First Token Offering Qualified by the SEC Under Regulation A

Morrison & Foerster LLP

On July 10, 2019, Blockstack Token LLC (“Blockstack”), a wholly-owned subsidiary of Blockstack PBC, a Delaware public benefit corporation, became the first company to have an offering of digital assets qualified by the U.S. Securities and Exchange Commission (“SEC”) under Regulation A.[1]

Blockstack is a technology company that offers an open-source blockchain-enabled network for developers to build and publish their own decentralized applications. According to Blockstack’s website, over 165 applications have been built on the Blockstack platform. Purchasers of Blockstack’s tokens (“Stacks Tokens”) will be able to use the tokens on its platform.

Token offerings have been under increasing scrutiny, especially with respect to whether or not tokens are securities. In its offering circular disclosure, Blockstack acknowledges that the Stacks Tokens are characterized as investment contracts under the Howey test[2], while noting that the Stacks Tokens “will not have the rights traditionally associated with holders of debt instruments, nor…equity.” The disclosure, in its discussion about the nature of Blockstack’s decentralized network, also references the SEC’s recent guidance on evaluating whether digital assets constitute securities for purposes of the Securities Act of 1933, as amended (the “Securities Act”).[3]

Many blockchain-based companies have conducted token offerings in the United States under various securities exemptions, including Regulation D, which do not require SEC approval.

One notable difference in Regulation D offerings is that general solicitation, such as advertising, is not permitted in offerings to non-accredited investors and, in certain other offerings, the number of participating non-accredited investors will be limited. Blockstack’s approval to offer its tokens under Regulation A will allow an unlimited number of retail investor to buy Stacks Tokens and permit Blockstack to conduct advertising activities.

Capital Raising Options for Companies Issuing Tokens and Other Blockchain-Based Digital Assets

In the SEC’s “Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934: The DAO” the report noted that U.S. securities laws apply when tokens that qualify as securities are marketed or sold to U.S. persons, regardless of a token issuer’s location, and thus must be registered or exempt from registration.[4] Subsequent statements and guidance from the SEC have consistently suggested that tokens that are marketed and sold to investors for capital raising purposes and that rely on the managerial efforts of an issuing company do bear strong hallmarks of being securities, regardless of a token’s underlying utility.[5]

As a result, in order for most, if not all, blockchain companies to offer tokens to investors in capital raising transactions, these companies must either (i) register the sale of their tokens under the Securities Act by filing a registration statement, such as on Form S-1, with the SEC or (ii) rely on an exemption from the registration requirements, such as Regulation A and Regulation D.

General Requirements Under Regulation A

Regulation A was adopted under the Jumpstart Our Business Startups Act, and allows issuers to offer to sell equity securities, debt securities, debt convertible or exchangeable into equity or any type of guarantees of such securities. Some of the general features of offerings under Regulation A include:

  • Broad Investor Base. Securities may be offered to both accredited and non-accredited, or retail, investors.
  • Immediately Tradable Securities. Unlike other exemptions, such as Regulation D, that has up to a one-year lock up period, securities sold under Regulation A are immediately tradeable by non-affiliates of the issuer.
  • Promotion of Offering. Companies may engage in public advertising campaigns to market and promote the offering, which is not allowed in a traditional IPO or private placement, so long as any solicitation materials used after filing of the offering statement are preceded or accompanied by a preliminary offering circular or contain a notice about how to obtain the offering circular.
  • Secondary Sales. Sales of securities by selling security holders within the 12-month period after the initial offering cannot represent more than 30% of the aggregate offering price.
  • Only U.S. or Canadian Investors. Investors must have their primary place of business in the United States or Canada.
  • Ineligible Issuers. Ineligible issuers include, but are not limited to those (i) required to be registered under the Investment Company Act of 1940 and business development companies; (ii) blank check companies; (iii) issuing fractional undivided interests in oil, gas, mineral or similar rights; (iv) subject to “bad actor” disqualification under Rule 262 of Regulation A.
  • Registered Transfer Agent. The SEC requires that issuers conducting Tier 2 offerings must engage a stock transfer agent under Section 17A of the Exchange Act of 1934, as amended (the “Exchange Act’), unless exempt. Note that Blockstack disclosed that, for various reasons, it has taken the position that Blockstack, the miners on the network, and the network’s blockchain are not required to register as transfer agents, and the offering statement was qualified by the SEC.

Specific Requirements Under Regulation A

There are also specific requirements for issuers electing to conduct offerings under Regulation A, depending on which “tier” the issuer relies on for conducting the offering. Regulation A provides for two tiers, the key requirements and features of which are summarized below:[6]

Tier 1

Tier 2

Total Maximum Offering Amount in any 12-month Period[7]

$20 million

$50 million

Maximum Offering Amount to Affiliates of Issuer (Such as Insiders)

$6 million

$15 million

Disclosure Obligations Under the Offering Statement

  • Financial statements may be unaudited
  • Blue sky registration required
  • Initial audited financial statements
  • Blue sky registration is preempted, though state regulators can require issuers to file any documents with them that were filed with the SEC

Post-Offering Reporting Obligations

Form 1-Z (exit report filed 30 days after the termination or completion of the offering)

  • Annual audited financial statements (Form 1-K)
  • Semi-annual profit/loss and revenue reports (Form 1-SA)
  • Ongoing reporting of material changes to business (Form 1-U current report filed within 4 business days of triggering event)
  • If listed on a national exchange or an over-the-counter market, any applicable rules

Investor Qualifications

None

With the exception of securities that will be listed on a national securities exchange upon qualification, purchasers must either be (i) accredited investors (as defined in Rule 501(a) of Regulation D), or (ii) be subject to certain limitations on their investment, including their purchase of securities can be no more than (x) 10% of the greater of annual income or net worth (for natural persons) or (y) 10% of the greater of annual revenue or net assets at fiscal year-end (for non-natural persons)

Investor Limit

Pursuant to Section 12(g) of the Exchange Act, companies with total assets of more than $10 million and equity securities held by 2,000 or more investors or 500 persons that are not accredited investors, must register such securities under the Exchange Act

None, pursuant to an exemption under Regulation A, as long as (i) current in Regulation A reporting obligations (ii) meets certain size-based requirements and (iii) engages the services of a transfer agent registered with the SEC

Filing Process and Regulatory Requirements

The process of SEC staff review for a Regulation A offering often takes at least 90-120 days. Companies who wish to use Regulation A as their path for a coin or token offering must first file a Form 1-A with the SEC. This Form 1-A includes a (i) notification of filing, (ii) an offering circular, which is more detailed than the traditional white paper created by blockchain companies, but not as detailed as the information required by a registration statement on Form S-1, and (iii) exhibits. The information includes, among other things, certain issuer information, balance sheets and other financial statements, risk factors, a business plan, plan of distribution, and Management’s Discussion & Analysis of Financial Condition and Results of Operations. The offering statements must be qualified by the SEC before any sales of securities may be made. However, Regulation A does permit certain “testing the water” activities to gauge investor interest, before or after the filing of a Form 1-A, subject to certain legending and filing requirements.

Non-public submission of offering statements for review by the SEC before public filing is also permitted, but the statements must be publicly filed no less than 21 days before SEC qualification.

Potential issuers should be aware that additional regulatory requirements apply to these offerings, including anti-money laundering (“AML”) checks and investor verification, background checks on the principals of the issuer and disqualifications of “bad actors.”

Disclosure Issues

Although there is no one-size-fits-all approach, the amendments to Form 1-A filings may offer insight on the SEC’s areas of focus in offering circulars to companies considering a digital asset or token offering under Regulation A. In addition to the traditional information, such as an overview of the business, its operations and use of proceeds, some areas highlighted in amendments as a result of revisions prompted by SEC review include, but are not limited to:

  • Disclosure related to the terms of the tokens under smart contracts and that the tokens are expressly securities;
  • Disclosure related to liquidity and any secondary markets for sale and purchase of tokens, alternative trading systems and the clearing and settlement processes;
  • Risk disclosure related to (i) potential delays and the amount of time it will take for an issuer to deliver securities under Regulation A offerings for investors who subscribe to such securities; (ii) the effect of subscription agreements that have been offered; (iii) the tokens, the blockchain platform, service providers and the offering; and (iv) protection of intellectual property;
  • Investment process disclosure related to AML checks and investor verification; and
  • Financial statement revisions.

Other Considerations

Certain Liability Issues

Issuers should be aware of the other federal securities laws that are applicable to offerings under Regulation A that create certain potential liabilities, including:

  • Under Section 12(a)(2) of the Securities Act for material misstatements or omissions in an issuer’s offering circular or in any oral communications;
  • Anti-fraud liability;
  • Insider trading; and
  • Market manipulation.

Valuation Issues

There is not a generally accepted industry method for valuing digital securities, unlike traditional debt and equity securities; therefore, pricing of tokens may be uncertain and affected by additional factors, such as a token’s blockchain platform, expectations of future demand and usage of the platform, among other things.

Shell Companies

Investors should be aware that shell companies are not disqualified from filing under Regulation A, as there is no requirement that an issuer be an operating company. Therefore, as a technical matter, companies offering tokens need not be operational to qualify. On the other hand, development-stage companies with no specific business plan or purpose are prohibited from relying on Regulation A.

Takeaways

Although Blockstack’s is the first Regulation A token offering to be qualified, it demonstrates the potential for other blockchain-based companies to use Regulation A as a viable capital-raising tool. Currently, there is no existing liquid marketplace for secondary trading of Stack Tokens. If companies are able to have their token offerings qualified under Regulation A, as at least one has since the qualification of Blockstack’s offering, the secondary trading of such companies’ securities on alternative trading systems (ATSs) is likely to increase and be available much faster due to the non-restricted trading nature of securities initially offered under Regulation A. In addition, many retail investors looking to participate in token offerings may have more opportunities to invest in the future under the changing Regulation A regime.

Until recently, many companies attempting to offer tokens under Regulation A have had inadequate or incomplete disclosure that has prevented SEC qualification. Now that the SEC has allowed an issuer to use Regulation A as a means for raising capital from the general public, and that many blockchain-based companies are increasingly better capitalized to support the accounting, legal and financial costs and robust disclosure that Regulation A requires, we may increasingly see Regulation A as a method of issuance for blockchain-based offerings.

While the qualification of the Blockstack offering may encourage capital-raising for blockchain-based companies looking to conduct token offerings in a regulated form, the costs incurred (approximately $2 million) and the time spent (approximately one year) for Blockstack to achieve qualification of its offering highlights that Regulation A may still not be the easiest and most efficient way for the majority of emerging companies to raise capital. In those situations, companies should continue to explore other exemptions from registration, including Regulation D (private placement offerings) and Regulation S (offerings to non-U.S. investors).

[1] Blockstack PBC Preliminary Offering Circular (July 10, 2019), available athttps://www.sec.gov/Archives/edgar/data/1693656/000110465919039757/a18-15736_1partiiandiii.htm

[2] See SEC v. W.J. Howey Co., 328 U.S. 293 (1946).

[3] SEC’s Framework for “Investment Contract” Analysis of Digital Assets (Apr. 3, 2019), available at https://www.sec.gov/files/dlt-framework.pdf.

[4] Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934: The DAO (Exchange Act Rel. No. 81207) (July 25, 2017), available at https://www.sec.gov/litigation/investreport/34-81207.pdf

[5] President Trump, as recently as July 12, 2019, has noted the importance of digital asset regulation, particularly due to their unique market volatility and the unlawful behavior that has often accompanied digital asset sales. See Trump, Donald J. (realDonaldTrump). “I am not a fan of Bitcoin and other Cryptocurrencies, which are not money, and whose value is highly volatile and based on thin air. Unregulated Crypto Assets can facilitate unlawful behavior, including drug trade and other illegal activity. . . .” 12 July 2019, 5:15 p.m. Tweet.

[6] 17 C.F.R. §230.257

[7] An issuer of $20 million or less of securities may elect to proceed under either Tier 1 or Tier 2.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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