So these ICOs are currently legal? In that case, is it legal to have an ICO for shares in an existing private company?
I am imagining the following scenario:
Someone has some vested shares in a startup. They send proof of their shares to some administrators of this
hypothetical service. The shares are then listed on the website. Someone browses the website and decides that they like the company, and they want to invest $10k. They make a request on the site, and then transfer $10k worth of Bitcoins to a specific address. The Bitcoins are then transferred to the person with the shares.
When the company has an acquisition or an IPO, the person then buys $X worth of bitcoins, and sends them to an address, where they are distributed among the investors.
This would be highly illegal, no? Something that would have to operate on the darknet? So then why are people getting away with ICOs?
P.S. As you might be able to tell from my username, I've been trying to figure out a way to sell some of my shares in a private company. (They're a unicorn in Silicon Valley.) You could call it an options contract. Or you could call it a loan, that would be repaid if/when the company has an exit. I've tried using a secondary market service, but the company blocked the sale.
P.P.S. This is completely unrelated to any of the above, but feel free to send me $20k worth of Bitcoins or Ethereum. I could even send you a link to my LinkedIn profile. But of course, this would just be $20k with no strings attached. But who knows, you might receive some bitcoins in the future.
According to some experts in US securities law, if the token being sold gets its value due to its usefulness in an application (e.g. it acts as a currency), it is, in their opinion, legal. If it gets its value from a promise of it providing the holder with a contractual claim on a share of the assets or profits of an enterprise, then it's potentially a security and thus potentially illegal. See the Coinbase securities law framework for more details.
I don't see how your scheme falls into either category. I advise checking with a lawyer before doing anything.
It is important to clarify that buying one of these tokens does not result in you owning a 'share' or a percentage of the company that issued them. Some lawyers are using this lack of ownership as a critical part of their argument that tokens are not a security and therefore ICO's are legal.
It's complicated and a very gray area right now. In response to this gray-ness, ICO's are now requiring investors to declare that they are not from the USA and some are geoblocking USA residents.
Obviously this means nothing, if a US citizen wants to buy they still will, but it is an interesting case of Cover Your Ass From the SEC taken by the ICO companies.
A not unreasonable one though: a large part of why minority shareholdings have actual potential value is because of a dense network of regulation that ensures company executives act in shareholders' interests, respect their property rights and make accurate representations about how the company is performing. So shareholders have an interest in the state enforcing securities law, including how shares may or may not be marketed.
On the other hand, provided wishing wells and ICOs don't claim to be a genuine investment and aren't considered to be equivalent to securities by anyone with any common sense, it's arguably state overreach to stop people chucking their money into them.
Basically, its illegal to market exotic investment opportunities to unaccredited investors (for good reason IMO). Same reason only accredited investors can invest in things like CDOs and weather derivatives.
Could you do an ICO or BTC share sale to only accredited investors with an online form asking for details a statement to that effect?
I recall from angel funding that the criteria is that you must ask, and that you must have "no reasonable reason to doubt" that a person is an accredited investor. The language is nice and vague, as per SEC regulatory standards.
Yes, exactly that. Compare it to designer drugs, where some reasonably well-understood chemical compound is made illegal, with the effect of creating a market for a similar chemical that is worse understood and may be more dangerous (i.e. less beneficial) to the consumer.
There are investors who will lend you money secured by your currently illiquid assets, such as share options. What you propose would be nearly identical in effect.
I am imagining the following scenario:
Someone has some vested shares in a startup. They send proof of their shares to some administrators of this hypothetical service. The shares are then listed on the website. Someone browses the website and decides that they like the company, and they want to invest $10k. They make a request on the site, and then transfer $10k worth of Bitcoins to a specific address. The Bitcoins are then transferred to the person with the shares.
When the company has an acquisition or an IPO, the person then buys $X worth of bitcoins, and sends them to an address, where they are distributed among the investors.
This would be highly illegal, no? Something that would have to operate on the darknet? So then why are people getting away with ICOs?
P.S. As you might be able to tell from my username, I've been trying to figure out a way to sell some of my shares in a private company. (They're a unicorn in Silicon Valley.) You could call it an options contract. Or you could call it a loan, that would be repaid if/when the company has an exit. I've tried using a secondary market service, but the company blocked the sale.
P.P.S. This is completely unrelated to any of the above, but feel free to send me $20k worth of Bitcoins or Ethereum. I could even send you a link to my LinkedIn profile. But of course, this would just be $20k with no strings attached. But who knows, you might receive some bitcoins in the future.