By: Alon Harnoy, Esq.,  and Ethan Rubin, Law Clerk

Introduction

As of April 2018, Initial Coin Offerings (“ICOs”) – an industry analysts believe can eventually become a multi-trillion dollar space – raised a staggering USD $5,014,952,132. With a total market capitalization of over $100 billion, the cryptocurrency market has attracted the attention of many, including traders looking for quick cash with few regulations.

What are Initial Coin Offerings?

ICOs are another form of cryptocurrency that businesses use in order to raise capital. Through ICO trading platforms, investors receive unique cryptocurrency “tokens” in exchange for their monetary investment in the business. It is a means of crowdfunding through the creation and sale of a digital token to fund project development.

This unique token functions like a unit of currency that gives investors access to certain features of a project run by the issuing company. These tokens are unique because they help fund open-source software projects that would otherwise be tough to finance with traditional structures.

What are White Papers? And What Purpose Do They Serve?

            When a cryptocurrency startup firm wants to raise money through an ICO, it usually puts its plans on a “white paper” to provide investors with important information. This information will include, but is not limited to: what the project is about; what objectives the project will aim to fulfill upon completion; how much money is necessary to undertake the venture; how many virtual tokens the issuers will keep for themselves; what type of currency is accepted; how long the ICO campaign will run for; and who the team is behind the white paper. The company issuing the ICO prepares the white paper prior to launching the currency. It is a pivotal component of ICOs, as many investors ask for a whitepaper draft before deciding whether to invest.

Cryptocurrency ICO vs. Stock IPO

The biggest difference between a cryptocurrency ICO and a stock initial public offering (“IPO”) is the regulatory oversight. First, as part of the mandatory requirement to register with the regulatory authority, any company looking to issue an IPO must create a legal document called a “prospectus.” The prospectus represents a legal declaration of its intention to issue its shares to the public, and it must meet certain standards of transparency. Among other things, it must include key information about the company and its upcoming IPO to assist potential investors in making an informed decision.

On the contrary, as stated in recent US regulatory action, ICOs only have regulation requirements if they are issued as security tokens rather than utility tokens, which are described in more detail below. However, because such regulatory activity has only recently been developed, investor assessments and due diligence are more difficult to accomplish, especially in comparison to evaluating stock IPOs, which are regulated through strict processes and overseen by accounting firms and investment banks, thereby providing investors with more information and security.

How do ICO’s Work?

Through the ICO fundraising model, startups can raise capital by issuing tokens on a blockchain (a list of records secured using cryptography) and then distributing tokens in exchange for a financial contribution. These tokens, which can be transferred across the network and traded on cryptocurrency exchanges, can serve an array of different functions, from granting the holder access to a particular service, to entitling them to company dividends. Depending on its function, tokens may be classified as either utility tokens or security tokens.

Utility Tokens

Utility tokens, called “user tokens” or “app coins,” represent future access to the business’s product or service. Through utility tokens, ICO startups can raise capital to fund the development of their blockchain projects in exchange for users’ future access to the service. Utility tokens are not designed to be a standard investment for a share of the company, and, if properly structured, this feature exempts utility tokens from federal laws governing securities.

By creating utility tokens, a startup can sell “digital coupons” for the service in development, similar to how electronic retailers accept pre-orders for video games that might not be released for several months. One example of a utility token is “Filecoin,” which raised $257 million by selling tokens that provide users with access to its decentralized cloud storage program. Businesses that offer these utility tokens are trending to avoid using the term “ICO,” and favor terms such as “token generation events” and “token distribution events,” to ensure they are not appearing to engage in a securities offering.

Security Tokens

Contrary to utility tokens, if a token derives its value from an external, tradable asset or it can increase in value based upon the efforts of others, it may be classified as a security token and become subject to federal securities regulations. Failure to abide by these regulations could result in costly penalties and may threaten to derail a project. Therefore, a business must meet all of its regulatory obligations. Once the token is properly classified, a wide variety of applications are permitted, the most promising being the ability to issue tokens that represent shares of company stock.    Online retailer Overstock.com (“Overstock”) is currently involved in this practice. Overstock announced that tZERO, one of its portfolio companies, would hold an ICO to fund the development of a licensed security token trading platform. The tZERO tokens are issued in accordance with SEC regulations, and Overstock’s CEO, Patrick Byrne, stated that token holders would be entitled to quarterly dividends derived from the profits of the tZERO platform.

Many industry observers, including Mr. Byrne, believe that mainstream companies will one day issue shares through ICOs, either in place of, or in addition to, traditional public offerings.

Concerns

Joichi Ito, Director of the MIT Media Lab and professor of the practice of media arts and sciences, has raised some concerns with the “gold-rush” mentality that is fueling the success of ICOs. He believes that cryptocurrencies are being deployed in irresponsible ways that are causing harm to individuals and damaging the ecosystem of developers and organizations.

Mr. Ito is concerned that regulators of IPOs have not yet caught up with ICOs, thereby allowing issuers to get rich by taking advantage of unwitting investors who are buying tokens of questionable value. Ultimately, Mr. Ito believes the regulatory intervention will need to be much more sophisticated and technically informed. In the meantime, a long list of people will read about skyrocketing prices of Bitcoin and decide to buy into one of the myriad ICOs being introduced to the public, perhaps without fully understanding the risks associated with such an investment.

Conclusion

An ICO is similar to a mix between an IPO and online crowdfunding, but for cryptocurrency. One can contribute “X” amount of an existing token and receive in return “Y” amount of a new token (at a set conversion rate) at a date set by the issuer of the token.

This token can be used in two ways, either with a utility function or a security function. A utility token is generally unregulated and used by startups to gain capital to fund their projects in exchange for future access to the service in development. On the other hand, a security token is generally treated like a stock, a tradable asset with ownership qualities, and is regulated by the SEC. ICOs are a new concept and some raise concerns with the actual value of the tokens and how easy it is for the issuer to get rich. Ultimately, time will tell whether this becomes the future of funding businesses or merely a “get rich” scheme by issuers.

This article has been featured on Ynet (in Hebrew) – see link below:

https://www.ynet.co.il/articles/0,7340,L-5253931,00.html

 

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