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Under the Howey test, there is a presumption of an investment contract when the digital asset is an instrument that is traded in a secondary market that has the following features:

Sellers make representations to prospective purchasers that refer to the nature of the instrument or asset as a security.

The instrument or asset is represented as a security on the face of the instrument or asset.

The instrument or asset is represented to be designed to achieve profits from the efforts of others.

APs exert significant influence over the instrument or asset and exercise control over the critical choices and decisions of a purchaser in selling the instrument or asset.

APs may be able to resell the instrument or asset to other investors. The AP may not take any actions that would interfere with the ability to resell to other investors.

APs are required to provide their own funds to purchase the digital asset. APs are free to return any interest or other compensation received for their purchase of the digital asset.

A reasonable investor could conclude that the instrument is similar to the typical forms of securities that are traded in an unregulated secondary market.

APs who purchase the instrument or asset for resale in a secondary market do not participate in the operations of the enterprise.

The instrument or asset can be redeemed or exchanged for cash.

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