Resolution no. 21859

Prohibition, pursuant to article 99, paragraph 1, letter c) of Legislative Decree no. 58/1998, of the public offering concerning investments of a financial nature made by "QubitTech Corporation" through the website www.qubittech.dev

LA COMMISSIONE NAZIONALE PER LE SOCIETÀ E LA BORSA
[THE NATIONAL COMMISSION FOR COMPANIES AND THE STOCK EXCHANGE]

HAVING REGARD TO Law no. 216 of 7 June 1974 and subsequent amendments and supplements;

HAVING REGARD TO Legislative Decree no. 58 of 24 February 1998 ("Consolidated Law on Finance") and subsequent amendments and supplements;

HAVING ESTABLISHED that, as a result of Consob’s supervisory activity, the presence was noted on the web of the www.qubittech.dev website, which is also available in Italian and can be traced, according to what it states on the site, to the Estonian company "QubitTech Corporation". The same website also contained Certificates of Incorporation of companies with different names, established in the United Kingdom, Thailand and the British Virgin Islands;

HAVING ESTABLISHED THAT on the website www.qubittech.dev, among other things, the underwriting of so-called "digital licences" were promoted at a "fixed price" - represented in tether (USDT) - to be paid using the further cryptocurrencies bitcoin (BTC) and ether (ETH) as a means of payment. In particular, "Bronze", "Bronze+", "Silver", "Silver+", "Gold", "Gold+", "Platinum" and "Platinum+" digital licences were offered at a variable price, from a minimum of USDT 100.0 to a maximum of USDT 100,000.0, depending on the type of "licence" underwritten. The "premiums" and "bonuses" related to the aforementioned "digital licences" were calculated as a percentage of the paid-in capital and would have been paid daily. In particular, the website stated that: "The total premium for any digital licence is limited to 250%. After reaching the 250% target result, the digital licence is automatically deactivated". The monthly and daily returns achieved were then highlighted and the expected returns for 2021 advertised;

HAVING ESTABLISHED that in addition to the investment opportunity described above, there was also the possibility of receiving additional revenues linked to the creation of an "affiliation network", which are duly defined and originate, according to the indications on the site, from the "platform resources received through cryptocurrency market transactions";

HAVING ALSO ESTABLISHED that the company has not provided any response to the requests for information made by Consob during its investigation;

HAVING ESTABLISHED that the structure of the operation was presented as an investment opportunity, as the initiative promoted by "QubitTech Corporation" appears to offer potential clients the possibility of using a sum of money for the purchase of so-called "digital licences", in order to receive a final return equal to 250% of the amount paid-in, within a period that is not precisely defined but can be inferred from the monthly and daily returns achieved ("Average daily results +0.84%" and a "Monthly Result Up to 25% in USDT") and the expected returns for 2021 advertised on the site ("Average result on digital licences up to 21%" indicated among the "2021 targets");

HAVING REGARD TO the fact that, according to the definition under article 1, paragraph 1, letter t) of the Consolidated Law on Finance, a "public offering of financial products" must be understood to mean "any communication addressed to the public, in whatsoever form and with whatsoever means, that present sufficient information on the conditions of the offer and the financial products offered as to enable an investor to decide to purchase or underwrite such financial products, including placement through licensed parties";

WHEREAS the constituent elements of the public offer relevant for the purposes of the above provision can be summarised as follows:

a) the fact that the activity involves "financial products", a category that includes - pursuant to article 1, paragraph 1, letter u), of the Consolidated Law on Finance - both the "standard" features of "financial instruments" and "every other form of investment of a financial nature";

b) the existence of communication intended to persuade investors to purchase or underwrite these financial products and, consequently, including at the very least a description of their main characteristics;

c) the fact that the communication in question is directed towards Italian residents;

WHEREAS the notion of an "investment of a financial nature" implies the presence of three elements at the same time: (i) an investment of capital; (ii) a promise/expectation of a return of a financial nature; (iii) the assumption of a risk directly connected and related to the investment of capital;

WHEREAS the structure of the transaction in question requires (i) a participant to use their own capital (b) for the purpose of obtaining a predefined return, expressed as a percentage and calculated on the capital contributed by the investor in which (c) a potential financial risk is inherent;

HAVING ESTABLISHED that the aforementioned return would be paid by "QubitTech Corporation" against the use of the investor’s capital, and that it would be related exclusively to the amount paid, the user not being asked to undertake any activity other than the mere contribution of capital;

WHEREAS the legal reason for the negotiating proposal may be considered to be the production of a financial return as consideration for the use of capital transferred by the recipients of this return, who, therefore, transfer their own money with the expectation of a profit, namely, the increase in the cash invested;

CONSIDERING, therefore, that, with regard to the existence of the requirement referred to in letter a), namely, that the offering in question can be classified as a "financial product", the investment offered by "QubitTech Corporation", based on the foregoing, qualifies as an "investment of a financial nature";

HAVING ESTABLISHED that the initiative in question was promoted in standardised and uniform terms, through a presentation that contains a representation of the features of the investment that is such as to place investors in a position to decide whether or not to participate in the actual initiative, but without the possibility for an individual investor to intervene in drawing up the contractual agreement;

CONSIDERING, therefore, that the requirement set out in letter b) is also met;

HAVING ESTABLISHED that the offering made through the website www.qubittech.dev was also directed at Italian investors, as also highlighted on the site itself, since the site was also available in Italian and moreover it was possible for users connecting from Italy to register on the website www.qubittech.dev;

HAVING ESTABLISHED that a sales scheme was also promoted through the aforementioned websitewhich offers a user the possibility of earning money by recruiting further members of the initiative and that this scheme is suitable to also disseminate the offer of financial products among Italian investors;

CONSIDERING, therefore, that the requirement set out in letter c) is met, since the offering in question is aimed at the public resident in Italy;

CONSIDERING, therefore, that the activity carried out by "QubitTech Corporation" to promote investments of a financial nature has the characteristics of a public offering of financial products as defined above;

HAVING REGARD TO article 94, paragraph 1, of the Consolidated Law on Finance, regarding the text in effect at the time, pursuant to which "Anyone intending to make an offer to the public must publish a prospectus in advance. To that end, for offers concerning EU financial instruments for which Italy is the Member State of origin and for offers of financial products other than EU financial instruments, they shall provide prior notification to Consob enclosing the prospectus intended for publication. The prospectus cannot be published until it has been approved by Consob" (the same obligation is currently envisaged, for the public offer of financial products other than securities, by art. 94-bis of the Consolidated Law on Finance);

HAVING ESTABLISHED that, in relation to the activity described, neither prior notification nor the information prospectus intended for publication were sent to Consob;

HAVING ALSO ESTABLISHED that, based on current evidence, the offering in question does not fall into any of the exemptions - contemplated by the combined provisions of articles 100 of the Consolidated Law on Finance and 34-ter of Consob Regulation no. 11971/1999 - from enforcement of the rules on "solicitation of public savings";

HAVING REGARD TO Consob’s Resolution no. 21737 of 25 February 2021, with which, pursuant to article 99, paragraph 1, letter b), of the Consolidated Law on Finance, Consob implemented the precautionary suspension measure, for a period of ninety days, of the offer to the public resident in Italy regarding an investment of a financial nature promoted by "QubitTech Corporation" through the website www.qubittech.dev;

WHEREAS "QubitTech Corporation" has sent no objections in response to the facts on which the suspension measure is based;

WHEREAS, therefore, in the light of the investigation outlined above and in the absence of any evidence to suggest a situation other than the case outlined in the aforementioned suspension measure, the circumstances de facto and de jure established in said precautionary suspension measure of the aforementioned Resolution are considered to have been ascertained;

CONSIDERING, therefore, that it has been ascertained that - according to the methods described above and noted at the time of adoption of the said precautionary suspension measure - an offering to the public has been made of financial products, sub-category "investments of a financial nature" in breach of the above law;

HAVING REGARD to Art. 99, paragraph 1, letter c) of the Consolidated Law on Finance, pursuant to which Consob: "may: … c) prohibit the public offering if a violation is confirmed of the provisions of this Chapter or of the related implementation measures or if there are well-founded suspicions that such provisions or measures might be breached...";

RESOLVES:

That the activity of offering investments of a financial nature to the public resident in Italy set up by "QubitTech Corporation" through the website www.qubittech.dev is prohibited.

This Resolution shall be brought to the attention of the person with whom it is concerned and will be published in the Consob Bulletin.

This measure may be appealed before the Regional Administrative Court of Lazio within 60 days of the date of service.

19 May 2021

THE CHAIRMAN
Paolo Savona