New Bermuda Limited Liability Company ICO Regulations

A BILL entitled COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT ACT 2018

TABLE OF CONTENTS
Citation
AMENDMENT OF THE COMPANIES ACT 1981
Amends section 2
Amends section 4A
Inserts Part IIIA
Inserts Part XIVC
Amends section 287A
Amends section 289
Amends Ninth Schedule
AMENDMENT OF THE LIMITED LIABILITY COMPANY ACT 2016
Amends section 2
Amends section 67
Inserts Part 10A
Amends section 255
Amends section 257
FINAL PROVISIONS
Amends Government Fees Regulations 1976
Consequential amendments: general
Commencement
WHEREAS it is expedient to amend the Companies Act 1981 and the Limited
Liability Company Act 2016 to provide for Initial Coin Offerings and connected matters;
Be it enacted by The Queen’s Most Excellent Majesty, by and with the advice and
consent of the Senate and the House of Assembly of Bermuda, and by the authority of the
same, as follows:
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AS AMENDED BY THE HOUSE OF ASSEMBLY
COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT ACT 2018
Citation
This Act may be cited as the Companies and Limited Liability Company (Initial Coin
Offering) Amendment Act 2018.
AMENDMENT OF THE COMPANIES ACT 1981
Amends section 2
The Companies Act 1981 is amended in section 2—
by inserting in the appropriate alphabetical order the following—
“ “appointed digital asset exchange” means such digital asset exchange
appointed by the Minister under subsection (9);
“civil penalty” means such civil penalty as may be imposed by the Registrar
under the Registrar of Companies (Compliance Measures) Act 2017;
“Initial Coin Offering” or “ICO” has the meaning given in section 34A;”;
in subsection (9), by inserting after the words “stock exchange” the words
“or digital asset exchange”.
Amends section 4A
The Companies Act 1981 is amended in section 4A by inserting after subsection (3)
the following—
The Minister’s consent given under subsection (1), in relation to an
Initial Coin Offering may be made subject to such conditions as the Minister may
consider appropriate to impose. ”.
“(3A)
Inserts Part IIIA
The Companies Act 1981 is amended by inserting after section 34 the following—
“PART IIIA
INITIAL COIN OFFERING
Interpretation of Part IIIA
In this Part, unless the context otherwise requires—
“blockchain” means a digital ledger or database of transactions relating to
digital assets which are recorded chronologically and capable of being
audited;
“Code of Conduct” means a code of conduct issued under section 34N;
“digital asset” means anything that exists in binary format and comes with
the right to use it and includes a digital representation of value that—
34A (1)
1
2
(a)
(b)
3
4
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COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT ACT 2018
is used as a medium of exchange, unit of account, or store of value
and is not legal tender, whether or not denominated in legal
tender;
is intended to represent assets such as debt or equity in the
promoter;
is otherwise intended to represent any assets or rights associated
with such assets; or
is intended to provide access to an application or service or
product by means of blockchain;
but does not include—
a transaction in which a person grants value as part of an affinity
or rewards program, which value cannot be taken from or
exchanged with the person for legal tender, bank credit or any
digital asset; or
a digital representation of value issued by or on behalf of the
publisher and used within an online game, game platform, or
family of games sold by the same publisher or offered on the same
game platform;
“distributed ledger technology” means a database system in which—
information is recorded and consensually shared and
synchronised across a network or multiple nodes; and
all copies of the database are regarded as equally authentic;
“electronic” has the meaning given in section 2 of the Electronic
Transactions Act 1999;
“expert” includes a technologist, software engineer, valuer, accountant and
any other person whose profession gives authority to a statement made
by him relating to an Initial Coin Offering;
“FinTech Advisory Committee” means the FinTech Advisory Committee
appointed under section 272F;
“Initial Coin Offering” or “ICO” means an offer by a company to the public
to purchase or otherwise acquire digital assets;
“ICO offer document” means the document referred to in section 34C;
“ICO platform”, in relation to an Initial Coin Offering, includes a website or
an electronic database or other software platform;
“project” means the product or service to be created or developed as set
forth in the ICO offer document;
“promoter” means a company that may be an issuer of an ICO offer
document or of a digital asset or other persons who were parties to the
(a)
(b)
(c)
(d)
(e)
(f)
(a)
(b)
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COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT ACT 2018
preparation of the ICO offer document, but does not include any person
by reason only of his acting in a professional capacity for persons
engaged in procuring the formation of the company.
Any reference in this Act to offering digital assets to the public shall,
subject to any provision to the contrary contained herein, be construed as including
a reference to offering them to any section of the public, and references in this Act
or in a company’s bye-laws to invitations to the public to purchase digital assets
shall, subject as aforesaid, be similarly construed.
For the purposes of this Part—
a statement included in an ICO offer document shall be deemed to
be untrue if it is misleading in the form and context in which it is
included; and
a statement shall be deemed to be included in an ICO offer
document if it is contained therein or in any report or
memorandum appearing on the face thereof or by reference
incorporated therein or issued therewith.
Subsection (2) shall not be taken as requiring any Initial Coin Offering
or invitation to be treated as made to the public if it is—
an offer by the promoter to existing holders of digital assets of the
same class as the digital assets comprised in the offer;
an offer certified in writing by an officer of the company on behalf
of the board of directors to be an offer which the board considers
as not being calculated to result, directly or indirectly, in the digital
assets becoming available—
in the case of a local company, to more than 20 persons; and
in the case of an exempted company or a permit company, to
more than 35 persons;
an offer having a private character; or
an offer certified in writing by an officer of the company on behalf
of the board of directors to be an offer which the board considers
as not being calculated to result, directly or indirectly, in digital
assets becoming available to persons other than persons whose
ordinary business involves the acquisition, disposal or holding of
digital assets, whether as principal or agent.
Restriction on issuing Initial Coin Offering
Subject to the provisions of section 4A, no person shall issue an Initial Coin
Offering in or from within Bermuda unless that person is a company to which this
Act applies and is for the time being registered with the Registrar of Companies
under this Act.
(2)
(3)
(a)
(b)
(4)
(a)
(b)
(i)
(ii)
(c)
(d)
34B
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COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT ACT 2018
Company offering digital assets to public shall publish an ICO offer document
Subject to subsection (2), no company shall offer digital assets to the
public unless prior to such offer it publishes in electronic form an ICO offer
document, and prior to or as soon as reasonably practicable after publication of
such ICO offer document, the company shall file with the Registrar (in such form
as the Registrar may require), a copy signed by or on behalf of all of the directors
of the company.
It is not necessary to file an ICO offer document under subsection (1),
at any time or in any circumstances, where—
the digital assets are listed on an appointed stock exchange or
appointed digital asset exchange, or an application has been made
for the digital assets to be so listed, and the rules of the appointed
stock exchange or appointed digital asset exchange do not require
the company to publish and file an ICO offer document at such
time or in such circumstances;
the company is subject to the rules or regulations of a competent
regulatory authority and such rules or regulations do not require
the company to publish and file an ICO offer document at such
time or in such circumstances, except where exemption from
publication and filing of an ICO offer document is given by reason
of the offer being made only to persons who are resident outside
the jurisdiction of the authority; or
an appointed stock exchange, appointed digital asset exchange or
any competent regulatory authority has received or otherwise
accepted an ICO offer document or other document in connection
with the Initial Coin Offering to the public.
The Registrar shall not accept for filing a copy of an ICO offer document
unless it is accompanied by a certificate signed by an attorney or an officer of the
company certifying that the ICO offer document contains the particulars required
by section 34D.
The directors of any company and promoters of any Initial Coin
Offering that fail to comply with this section shall each be liable to a civil penalty.
Contents of an ICO offer document
Every ICO offer document shall contain or there shall be attached
thereto documents showing—
the name and the address of the registered office or principal office
of the promoters;
the name, description and titles of the officers of the promoter;
the business or proposed business of the company;
34C (1)
(2)
(a)
(b)
(c)
(3)
(4)
34D (1)
(a)
(b)
(c)
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COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT ACT 2018
a description of the project, the proposed timeline for the project
including any proposed project phases and milestones;
the amount of money equivalent (in Bermuda dollars) that the
Initial Coin Offering is intended to raise;
the disclosure as to the allocation of the amounts intended to be
raised amongst the classes of any issuance (pre-sale, post-Initial
Coin Offering etc.);
any rights or restrictions on the digital assets that are being
offered;
the date and time of the opening and closing of the offering of
digital assets;
the general Initial Coin Offering risk warning referred to in section
34G;
a statement as to how personal information will be used.
The ICO offer document shall also comply with any other requirements
as may be prescribed by regulations or any Code of Conduct issued in relation to
this Part.
Nothing in subsection (1) shall be construed as preventing a promoter
from including such other additional information as the promoter considers
relevant with respect to the Initial Coin Offering.
Companies offering digital assets to the public
Where any company over a period offers digital assets to the public and
any of the particulars in an ICO offer document issued by that company ceases to
be accurate in a material respect, the company, as soon as reasonably practicable
after becoming aware of that fact, shall—
publish supplementary particulars disclosing the material
changes; and
file a copy of the supplementary particulars with the Registrar.
Each of the directors of any company that fails to comply with this
section shall be liable to a civil penalty.
Providing a communication facility; cooling-off rights
The promoter shall at all times while the offer is open or suspended,
provide an electronic facility that can be used for the following purposes—
for people who access the ICO offer document through the ICO
platform—
to make posts relating to the offer;
to see posts relating to the offer made by others; and
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(2)
(3)
34E (1)
(a)
(b)
(2)
34F (1)
(a)
(i)
(ii)
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COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT ACT 2018
to ask the company making the offer, or other service provider,
questions relating to the offer; and
for the company or other service provider, as the case may be, to
make posts responding to questions and posts.
If a person in relation to an Initial Coin Offering makes an application
pursuant to the Initial Coin Offering, the person may withdraw the application
within three business days after the application is made.
The withdrawal of an application pursuant to subsection (2) can only
be made by a method specified on the ICO platform and the ICO platform must
include specific instructions and a means to withdraw.
General Initial Coin Offering risk warning
The promoter shall ensure that the general Initial Coin Offering risk
warning appears in the ICO offer document and prominently on the ICO platform
at all times while the offer is open or suspended.
The general Initial Coin Offering risk warning is a statement that
includes the following—
information regarding any substantial risks to the project which
are known or reasonably foreseeable;
information as to a person’s rights or options if the project which
is the subject of the Initial Coin Offering in question does not go
forward;
a description of the rights (if any) in relation to the digital assets
that are being offered;
information regarding any disclaimer in respect of guarantees or
warranties in relation to the project to be developed or any other
asset related to the Initial Coin Offering.
Identification of persons in relation to ICO offer document
A company shall, in relation to an Initial Coin Offering, ensure that it
applies appropriate measures relating to identification and verification of the
identity of persons participating in the Initial Coin Offering.
For the purposes of subsection (1), the Minister may make such
regulations, subject to the negative resolution procedure, as he considers
appropriate.
Security of digital assets, confidentiality, disclosure of information
The company shall ensure that appropriate mechanisms are in place in
respect of the security of digital assets issued to recipients, confidentiality,
disclosure of information and connected matters and that applicable Bermuda laws
are complied with in these respects.
(iii)
(b)
(2)
(3)
34G (1)
(2)
(a)
(b)
(c)
(d)
34H (1)
(2)
34I
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COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT ACT 2018
Offences relating to the issue of an Initial Coin Offering
Any person who—
contravenes section 34B; or
makes or authorizes the making of an untrue statement in an ICO
offer document unless he proves either that the statement was
immaterial or that at the time he made the statement he had
reasonable grounds to believe it was true,
commits an offence.
A person convicted of an offence under subsection (1), shall be
liable—
on summary conviction, to a fine not exceeding $50,000 or to
imprisonment for a period of one year or to both such fine and
imprisonment;
on conviction on indictment, to a fine not exceeding $250,000 or
imprisonment for a period of five years or to or to both such fine
and imprisonment.
Civil liability for mis-statements in ICO offer document
Where an ICO offer document invites persons to purchase digital
assets of a company, the following persons shall be liable to pay compensation to
all persons who prove that they purchased any digital assets in reliance to his
detriment on the ICO offer document for the loss or damage they may have
sustained by reason of any untrue statement included therein which is relevant to
the Initial Coin Offering that is to say—
every person who is an officer of the company at the time of the
issue of the ICO offer document;
every person who has consented to be named and is named in the
ICO offer document as an officer or as having agreed to become an
officer either immediately or after an interval of time;
a promoter of the Initial Coin Offering; and
every person who has authorized the issue to the public of the ICO
offer document.
No person shall be liable under subsection (1) if he proves—
that, having consented to become an officer of the company, he
withdrew his consent before the issue of the ICO offer document,
and that it was issued without his authority or consent;
that the ICO offer document was issued without his knowledge or
consent, and that on becoming aware of its issue he forthwith gave
reasonable public notice that it was issued without his knowledge
or consent;
34J (1)
(a)
(b)
(2)
(a)
(b)
34K (1)
(a)
(b)
(c)
(d)
(2)
(a)
(b)
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COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT ACT 2018
that, after the issue of the ICO offer document and before any issue
of digital assets thereunder, he, on becoming aware of an untrue
statement therein, withdrew his consent thereto and gave
reasonable public notice of the withdrawal and of the reason
therefor;
that as regards—
every untrue statement not purporting to be made on the
authority of an expert or of a public official document or
statement, he had reasonable ground to believe, and did up to
the time of the issue of the digital assets believe, that the
statement was true;
every untrue statement purporting to be a statement made by
an expert or contained in what purports to be a copy of or
extract from a report or valuation of an expert, it—
fairly represented the statement, or was a correct and fair
copy of or extract from the report or valuation; and
he had reasonable ground to believe and did up to the time
of the issue of the ICO offer document believe that the
person making the statement was competent to make it
and had not withdrawn or altered it; and
every untrue statement purporting to be a statement made by
an official person or contained in what purports to be a copy of
or extract from a public official document, it was a correct and
fair representation of the statement or copy of or extract from
the document.
Where the ICO offer document contains—
the name of a person as an officer of the company or as having
agreed to become an officer of the company thereof, and he has not
consented to become an officer, or has withdrawn his consent
before the issue of the ICO offer document, and has not authorized
or consented to the issue thereof; or
a statement by an expert or contains what purports to be a copy
of or extract from a report or valuation of an expert, which the
expert has withdrawn or altered,
the officers of the company, except any without whose knowledge or consent the
ICO offer document was issued, and any other person who authorized the issue
thereof shall be liable to indemnify the person named as aforesaid or whose consent
was required as aforesaid, as the case may be, against the matters set forth in
subsection (4).
With respect to subsection (3), the officers of the company referred to
in that subsection shall indemnify any such person referred to in that subsection
(c)
(d)
(i)
(ii)
(A)
(B)
(iii)
(3)
(a)
(b)
(4)
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COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT ACT 2018
against all damages, costs and expenses to which he may be made liable by reason
of his name having been inserted in the ICO offer document or of the inclusion
therein of a statement purporting to be made by him as an expert, as the case may
be, or in defending himself against any action or legal proceeding brought against
him in respect thereof.
Notwithstanding subsection (2)(d), a person shall not be deemed for the
purposes of that subsection to have authorized the issue of an ICO offer document
by reason only of the inclusion therein of a statement purporting to be made by him
as an expert.
When experts are not liable
A person referred to as an expert in an ICO offer document shall not be
liable under section 34J or 34K if—
any untrue statement was not made by him; or
that as regards any untrue statement made by him he was
competent to make the statement and—
had reasonable grounds to believe and did believe up to the
date of the issue of the ICO offer document that it was true; or
on becoming aware that the statement was untrue before the
issue of the ICO offer document he had given reasonable public
notice of his disassociation from the ICO offer document and
the reasons therefor.
Regulations
The Minister may make such regulations as he considers expedient
providing for the purposes of this Part.
Without prejudice to, and without limiting, the generality of subsection
(1), regulations made under subsection (1) shall prescribe the minimum required
information that must accompany an application for consent for an Initial Coin
Offering under section 4A.
Regulations made by the Minister under this section shall be subject
to the negative resolution procedure.
Code of Conduct
The Minister, in consultation with the FinTech Advisory Committee,
may issue a Code of Conduct in relation to Initial Coin Offerings for the purpose of
providing guidance as to the duties and requirements to be complied with, and the
procedures (whether as to client identification, record-keeping, internal reporting
or otherwise) and sound principles to be observed by persons to whom this Part
applies.
(5)
34L
(a)
(b)
(i)
(ii)
34M (1)
(2)
(3)
34N (1)
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COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT ACT 2018
Every company, promoter or other person to whom this Part applies
shall in the conduct of any Initial Coin Offering comply with the provisions of any
Code of Conduct issued by the Minister.
A failure on the part of such person referred to in subsection (2) to
comply with the provisions of such Code of Conduct shall be taken into account by
the Minister in determining whether the Initial Coin Offering is being conducted in
accordance with this Part.
Power to obtain information and reports
The Registrar may at any time, for the purpose of ensuring compliance
with the provisions of this Part and any conditions imposed under section 4A(3A),
require a company—
to provide the Registrar (or such person acting on behalf of the
Registrar as may be specified in the notice), at such time or times
or at such intervals or in respect of such period or periods as may
be so specified, with such information as the Registrar may
reasonably require in order to ensure such compliance;
to provide the Registrar with a report, in such form as may be
specified by the Registrar, of any matter about which the Registrar
has required or could require that company to provide information
pursuant to this Part.
The person to whom such a requirement is made under subsection (1)
shall as soon as reasonably practicable thereafter provide the information or report
required by the Registrar.
Application of Public Access to Information Act 2010
Notwithstanding any provision of the Public Access to Information Act
2010, this section shall have effect.
For the purposes of this Part, no person who—
obtains information relating to any application for consent
pursuant to section 4A(3A); or
obtains information pursuant to section 34O; and
receives a request under the Public Access to Information Act 2010
for such information,
shall disclose the request or such information so requested.”.
(2)
(3)
34O (1)
(a)
(b)
(2)
34P (1)
(2)
(a)
(b)
(c)
Inserts Part XIVC
5 The Companies Act is amended by inserting after section XIVB the following—
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COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT ACT 2018
“PART XIVC
FINTECH ADVISORY COMMITTEE
FinTech Advisory Committee
The Minister shall appoint a committee to be known as the FinTech
Advisory Committee whose primary function shall be to advise the Minister on any
matter relating to FinTech, or the development of the FinTech industry, which the
Minister may refer to it.
The FinTech Advisory Committee may advise the Minister on any
matter relating to the development and promotion of the FinTech industry in
Bermuda.
The FinTech Advisory Committee shall consist of such persons (not
fewer than five in number) to be appointed by the Minister, in consultation with the
Minister responsible for e-commerce, as the Minister may think fit.
Not fewer than three members of the FinTech Advisory Committee shall
be persons appearing to the Minister to be senior industry professionals who are
knowledgeable about FinTech business, blockchain and distributed ledger
technology.
The Minister may make such regulations as he considers appropriate
or expedient in relation to the FinTech Advisory Committee.”
272F (1)
(2)
(3)
(4)
(5)
Amends section 287A
Section 287A of the Companies Act 1981 is amended in subsection (2), by deleting
the word “affirmative” and substituting the word “negative”.
Amends section 289
Section 289 of the Companies Act 1981 is amended by inserting after subsection
(5) the following—
Nothing in Part IIIA shall be construed as affecting any requirements
under any statutory provision relating to securities or foreign exchange or any other
applicable law.
Part IIIA does not affect any liability that a person has under any other
law.”.
“(6)
(7)
Amends Ninth Schedule
The Companies Act 1981 is amended in the Ninth Schedule by deleting the word
“or” from the end of paragraph (a) and inserting after that paragraph the following—
“(aa) Initial Coin Offerings; or”.
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AMENDMENT ACT 2018
AMENDMENT OF THE LIMITED LIABILITY COMPANY ACT 2016
Amends section 2
The Limited Liability Company Act 2016 is amended in section 2 by inserting in the
appropriate alphabetical order the following—
“ “appointed digital asset exchange” means such digital asset exchange
appointed by the Minister under subsection (9) of section 2 of the
Companies Act 1981;
“civil penalty” means such civil penalty as may be imposed by the Registrar
under the Registrar of Companies (Compliance Measures) Act 2017;
“Initial Coin Offering” or “ICO” has the meaning given in section 85A;”.
Amends section 67
The Limited Liability Company Act 2016 is amended in section 67 by inserting after
subsection (3) the following—
The Minister’s consent under subsection (1) relating to an Initial Coin
Offering may be made subject to such conditions as the Minister may consider
appropriate to impose. ”.
“(3A)
Inserts Part 10A
The Limited Liability Company Act 2016 is amended by inserting after section 85
the following—
“PART 10A
INITIAL COIN OFFERING
Interpretation of Part 10A
In this Part, unless the context otherwise requires—
“blockchain” means a digital ledger or database of transactions relating to
digital assets which are recorded chronologically and capable of being
audited;
“Code of Conduct” means a Code of Conduct issued under section 85M;
“digital asset” means anything that exists in binary format and comes with
the right to use it and includes a digital representation of value that—
is used as a medium of exchange, unit of account, or store of value
and is not legal tender, whether or not denominated in legal
tender;
is intended to represent assets such as debt or equity in the
promoter;
85A (1)
(a)
(b)
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COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT ACT 2018
is otherwise intended to represent any assets or rights associated
with such assets; or
is intended to provide access to an application or service or
product by means of blockchain;
but does not include—
a transaction in which a person grants value as part of an affinity
or rewards program, which value cannot be taken from or
exchanged with the person for legal tender, bank credit or any
digital asset; or
a digital representation of value issued by or on behalf of the
publisher and used within an online game, game platform, or
family of games sold by the same publisher or offered on the same
game platform;
“distributed ledger technology” means a database system in which—
information is recorded and consensually shared and
synchronised across a network or multiple nodes; and
all copies of the database are regarded as equally authentic;
“electronic” has the meaning given in section 2 of the Electronic
Transactions Act 1999;
“expert” includes a technologist, software engineer, valuer, an accountant
and any other person whose profession gives authority to a statement
made by him relating to an Initial Coin Offering;
“FinTech Advisory Committee” means the FinTech Advisory Committee
appointed under section 272F of the Companies Act 1981;
“Initial Coin Offering” or “ICO” means an offer by a limited liability company
to the public to purchase or otherwise acquire digital assets;
“ICO offer document” means the document referred to in section 85C;
“ICO platform”, in relation to an Initial Coin Offering, includes a website or
an electronic database or other software platform;
“project” means the product or service to be created or developed as set
forth in the ICO offer document;
“promoter” means a limited liability company that may be an issuer of an
ICO offer document or of a digital asset or other persons who were
parties to the preparation of the ICO offer document, but does not
include any person by reason only of his acting in a professional
capacity for persons engaged in procuring the formation of the limited
liability company.
(c)
(d)
(e)
(f)
(a)
(b)
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COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT ACT 2018
Any reference in this Act to offering digital assets to the public shall,
subject to any provision to the contrary contained herein, be construed as including
a reference to offering them to any section of the public, and references in this Act
or in an LLC Agreement to invitations to the public to purchase digital assets shall,
subject as aforesaid, be similarly construed.
For the purposes of this Part—
a statement included in an ICO offer document shall be deemed to
be untrue if it is misleading in the form and context in which it is
included; and
a statement shall be deemed to be included in an ICO offer
document if it is contained therein or in any report or
memorandum appearing on the face thereof or by reference
incorporated therein or issued therewith.
Subsection (2) shall not be taken as requiring any offer or invitation to
be treated as made to the public if it is—
an offer by the promoter to existing holders of digital assets of the
same class as the digital assets comprised in the offer;
an offer certified in writing by a manager of the limited liability
company on behalf of the members to be an offer which the
managers consider as not being calculated to result, directly or
indirectly, in the digital assets becoming available—
in the case of a local LLC, to more than 20 persons; and
in the case of an exempted LLC, to more than 35 persons;
an offer having a private character; or
an offer certified in writing by a manager of the limited liability
company on behalf of the managers to be an offer which the
managers consider as not being calculated to result, directly or
indirectly, in digital assets becoming available to persons other
than persons whose ordinary business involves the acquisition,
disposal or holding of digital assets, whether as principal or agent.
Restriction on issuing Initial Coin Offering
Subject to the provisions of section 67, no person shall issue an Initial Coin
Offering in or from within Bermuda unless that person is a limited liability company
to which this Act applies and is for the time being registered with the Registrar of
Companies under this Act.
Limited liability company offering digital assets to public shall publish an ICO
offer document
Subject to subsection (2) and to any other enactment, no limited
liability company shall offer digital assets to the public unless prior to such offer it
(2)
(3)
(a)
(b)
(4)
(a)
(b)
(i)
(ii)
(c)
(d)
85B
85C (1)
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COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT ACT 2018
publishes in electronic form an ICO offer document, and prior to or as soon as
reasonably practicable after publication of such ICO offer document, the limited
liability company shall file with the Registrar (in such form as the Registrar may
require), a copy signed by or on behalf of all of the managers of the limited liability
company.
It is not necessary to file an ICO offer document under subsection (1),
at any time or in any circumstances, where—
the digital assets are listed on an appointed stock exchange or
appointed digital asset exchange, or an application has been made
for the digital assets to be so listed, and the rules of the appointed
stock exchange or appointed digital asset exchange do not require
the limited liability company to publish and file an ICO offer
document at such time or in such circumstances;
the limited liability company is subject to the rules or regulations
of a competent regulatory authority and such rules or regulations
do not require the limited liability company to publish and file an
ICO offer document at such time or in such circumstances, except
where exemption from publication and filing of an ICO offer
document is given by reason of the offer being made only to
persons who are resident outside the jurisdiction of the authority;
or
an appointed stock exchange, appointed digital asset exchange or
any competent regulatory authority has received or otherwise
accepted an ICO offer document or other document in connection
with the Initial Coin Offering to the public.
The Registrar shall not accept for filing a copy of an ICO offer document
unless it is accompanied by a certificate signed by an attorney or a manager of the
limited liability company certifying that the ICO offer document contains the
particulars required by section 85D.
The managers of any limited liability company and promoters of an
Initial Coin Offering that fail to comply with this section shall each be liable to a
civil penalty.
Contents of an ICO offer document
Every ICO offer document shall contain or there shall be attached
thereto documents showing—
the name and the address of the registered office or principal office
of the promoters;
the name, description and titles of the managers of the promoter;
the business or proposed business of the limited liability company;
(2)
(a)
(b)
(c)
(3)
(4)
85D (1)
(a)
(b)
(c)
16
COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT ACT 2018
a description of the project, the proposed timeline for the project
including any proposed project phases and milestones;
the amount of money equivalent (in Bermuda dollars) that the
Initial Coin Offering is intended to raise;
the disclosure as to the allocation of the amounts intended to be
raised amongst the classes of any issuance (pre-sale, post-Initial
Coin Offering etc.);
any rights or restrictions on the digital assets that are being
offered;
the date and time of the opening and closing of the offering of
digital assets;
the general Initial Coin Offering risk warning referred to in section
85G;
a statement as to how personal information will be used.
The ICO offer document shall also comply with any other requirements
as may be prescribed by regulations or any Code of Conduct issued in relation to
this Part.
Nothing in subsection (1) shall be construed as preventing a promoter
from including such other additional information as the promoter considers
relevant with respect to the Initial Coin Offering.
Limited liability companies offering digital assets to the public
Where any limited liability company over a period offers digital assets
to the public and any of the particulars in an ICO offer document issued by that
limited liability company ceases to be accurate in a material respect, the limited
liability company, as soon as reasonably practicable after becoming aware of that
fact, shall—
publish supplementary particulars disclosing the material
changes; and
file a copy of the supplementary particulars with the Registrar.
Each of the managers of any limited liability company that fails to
comply with this section shall be liable to a civil penalty.
Providing a communication facility; cooling-off rights
The promoter shall at all times while the offer is open or suspended,
provide an electronic facility that can be used for the following purposes—
for people who access the ICO offer document through the ICO
platform—
to make posts relating to the offer;
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(2)
(3)
85E (1)
(a)
(b)
(2)
85F (1)
(a)
(i)
17
COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT ACT 2018
to see posts relating to the offer made by others; and
to ask the limited liability company making the offer, or other
service provider, questions relating to the offer; and
for the limited liability company or other service provider, as the
case may be, to make posts responding to questions and posts.
If a person in relation to an Initial Coin Offering makes an application
pursuant to the Initial Coin Offering, the person may withdraw the application
within three business days after the application is made.
The withdrawal of an application pursuant to subsection (2) can only
be made by a method specified on the ICO platform and the ICO platform must
include specific instructions and a means to withdraw.
General Initial Coin Offering risk warning
The promoter shall ensure that the general Initial Coin Offering risk
warning appears in the ICO offer document and prominently on the ICO platform
at all times while the offer is open or suspended.
The general Initial Coin Offering risk warning is a statement that
includes the following—
information regarding any substantial risks to the project which
are known or reasonably foreseeable;
information as to a person’s rights or options if the project which
is the subject of the Initial Coin Offering in question does not go
forward;
a description of the rights (if any) in relation to the digital assets
that are being offered;
information regarding any disclaimer in respect of guarantees or
warranties in relation to the project to be developed or any other
asset related to the Initial Coin Offering.
Identification of persons in relation to ICO offer document
A company shall, in relation to an Initial Coin Offering, ensure that it
applies appropriate measures relating to identification and verification of the
identity of persons participating in the Initial Coin Offering.
For the purposes of subsection (1), the Minister may make such
regulations, subject to the negative resolution procedure, as he considers
appropriate.
Security of digital assets, confidentiality, disclosure of information
The limited liability company shall ensure that appropriate mechanisms
are in place in respect of the security of digital assets issued to recipients,
(ii)
(iii)
(b)
(2)
(3)
85G (1)
(2)
(a)
(b)
(c)
(d)
85H (1)
(2)
85I
18
COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT ACT 2018
confidentiality, disclosure of information and connected matters and that
applicable Bermuda laws are complied with in these respects.
Offences relating to the issue of an Initial Coin Offering
Any person who—
contravenes section 85B; or
makes or authorizes the making of an untrue statement in an ICO
offer document unless he proves either that the statement was
immaterial or that at the time he made the statement he had
reasonable grounds to believe it was true,
commits an offence.
A person convicted of an offence under subsection (1), shall be
liable—
on summary conviction, to a fine of $50,000 or to imprisonment
for a period of one year or to both such imprisonment and fine;
on conviction on indictment, to a fine of $250,000 or to
imprisonment for a period of five years or to both such
imprisonment and fine.
Civil liability for mis-statements in ICO offer document
Where an ICO offer document invites persons to purchase digital
assets of a limited liability company, the following persons shall be liable to pay
compensation to all persons who prove that they purchased any digital assets in
reliance to his detriment on the ICO offer document for the loss or damage they
may have sustained by reason of any untrue statement which is relevant to the
Initial Coin Offering included therein that is to say—
every person who is a manager of the limited liability company at
the time of the issue of the ICO offer document;
every person who has consented to be named and is named in the
ICO offer document as a manager or as having agreed to become
a manager either immediately or after an interval of time;
a promoter of the Initial Coin Offering; and
every person who has authorized the issue to the public of the ICO
offer document.
No person shall be liable under subsection (1) if he proves—
that, having consented to become a manager of the limited liability
company, he withdrew his consent before the issue of the ICO offer
document, and that it was issued without his authority or consent;
85J (1)
(a)
(b)
(2)
(a)
(b)
85K (1)
(a)
(b)
(c)
(d)
(2)
(a)
19
COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT ACT 2018
that the ICO offer document was issued without his knowledge or
consent, and that on becoming aware of its issue he forthwith gave
reasonable public notice that it was issued without his knowledge
or consent;
that, after the issue of the ICO offer document and before any issue
of digital assets thereunder, he, on becoming aware of an untrue
statement therein, withdrew his consent thereto and gave
reasonable public notice of the withdrawal and of the reason
therefor;
that as regards—
every untrue statement not purporting to be made on the
authority of an expert or of a public official document or
statement, he had reasonable ground to believe, and did up to
the time of the issue of the digital assets believe, that the
statement was true;
every untrue statement purporting to be a statement made by
an expert or contained in what purports to be a copy of or
extract from a report or valuation of an expert, it—
fairly represented the statement, or was a correct and fair
copy of or extract from the report or valuation; and
he had reasonable ground to believe and did up to the time
of the issue of the ICO offer document believe that the
person making the statement was competent to make it
and had not withdrawn or altered it; and
every untrue statement purporting to be a statement made by
an official person or contained in what purports to be a copy of
or extract from a public official document, it was a correct and
fair representation of the statement or copy of or extract from
the document.
Where the ICO offer document contains—
the name of a person as a manager of the limited liability company
or as having agreed to become a manager of the limited liability
company thereof, and he has not consented to become a manager,
or has withdrawn his consent before the issue of the ICO offer
document, and has not authorized or consented to the issue
thereof; or
a statement by an expert or contains what purports to be a copy
of or extract from a report or valuation of an expert, which the
expert has withdrawn or altered,
the managers of the limited liability company, except any without whose knowledge
or consent the ICO offer document was issued, and any other person who
(b)
(c)
(d)
(i)
(ii)
(A)
(B)
(iii)
(3)
(a)
(b)
20
COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT ACT 2018
authorized the issue thereof shall be liable to indemnify the person named as
aforesaid or whose consent was required as aforesaid, as the case may be, against
the matters set forth in subsection (4).
With respect to subsection (3), the managers of the limited liability
company referred to in that subsection shall indemnify any such person referred
to in that subsection against all damages, costs and expenses to which he may be
made liable by reason of his name having been inserted in the ICO offer document
or of the inclusion therein of a statement purporting to be made by him as an
expert, as the case may be, or in defending himself against any action or legal
proceeding brought against him in respect thereof.
Notwithstanding subsection (2)(d), a person shall not be deemed for the
purposes of that subsection to have authorized the issue of an ICO offer document
by reason only of the inclusion therein of a statement purporting to be made by him
as an expert.
When experts are not liable
A person referred to as an expert in an ICO offer document shall not be
liable under section 85J or 85K if—
any untrue statement was not made by him; or
that as regards any untrue statement made by him he was
competent to make the statement and—
had reasonable grounds to believe and did believe up to the
date of the issue of the ICO offer document that it was true or
on becoming aware that the statement was untrue before the
issue of the ICO offer document he had given reasonable public
notice of his disassociation from the ICO offer document and
the reasons therefor.
Code of Conduct
The Minister, in consultation with the FinTech Advisory Committee,
may issue a Code of Conduct in relation to Initial Coin Offerings for the purpose of
providing guidance as to the duties and requirements to be complied with, and the
procedures (whether as to client identification, record-keeping, internal reporting
or otherwise) and sound principles to be observed by persons to whom this Part
applies.
Every limited liability company, promoter or other person to whom this
Part applies shall in the conduct of any Initial Coin Offering comply with the
provisions of any Code of Conduct issued by the Minister.
A failure on the part of such person referred to in subsection (2) to
comply with the provisions of such Code of Conduct shall be taken into account by
the Minister in determining whether the Initial Coin Offering is being conducted in
accordance with this Part.
(4)
(5)
85L
(a)
(b)
(i)
(ii)
85M (1)
(2)
(3)
21
COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT ACT 2018
Power to obtain information and reports
The Registrar may at any time, for the purpose of ensuring compliance
with the provisions of this Part and any conditions imposed under section 67(3A),
require a limited liability company—
to provide the Registrar (or such person acting on behalf of
Registrar as may be specified in the notice), at such time or times
or at such intervals or in respect of such period or periods as may
be so specified, with such information as the Registrar may
reasonably require in order to ensure such compliance;
to provide the Registrar with a report, in such form as may be
specified by the Registrar, of any matter about which the Registrar
has required or could require that limited liability company to
provide information pursuant to this Part.
The person to whom such a requirement is made under subsection (1)
shall as soon as reasonably practicable thereafter provide the information or report
requested by the Registrar.
Application of Public Access to Information Act 2010
Notwithstanding any provision of the Public Access to Information Act
2010, this section shall have effect.
For the purposes of this Part, no person who—
obtains information relating to any application for consent
pursuant to section 67(3A); or
obtains information pursuant to section 85N; and
receives a request under the Public Access to Information Act 2010
for such information,
shall disclose the request or such information so requested.”.
85N (1)
(a)
(b)
(2)
85O (1)
(2)
(a)
(b)
(c)
Amends section 255
Section 255 of the Limited Liability Company Act 2016 is amended by inserting
after subsection (2) the following—
Without prejudice to, and without limiting, the generality of subsection
(1), regulations made under subsection (1) shall prescribe the minimum required
information that must accompany an application for consent for an Initial Coin
Offering under section 67.”.
“(2A)
Amends section 257
Section 257 of the Limited Liability Company Act 2016 is amended by adding after
subsection (5) the following—
12
13
22
COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT ACT 2018
Nothing in Part 10A shall be construed as affecting any requirements
under any statutory provision relating to securities or foreign exchange or any other
applicable law.
Part 10A does not affect any liability that a person has under any other
law.”.
“(6)
(7)
FINAL PROVISIONS
Amends Government Fees Regulations 1976
The Government Fees Regulations 1976 are amended in the Schedule—
in Head 16, by inserting after paragraph 39 the following—
“ (39A) Application by a company under section 4A for
consent of the Minister to an ICO $5,000
(39B) Filing an ICO offer document under section 34C $95 ”;
in Head 40, by inserting after paragraph 15 the following—
“ (15A) Application for consent of the Minister under
section 67 to an ICO $5,000
(15B) Filing an ICO offer document under section 85C $95 ”.
Consequential amendments: general
The Minister responsible for the Registrar of Companies may by order subject to
the negative resolution procedure repeal or amend any provision relating to subject matter
provided for in this Act—
in any law that is passed before this Act; or
in any other instrument made under an Act before the passing of this Act,
if it appears to him that that provision is inconsistent with, or requires amendment
consequentially upon, or has become unnecessary in consequence of, the provisions of this
Act.
Commencement
This Act shall come into operation on such day as the Minister responsible for
companies may appoint by notice in the Gazette.
The Minister may appoint different days for the coming into operation of
different provisions of this Act.
14
(a)
(b)
15
(a)
(b)
16 (1)
(2)
23
COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT BILL 2018
EXPLANATORY MEMORANDUM
(Updated)
This Bill seeks to amend the Companies Act 1981 and the Limited Liability Company
Act 2016 to provide a framework for Initial Coin Offerings (“ICOs”) in or from Bermuda. The
framework will be implemented primarily through this Bill, associated regulations and Code
of Conduct.
Clause 1 provides a title to this Bill.
Clause 2 amends section 2 of the Companies Act 1981 (the “Companies Act”) to insert
new definitions for the interpretation of that Act.
Clause 3 amends section 4A of the Companies Act to insert a new subsection (3A) to
include ICOs as a restricted activity for which consent of the Minister is required under
section 4A. The consent of the Minister may be granted to a company subject to conditions.
Clause 4 inserts a new Part IIIA in the Companies Act. Part IIIA applies the provisions
of the new Part to ICOs. The new sections 34A to 34P provide as follows:
• Section 34A inserts definitions for the interpretation of the new Part IIIA.
• Section 34B provides that only a company for the time being registered under
the Companies Act may issue an ICO in or from within Bermuda.
• Section 34C requires a company that receives consent to offer digital assets to
the public to publish an ICO offer document.
• Section 34D provides a list of required information that must be included in the
ICO offer document. This clause also provides that the ICO offer document must
comply with any other specified requirements and the Code of Conduct.
• Section 34E requires any company that offers digital assets to the public to
update their offering document with supplementary particulars if the details in
the ICO offer document cease to be accurate. Failure to comply with this section
attracts a civil penalty.
• Section 34F requires that the promoter provide an electronic facility for
communication purposes between the people who access the ICO offer
document through the ICO platform and the company or other service provider.
Section 34F also provides for cooling-off rights with respect to applications
made pursuant to an ICO.
• Section 34G provides the definition of what a general Initial Coin Offering risk
warning is and requires that a promoter prominently display the risk warning
on the ICO offer document at all times.
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COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT BILL 2018
• Section 34H requires a company to ensure that appropriate measures are taken
with respect to identification and verification of the identity of persons who
participate in its ICO.
• Section 34I requires the promoter to ensure that he has the appropriate
mechanisms in place with respect to security of issued digital assets,
confidentiality, disclosure of information and any other connected matters. It
also requires the promoter to comply with applicable Bermuda laws in this
respect.
• Section 34J provides for offences relating to the issue of an ICO offer document.
• Section 34K provides a list of people who may be civilly liable to persons who
purchase digital assets.
• Section 34L provides exceptions from liability for experts.
• Section 34M provides that the Minister may make regulations for the purposes
of this new Part IIIA.
• Section 34N provides that the Minister, in consultation with the FinTech
Advisory Committee, may issue a Code of Conduct with respect to Initial Coin
Offerings. The Code of Conduct is to provide guidance on duties, requirements,
procedures and to provide sound principles to be observed by persons that come
under Part IIIA.
• Section 34O gives the Registrar power to obtain information and reports for the
purposes of this Part.
• Section 34P provides for matters relating to the Public Access to Information
Act 2010.
Clause 5 inserts a new Part relating to a FinTech Advisory Committee.
Clause 6 amends section 287A of the Companies Act which relates to the regulationmaking
power.
Clause 7 amends section 289 of the Companies Act to provide for savings.
Clause 8 amends the Ninth Schedule to the Companies Act to include Initial Coin
Offerings as a restricted activity.
Clause 9 amends section 2 of the Limited Liability Company Act 2016 (the “LLC Act”),
the interpretation section, to insert new definitions for the purposes of the new Part 10A.
Clause 10 inserts a new subsection (3A) in section 67 of the LLC Act to include ICOs
as a restricted activity for which consent of the Minister is required under section 67. The
consent of the Minister may be granted to a limited liability company subject to
conditions.
Clause 11 inserts a new Part 10A in the LLC Act to apply the provisions of the new Part
10A to ICOs that offer digital assets. The new sections 85A to 85O provide as follows:
• Section 85A inserts definitions for the interpretation of the new Part 10A.
• Section 85B provides that only a limited liability for the time being registered
pursuant to the LLC Act may issue an ICO in or from within Bermuda.
ii
COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT BILL 2018
• Section 85C requires an LLC that receives consent to offer digital assets to the
public to publish an ICO offer document.
• Section 85Dprovides a list of required information that must be included in the
ICO offer document. This clause also provides that the ICO offer document must
comply with any other requirements and the Code of Conduct.
• Section 85E requires any limited liability company that offers digital assets to
the public to update their offering document with supplementary particulars if
the details in the ICO offering document cease to be accurate. Failure to comply
with this section attracts a civil penalty.
• Section 85F requires that the promoter provide an electronic facility for
communication purposes between the people who access the ICO offer
document through the ICO platform and the limited liability company or other
service provider. Section 85E also provides for cooling-off rights with respect to
applications made pursuant to an ICO.
• Section 85G provides the definition of what a general Initial Coin Offering risk
warning is and requires that a promoter prominently display the risk warning
on the ICO offer document at all times.
• Section 85H requires a limited liability company to ensure that appropriate
measures are taken with respect to identification and verification of the identity
of persons who participate in its ICO.
• Section 85I requires the promoter to ensure that he has the appropriate
mechanisms in place with respect to security of issued digital assets,
confidentiality, disclosure of information and any other connected matters. It
also requires the promoter to comply with applicable Bermuda laws in this
respect.
• Section 85J provides for offences relating to the issue of an ICO offer document.
• Section 85K provides a list of people who may be civilly liable to persons who
purchase digital assets.
• Section 85L provides exceptions from liability for experts.
• Section 85M provides that the Minister, in consultation with the FinTech
Advisory Committee, may issue a Code of Conduct with respect to Initial Coin
Offerings. The Code of Conduct is to provide guidance on duties, requirements,
procedures and to provide sound principles to be observed by persons that come
under Part 10A.
• Section 85N gives the Registrar power to obtain information and reports for the
purposes of this Part.
• Section 85O provides for matters relating to the Public Access to Information
Act 2010.
Clause 12 amends section 255 of the LLC Act to extend the regulation-making power
for purposes of the new Part 10A.
Clause 13 amends section 257 of the LLC Act to provide for savings.
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COMPANIES AND LIMITED LIABILITY COMPANY (INITIAL COIN OFFERING)
AMENDMENT BILL 2018
Clause 14 amends the Government Fees Regulations 1976 to provide fees in relation to
an ICO.
Clause 15 makes general provision for consequential amendments to be made by order
subject to the negative resolution procedure.
Clause 16 provides for the commencement of this Act.
iv