrency system itself – the digital currency protocol.
We concluded that the contract arises at the point that a vendor is the first to solve the algorithm and transfers the verified transaction to the blockchain. At that point in time, the Company has the right to receive the awarded cryptocurrency in exchange for the completed verification service. Prior to that time, many vendors are competing to provide the service, but no individual vendor has a legal obligation to perform or a right to any consideration.
Because the cryptocurrency that the Company receives can be exchanged for cash, the risk, timing, or amount of the Company’s future cash flows is expected to change and the contract has commercial substance. Additionally, because the cryptocurrency is automatically awarded when the transaction is verified, it is probable that the Company will collect the consideration to which it is entitled.
To the extent the staff concludes further disclosure of the above is necessary, such information will be included in the Company’s Quarterly Report on Form 10-Q for the period ended June 30, 2018 and thereafter.
We note your policy that bitcoin mined is non-cash consideration and thus must be included in the transaction price at fair value at the inception of the contract. Please provide your analysis, with specific citation to authoritative accounting literature, that clarifies how your use of the average U.S. dollar spot price of the related cryptocurrency on the date of receipt complies with ASC 820.Rest of the question
In your analysis, please identify how you determined your principal or most advantageous market and whether the price in that market required adjustment to arrive at ASC 820 fair value, and the reasons why or why not.
The Company’s Bitcoin is transacted in the over the counter ("OTC") market. The Company transacts with Cumberland Mining, one of the largest principal OTC traders and liquidity providers in the cryptocurrency space. The Company utilizes information providers such as CoinMarketCap.com to obtain fair value information on its Bitcoin. CoinMarketCap.com aggregates executed transactions from various sources, similar to other pricing services such as Bloomberg for fixed income securities that transact in an OTC market.Read in the reply ↗Rest of the answer
CoinMarketCap.com offers additional tools such as historical pricing data, market capitalization, twenty-four hour trading volume and circulating supply. The CoinMarketCap.com price represents the Company's best estimate of fair value, and due to the mechanism of Bitcoin creation (i.e., mining) and the distribute ledger technology underlying Bitcoin, the circulating supply of Bitcoin at any one time can be easily verified. The Bitcoin market is liquid and execution is efficient, thus precluding the need to adjust the price to arrive at the fair value of Bitcoin in accordance with ASC 820.
To the extent the staff concludes further disclosure of the above is necessary, such information will be included in the Company’s Quarterly Report on Form 10-Q for the period ended June 30, 2018 and thereafter.
We note your responses to comments 2, 13 and 14 in your letter dated June 29, 2018. We are not issuing additional comments with respect to these issues at this time. Our decision not to issue additional comments should not be interpreted to mean that we agree with your analysis.
The Company notes the staff’s response. Read in the reply ↗
We acknowledge your revised disclosures in response to prior comment 5. Please reconcile your revised disclosures on page 5, which state that Logical Brokerage will initially serve as an exchange for Bitcoin and Ethereum, and your revised disclosures on page 6, which state that the the initial cryptocurrencies on Logical Brokerage will consist of Bitcoin, Bitcoin cash, Ethereum, and Litecoin.Rest of the question
In addition, if you plan for the exchange to also be a platform for Litecoin and Bitcoin cash, please confirm that in future filings you will expand your second risk factor on page 27 to disclose your additional regulatory obligations if these cryptocurrencies are determined to be securities.
Logical Brokerage is currently in the planning stage, and its plan of operation is not complete. The cyrptocurrencies that will initially be traded on the exchange have not yet been determined, and will depend on regulatory approvals. Such initial crypotocurrencies may include Bitcoin and Ethereum, and possibly other cryptocurrencies. The Company will clarify this in future filings, and expand its risk factor disclosure to disclose possible additional regulatory obligations if such additional crypotcurrencies are determined to be securities. Read in the reply ↗
We acknowledge your revised disclosure in response to prior comment 9. However, please tell us, and in future filings, explain, what retail clients going through "multiple trusted and vetted third parties" to buy and sell on your planned exchange.Rest of the question
means In addition, explain whether residents of Wyoming and Hawaii would be permitted to use the exchange platform during visits to other states, and if not, how you plan to limit their ability to do so. Lastly, tell us, and in future filings, explain your potential consequences if such residents are found to have used Logical Brokerage's services despite your efforts to prevent them from doing so.
Logical Brokerage Corporation is evaluating licensing relationships with several software service providers that enable the operation of its cryptocurrency exchange. Logical Brokerage may engage identity verification and compliance providers to support services for “know your customer” and anti-money laundering proofing. Logical Brokerage may also engage financial services partners as required for banking, custody of cryptocurrency, payment processing, marketing, and core platform products for trading services.Read in the reply ↗Rest of the answer
Logical Brokerage will vet these third parties for their compliance with applicable laws and data privacy standards.
All users registered on Logical Brokerage’s exchange platform will be required to supply proper documentation in accordance with KYC and AML standards. In addition to third party verification services, Logical Brokerage will validate user documentation and KYC information directly. Users of Logical Brokerage’s website will be required to provide proof of residence in the United States of America and within states where Logical Brokerage is licensed and approved to offer exchanges services. Users residing outside of these areas will not be allowed to fund trading accounts or access Logical Brokerage services. Logical Brokerage will make commercially reasonable efforts to block inappropriate access utilizing potential methods such as IP address whitelisting and geolocation services. User accounts that have provided false or fraudulent documentation, violate our terms of service, or compliance requirements will be shut down in accordance with Logical Brokerage’s KYC / AML policy and end user license agreement.
The Company will include such disclosure in its future filings.
We acknowledge your revised disclosure in response to prior comment 9. In future filings, please expand your disclosures to more fully discuss steps you have taken in preparing to launch your cryptocurrency exchange. In addition, if such launch is expected to require material commitments for capital expenditures or will have a material effect on your liquidity, revise to include these disclosures.
The Company included expanded disclosures in the June 30, 2018 Form 10-Q, Item 2, under Liquidity and Capital Resources in the discussion of RiotX, discussing the initial steps being taken to prepare for launching the cryptocurrency exchange and will expand its disclosures as appropriate, in future filings to more fully discuss steps it has taken in preparing to launch its cryptocurrency exchange and to revise its disclosures regarding capital expenditures and liquidity. Read in the reply ↗
We acknowledge your revised disclosure in response to prior comment 4. In future filings, please expand your disclosure in the Business section to discuss your current or planned security and custodial practices with respect to your digital exchange.
The Company will expand its disclosures as appropriate, in the Business section to discuss its current or planned security and custodial practices with respect to the digital exchange. Read in the reply ↗
We acknowledge your revised disclosure in response to prior comment 11 and reissue the comment as it does not describe the principal business of Sandstone Strategies. Please note that Item 403 (e) requires a description of the business background of each director, including the name and principal business of any corporation or other organization in which such director was employed or carried out his occupation.
The Company has added the following disclosure in the Company’s 10-Q for the period ended June 30, 2018:
The following biographical information regarding Remo Mancini, a director of the Company, supplements the Company’s Form 10-K for the year ended December 31, 2017:
Remo Mancini has been a director of the Company since February 2018. Mr. Mancini presently serves as a professional director on boards with significant experience at senior levels in both government and the private sector. He served in the Legislative Assembly of Ontario, Canada (Liberal Party member) from 1975-1993.Read in the reply ↗Rest of the answer
During this time Mr. Mancini held a number of notable positions including Minister of Revenue, Parliamentary Assistant to the Premier, Official Opposition Party House Leader, and Chairman of the Public Accounts Committee. He combines his experience as a former Canadian and U.S. senior corporate executive, corporate director and former Ontario Cabinet Minister to bring a valuable perspective to business affairs, senior executive management, and corporate governance. This extensive experience in both the public and private sector positions him to lead organizations, offer insightful decisive management guidance, and board leadership. He has served on a number of Boards of both publicly listed and private companies. He has earned the internationally recognized designation of ICD.D and is a graduate of the Directors Education Program offered by the Institute of Corporate Directors and the University of Toronto's Rotman School of Management. Mr. Mancini is the sole owner and President of Sandstone Strategies Inc., established in 2004. Mr. Mancini’s services are the sole activity provided by Sandstone Strategies Inc., which serves as a professional services corporation for Mr. Mancini that is compensated when Mr. Mancini’s services are sought. In the past 10 years Mr. Mancini has provided services for Melior Resources Inc., Estrella International Energy Services Ltd., Niocan, Inc., Cadman Resources Inc., and Niocan Inc., through which he has received compensation paid to Sandstone Strategies. Sandstone has no employees other than Mr. Mancini.
