对SEC阻止Telegram旗下TON发行Gram代币发文的解析

美国证券交易委员会(SEC)宣布,已对Telegram旗下TON ICO的两家离岸实体提起“紧急行动并获得临时限制令” ,该诉讼是在《银行保密法》(BSA)下就反洗钱和反恐报告以及对数字资产行业合规性要求的联合政策声明发布的同一天提出的。这次ICO大案的法律诉讼,由美国联邦法院判决,可以作为后续ICO项目的判决参考。

https://www.sec.gov/litigation/complaints/2019/comp-pr2019-212.pdf

今天在SEC看到的这个命令是“对被告的临时限制令和初步禁令”,限制令的目的是在SEC继续调查的同时,阻止Telegram继续发行Gram。 SEC还在寻求针对Telegram的永久禁令,这意味着:他们想禁止Telegram将来进行任何代币销售,强迫Telegram“退还他们不义之财”,并施加民事罚款。

该文件特别指出了Pavel Durov,Nikolai Durov和TON基金会。Pavel Durov和Nikolai Durov博士(均为俄罗斯公民)是Telegram的联合创始人。

46. Telegram has not prepared or filed any registration statement with respect to any Grams it has offered or sold, or intends to offer or sell in the Offering, and no registration statement has ever been in effect with respect to any Grams. //Telegram尚未就其发布或出售的Grams准备提交注册声明。

47. The Gram Purchase Agreements did not contain information about Telegram’s financial history or ability to generate profits, and purchasers who may buy or receive Grams will not receive any document containing information about Defendants’ operations, financial condition, or other factors relevant in considering whether to invest in Grams. Nor will they receive information about how the Durovs are being compensated as a result of the Offering. //Gram购买协议没有包含有关Telegram的财务历史或获利能力的信息。

48. Because Telegram did not register the Offering, investors in Grams will be deprived of material information relating to their investment. Defendants essentially seek to obtain the benefits of a registered public offering without assuming the disclosure responsibilities and legal strictures designed to protect the investing public. //由于Telegram没有注册发行,因此Grams的投资者将被剥夺与投资有关的重要信息。被告人实质上是在不承担旨在保护投资者的披露责任和法律约束的情况下,寻求获得注册公开发行的利益。

49. Telegram has taken the position that the Gram Purchase Agreements were investment contracts, i.e., securities, and placed a restrictive legend on the Gram Purchase Agreements. The legend warned United States residents that “the offer and sale of this security has not been registered under the U.S. Securities Act of 1933” and “may not be offered, sold or otherwise transferred . . . except pursuant to an effective registration statements.” //Gram购买协议是投资合同,即证券。此证券的提供和出售尚未根据1933年的美国证券法进行注册,并且“可能不会提供,出售或以其他方式转移。 。 。 除非根据有效的注册声明。”

美国国会在1933年《证券法》和1934年《证券交易法》中对“证券”定义的规定相当宽泛。以1933年《证券法》第2节(a) (1)为例,证券是指各种票据、股票、国库券、债券、无抵押债券、债务证明、证明参与任何利润共享协议或在其中有利益的证书、担保信托证、筹建经济组织证或认购证、可转让股权、投资合同、委托投票证书、证券存托证明、油矿、气矿或其他矿藏开采权未分配部分的权益;任何证券、存款证明或者组合证券和指数证券(包括根据价格而计算出来的利益)的卖空期权、买空期权、买空卖空期权、选择权或者特权;任何在全国证券交易所上交易的有关外币的卖空期权、买空期权、买空卖空期权、选择权或者特权;或者总的来说,任何被普遍认为是“证券”的利益或工具,或者是对上述项目的任何利益的参与证明、临时性证明、收据、担保或认购权。

联邦最高法院认为证券的定义“包含着一条弹性的、但不是呆板的原则,它能够应付那些利用他人钱财、允诺获取利润的人炮制的无穷无尽的、花样翻新的计谋”,这是为了能将“我们这个商品社会中所谓的证券,无论是以怎样的形式出现,都被归纳进定义之中”。于是,证券的定义就变成了一个几乎囊括乾坤的袋子,其广阔空间令从事证券行业的律师们大有可为。

50. Telegram, however, claimed that Grams, the heart of the Gram Purchase Agreements, without which the agreements have no value or purpose, were not securities but rather currency. Telegram thus placed no restrictive legends on any Grams, nor were purchasers advised that they may not sell Grams in the United States absent a registration statement. Purchasers of Grams are not restricted from reselling them to others, other than as provided for by certain contractual lockups placed on some Grams sold to Initial Purchasers. //Telegram宣称Grams是currency,而不是证券。

51. As set forth in more detail below, however, Grams are investment contracts. Based on Telegram’s own promotional materials and other acts, a reasonable purchaser of Grams would view their investment as sharing a common interest with other purchasers of Grams as well as sharing a common interest with Defendants in profiting from the success of Grams. The fortunes of each Gram purchaser were tied to one another and to the success of the overall venture, including the development of a TON “ecosystem,” integration with Messenger, and implementation of the new TON Blockchain. Investors’ profits were also tied to Telegram’s profits based on Telegram’s significant holdings of Grams. //SEC反驳说Grams是投资合同:Grams购买者将从Grams的成功中获利。 每个Gram购买者的财富与整个企业的成功息息相关,包括TON“生态系统”的开发,与Messenger的集成以及新TON区块链的实施。 鉴于Telegram大量持有的Grams,投资者的利润也与Telegram的利润相关。

52. The Gram Purchase Agreements for Round One instituted smart contractenforced “lock-up periods” during which purchasers could not offer, sell, or contract to sell Grams. Specifically, Round One purchasers agreed that they could not, without Telegram’s prior written consent, offer, sell, or contract to sell Grams that they purchased except in a series of 25% tranches starting three months, six months, twelve months, and eighteen months after they received Grams. Round Two Gram Purchase Agreements included no such restrictions.

53. However, Grams were and continue to be investment contracts from which Initial
Purchasers and others reasonably expect to reap enormous profits once the Gram market
launches. Grams are not a currency because they have no realistic currency uses at this time. //Grams不是货币,因为它们目前没有实际的货币用途。

54. Telegram sold and will deliver Grams in amounts that far exceed any anticipated “use” on the TON Blockchain. For example, all but three of the United States Grams Initial Purchasers bought more than 2.5 million Grams each. Nor did or will Telegram restrict sales only to individuals who would actually “use” Grams. To the contrary, Telegram contemplated that Initial Purchasers would resell their Grams immediately upon delivery, as evidenced by its inclusion of certain lock-up provisions as to some Grams. //投资人购买的数量远远超出了真正使用所需,且Telegram没有控制Grams仅出售给真正使用的人。

55. Moreover, the $1.7 billion raised in the Offering so far exceeds what Defendants
project they will need to develop the TON Blockchain. Indeed, Defendants stated in offering
documents that the funds raised would be used for both Messenger and development of the TON
Blockchain, estimating that Telegram would spend $520 million—or one-third of the funds
raised—on Messenger alone between 2019 and 2021. //项目融资远远超出了TON区块链开发所需的金额。

56. As of January 31, 2019, Defendants had used approximately $218 million of the $1.7 billion raised to support the development of Messenger and the TON Blockchain. Investors in Grams do not exercise control over how the proceeds of the Gram sales will be spent; Telegram possesses sole discretion to decide how to do so. //Telegram有权自行决定如何使用筹集的资金,包括开发Messenger 和TON区块链。

79. The two-page Teaser, for example, told investors to expect a listing of Grams “at the major cryptocurrency exchanges” in “January – March 2019,” immediately after the “December 2018 [p]rojected date for [Grams] to be issued to all investors,” making Grams almost immediately sellable in open markets, including to United States investors. Telegram itself is currently in conversations with at least four digital-asset trading platforms, some of which are U.S.-based, to discuss listing Grams on their platforms. //Telegram让投资人预期后面会上主流交易所,近期的对话显示有些是美国交易所。

87. Under Telegram’s Formula, Defendants would price the first Gram at $0.10, and every subsequent Gram at an amount one-billionth higher than the prior sales price. As such, Telegram designed the price of Grams to increase “exponential[ly].” Indeed, Telegram sold Grams to Initial Purchasers at a deep discount to an expected market price of $3.62 at launch.

92. In addition to the common interest that Gram investors will share in developing the TON, the Telegram development team is also needed to complete the TON Blockchain to allow Grams to achieve the value Telegram touted in the Offering Documents. Accordingly, the Whitepaper also made clear that Defendants would remain in control of the development of the TON Blockchain at least at first, recognizing that “the TON Foundation will have a majority of votes [required to make changes to TON Blockchain protocols] during the first deployment phase of the TON Blockchain.” //SEC暗示TON区块链并没有那么去中心化,Telegram会继续控制TON区块链的发展。

96. In the Offering Documents, Telegram spoke of potential future uses for Grams, specifically, as a medium of exchange for goods and services (or “cryptocurrency”), to purchase not-yet-developed tools on the TON (e.g., network storage, blockchain-based domain names, identity-hiding services), and as a token for future unspecified uses that Telegram and other third parties may eventually develop. None of these uses of Grams existed at any time and Grams do not have legal tender status in any jurisdiction. //Grams的这些应用都还不存在。

97. The Whitepaper spoke of potential future products and services that investors could use in connection with Grams, but also made clear that these products were not available at the time the Offering began and would not be available by the time Defendants delivered Grams to Initial Purchasers. Specifically, the Whitepaper described a series of services, including “TON Network,” “TON Storage,” and “TON Proxy,” all of which would simply be parts of the technological innovations surrounding TON Blockchain. Other features, like “TON Services” would be created so that third-party users could one day create applications for the TON Blockchain “either at [its] very beginning or at a later time.” Still other features like the socalled “TON Payments,” a “platform for [instant] (micro) payments” using Grams, would be “likely . . . released later than the core components of the planned TON Blockchain.” //潜在的应用在放币后还没有开发出来。

98. The TON “ecosystem” did not exist and does not exist today. There are not now and have never been any products or services that can be purchased with Grams. The TON functionalities as pitched by Telegram were (and remain) entirely dependent on the funds provided by investors. Meanwhile, the principal means by which investors would reasonably expect to profit is through their resale of Grams. //TON生态系统至今还不存在,投资人只预期通过转售来获取收益。

109. Defendants are in the process of creating or have recently created the TON Foundation. Because the TON Foundation will have the Durovs as its sole directors, Telegram will have complete authority over all TON Foundation activities. //由于TON基金会将由Durovs担任唯一董事,因此Telegram将对TON基金会的所有活动拥有完全的权力。

参考

从“Howey检验” 看“投资合同” http://www.finlaw.pku.edu.cn/jrfy/gk/2003_jrfy/2003nzd52j/240402.htm

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