Legal aspects

Issuance of securities and regulatory framework: General Criteria

There is currently no European or national regulatory framework as such that specifically defines the obligations and requirements to be met for the issuance of securities based on blockchain technology. However, taking into account the financing method used by EXOS, there are already regulated processes that may be similar to the present case. Thus, the main regulatory reference standard, in this case, is the Securities Market Law (LMV).
The LMV establishes that the issue of negotiable securities falls within the scope of the law, understanding as such any right of patrimonial content, regardless of its denomination, which, due to its configuration and transmission regime, is susceptible to generalized traffic in a specific financial market. In this regard, the CNMV in its document “CNMV. (2018). Criteria in relation to ICOs.” understands that two main factors must be assessed when determining whether or not a token is tradable security:
a. The token grants rights or expectations of participation in the potential revaluation or profitability of the business or project in which it is framed or, in general, that it presents or grants rights equivalent or similar to those of the shares or debentures.
b. The token grants the right to access services or to receive specific goods or products, and the token, in turn, is offered with explicit or implicit reference to any of the following issues:
i. The expectation that the purchaser or investor will obtain a benefit as a result of the revaluation of the token; or
ii. The expectation of obtaining by the buyer or investor of a remuneration associated with the token; or
iii. The liquidity that the token would benefit from; or
iv. The possibility of trading of the token in markets equivalent or purportedly similar to the securities markets subject to regulation.
The issuance of this type of securities requires the preparation of a specific legal document called “prospectus”; this document must comply with a series of specific requirements and must be approved and supervised by the CNMV.
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