Resolution no. 23123

Prohibition, pursuant to Article 99, paragraph 1, letter b) of Legislative Decree no. 58/1998, of the offer to the public of financial products concerning "Investment Plans" called "Mini Piano" (Mini Plan), "Pianificare in Anticipo" (Plan Ahead), "Piano di Accesso" (Access Plan), "Piano Premium" (Premium Plan) and "Promo Piano" (Promo Plan) carried out by the so-called "Ultraford" also via the website https://ultraford.cc

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 https://ultraford.cc, the contents of which were available in Italian through a machine translation mechanism incorporated into the website and registered anonymously;

HAVING NOTED that through the website https://ultraford.cc five "Investment Plans" were being promoted called "Mini Piano" (Mini Plan), "Pianificare in Anticipo" (Plan Ahead), "Piano di Accesso" (Access Plan), "Piano Premium" (Premium Plan) and "Promo Piano" (Promo Plan);

HAVING ESTABLISHED that, based on the information on the website https://ultraford.cc, the "Investment Plans" were distinguished from each other by the minimum and maximum deposit allowed as well as by the percentages of "gain" that could have been ensured to subscribers and the timing of accrual of said "gains", as follows:

• "Mini Plan, minimum deposit $50, max deposit $1,000, 4.2% - after 24 hours";
• "Plan Ahead, minimum deposit $2,000, max deposit $10,000, 20% - after 24 hours";
• "Access Plan, minimum deposit $10,000, max deposit $20,000, 35% - after 24 hours";
• "Premium Plan, minimum deposit $20,000, max unlimited deposit, 45% - after 24 hours";
• "Promo Plan, minimum deposit $2,000, max unlimited deposit, 50% - after 5 hours";

HAVING NOTED that, although in the homepage of the website https://ultraford.cc the "minimum" and "maximum" amounts that users could have paid to subscribe to one or more "Investment Plans" were expressed in dollars, the section of the same website https://ultraford.cc dedicated to "FAQs" indicated the need for deposits to be made by transferring cryptocurrencies to "Ultraford" (in particular, "Ultraford" would have accepted "Bitcoin, Ethereum, USDT"). From the same "F.A.Q." it also seemed to emerge that the "gains" would also have been returned to customers in cryptocurrencies;

HAVING ESTABLISHED that, after registering with the website https://ultraford.cc through a procedure freely available also to Italian users, it was possible to access the personal area which contained features for purchasing one or more of the "Investment Plans";

HAVING ESTABLISHED that the so-called "Ultraford", mentioned on the website https://ultraford.cc, has not answered the requests for information made by Consob and sent to the email address indicated on the same website https://ultraford.cc;

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

HAVING REGARD TO the fact that, according to the definition provided 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 made to people, in any form and by any means, that presents sufficient information on the offer conditions and the financial products as to render an investor capable of deciding to buy or subscribe to the financial products including the placement through licensed parties";

WHEREAS the elements of the public offer relevant for the purposes of the above 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 "investment plans" conveyed through the website https://ultraford.cc 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 "Investment Plans" among those indicated on the website https://ultraford.cc; b) by virtue of the aforesaid subscription, investors are offered a variable return in relation to the "Investment 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 https://ultraford.cc 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 https://ultraford.cc qualify as an "investment of a financial nature";

HAVING ESTABLISHED that the above informative content on the website https://ultraford.cc 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 accordingly elements that suggest that the offer under examination is also aimed at the public resident in Italy, since the contents of the website https://ultraford.cc were available in Italian and, in relation to the initiatives promoted on the same website, there have been reports of cold calling towards retail investors in Italy. Furthermore, as part of the inspections carried out on the same website https://ultraford.cc, no mechanisms were found aimed at limiting or excluding registration by users connected to the web from Italy/through Italian IP addresses;

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 "Ultraford" 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 Consob Resolution no. 23025 of 28 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 via the website https://ultraford.cc;

WHEREAS, the so called "Ultraford" 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 Article 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 "Investment Plans" called "Mini Piano" (Mini Plan), "Pianificare in Anticipo" (Plan Ahead), "Piano di Accesso" (Access Plan), "Piano Premium" (Premium Plan) and "Promo Piano" (Promo Plan) carried out by the so-called "Ultraford" including via the website https://ultraford.cc.

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.

22 May 2024

THE CHAIRMAN
Paolo Savona