Resolution no. 23104

Prohibition, pursuant to Article 99, paragraph 1, letter c) of Legislative Decree no. 58/1998, of the public offer of financial products concerning "Pricing plans" known as "Grigio" (Grey), "Business", "Professionista" (Professional) and "Enterprise" carried out by the so-called "Optimal Yield Limited" also via the website www.optimalyieldltds.com

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, as subsequently amended and supplemented;

HAVING REGARD to Legislative Decree no. 58 of 24 February 1998 (“Consolidated Law on Finance”), as subsequently amended and supplemented;

HAVING ESTABLISHED that Consob’s supervisory activity ascertained the presence of the website www.optimalyieldltds.com, the contents of which were available in Italian;

HAVING ESTABLISHED that four “pricing plans” known as “Grey”, “Business”, “Professional” and “Enterprise” were promoted via the website “www.optimalyieldltds.com;

HAVING ESTABLISHED that, based on the information on the website www.optimalyieldltds.com, the “pricing plans" would be distinguished from each other by the minimum and maximum deposit allowed, by the percentage of "gain" that would be ensured to subscribers and by the period of maturity of the same, as indicated below:

• “Grey, minimum amount $100 maximum amount $4,999, 2% daily, duration 7 days”;
• “Business, minimum amount $5,000 maximum amount $9,999, 2.5% daily, duration 7 days”;
• “Professional, minimum amount $10,000 maximum amount $19,999, 3% daily, duration 7 days”;
• “Enterprise, minimum amount $20,000 maximum amount unlimited, 4%, duration 7 days”;

HAVING ESTABLISHED that, after registering with the website www.optimalyieldltds.com - through a procedure that was freely available also to Italian users - it was possible to access the personal area which contained features for purchasing the “pricing plans"; In particular, although on the homepage of the website www.optimalyieldltds.com the amounts necessary to subscribe to one or more "pricing plans" were expressed in fiat currency (in particular, in dollars), in the reserved area of the same website the need was indicated for the user to proceed with the payment by contributing crypto-currencies and the address of the wallet to transfer the cryptocurrencies was made available;

HAVING ESTABLISHED that the so-called “Optimal Yield Limited”, mentioned on the website www.optimalyieldltds.com, has not answered the requests for information made by Consob and sent to the email address indicated on the same website www.optimalyieldltds.com;

HAVING ESTABLISHED that the transaction was presented as an investment opportunity;

HAVING REGARD TO the fact that, according to the definition under Art. 1, para. 1, letter t) of Consolidated Law on Finance a "public offering [of financial products]" must be understood to mean "any invitation to offer or promotional message, in whatsoever form addressed to the public, whose objective is the sale or subscription of financial products including the allocation through authorised people”;

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

1. the fact that the activity involves a specific or several specific “financial products”, a category that includes - pursuant to Article 1, paragraph 1, letter u), of the Consolidated Law on Finance, both the typified features of “financial instruments” and “every other form of investment of a financial nature”;
2. the existence of a communication intended to persuade investors to purchase or subscribe to these financial products and a description in uniform and standardised terms of the main details thereof;
3. the fact that the offering in question is directed towards Italian residents;

HAVING ESTABLISHED that the contract proposal regarding such “pricing plans” conveyed through the website www.optimalyieldltds.com is described in such a way as to categorise the plans as financial products, i.e. a "form of investment of a financial nature";

WHEREAS, in this specific case, according to Consob's consolidated approach, the elements that qualify the notion of “investment of a financial nature” - other than the financial instrument - are present, given the coexistence: (i) of an investment of capital; (ii) of a promise/expectation of return of a financial nature; (iii) of the assumption of a risk connected to the investment of capital;

WHEREAS that the structure of the transaction under examination sets forth that a) interested parties should use their capital to subscribe to one or more “Pricing plans" among those indicated on the website www.optimalyieldltds.com; b) by virtue of the aforesaid subscription, investors are offered a variable return in relation to the “Pricing plan" subscribed to by each user without the users themselves being required to carry out any further activity; c) the consequent assumption of a risk associated with the use of the capital paid in;

HAVING ESTABLISHED, therefore, that the aforementioned return is allegedly paid for the use of the investor’s capital;

WHEREAS, consequently, the legal reason for the contracts offered via the website www.optimalyieldltds.com can be deemed to be the production of a financial return as consideration for the use of capital paid-in by the recipient of such return (who, therefore, contributes their own money with an expectation of profit, namely, an increase in the cash invested, the contract thus having an “investment purpose”);

CONSIDERING, therefore, that, with regard to the existence of the requirement referred to under letter a), namely, that the offer in question may be classified as a “financial product”, the contract proposals made, including through the website www.optimalyieldltds.com qualify as an “investment of a financial nature”;

HAVING ESTABLISHED that the above informative content on the website www.optimalyieldltds.com provides a consistent representation of the features of the investment proposals, such as to place retail investors in a position to assess whether or not to join the initiative;

HAVING ESTABLISHED, therefore, that the requirement set out under letter b) is also met;

HAVING ESTABLISHED, moreover, that there are unequivocal elements that suggest that the offer under examination was also aimed at the public resident in Italy, since the contents of the website www.optimalyieldltds.com were available in Italian and, as part of the inspections carried out on the same website www.optimalyieldltds.com, no mechanisms were found aimed at limiting or excluding registration by users connected to the web from Italy/through Italian IP addresses was found;

HAVING ESTABLISHED, moreover, that there have been reports of contacts with Italian retail investors aimed at promoting investments through the website www.optimalyieldltds.com;

HAVING ESTABLISHED, therefore, that the requirement set out in letter c) is also met, since the offer in question is aimed at the public resident in Italy;

HAVING ESTABLISHED, therefore, that the activity carried out by the so-called “Optimal Yield Limited” has the features of an offer of financial products to the public, as defined above;

HAVING REGARD TO Article 94-bis of the Consolidated Law on Finance, paragraph 1, which establishes that “parties who intend to make an offer to the public of financial products other than securities and shares or units of open UCITS must publish a prospectus in advance. To this end, an application must be submitted to Consob for approval, with the draft attached. The prospectus cannot be published until it has been approved by Consob pursuant to Article 95, paragraph 1, letter b). [...]”.

HAVING ESTABLISHED that, in relation to the described activity, the prospectus intended for publication has not been sent to Consob;

HAVING ESTABLISHED likewise the non-existence of any of the exemptions - provided by the combined provisions of Article 100 of the Consolidated Law on Finance and Article 34-ter of Consob Regulation no. 11971/1999 (“Issuers’ Regulation”) - from enforcement of the rules on solicitation of public savings set forth by Articles 93 bis et seq. of the Consolidated Law on Finance;

HAVING REGARD to resolution no. 23000 of 7 February 2024, whereby, 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 citizens residing in Italy involving an investment of a financial nature made also through the website www.optimalyieldltds.com;

WHEREAS, the so called “Optimal Yield Limited” 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 that outlined in the aforementioned suspension measure, the circumstances de facto and de jure established in the suspension measure are considered to have been ascertained;

CONSIDERING, therefore, that it has been ascertained that - according to the methods described above, noted at the time of adoption of the said suspension measure - an offer to the public has been made of products, sub-category “investment 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 “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:

To prohibit the offer to the public resident in Italy regarding the “Pricing plans” known as “Grigio (Grey)”, “Business”, “Professionista” (Professional) and “Enterprise” carried out by the so-called Optimal Yield Limited including through the website www.optimalyieldltds.com.

This Resolution shall be brought to the attention of the concerned parties and 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.

8 May 2024

THE CHAIRMAN
Paolo Savona