An initial public offering (IPO) is a company’s offer to the public of any securities that have not been offered to the public previously. IPOs are regulated in terms of chapter 4 of the Companies Act, 2008 (Act). “Securities” are defined widely in the Act as “any shares, debentures or other instruments, irrespective of their form or title, issued or authorised to be issued by a profit company”. The rules relating to IPOs are clear; if the criteria in the definition of an IPO are met, a prospectus must be produced. Any failure to comply with the IPO provisions in the Act may result in civil and / or criminal liability.
Against this regulatory background enters the initial coin offering (ICO), a crypto answer to finance-raising in a digital world. ICOs are similar to IPOs in that a company issues crypto-tokens, in whatever form, to the public for the first time in order to raise finance for that company. Clearly, there are differences between ICOs and IPOs, the critical ones being:
• the object being offered to the public is a digital token instead of a share or a bond ;
• ICOs do not appear to be subject to the same regulations that’s IPOs are.
A Brief History of the Development of ICOs
One of the first ICOs took place way back in 2015. On 17 August 2015, as the Chinese stock market crashed and the S&P 500 had its worst day in 4 years, as Don and Alex Tapscott recount in their book Blockchain Revolution , a company called Augur launched one of the most successful internet-based capital raising campaigns in history. Augur, a decentralised market prediction protocol, raised more than US$4 million in a week by selling its REP coin. One REP coin was offered at US$0,6 and it now trades at US$9,48. This is a 300% return on investment over approximately three years! From there, the practice of ICOs took off.
Interestingly enough, a market standard for ICOs has developed (which is not mandated by any legislation or regulatory authority) by which coin-offerors typically:
• announce the ICO in various crypto publications (e.g. Cointelegraph or Reddit);
• publish a so-called white paper (which performs a similar function to a prospectus in IPOs) which sets out an overview of the company’s business as well as the mechanism behind the token’s operation ;
• the white paper is sometimes followed by a yellow paper which describes the programming behind the business and the token in detail.
Notwithstanding this market practice, ICOs have proved susceptible to hacks and scams which leave innocent investors exposed with little legal recourse in the seemingly unregulated crypto-landscape.
The hacks typically take the form of bugs in the digital wallet established by an entity to receive the proceeds of the ICO. Funds are diverted anonymously from the wallet into the hacker’s wallet. Scams happen where certain nefarious parties stage an ICO for either a false or existing organisation – easy to do in an environment where no checks and balances exist and ICOs are not underwritten by anybody.
A particularly high profile hack catapulted ICOs into the regulatory spotlight and resulted in an important directive from the Securities and Exchange Commission (SEC) in the United States of America. In 2016, the Decentralised Autonomous Organisation (DAO), an entity which is essentially a very complex smart contract which provides a secure digital ledger to track financial transactions and is built on the ethereum network launched a US$150 million ICO. The ICO was immediately hacked and DAO and investors lost US$50 million. This triggered an investigation by the SEC into the DAO ICO and resulted in a finding that certain digital tokens constituted “securities” for the purpose of federal law. In the SEC press release on the issue, offerors are cautioned that:
"the innovative technology behind these virtual transactions does not exempt securities offerings and trading platforms from the regulatory framework designated to protect investors and the integrity of the market."
But this is caveated – the SEC also said that:
"whether a particular investment transaction involves the offer or sale of security – regardless of the terminology or technology used – will depend on the facts and circumstances, including the economic realities of the transaction."
The effect of this is that the SEC will be able to investigate the true nature of a coin and then classify it as a security or not, which will determine whether it is a regulated instrument or not.
ICOs in South Africa
ICOs have been less prevalent in South Africa as they have been in developed markets (it is hardly surprising that San Francisco and Silicon Valley have led the charge in this respect), but there are local start-ups who have been drawn to ICOs as a cheaper, more start-up friendly, alternative to a public share sale. This is especially because coin-sales have the advantage that shareholders are not required to dilute their control in the company as they are with a sale of shares.
But start-ups, beware! The SEC directive may well be persuasive in the South African context, particularly in light of the wide definition of securities in the Act. It is advisable that companies considering an ICO comply with all regulations applicable to an IPO or, alternatively, ensure that the structure of the ICO does not constitute an IPO. For example, not offering the coins to the public but rather by raising finance through a limited private sale may be one differentiating factor.
Unfortunately (or fortunately) for tech-entrepreneurs, ICOs are not the regulatory haven they were once thought to be. The result of this has been that the number of ICOs has fallen by 94% since 2017. But, it is important to realise that in the case of the vast majority of ICOs, coins rapidly lost their value or the issuing entity failed completely. Perhaps, with a little more regulatory oversight, quality will prevail over quantity.
As ever with burgeoning technology, regulators have to strike a balance between innovation and regulation; progress and protection. This is incredibly difficult to do and we must anticipate the pendulum to swing from one extreme to the other, before it comes to settle.
Against this regulatory background enters the initial coin offering (ICO), a crypto answer to finance-raising in a digital world. ICOs are similar to IPOs in that a company issues crypto-tokens, in whatever form, to the public for the first time in order to raise finance for that company. Clearly, there are differences between ICOs and IPOs, the critical ones being:
• the object being offered to the public is a digital token instead of a share or a bond ;
• ICOs do not appear to be subject to the same regulations that’s IPOs are.
A Brief History of the Development of ICOs
One of the first ICOs took place way back in 2015. On 17 August 2015, as the Chinese stock market crashed and the S&P 500 had its worst day in 4 years, as Don and Alex Tapscott recount in their book Blockchain Revolution , a company called Augur launched one of the most successful internet-based capital raising campaigns in history. Augur, a decentralised market prediction protocol, raised more than US$4 million in a week by selling its REP coin. One REP coin was offered at US$0,6 and it now trades at US$9,48. This is a 300% return on investment over approximately three years! From there, the practice of ICOs took off.
Interestingly enough, a market standard for ICOs has developed (which is not mandated by any legislation or regulatory authority) by which coin-offerors typically:
• announce the ICO in various crypto publications (e.g. Cointelegraph or Reddit);
• publish a so-called white paper (which performs a similar function to a prospectus in IPOs) which sets out an overview of the company’s business as well as the mechanism behind the token’s operation ;
• the white paper is sometimes followed by a yellow paper which describes the programming behind the business and the token in detail.
Notwithstanding this market practice, ICOs have proved susceptible to hacks and scams which leave innocent investors exposed with little legal recourse in the seemingly unregulated crypto-landscape.
The hacks typically take the form of bugs in the digital wallet established by an entity to receive the proceeds of the ICO. Funds are diverted anonymously from the wallet into the hacker’s wallet. Scams happen where certain nefarious parties stage an ICO for either a false or existing organisation – easy to do in an environment where no checks and balances exist and ICOs are not underwritten by anybody.
A particularly high profile hack catapulted ICOs into the regulatory spotlight and resulted in an important directive from the Securities and Exchange Commission (SEC) in the United States of America. In 2016, the Decentralised Autonomous Organisation (DAO), an entity which is essentially a very complex smart contract which provides a secure digital ledger to track financial transactions and is built on the ethereum network launched a US$150 million ICO. The ICO was immediately hacked and DAO and investors lost US$50 million. This triggered an investigation by the SEC into the DAO ICO and resulted in a finding that certain digital tokens constituted “securities” for the purpose of federal law. In the SEC press release on the issue, offerors are cautioned that:
"the innovative technology behind these virtual transactions does not exempt securities offerings and trading platforms from the regulatory framework designated to protect investors and the integrity of the market."
But this is caveated – the SEC also said that:
"whether a particular investment transaction involves the offer or sale of security – regardless of the terminology or technology used – will depend on the facts and circumstances, including the economic realities of the transaction."
The effect of this is that the SEC will be able to investigate the true nature of a coin and then classify it as a security or not, which will determine whether it is a regulated instrument or not.
ICOs in South Africa
ICOs have been less prevalent in South Africa as they have been in developed markets (it is hardly surprising that San Francisco and Silicon Valley have led the charge in this respect), but there are local start-ups who have been drawn to ICOs as a cheaper, more start-up friendly, alternative to a public share sale. This is especially because coin-sales have the advantage that shareholders are not required to dilute their control in the company as they are with a sale of shares.
But start-ups, beware! The SEC directive may well be persuasive in the South African context, particularly in light of the wide definition of securities in the Act. It is advisable that companies considering an ICO comply with all regulations applicable to an IPO or, alternatively, ensure that the structure of the ICO does not constitute an IPO. For example, not offering the coins to the public but rather by raising finance through a limited private sale may be one differentiating factor.
Unfortunately (or fortunately) for tech-entrepreneurs, ICOs are not the regulatory haven they were once thought to be. The result of this has been that the number of ICOs has fallen by 94% since 2017. But, it is important to realise that in the case of the vast majority of ICOs, coins rapidly lost their value or the issuing entity failed completely. Perhaps, with a little more regulatory oversight, quality will prevail over quantity.
As ever with burgeoning technology, regulators have to strike a balance between innovation and regulation; progress and protection. This is incredibly difficult to do and we must anticipate the pendulum to swing from one extreme to the other, before it comes to settle.