ICOs and liquidity for founders in secondary trading?

Here’s another issue addressed in our ever-expanding memo on the securities laws raised by ICOs.

Some founders and company insiders, including those who got their securities in “pre-sales,” may want to resell their tokens when secondary trading starts. Hold up there, Skippy. You may wish to consider a couple of things before you do that. First, might you be in possession of any “inside information”? That is, stuff you know about the company or the project that other investors don’t and which they might think is important when deciding to buy your tokens? Thought so. Don’t sell without making sure everybody else in the market has that same information. Second, might you be an “affiliate” of the company? That means officer, director or similar positions and anyone in “control” of the company (and the people who might be deemed to have “control” start with 10% shareholders, so don’t think this doesn’t apply to founders with a minority holding). If you are an affiliate, you get treated as if you were the company and your sales are treated as if you were making an initial “distribution,” not like you were making a normal secondary trade, so you need to find an exemption from registration just as if it were the company doing the offering (see above). Companies should probably reflect in their smart contracts some kind of rep from the seller of the securities that he isn’t an affiliate and isn’t in possession of inside information.

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