Adjunct Superintendent Resolution N° 024-2025-SMV/10 — SMV — PE

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document in the framework of Law N° 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship Adjunct Superintendent Resolution SMV No. 024-2025-SMV/10 Lima, May 07, 2025 Subject: Diviso Bolsa Sociedad Agente de Bolsa S.A. is sanctioned with one hundred (100) UIT, equivalent to S/ 420,000.00 (four hundred twenty thousand and 00/100 soles) for having committed three (03) very serious infractions typified in Annex I, numeral 1, clause 1.2 and Annex X, numeral 1, clause 1.9 of the SANCTIONS REGULATION, for carrying out prohibited operations or activities by the regulations by participating as a placement agent in public offerings without the securities having been previously registered in the Public Registry of the Securities Market and by assuming the role of bondholder representative in a placement while linked to the issuer; and for intermediating securities without complying with the other requirements, conditions and other provisions established in the regulations, respectively. Administered entity: Diviso Bolsa Sociedad Agente de Bolsa S.A. Subject: Administrative sanctioning procedure. File No.: 2024050030. The Adjunct Superintendent of Prudential Supervision VIEWING:
The administrative file No. 2024050030, Report No. 288-2025-SMV/10.3, issued by the General Superintendency of Prudential Compliance; as well as the defenses and allegations presented by Diviso Bolsa Sociedad Agente de Bolsa S.A.; and, CONSIDERING:
Pursuant to Article 1 of Law N° 29782, Law for the Strengthening of the Supervision of the Securities Market, the name of the National Commission for the Supervision of Companies and Securities (CONASEV) is replaced by that of the Securities Market Superintendency (SMV), so that any reference in legal norms to CONASEV shall be understood as referring to the SMV; Digitally Signed by:
GUTIERREZ
OCHOA Omar
Dario FAU
20131016396 soft
Date: 7/05/2025
15:42:14

PERÚ Ministry of Economy and Finance

By letter received on August 2, 2024, the COMPLAINANT11 regarding herself, as well as regarding the COMPLAINANT2 filed a complaint2 against Diviso Bolsa Sociedad Agente de Bolsa S.A. (hereinafter, DIVISO SAB) and others, for alleged non-compliance with the regulations governing the securities market;
Through Office No. 3501-2024-SMV/10.3, notified on August 14, 2024, the complaint was transferred to DIVISO SAB so that it could present the respective comments; based on this, by writing dated August 26, 2024, the securities intermediary company requested an extension of the deadline to respond to the request, which was granted as indicated in Office No. 3758-2024-SMV/10.3 of August 27, 2024;
By letter received on August 27, 2024, the COMPLAINANT3 filed a complaint3 against DIVISO SAB and others, for alleged non-compliance with the regulations governing the securities market;
By writings received on September 5 and 6, 2024, DIVISO SAB responded to Office No. 3501-2024-SMV/10.2; therefore, through Office No. 3973-2024-SMV/10.3 of September 9, 2024, DIVISO SAB was required to provide additional documentation to the information provided through the aforementioned letters;
Through Office No. 4049-2024-SMV/10.3, notified on September 13, 2024, the complaint filed by COMPLAINANT3 was transferred to DIVISO SAB so that it could present the respective comments;
By Letter of September 18, 2024, DIVISO SAB responded to what was requested through Office No. 3973-2024-SMV/10.3 and requested an extension of the deadline to present the missing documentation; this was granted through Office No. 4182-2024-SMV/10.3 notified on September 19, 2024;
By letter of September 24, 2024, DIVISO SAB presented its comments regarding the complaint of COMPLAINANT3;
By writing of October 2, 2024, DIVISO SAB complemented the documentation presented through the letter of September 18, 2024;
With Office No. 5506-2024-SMV/10.3 notified on December 5, 2024 (hereinafter, CHARGES OFFICE), an administrative sanctioning procedure was initiated against DIVISO SAB for possible non-compliance with the Securities Market Law, approved by Legislative Decree N° 861 and its amendments (hereinafter, LMV) and the Single Consolidated Text of the Securities Market Law, approved by Supreme Decree N° 20-2023-EF (hereinafter TUO LMV), and the Regulation of Intermediation Agents, approved through SMV Resolution N° 034-2015-SMV/01 and its amendments (hereinafter, RAI);
By writing sent to the SMV on January 2, 2025, DIVISO SAB requested an extension of the deadline to present the respective defenses;
1 In Annex attached to this resolution, the complete data of the natural persons to whom the designations used in this resolution belong are detailed, and likewise, if applicable, the email addresses. 2 File No. 2024033417. 3 File No. 2024036651.

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document in the framework of Law N° 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship which was granted by Office No. 037-2025-SMV/10.3, notified on January 03, 2025;
11. On January 24, 2025, DIVISO SAB presented the defenses requested by the CHARGES OFFICE;
12. The charges formulated against DIVISO SAB, the defenses of the latter and their evaluation have been the subject of analysis in Report No. 288-2025-SMV/10.3, which has been submitted to the knowledge of this Adjunct Superintendency;
13. In observance of the Principle of Due Process contemplated in Article IV, numeral 1.2, of the Preliminary Title and in Article 248, clause 2, of the Single Consolidated Text of Law N° 27444 General Administrative Procedure Law, approved by Supreme Decree N° 004-2019-JUS (hereinafter TUO LPAG), through Office No. 1168-2025-SMV/10, the administrative file referred to in Report No. 288-2025-SMV/10.3 was made available to DIVISO SAB for review;
14. On February 28, 2025, the securities intermediary company requested an additional period to that indicated by Office No. 1168-2025-SMV/10 to present additional allegations, which was granted by Office No. 1168-2025-SMV/10, notified on March 06, 2025.
15. On March 13, 2025, additional written allegations were presented;
16. On March 21, 2025, Diviso presented its oral report before this Adjunct Superintendency;
II. MATTERS TO BE DETERMINED
17. In the present administrative procedure, in the opinion of this Adjunct Superintendency, it corresponds to determine the following:
a) Whether DIVISO SAB incurred or did not incur an infraction of what is established in article 46, letter a), second paragraph, of the RAI; articles 4, 5 letters a) and b), 87, 90 and 195, letter j) of the LMV (today articles 4, 5 letters a) and b), 92, 95 and 191, letter j) of the TUO LMV), for performing the functions of placement agent without previously verifying that it was participating in a public offering, as well as of representative of the bondholders of the securities issued by its affiliated company, Esquema Investment S.A.; b) Whether DIVISO SAB incurred or did not incur an infraction of what is established in articles 5, letter a) and 59, letter a) of the RAI, for intermediating securities without complying with the other requirements, conditions and other provisions established in the regulations; c) Whether it corresponds or does not correspond to sanction DIVISO SAB for what is stated in the previous clauses;
III. ANALYSIS
OF THE PUBLIC OFFERING WITHOUT HAVING PREVIOUSLY REGISTERED THE SECURITIES IN THE REGISTRY OF THE REGULATION

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document in the framework of Law N° 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship
18. Article 1 of the Single Consolidated Text of the Organic Law of the Securities Market Superintendency, approved by Decree Law No. 26126 (hereinafter, ORGANIC LAW), states:
"Article 1. Definition, purpose and functions of the Securities Market Superintendency (SMV) (…) The functions of the Securities Market Superintendency (SMV) are the following:
a. Issue the legal norms that regulate matters of the securities market, product market and collective fund system. b. Supervise the compliance with the legislation of the securities market, product market and collective fund systems by natural and legal persons participating in said markets. (…)";
19. Articles 1, 4, 5 and 49 of the LMV (today articles 1, 4, 5 and 51 of the TUO LMV) establish the following:
"Article 1°.- PURPOSE AND SCOPE OF THE LAW
The purpose of this law is to promote the orderly development and transparency of the securities market, as well as the adequate protection of the investor.
The present law covers public offerings of securities and their issuers, public offering securities, intermediation agents, stock exchanges, securities clearing and settlement institutions, securitization companies, mutual investment funds in securities, investment funds, and, in general, the other participants in the securities market, as well as the supervisory and control body. Unless expressly stated otherwise, its provisions do not extend to private offerings of securities". "Article 4°.- PUBLIC OFFERING A public offering of securities is the invitation, adequately disseminated, that one or more natural or legal persons address to the general public, or to certain segments thereof, to carry out any legal act referred to the placement, acquisition or disposal of securities.
Article 5°.- PRIVATE OFFERING
A private offering of securities is that not included in the previous article. Without prejudice to this, the following are considered private offerings:
a) The offering directed exclusively to institutional investors. The securities acquired by these investors cannot be transferred to third parties, unless they do so to another institutional investor or the security is previously registered in the Public Registry of the Securities Market. b) The offering of securities whose lowest nominal value or unit placement value is equal to or greater than two hundred fifty thousand new soles (S/. 250,000.00). In this case, the securities cannot be transferred by the original acquirer to third parties with nominal values or placement prices lower. c) Those established by Conasev".

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document in the framework of Law N° 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship "Article 049°.- OBLIGATION OF REGISTRATION Public offerings of securities require the prior registration of the same in the Registry, except when they are securities issued by the Central Reserve Bank and by the Central Government, as well as the exception contemplated in Article 66. The issuance and negotiation of securities by the Central Government, Regional Governments, Local Governments and the Central Reserve Bank are subject to the provisions contained in the respective authorizing legal norm".
20. Articles 2, 4, 6 and 11, as well as the Fifth Final Provision of the Regulation of Primary Public Offering and Sale of Securities, approved by CONASEV Resolution No. 141-1998-EF/94.10 (hereinafter, ROPPV), establish the following:
"Article 2°.- PURPOSE AND INTERPRETIVE PRINCIPLES The purpose of this Regulation is the protection of investors in the public securities market through the revelation, in a truthful, sufficient, timely and clear manner, of all information that is relevant to understand the positive and negative implications of the transactions proposed to them, with the purpose of enabling them to adopt free and informed decisions regarding them, and that such revelation is carried out in the most efficient manner. The public market is understood as that in which transactions with securities are carried out from their public offering. Without prejudice to the other applicable principles, the interpretation of the provisions of this Regulation, for the purposes of its application, must be carried out in concordance with the purpose outlined in the previous paragraph". "Article 4° GENERAL RULE (…) Primary and/or sale public offerings of securities are only subject to the prior requirement of registration of the security to be offered and/or registration of the information prospectus to be used in the Registry, as appropriate according to what is established in article 11, delivery of said prospectus to potential investors and, in the cases that correspond, prior risk classification of the securities to be offered. (…)". "Article 6°.- SCOPE OF THE TERM "PUBLIC OFFERING" For the purposes of the application of the general rule contained in article 4º, the text of article 4 of the Law, referred to the public offering of securities, has the scope indicated below:
a) Invitation.- An invitation is considered to be any manifestation of will that is made directly or through third parties, whether it has the character of an invitation to offer, simple offer, unilateral promise or any other that has the object of making or receiving proposals related to what is stated in clause e). b) Adequately disseminated.- The invitation is adequately disseminated when it is directed to its recipients, individually or jointly, simultaneously or successively, through any medium, such as newspapers, magazines, radio, television, mail, meetings,

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document in the framework of Law N° 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship computer systems or any other that allows technology, which is suitable for making its content known to its recipient. The use of the services of stock exchanges or entities in charge of conducting centralized negotiation mechanisms is also included (Underlining ours). c) General public.- The general public is composed of the set of indeterminate persons, national or foreign, who are potential investors in the national territory. d) Segment of the public.- A segment of the public is considered to be the set of determined or undetermined persons who, according to the circumstances, require the protection referred to in Article 2, when their number is such that it involves the public interest. It is considered that such protection is required when, in order to the possibility of access to relevant information by said persons and/or that it is processed by them, they find difficulties in adopting a free and informed decision regarding the invitation made. Without prejudice to what is established in the previous paragraph, for the purposes of its qualification as a segment of the public, it is considered that a set of recipients composed of a number equal to or greater than one hundred (100) persons involves the public interest, and it is presumed, unless proof to the contrary, that said persons require the aforementioned protection. Shareholders or other holders of participation rights in a legal entity are susceptible to being considered a segment of the public under the terms of this clause with respect to invitations made by said legal entity; and, e) Legal act referred to the placement or disposal of securities.- Includes that relative to the creation or alienation of patrimonial rights referred to said securities, including the right or option of subscription or acquisition. Said legal act, whatever its characteristics, must have the nature of an investment act for its subscriber or acquirer. When the rights referred to in clause e) have the condition of securities, the public offering of the same is also considered a public offering of the securities regarding which their rights revolve, and what is established in this Regulation regarding both securities must be complied with. In such a case, a common information prospectus must be registered and used". "Article 11° PROCEDURES APPLICABLE TO PUBLIC OFFERINGS (…) a) Primary Public Offerings.- It is required to previously carry out the procedure of registration of the securities in the Registry. (…)". "FIFTH.- PROHIBITION OF DISTRIBUTION OF SECURITIES WITHOUT INFORMATION The carrying out of acts tending to the distribution of securities among the public or a segment thereof, through a disguised public offering or through the use of the mechanisms provided for in this Regulation or in

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document in the framework of Law N° 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship the Law, in order to avoid the application of the investor protection devices contained in said norms or those that complement them, is prohibited".
21. Likewise, article 3 and Annex I of the Regulation of the Institutional Investors Market, approved by SMV Resolution 021-2013-SMV/01 (hereinafter, INSTITUTIONAL INVESTORS REGULATION), regulate the following:
"Article 3.- Institutional Investors
Institutional investors are persons who, by their nature, characteristics or knowledge, adequately understand, manage and evaluate the risks associated with their investment decisions.
Institutional investors are the natural and legal persons indicated in Annex 14 INSTITUTIONAL INVESTORS".
22. With respect to the securities, object of public offering, the following must be noted;
23. Article 3° of the LMV (today article 3 of the TUO LMV) establishes the following:
"Article 3.- Securities.-

4 ANNEX 1
INSTITUTIONAL INVESTORS
The following persons are institutional investors for all purposes of this Regulation:

Banks, financial institutions and insurance companies and other companies indicated in article 16 of the General Law of the Financial System and the Insurance System and Organic Law of the Superintendency of Banking and Insurance, Law N° 26702 and its modifying norms; intermediation agents; private administrators of pension funds; investment fund management companies; mutual fund management companies and securitization companies.
Foreign entities that carry out activities similar to those indicated in numeral 1 and/or Qualified Institutional Buyers referred to in Rule 144A of the U.S. Securities Act of 1933.
Health Service Providers referred to in the Law for the Modernization of Social Security in Health, Law N° 26790, the Pension Normalization Office – ONP and the Social Health Insurance – Essalud.
Private or public law legal entities that have as one of their activities, according to the legal or conventional provisions that govern them, investment in securities. In the case of non-state legal entities, it will be required that they have a portfolio of investments in securities equal to or greater than one million New Soles (S/. 1,000,000.00).
Funds and autonomous estates managed by the persons indicated in the previous numerals, provided that the investment decision is their responsibility and that the individual net worth of the fund or estate is equal to or greater than four hundred thousand New Soles (S/. 400,000.00).
Natural persons who have a net worth greater than two million New Soles (S/. 2,000,000.00), and a portfolio of investments in securities equal to or greater than one million New Soles (S/. 1,000,000.00).
With respect to the institutional investors detailed in numerals 4, 5 and 6 of this Annex, the verification carried out must be documented at least with the sworn statement signed by said investors, in which they declare: (i) knowledge of the scope of such qualification; and (ii) having such condition. Intermediation agents acting as placement agents must implement and diligently apply procedures, in order for the investors who participate in this market to be exclusively institutional investors. In case that issuers carry out the placement of securities, they must ensure they have the sworn statements referred to in the preceding paragraph. For this purpose, as appropriate, they must keep an internal register of the institutional investors who participate in the placement of said securities.

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendency

SMV
Securities Market Superintendence
Document electronically signed digitally under the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations, and amendments. The integrity of the document and authorship.

Securities are those issued in a massive and freely negotiable manner that confer on their holders credit, ownership, or patrimonial rights, or rights to participate in the capital, equity, or profits of the issuer. (…) Any limitation on the free transferability of securities contained in the bylaws or in the respective issuance contract lacks legal effect.”

Article 5 of the ROPPV states as follows:
“Article 5.- Scope of the term 'securities'.
(…) b) Massive Issuance.- A massive issuance is considered to be that which is carried out simultaneously, or successively within a determined period and as part of the same financial operation or of a similar nature, of a number of securities, homogeneous or not among themselves, such that it makes possible their subsequent distribution to the public or to a segment thereof. The issuance of a number equal to or less than ten (10) securities simultaneously, or successively within a period of one (1) year, does not constitute a massive issuance. The issuance of a number of securities greater than that indicated in the preceding paragraph carries the presumption, unless proof to the contrary regarding what is stated in the first paragraph of this subsection, of having been the subject of a massive issuance. This presumption does not extend to the individual issuance of securities that grant a credit right by companies of the Financial System authorized to capture savings from the public.”
According to Article 1 of the ORGANIC LAW, the SMV has as one of its functions, among others, to supervise compliance with the legislation of the securities market by natural and legal persons participating in said market;

OF THE FACTS OCCURRED
OF THE COMPLAINTS PRESENTED

The COMPLAINANTS 1, 2, and 3 (hereinafter, COMPLAINANTS) filed a complaint against DIVISO SAB stating that they did not receive prior information before their placement or acquisition regarding the characteristics, risks, and other particularities of the securities issued by Esquema Investment S.A. (hereinafter, ESQUEMA INVESTMENT). They cite as an example the fact that they did not know that these securities are not registered in the Public Registry of the Securities Market (hereinafter, RPMV) and that their placement was by private offer;
Likewise, the COMPLAINANTS question the participation of DIVISO SAB as placement agent and as representative of the bondholders regarding the aforementioned securities;
Likewise, the COMPLAINANTS have clarified that they do not qualify as institutional investors, mainly because they do not have sufficient knowledge about the functioning of the securities market;

PRELIMINARY CONSIDERATIONS

DIVISO SAB is a joint-stock company, authorized to function as a stockbroker society by CONASEV Resolution No. 021-2010-EF/94.01.1 of February 9, 2010. Likewise, according to information provided by the stockbroker society, it carries out activities authorized by the SMV, in its offices located at Av. Dionisio Derteano No. 184, Floor 20, San Isidro, with telephone number 512 2460 512 2470, the only address registered in the RPMV;
Additionally, according to information provided by DIVISO SAB5, based on the Regulation on Indirect Ownership, Linkage, and Economic Groups, approved by SMV Resolution No. 019-2015-SMV/01 and its amendments (hereinafter, Economic Group Regulation), the stockbroker society and ESQUEMA INVESTMENT were part of the same economic group called Diviso Financial Group6;

Of the participation of DIVISO SAB

According to the information in the files of the complaints presented by the COMPLAINANTS, which includes the securities issuance contracts, as well as information from a sample of offer notices presented by DIVISO SAB to the SMV7, the stockbroker society acts in the capacity of placement agent and bondholder representative;
Indeed, according to the offer notices of the Fifth Private Program for the Issuance of Short-Term Instruments and Corporate Bonds of ESQUEMA INVESTMENT, as well as the Master Issuance Contract of the Sixth Private Program for the Issuance of Short-Term Instruments and Corporate Bonds of ESQUEMA INVESTMENT, DIVISO SAB is registered as Placement Agent and Representative of the Bondholders;

The issuance programs of ESQUEMA INVESTMENT

According to the information from the issuance contracts, master prospectuses, offer notices, and securities certificates, sent by the COMPLAINANTS and/or DIVISO SAB; as well as the information on primary market operations carried out by DIVISO SAB and the characteristics of the financial instruments traded, which DIVISO SAB reports daily to this Superintendence;
it is observed that the placements of the securities issued under the Fifth Private Program for the Issuance of Short-Term Instruments and Corporate Bonds of ESQUEMA INVESTMENT (hereinafter, FIFTH PROGRAM) and the Sixth Private Program for the Issuance of Short-Term Instruments and Corporate Bonds of ESQUEMA INVESTMENT (hereinafter, SIXTH PROGRAM); hereinafter, collectively referred to as PROGRAMS, were carried out between March 21, 2019, and February 26, 2021;

Of the destination of the captured resources and the guarantees

As indicated in the so-called Master Prospectus of the SIXTH PROGRAM, the destination of the resources captured by the placement of the bonds and short-term instruments issued by ESQUEMA INVESTMENT will be used mainly to substitute liabilities and finance future projects;
Likewise, it is stated that the securities will be generically backed by the equity of ESQUEMA INVESTMENT. However, specific guarantees may be constituted for each issuance or series to be issued, which will be duly informed in the offer notices of the respective series. Thus, in the offer notices sent, it is stated that the specific guarantees will be participation quotas of the ALPHA fund and common shares of Diviso Financial Group S.A.;
From this, it is observed that the return on the bonds and short-term instruments is based on the success of the substitution of liabilities and the future projects of ESQUEMA INVESTMENT, operations that may or may not be complex; as well as the effectiveness of the guarantees. Therefore, each of the risks involved in these investments must be known and with the possibility of being understood by the investors in the bonds and short-term instruments issued and every recipient of the offer of said securities;

OF THE NATURE OF THE OFFER OF THE BONDS AND SHORT-TERM INSTRUMENTS ISSUED BY ESQUEMA INVESTMENT

In principle, it should be noted that said offer, qualified as private in nature, according to the documents sent and the information available to the SMV, is not framed within the circumstances considered by Article 5 of the LMV (now Article 5 of the TUO LMV). Since, considering the characteristics of some of the investors who acquired the securities, said offer is not exclusively directed at institutional investors8 and considering furthermore that the nominal value or unit placement value of the bonds in most cases are lower than the amount referred to in subsection b) of the aforementioned Article 5 of the LMV (now Article 5 of the TUO LMV)9, according to information from a sample of the placements with the nominal value, according to the information in the offer notices and securities certificates, which can be observed in Annex 1 of the CHARGES LETTER, reconciled with the information of all placements, communicated daily by DIVISO SAB, which can be observed in Annex 2 of the CHARGES LETTER;
In that sense, taking into account the foregoing, it is necessary to analyze whether the offer of the bonds and short-term instruments issued by ESQUEMA INVESTMENT falls within the scope of a public offer of securities, according to the provisions established in the Peruvian legal framework, that is, in the LMV and in the relevant regulatory norms that allow delimiting its nature;
Therefore, in order to determine whether the offer of securities in the present case qualifies or not as a public offer of securities, it is necessary to perform an analysis based on the definition of public offer of securities contained in the cited Article 4 of the LMV (now Article 4 of the TUO LMV) and the complementary legislation that develops said concept;
Now, it should be noted that Articles 5 and 6 of the ROPPV develop the various elements that determine the condition of a public offer of securities, contained in the definition of Article 4 of the LMV (now Article 4 of the TUO LMV), so, considering the information obtained in the investigation carried out, we proceed to analyze if the referred bond offer qualifies as a public offer of securities or not, from the development of each of said elements;

Securities that are the subject of a public offer

The issuance of corporate bonds and short-term instruments corresponding to the PROGRAMS has the following characteristics:
a. Each of the issuances of corporate bonds and short-term instruments of the PROGRAMS consists of so-called series of corporate bonds or short-term instruments, to which a certain value (amount) is assigned, different from one another. In each of the so-called series, a quantity of bonds is issued. As can be observed in Annex 1 of the CHARGES LETTER, from a sample of placements, the quantity of bonds per series would be 10. b. In the PROGRAMS, a total of 153 series of corporate bonds or short-term instruments have been issued, 89 series correspond to the FIFTH PROGRAM and 64 series to the SIXTH PROGRAM. The amount placed in the FIFTH PROGRAM is approximately S/ 60 million and USD 8 million; and in the SIXTH PROGRAM is approximately S/ 41 million and USD 5.5 million.
c. The interest rates applicable to the corporate bonds and short-term instruments are defined for each series, that is, different interest rates are assigned for each series to be issued, even for the series that have the same maturity term;
According to the ROPPV, the securities that can be the subject of a public offer are those issued not only simultaneously, but also successively as part of the same financial operation or as part of financial operations of a similar nature, being homogeneous or not among themselves;
Therefore, the corporate bonds and short-term instruments issued by ESQUEMA INVESTMENT, which are not necessarily homogeneous among themselves, since for each series of bonds and short-term instruments issued some characteristics are different from one another, have been issued successively in financial operations of a similar nature, exceeding the issuance, within the period of one year, in a number greater than ten (10) values, with which the requirement of "massive issuance" contemplated in subsection b) of Article 5 of the ROPPV is met;
Additionally, according to what is stated in the respective master issuance contracts, the corporate bonds and short-term instruments issued under the Programs are freely negotiable;
Therefore, the corporate bonds and short-term instruments issued by ESQUEMA INVESTMENT constitute securities susceptible to being the subject of a public offer of securities, as required by Article 5 of the ROPPV;

Adequately Disseminated Invitation

Regarding the means employed in the process of placement of the bonds and short-term instruments issued by ESQUEMA INVESTMENT and according to the information in the files of the complaints, it is observed that the facts presented below are common in the complaints presented by the COMPLAINANTS;
The purchases of the bonds and financial instruments would have been made at the suggestion of DIVISO SAB officials.
They were contacted by a person who identified themselves as Commercial Manager and by Mr. Julio Willis Covarrubias10 (hereinafter, MR. WILLIS) who presented himself as Sales Manager of the South Region of DIVISO SAB. This fact was mentioned by both COMPLAINANT1 and COMPLAINANT2;
In the case of COMPLAINANT2, in addition to the persons indicated, it is stated that they were also contacted by Mrs. Katherine Cortes Lewis11 (hereinafter, MRS. CORTES) from the commercial area of DIVISO SAB and by Mr. Carlos Franco Cuzco12 (hereinafter, MR. FRANCO);
In the case of COMPLAINANT3, it is indicated that they were contacted by MR. WILLIS and by MR. FRANCO, who offered them better profitability for the company's funds (rate of 7% for investments of 3 to 6 months);
They were informed that the investments would be made in companies listed on the stock exchange, so they thought that ESQUEMA INVESTMENT was listed on the stock exchange;
On June 8, 2020, at 12:12 hours, Mrs. CORTES sends an email to COMPLAINANT1 containing a quotation of short-term instruments at 180 days issued by ESQUEMA INVESTMENT where she states: "(…) to confirm the operation it was closed under the following conditions according to indications from my Management maintaining the rate of 7.5% ESQUEMA BOND at 180 days. I await your instructions to draft the purchase order";
On December 3, 2020, at 17:13 hours, Mrs. CORTES sends an email to COMPLAINANT1 containing a proposal for the renewal of short-term instruments at 180 days issued by ESQUEMA INVESTMENT where she states: "(…) The proposal is for 180 days joining the 2 capitals and granting a rate of 5.5%. Payment at the end of the operation. (…)";
According to what is stated by COMPLAINANT1, COMPLAINANT2, and COMPLAINANT3 in their complaints13, it should be noted that according to Article 6, subsection a) of the ROPPV, the invitation referred to in Article 4 of the LMV (now Article 4 of the TUO LMV) is any manifestation of will that has the purpose of an invitation to offer, simple offer, or another that has the object of making or receiving proposals related to an investment act. Which can be carried out either directly or through third parties;
Therefore, according to the aforementioned norm, any manifestation of will or offer that has the purpose of making or receiving any proposal that is linked to an investment act, that is, that has the object of carrying out legal acts either of placement or disposal of securities, constitutes an invitation within the scope established in Article 4 of the LMV (now Article 4 of the TUO LMV) and Article 6 of the ROPPV;
Thus, considering that DIVISO SAB is the placement agent of the bonds and short-term instruments issued by ESQUEMA INVESTMENT, the offering of said investment alternative by DIVISO SAB to the COMPLAINANTS constitutes an invitation in the terms established in the provisions mentioned above. This is because said offers necessarily have the purpose of receiving investment proposals and they end up materializing in legal acts of placement of said securities;
Likewise, taking into account what is stated in the previous consideration, it is valid to conclude that the invitations made by DIVISO SAB were adequately disseminated. This is to the extent that the invitations were directed to their recipients, either individually or not, simultaneously or successively, by means that proved suitable to make these invitations known to their recipients, thus complying with what is provided in Article 6, subsection b) of the ROPPV;
Additionally, this premise is reinforced considering that the cited norm considers meetings as a suitable means, even if they are individual. This is why the meetings mentioned with the officials of DIVISO SAB with the representatives of the legal persons complained against also result in a suitable means to make said offer known;
It should be indicated that after the entirety of the complaints was transferred to DIVISO SAB, said company did not issue any comment regarding the complained facts, limiting itself to presenting the documentation required by the SMV;

Directed to the General Public or to Certain Segments Thereof

As noted, in the PROGRAMS, a total of 153 series of corporate bonds or short-term instruments have been issued, 89 series correspond to the FIFTH PROGRAM and 64 series to the SIXTH PROGRAM. Each series was placed with one investor and the total number of investors who bought these series amounts to 81, of which 64 are natural persons and 17 are legal persons;
Article 6, subsection d) of the ROPPV defines the segment of the public as the set of persons, determined or not, who, according to the circumstances, require the protection referred to in Article 2 of the cited regulation, when their number is such that it involves public interest. Likewise, it establishes that such protection is required when, in order to the possibility of access to relevant information by said persons and/or that it be processed by them, they find difficulties in adopting a free and informed decision regarding the invitation made;
In that sense, it is important to keep in mind what is stated in Article 2 of the ROPPV, that is, the need for protection of investors, which constitutes an indispensable condition to attribute to a certain offer of securities, the character of public;
In this way, considering what is established in the aforementioned article, to determine the need for protection it is necessary that

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conclude that due to the characteristics of the recipients of the offer, it is required that they have all the information demanded in a public offer, in order that, by accessing it alone, they can make a duly informed decision about it, based on equal treatment, which guarantees among other things, the same conditions;

With regard to this criterion, it should initially be
stated that, considering the information provided by some buyers of the bonds and/or short-term instruments issued by ESQUEMA INVESTMENT, in the complaints filed with the SMV, as well as the information that has been gathered, the following investors would require the protection referred to in Article 2 of the ROPPV;

COMPLAINANT 1

It is a non-profit civil association, whose legal framework is the laws of the Catholic Church and the norms of Canon Law, the constitutions of the Dominican Order and the ordinances of the Master of the Order, with headquarters in Rome, whose primary purpose is the implantation of the Catholic faith in all peoples and human groups and its extended purposes are those required by the evangelization of the culture of the Peruvian people, not having investment in securities as one of its activities; this according to what is recorded in the Register of Legal Entities of the Registry Office of Lima and Callao;
Likewise, according to information from the Accounting Register of CAVALI S.A. ICLV, before the purchase of the securities issued by ESQUEMA INVESTMENT, carried out on July 23, 2020, it was the owner of securities of a company, acquired with the intermediation of DIVISO SAB, valued at S/ 707,700.00;

COMPLAINANT 2

It is a non-profit civil association, whose purposes are to contribute to the education of mass social groups and to the integral human promotion of man, using communication media such as radio, television, the written press, cinema or any other means of social communication, among others, not having investment in securities as one of its activities; this according to what is recorded in the Register of Legal Entities of the Registry Office of Quillabamba in the Registry Zone No. X, headquarters Cusco;
Likewise, according to information from the Accounting Register of CAVALI S.A. ICLV, before the purchase of the securities issued by ESQUEMA INVESTMENT, carried out on December 6, 2019, it was not the owner of any securities;

COMPLAINANT 3

It is a joint-stock company whose corporate purpose is to commercialize vehicles of different brands, as well as spare parts, accessories, auto parts and other supplies of the same, as well as providing repair and maintenance services for vehicles of various brands and commercializing related and complementary products of various brands as long as they do not constitute competition to its products; not having investment in securities as one of its activities; this according to what is recorded in the Register of Legal Entities of the Registry Office of Cusco;

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Likewise, according to information from the Accounting Register of CAVALI S.A. ICLV, before the purchase of the securities issued by ESQUEMA INVESTMENT, carried out on May 15, 2020, it was not the owner of any securities;
Additionally, it should be noted that in the intermediation contract of May 15, 202014, signed between COMPLAINANT 3 and Diviso SAB, this client declared that he had not invested in securities before;

COMPANY 1

It is a closed joint-stock company whose corporate purpose is the commercialization, representation, distribution, repair and maintenance of large and small motor vehicles; land, air, sea and cargo transport services, among others; not having investment in securities as one of its activities; According to what is recorded in the Register of Legal Entities of the Registry Office of Tarapoto;
Likewise, before the purchase of the short-term instruments issued by ESQUEMA INVESTMENT, carried out on May 14, 2020, it was not the owner of any securities; according to the information from the Accounting Register of CAVALI S.A. ICLV;

Natural Persons

For its part, the following natural person clients, before making the purchase of the securities issued by ESQUEMA INVESTMENT on the dates indicated in the following table, according to information from the Accounting Register of CAVALI S.A. ICLV, were not owners of any securities:

NO. DATE OPERATION RUT CODE CLIENT NAME
1 05/11/2019 01306745 CLIENT 1
2 05/12/2019 01332798 CLIENT 2
3 18/08/2020 01338050 CLIENT 3
4 11/09/2020 01297680 CLIENT 4
5 24/11/2020 00259815 CLIENT 5
6 04/12/2020 00335984 CLIENT 6
7 17/02/2021 00668046 CLIENT 7
8 23/02/2021 01340903 CLIENT 8

Likewise, CLIENT 9, before making the purchase of the securities issued by ESQUEMA INVESTMENT on January 5, 2021, was the owner of securities issued by more than one company, valued at S/ 38,918.35; according to the information from the Accounting Register of CAVALI S.A. ICLV;
On the other hand, without prejudice to what has been stated, the presumption of the need for investor protection, contained in the second paragraph of said letter d) of Article 6 of the ROPPV, must be taken into account, by which it is considered that, for the purposes of its qualification as a segment of the public, a set of recipients composed of a number equal to or greater than one hundred (100) people involves public interest;

14 Sent by DIVISO SAB in File No. 2024036651.

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It should be clarified that this does not mean at all that an offer directed to fewer than one hundred (100) people does not involve public interest, since, that case could also involve public interest, as long as all or part of the recipients of the offer require the protection of the State and it concerns securities, homogeneous or not, issued massively (more than 10 in a year);
In this sense, taking into account the information obtained regarding the profile of thirteen (13) investors of the securities issued by ESQUEMA INVESTMENT under the PROGRAMS, it can be concluded that said investors of the securities issued by ESQUEMA INVESTMENT require the protection referred to in Article 2 of the ROPPV. It must also be considered that there is no certainty about the scope of the information provided to them, without prejudice to having had to provide it through the Public Registry of the Securities Market; and even if adequate information had been provided to them, the profile of said investors might not have allowed them to clearly understand the implications of their investment;
In this way, they would need to have access to all the necessary information so that, by accessing it alone, they can make duly informed decisions or can correct some situation of difficulty in processing said information, as established in Article 6, letter d) of the ROPPV;
Therefore, considering what has been stated above, in observance of letter d) of Article 6 of the ROPPV, the number of investors in the corporate bonds and short-term instruments issued by ESQUEMA INVESTMENT, as well as the fact that said investors and potential investors in said values would require the protection referred to in Article 2 of the ROPPV, the adequately disseminated invitation mentioned above would have been directed to a segment of the public that required protection and whose number involved public interest;

Legal Act referred to the placement or disposal of securities

With regard to this last criterion, Article 6°, letter e) of the ROPPV, in conjunction with Article 4 of the LMV (now Article 4 of the TUO LMV), provides that the invitation of the offer must deal with a legal act relating to the placement of securities, which must have the nature of an investment act, whatever its characteristics may be. In this sense, it can be a sales contract, loan, exchange; that is, it can be any act by which a person disposes of part of its assets with the objective of receiving a return;
In the case under analysis, the acquisition of the bonds and short-term instruments by the investors was carried out based on a cash disbursement in favor of ESQUEMA INVESTMENT, with the purpose of obtaining a return on said investment, considering the applicable interest rates. This makes evident the act of investment carried out by the investors, since it would be a placement of securities;
Taking this into account, in the issuance of the bonds and short-term instruments by ESQUEMA INVESTMENT, this requirement was indeed met, since these persons carried out an act of investment with the acquisition of such securities;

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Likewise, the facts described and carried out by
ESQUEMA INVESTMENT constitute continued infractions that would have started from March 21, 2019 continuing even until February 26, 2021, which would constitute the non-observance of Article 49 of the LMV (now Article 51 of the TUO LMV);
For the reasons stated, in the present case, there are
sufficient indications that would allow concluding that the offer of the bonds and short-term instruments issued by ESQUEMA INVESTMENT meets all the elements that configure a public offer of securities;

I. FIRST CHARGE: CARRY OUT OPERATIONS OR ACTIVITIES PROHIBITED BY THE
REGULATIONS BY DIVISO SAB
OF THE APPLICABLE REGULATIONS

Articles 87, 194 and 195 of the LMV (now articles
92, 190 and 191 of the TUO LMV, respectively) provide as follows:

“Article 87°.- REPRESENTATIVE OF THE BONDHOLDERS Any issuance of bonds, including financial leasing bonds, requires the designation of the representative of the bondholders, except when the issuances are directed to institutional investors under the conditions established by the SMV. Any natural or legal person who meets the requirements established by the SMV through a norm of a general nature may be designated as representative of the bondholders. In any case, the issuer, the structuring entity, or the persons with whom they have a link, according to the norms approved by the SMV, cannot be designated as representative of the bondholders.”

“Article 194°.- OPERATIONS
Brokerage societies are authorized to carry out the following operations:
(…) c) Place in the national or international market, securities with or without total or partial guarantee of their placement, within the deadlines and subject to the conditions agreed; (…).”

“Article 195°.- PROHIBITIONS
Brokerage societies are subject to the following prohibitions, without prejudice to those contemplated in Article 177 and the others emanating from this law:
(…) j) Intervene in unauthorized operations.”

Article 46 of the RAI establishes the following:

“Article 46.- Markets in which the Intermediation activity is developed Agents can develop the intermediation activity, on their own account or for third parties, of Financial Instruments in any of the markets detailed below:

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a) Primary Market.- In this market, Agents can act as placers of Financial Instruments that are issued only by legal entities.
The Agent, prior to its participation as a placer in this market, must determine jointly with the issuer, if the placement of Financial Instruments, due to its characteristics or conditions, constitutes a public offer. In public offers, the Agent must observe the provisions established in the Law, and in the specific norms that regulate such offers. The participation of the Agent, in the placement of Financial Instruments, must be formalized in express contracts with the issuer, which will include the terms and conditions corresponding to the services that the Agent will provide. Likewise, observing the provisions of the current regulatory framework, Agents can acquire, on their own account or for third parties, Financial Instruments that are offered through a public or private offer, in the local or foreign market.” (Underline added)

OF THE FACTS:
1. Carry out the placement of securities without observing the provisions established
in the regulations regarding public offers

88. Regarding this, in accordance with Article 194 of the LMV (now
Article 190 of the TUO LMV), brokerage societies are authorized
to carry out securities placement operations in the national and foreign markets;

89. Now, in the development of this intermediation activity, Article 46, letter a), second paragraph of the RAI, establishes that the intermediation agent, prior to its participation as a placer in the primary market, must determine jointly with the issuer, if the placement of financial instruments, due to its characteristics or conditions, constitutes a public offer;

90. Thus, DIVISO SAB, prior to its participation as a placing agent, had to determine jointly with ESQUEMA INVESTMENT15, if the placement of the aforementioned bonds and financial instruments constituted a public offer;

91. As stated in the Framework Contract for Private Offer Issuance of the Sixth Private Program for the Issuance of Short-Term Instruments and Corporate Bonds of ESQUEMA INVESTMENT, it was celebrated between ESQUEMA INVESTMENT in the capacity of issuer; and DIVISO SAB in the capacity of Representative of the Bondholders and placing agent, in which the terms and conditions of the issuance of the bonds and short-term instruments mentioned above are detailed;

92. One of these conditions is the type of offer, and states that it is a private offer; however, there is no mention that it will be directed exclusively to institutional investors, as referred to in Article 5, letter a) of the LMV (now Article 5, letter a) of the TUO LMV);

93. Likewise, it must be considered that in the offer notices, the nominal value or unit placement value of the instruments

15 Article 8°.- TERMS, letter g) of the LMV:
“Issuer: The private or public law person that issues securities.”
.

PERU Ministry of Economy and Finance

financial instruments, which, for the most part, do not exceed the amount established in Article 5, letter b) of the LMV (now Article 5, letter b) of the TUO LMV), considering even the corresponding update; that for the year 2020 the updated value amounted to S/ 499,330.38 and for 2021 S/ 507,118.58;

For example, in the “Private Offer Notice” of the “First Issuance of Short-Term Instruments of the Sixth Private Program for the Issuance of Short-Term Instruments and Corporate Bonds of Esquema Investment S.A.”, Series S, it states that the nominal value of the short-term instruments to be issued will have a value of US$ 10,000.00 (Ten Thousand and 00/100 American Dollars);
Likewise, in the “Private Offer Notice” of the “First Issuance of Short-Term Instruments of the Sixth Private Program for the Issuance of Short-Term Instruments and Corporate Bonds of Esquema Investment S.A.”, Series N, it states that the nominal value of the corporate bonds to be issued will have a value of S/ 20,000.00 (Twenty Thousand and 00/100 American Dollars);
Additionally, during the placement process,
DIVISO SAB had knowledge of the characteristics of the investors to whom the offer of the bonds and corporate instruments issued by ESQUEMA INVESTMENT was directed;
In this sense, prior to its intervention as a placer, DIVISO SAB would have had knowledge of the characteristics and conditions of the issuance of the bonds and short-term instruments issued by ESQUEMA INVESTMENT and, then, during the placement process, it had knowledge of the investors to whom the offer of the bonds was directed;
Thus, DIVISO SAB previously to its participation as a placer and during the placement process, could and should have determined, that the placement of the bonds and short-term instruments issued by ESQUEMA INVESTMENT constituted public offers of securities, taking into account the definition of public offer established in Article 416 of the LMV (now Article 4 of the TUO LMV); considering, in addition, its duty of diligence established in Article 16-A of the LMV (now Article 17 of the TUO LMV) and Article 3, letter b) of the RAI;
Consequently, taking into account that from the result of the analysis carried out in this resolution, it has been determined the existence of indications that the offer of the bonds and short-term instruments issued by ESQUEMA INVESTMENT would have a public nature, DIVISO SAB should have observed the provisions established in the LMV and in the specific norms that regulate the public offer of securities, among which it is required that the securities, object of the public offer, be previously registered in the RPMV. It should be mentioned that, in accordance with Article 195 letter j) of the LMV (now Article 191, letter j)
of the TUO LMV), brokerage societies are prohibited from participating in unauthorized operations;
Therefore, DIVISO SAB participated in the placement
of the bonds and short-term instruments issued by ESQUEMA INVESTMENT, so it would not have complied with observing the provisions established in the regulations

16 Article 4.- Public Offer.- It is a public offer of securities the invitation, adequately disseminated, that one or more natural or legal persons direct to the general public, or to certain segments of it, to carry out any legal act referred to the placement, acquisition or disposal of securities.

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Securities Market
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Electronally signed document within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship

applicable, that is, Article 46, letter a), second paragraph of the RAI; Articles 4, 5, letters a) and b)17 and 195, letter j) of the LMV (now Articles 4, 5, letters a) and b), and 191, letter j) of the TUO LMV);

2. Assume the role of Representative of the Bondholders of the bonds issued
by ESQUEMA INVESTMENT, without observing the provisions established in the regulations

101. According to the Framework Contract for Private Offer Issuance of the Sixth Private Program for the Issuance of Short-Term Instruments and Corporate Bonds of ESQUEMA INVESTMENT, in the issuance of the bonds issued by ESQUEMA INVESTMENT, DIVISO SAB participates not only in the capacity of placing agent, but also as Representative of the Bondholders;

102. Regarding this, taking into account Articles 1 and 87,
second paragraph, of the LMV (now Articles 1 and 92 of the TUO LMV), it establishes that in a public offer of securities, the issuer, the structuring entity, or the persons with whom they have a link, according to the norms approved by the SMV, cannot be designated as representative of the bondholders;

103. In this sense, considering that the Economic Group Regulation, Article 5, numeral 5.2.4, establishes that Related Parties are the entities that form part of the same economic group, DIVISO SAB, by being part of the same economic group as ESQUEMA INVESTMENT, economic group called Diviso Financial Group, in the period of scope of the placement of the bonds issued by ESQUEMA INVESTMENT, would be impeded from participating as Representative of Bondholders in the issuance of said bonds;

104. Therefore, taking into account that, from the result of the analysis carried out previously, it has been determined the existence of indications that the offer of the bonds issued by ESQUEMA INVESTMENT would have a public nature, DIVISO SAB would have failed to comply with what is established in Article 87 of the LMV (now Article 92 of the TUO LMV), by participating as Representative of Bondholders in the issuance of the bonds issued by ESQUEMA INVESTMENT;

DEFENSE PRESENTED
The imputation is referred only to the SIXTH PROGRAM

In its defense, DIVISO SAB states the following:
“The imputation of the first charge is referred only to the placements of the SIXTH PROGRAM, any possible infringement by placements of the FIFTH PROGRAM has prescribed.”
DIVISO SAB cites numeral 3 of Article 252 of the TUO LPAG, which states the following:

17 Article 5. Private Offer.- It is private the offer of securities not included in the previous article. Without prejudice to this, the following private offers are considered:
a) The offer directed exclusively to institutional investors. The securities acquired by these investors cannot be transferred to third parties, unless they do so to another institutional investor or the security is previously registered in the Public Registry of the Securities Market; b) The offer of securities whose lowest nominal value or unit placement value is equal to or greater than two hundred fifty thousand new soles (S/. 250,000.00). In this case, the securities cannot be transferred by the original acquirer to third parties with nominal values or placement prices lower than; ,and (…)

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría «Article 252. Characteristics of the sanctioning procedure
252.1 For the exercise of the sanctioning power, it is mandatory to have followed the legal or regulatory procedure established, characterized by: (...)
3. Notify the regulated parties of the facts imputed to them as charges, the qualification of the infractions that such facts may constitute, and the expression of the sanctions that may be imposed on them, as well as the competent authority to impose the sanction and the norm that attributes such competence. (...)» (Underlining added)
107. DIVISO SAB refers to the fact that, as stated, “doctrine has established a series of requirements that, at a minimum, the notification of charges must contain in order to be considered lawful and suitable for the regulated party to exercise their right of defense. These requirements are the following:
1. Precision: The notification of charges must record the facts subject to imputation, the qualification of the infractions committed, the possible sanctions to be imposed, the competent authority to impose them, and the norm that grants the sanctioning power to said administrative body. These elements must be recorded precisely in the notification act without it being necessary to deduce or interpret them.
2. Clarity: The act of notification of charges must avoid ambiguities and inform in a simple manner of the imputed facts and the qualification that the administrative authority makes of the unlawful scenarios, thus allowing the regulated party to fully understand the denounced unlawful acts.
3. Immutability: The charges determined in the notification cannot be varied by the authority by virtue of the doctrine of own acts.
4. Sufficiency: The notification of charges must contain all the necessary information that supports the charges imputed to the regulated party, such as reports or other documents, so that they are allowed to exercise their right of defense regarding all the information involved.
(...)
The notification constitutes a transcendental element of a regular procedure. Non-observance of its requirements entails that the administrative act does not produce legal effects; likewise, as it has not been known by the regulated party, said act generates indefensiveness for them and constitutes a violation of their rights”18. (Highlights are added).
108. DIVISO SAB indicates, regarding the facts subject to the imputation of the first charge in the CHARGE OFFICE, the following is stated textually:
“As stated in the Master Contract for the Private Offer of the sixth program Private Issuance of Short-Term Instruments and Corporate Bonds of ESQUEMA INVESTMENT, it was celebrated between ESQUEMA INVESTMENT in

18 Ministry of Justice and Human Rights. Practical guide on the administrative sanctioning procedure. Second edition, Lima, 2017, p. 38-39

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría quality of issuer; and DIVISO SAB in quality of Representative of the Bondholders and placement agent, in which the terms and conditions of the issuance of the bonds and short-term instruments mentioned above are detailed”19. “For example, in the ‘Private Offer Notice’ of the ‘First Issuance of Short-Term Instruments of the sixth program Private Issuance of Short-Term Instruments and Corporate Bonds of Esquema Investment S.A.’, Series S, it is stated that the nominal value of the short-term instruments to be issued will have a value of US$ 10,000.00 (Ten Thousand and 00/100 American Dollars)”20. “Also in the ‘Private Offer Notice’ of the ‘First Issuance of Short-Term Instruments of the sixth program Private Issuance of Short-Term Instruments and Corporate Bonds of Esquema Investment S.A.’, Series N, it is stated that the nominal value of the corporate bonds to be issued will have a value of S/ 20,000.00 (Twenty Thousand and 00/100 American Dollars)”21. “According to the Master Contract for the Private Offer of the sixth program Private Issuance of Short-Term Instruments and Corporate Bonds of ESQUEMA INVESTMENT, in the issuance of the bonds issued by ESQUEMA INVESTMENT, DIVISO SAB participates not only in the quality of placement agent, but also as Representative of the Bondholders” 22.
109. DIVISO SAB considers that the facts subject to the imputation of the first charge to the SAB through the CHARGE OFFICE are referred only to its participation in the Sixth Program and not with respect to the Fifth Program. Therefore, considering the requirements of precision and clarity that the CHARGE OFFICE must contain, it will focus on presenting its defenses only regarding the participation of DIVISO SAB in relation to the complainants linked to the Sixth Program (COMPLAINANT1 and COMPLAINANT3);
110. Additionally, DIVISO SAB indicates that it must be taken into account that the placements carried out under the Fifth Program were carried out until August 28, 2020, so that any possible infringement that had been committed under said program by the date of imputation of charges had prescribed having elapsed more than 4 years, according to what is established in article 42 of the SANCTIONS REGULATION approved by SMV Resolution No. 035-2018-SMV/01 and its modifications (hereinafter, SANCTIONS REGULATION );
111. Without prejudice to the above, DIVISO SAB indicates that the SMV states:
“...the facts described and carried out by ESQUEMA INVESTMENT constitute continuous infringements that would have started from March 21, 2019, continuing even until February 26, 2021, which would constitute the non-observance of article 49 of the LMV (now article 51 of the TUO LMV)”
112. However, throughout the CHARGE OFFICE, DIVISO SAB clarifies that this assertion is not supported with respect to it. In

19 Page 19. 20 Pages 19-20. 21 Page 20. 22 Page 21.

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SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría consequence, the facts subject to analysis are limited to the SIXTH PROGRAM, as has been demonstrated; Evaluation of defenses
113. In its defenses, DIVISO SAB considers that the imputation formulated has only been limited to the SIXTH PROGRAM given that the references made in the paragraphs cited by the CHARGE OFFICE only mention said program, so it considers that any imputation on the FIFTH PROGRAM has prescribed;
114. On this particular matter, it must be indicated that DIVISO SAB supports its defenses on only one part of the information contained in the CHARGE OFFICE, however, it has not taken into account that the facts constituting the infringement represent a continuous infringement based precisely on all the information contained in said office and where it mentions not only the SIXTH PROGRAM but also the FIFTH PROGRAM;
115. It should be specified that, in the CHARGE OFFICE, in the section referred to to securities that are subject to public offer, it states the characteristics of the issuance of corporate bonds and short-term instruments corresponding to the PROGRAMS, that is to the FIFTH PROGRAM and to the SIXTH PROGRAM. Then, in that section it is also stated that the corporate bonds and short-term instruments issued by ESQUEMA INVESTMENT, which are not necessarily homogeneous with each other, since for each series of bonds and short-term instruments issued the characteristics are different from one another, have been issued successively in financial operations of a similar nature;
116. Likewise, as DIVISO SAB points out, in the CHARGE OFFICE it is mentioned that the facts described and carried out by ESQUEMA INVESTMENT constitute continuous infringements that would have started from March 21, 2019, continuing even until February 26, 2021;
117. Likewise, considering that the acts carried out by DIVISO SAB refer to the placements carried out of the values issued by ESQUEMA INVESTMENT, as well as to being Representative of the Bondholders of these issuances, it is clear that the conduct of DIVISO SAB is a continuous infringement from the start of the placement of the FIFTH PROGRAM until the end of the placement of the SIXTH PROGRAM;
118. In effect, it must be manifested that the illegal conduct of DIVISO SAB consisted of a plurality of actions that infringed the LMV and the RAI as part of a plan to place financial instruments of its affiliate knowing that they should have been issued by private offer and all with the presumed and sole objective of granting liquidity to its affiliate, in this case, ESQUEMA INVESTMENT;
119. The above is supported by the following:
a. DIVISO SAB, in its capacity as Placer and as Representative of the Bondholders, both in the FIFTH PROGRAM and in the SIXTH PROGRAM, carried out several homogeneous acts among themselves: i) place the values of ESQUEMA INVESTMENT and ii) exercise the function of representative of the bondholders of the values issued in said programs. b. The imputed infractions were carried out by the same subject, in this case DIVISO SAB.

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Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría
c. The action of DIVISO SAB in the imputed facts had as presumed and sole objective to place successively series of corporate bonds and short-term instruments to capture funds from investors and grant liquidity to its affiliate to substitute liabilities and finance future projects, in this case, ESQUEMA INVESTMENT.
d. The participation of DIVISO SAB in each of the facts that form part of the imputed infringements infringed the same norm of the LMV and of the RAI, as detailed in the CHARGE OFFICE. e. The participation of DIVISO SAB in the imputed facts was carried out between March 21, 2019, and February 26, 2021. As mentioned in the CHARGE OFFICE, in the PROGRAMS a total of 153 series of corporate bonds or short-term instruments have been issued, 89 series correspond to the FIFTH PROGRAM and 64 series, to the SIXTH PROGRAM. It should be added that the series of the FIFTH PROGRAM were placed by DIVISO SAB between March 21, 2019, and August 28, 2020, as shown in Annex 2 of the CHARGE OFFICE, and the series of the SIXTH PROGRAM were placed by DIVISO SAB from July 23, 2020, to February 26, 2021, as can also be observed in Annex 2 of the CHARGE OFFICE f. The participation of DIVISO SAB in the imputed facts constitute intentional acts since it knew that the investors to whom the values were offered were not institutional investors; that the nominal value of the questioned values are mostly lower than the amount referred to in letter b) of article 5 of the LMV, among other facts;
120. Regarding the fact that the CHARGE OFFICE only makes reference to the FIFTH PROGRAM, we must indicate that this is not correct since it mentions both the FIFTH PROGRAM and the SIXTH PROGRAM and both programs as “PROGRAMS”, as cited textually below:
“Of the Participation of DIVISO SAB
According to the information on file in the complaints presented by the COMPLAINANTS, which includes the issuance contracts of securities, as well as the information of a sample of offer notices presented by DIVISO SAB to this Superintendency5, the agent society acts in the quality of placement agent and of representative of bondholders. In effect, according to the offer notices of the Fifth Program Private Issuance of Short-Term Instruments and Corporate Bonds of ESQUEMA INVESTMENT, as well as to the Master Issuance Contract of the Sixth Program Private Issuance of Short-Term Instruments and Corporate Bonds of ESQUEMA INVESTMENT, DIVISO SAB is registered as Placement Agent and Representative of the Bondholders. The issuance programs of ESQUEMA INVESTMENT According to the information of the issuance contracts, master prospectuses, offer notices and value certificates, sent by the COMPLAINANTS and/or DIVISO SAB; as well as the information of the operations in the primary market carried out by DIVISO SAB and the characteristics of the financial instruments negotiated, which DIVISO SAB transmits daily to this Superintendency; it is observed that the placements of the values emitted under the Fifth Program Private Issuance of

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría Short-Term Instruments and Corporate Bonds of ESQUEMA INVESTMENT (hereinafter, FIFTH PROGRAM) and Sixth Program Private Issuance of Short-Term Instruments and Corporate Bonds of ESQUEMA INVESTMENT (hereinafter, SIXTH PROGRAM); hereinafter, collectively referred to as PROGRAMS, were carried out between March 21, 2019, and February 26, 2021. (...) Securities that are subject to public offer The issuance of corporate bonds and short-term instruments corresponding to the PROGRAMS have the following characteristics:
x Each of the issuances of corporate bonds and short-term instruments of the PROGRAMS consists of series of corporate bonds or short-term instruments, to which a certain value (amount) is assigned, different from one another. In each of the series a quantity of bonds is issued. As can be observed in Annex 1, of a sample of placements, the quantity of bonds per series would be 10. x In the PROGRAMS a total of 153 series of corporate bonds or short-term instruments have been issued, 89 series correspond to the FIFTH PROGRAM and 64 series, to the SIXTH PROGRAM. The amount placed in the FIFTH PROGRAM is approximately S/ 60 million and USD 8 million; and in the SIXTH PROGRAM it is approximately S/ 41 million and USD 5.5 million. (...) Directed to the General Public or to certain segments of it As stated, in the PROGRAMS a total of 153 series of corporate bonds or short-term instruments have been issued, 89 series correspond to the FIFTH PROGRAM and 64 series, to the SIXTH PROGRAM. Each series was placed to one investor and the total number of investors who bought these series amounts to 81, of which 64 are natural persons and 17 are legal persons. (...) In this sense, taking into account the information obtained regarding the profile of thirteen (13) investors of the securities issued by ESQUEMA INVESTMENT under the PROGRAMS, it can be concluded that said investors of the securities issued by ESQUEMA INVESTMENT require the protection referred to in article 2 of the ROPPV. It must also be considered that there is no certainty about the scope of the information provided to them; and even if adequate information had been provided to them, the profile of said investors might not have allowed them to clearly understand the implications of their investment.” (Added highlights)
121. Likewise, in the CHARGE OFFICE it was mentioned in the text itself and in Annexes 1 and 223 that the observed values refer to the FIFTH PROGRAM and SIXTH PROGRAM, as cited textually below:
“OF THE NATURE OF THE OFFER OF THE BONDS AND OF THE SHORT-TERM INSTRUMENTS ISSUED BY ESQUEMA INVESTMENT

23 Only part of Annexes 1 and 2 of the CHARGE OFFICE is cited, the complete text is found at the end of the cited office

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría In principle, it must be stated that said offer qualified as private in nature, according to the documents sent and the information obtained in our systems, is not framed within the scenarios considered by article 5 of the LMV (now article 5 of the TUO LMV). Given that, considering the characteristics of some of the investors who acquired the values, said offer is not directed exclusively to institutional investors6 and considering additionally that the nominal value or unit placement value of the bonds are mostly lower than the amount referred to in letter b) of said article 5 of the LMV (now article 5 of the TUO LMV)7, according to information of a sample of the placements with the nominal value, according to the information of the offer notices and value certificates, which can be observed in Annex 1, reconciled with the information of all the placements, communicated daily by DIVISO SAB, which can be observed in Annex 2. (...)
ANNEX 1
Date Value Cur. Qty. values N.V. Amount
Nominal IF Progr. Issuance Series Term
(days)
Nominal interest rate annual
5/9/19 ESQUE5PX USD 10 10,000 100,000 BC 5 Unique X 731 5.75% 6/12/19 ESQUE5PAM S/ 10 30,000 300,000 BC 5 Unique AM 730 8.00% 13/3/20 ESQUE5PBC USD 10 15,000 150,000 BC 5 Unique BC 730 7.50% 30/4/20 ESQUE5PBÑ USD 10 10,000 100,000 BC 5 Unique BÑ 370 5.00% 30/4/20 ESQUE5PBN USD 10 15,000 150,000 ICP 5 Unique BN 365 5.75% 15/5/20 ESQUE5PBT S/ 10 400,000 4,000,000 ICP 5 Unique BT 120 5.75% 23/7/20 ESQUE6P1EC USD 10 46,430.18 464,302 ICP 6 First D 103 7.00% (...)
ANNEX 2
Date
Op.
Code
Client Name Principal Program Code Value Currency Gross Amount 21/03/2019 01321887 DURAND MIRANDA, MARIA DEL CARMEN 5 ESQUE5PA SOLES 607,725.00 28/03/2019 01308668 O'DONNELL PADRON, LEOPOLDO FRANCISCO 5 ESQUE5PB DOLLARS 188,090.00 3/04/2019 01308669 FLOREZ BROU DE VICH, MARIA JOSEFINA 5 ESQUE5PC SOLES 600,000.00 17/04/2019 00424909 O'DONNELL PADRON, PEDRO ANDRES 5 ESQUE5PD DOLLARS 190,000.00 26/04/2019 00694070 BURGA SALDAÑA, WALTER 5 ESQUE5PE DOLLARS 200,000.00 6/05/2019 00431396 HERMOZA MUÑIZ, RUBEN EDUARDO 5 ESQUE5PF DOLLARS 500,000.00 DURAND MIRANDA, 21/03/2019 01321887 5 ESQUE5PA SOLES 607,725.00 MARIA DEL CARMEN O'DONNELL PADRON, 28/03/2019 01308668 5 ESQUE5PB DOLLARS 188,090.00 LEOPOLDO FRANCISCO FLOREZ BROU DE VICH, 3/04/2019 01308669 5 ESQUE5PC SOLES 600,000.00 MARIA JOSEFINA O'DONNELL PADRON, 17/04/2019 00424909 5 ESQUE5PD DOLLARS 190,000.00 PEDRO ANDRES BURGA SALDAÑA, 26/04/2019 00694070 5 ESQUE5PE DOLLARS 200,000.00 WALTER HERMOZA MUÑIZ, RUBEN 6/05/2019 00431396 5 ESQUE5PF DOLLARS 500,000.00 EDUARDO

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría (...)” (Added highlight)
122. For the above, having been proven that the facts imputed as charges are continuous infringements that have started from March 21, 2019, continuing even until February 26, 2021, the prescription alleged by DIVISO SAB is not evidenced, so such defense argument has been disproven;
DEFENSE PRESENTED
The DJ as an identifier element of an institutional investor
123. As part of its defenses DIVISO SAB cites that in the US experience the exception of registration before the securities authority for a private placement is regulated in Section 4(2) of the Securities Act, exempting from registration transactions of an issuer that do not involve a public offer;
124. DIVISO SAB states that the application of this exception has been the subject of interpretation by the Supreme Court of Justice in the case “Securities Exchange Commission v. Ralston Purina Co”, in which the Court established that to determine the application of the exception it should be examined if the class of affected persons need the protection of the Securities Act and it was required that the recipients of the offer have had access to information similar to that contained in a registration report. The foundation of the exception lies in the fact that registration is not necessary when investors have the adequate sophistication and information to protect themselves;
125. DIVISO SAB indicates that another factor to consider to determine if one is facing a private placement is the fact that a private placement cannot be promoted publicly, as has been manifested by the SEC. Then, private placements are promoted through direct contacts of the issuer with potential investors. Additionally, restrictions are established so that the values placed by private offers are subsequently resold to the public, so these values receive the qualification of “restricted securities”;
126. DIVISO SAB adds that in the Peruvian case, it has been stated that the qualification of a securities offer as public or private constitutes an “angular matter” in the regulation of the securities market, due to that it determines the application of said sectoral regulation (securities market) or if, on the contrary, the offer will be subject, exclusively, to the norms of private law;
127. DIVISO SAB considers that an offer of securities will be private with the sole compliance of one of the two safe harbors established by article 5 of the TUO LMV. Therefore, if a private offer of securities is directed exclusively to institutional investors it will be sufficient to prove the compliance of said condition by the investors, the article 6 of the ROPPV -especially the one referred to the “segment of the public” included in numeral d) since it becomes irrelevant to consider the quantity of institutional investors to whom the offer has been directed and, given the condition of institutional investors they possess, there is no “need for public protection”;

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría
128. Furthermore, DIVISO SAB cites Article 3 and Annex I of the REGULATIONS FOR INSTITUTIONAL INVESTORS regarding the definition of institutional investor and who is considered as such. Likewise, it cites Article 4624 of the RAI;
129. In this sense, DIVISO SAB points out that, based on what is prescribed in Articles 4 and 5 of the TUO LMV and Article 3 and Annex I of the REGULATIONS FOR INSTITUTIONAL INVESTORS, for the purpose of accrediting that an offer is private because it was directed to institutional investors, it is sufficient for the issuer to prove that it has the sworn declaration signed by said investors manifesting their knowledge of the scope of such qualification;
130. DIVISO SAB adds that on the part of the intermediary agent, it is their obligation to implement and diligently apply procedures, so that the investors who participate in this market are exclusively institutional investors; and on the other hand, prior to their participation as a placer, they must determine jointly with the issuer, if the placement of Financial Instruments, due to their characteristics or conditions, constitutes a public offer;
131. For this, DIVISO SAB points out that the issuer and it have collected sworn declarations of institutional investors from the complainants, which were even presented by DENUNCIANTE1 and DENUNCIANTE3 in their complaint writings, and also sent to the SMV given the request made through Office No. 3501-2024-SMV/10.3 of August 12, 2024 and Office No. 4049-2024-SMV/10.3 of September 12, 2024;
132. In view of this, DIVISO SAB considers that with the presentation of said documents it has complied with accrediting that the offer was private and was directed exclusively to institutional investors;
Evaluation of defense
133. DIVISO SAB considers that with the presentation of the aforementioned sworn declaration it has complied with accrediting that the offer was private and was directed exclusively to institutional investors;
134. On this matter, it must be indicated that neither in its defenses, nor in its response writings to the transfer of the complaints presented against it, has DIVISO SAB refuted or less so accredited with any evidentiary means its statement regarding that the offer of the securities issued by ESQUEMA

Article 46.- Markets in which the Intermediation activity develops
Agents may develop the intermediation activity, on their own account or for third parties, of Financial Instruments in any of the markets detailed below:
a) Primary Market.- In this market, Agents may act as placers of Financial Instruments that are issued solely by legal entities.
The Agent, prior to its participation as a placer in this market, must determine jointly with the issuer, if the placement of Financial Instruments, due to their characteristics or conditions, constitutes a public offer. In public offers, the Agent must observe the provisions established in the Law, and in the specific regulations that regulate said offers. The Agent's participation in the placement of Financial Instruments must be formalized in express contracts with the issuer, which will include the terms and conditions corresponding to the services that the Agent will provide. Likewise, observing the provisions of the current regulatory framework, Agents may acquire, on their own account or for third parties, Financial Instruments that are offered through a public or private offer, in the local or foreign market. (…)

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría INVESTMENT constituted a private primary offer, nor even supported that the investors to whom the offer was directed, that is, those to whom it placed the securities issued by ESQUEMA INVESTMENT, had the quality of institutional investors;
135. Regarding this, it is appropriate to mention that the definition of institutional investor is contained in Article 3 of the REGULATIONS FOR INSTITUTIONAL INVESTORS and in Annex I thereof:
“Article 3.- Institutional Investors
Institutional investors are persons who, by their nature, characteristics, or knowledge, understand, manage, and adequately evaluate the risks associated with their investment decisions.
Institutional investors are the natural and legal persons indicated in Annex 1 INSTITUTIONAL INVESTORS.
(…)
“ANNEX 1
INSTITUTIONAL INVESTORS
For all purposes of this Regulation, the following persons are institutional investors:
1. Banks, financial institutions, and insurance companies and other companies indicated in article 16 of the General Law of the Financial System and of the Insurance System and Organic Law of the Superintendence of Banking and Insurance, Law No. 26702 and its modifying norms; intermediary agents; private administrators of pension funds; investment fund management companies; mutual fund management companies, and securitization companies.
2. Foreign entities that develop activities similar to those indicated in numeral 1 and/or Qualified Institutional Buyers referred to in Rule 144A of the U.S. Securities Act of 1933.
3. Health Service Providers referred to in the Law of Modernization of Social Security in Health, Law No. 26790, the Pension Normalization Office - ONP, and the Social Health Insurance - Essalud.
4. Private or public law legal entities that have as one of their activities, according to the legal or conventional provisions governing them, investment in securities. In the case of non-state legal entities, it will be required that they have a portfolio of investments in securities equal to or greater than one million New Soles (S/. 1,000, 000,00).
5. Funds and autonomous estates administered by the persons indicated in the previous numerals, provided that the investment decision is their responsibility and that the individual net worth of the fund or estate is equal to or greater than four hundred thousand New Soles (S/. 400 000,00).
6. Natural persons who have a net worth greater than two million New Soles (S/. 2,000, 000,00), and a portfolio of investments in securities equal to or greater than one million New Soles (S/. 1,000, 000,00);
(…)
(Underline added)
136. It must be specified that although Articles 1 and 2 of the REGULATIONS FOR INSTITUTIONAL INVESTORS establish that the provisions of

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría said regulation apply only to the exceptional regime of primary public offers directed exclusively to institutional investors that are within the scope of such regulation, Article 6 of SMV Resolution No. 021-2013-SMV-01, which approves said regulation, expressly provides that, for the purposes of other norms, those persons included under the scope of Article 3 of said regulation will be considered as institutional investors:
“Article 6.- Provide that for the purposes of what is established in literal j)25 of Article 8 of the Securities Market Law, Legislative Decree No. 861, as well as for any other regulatory provision approved by the SMV, those persons included under the scope of Article 3 of the Regulation of the Market of Institutional Investors approved by this Resolution will be considered as institutional investors;” (Underline and highlight added)
137. Therefore, regardless of whether it is a public offer or a private offer, to identify whether an investor is institutional or not, every market participant, in this case DIVISO SAB, must verify that the future acquirer of the security is defined in any of the six cases of institutional investor;
138. For this, and in this particular case, DIVISO SAB had to verify that the future acquirer of the security met the definitions of numerals 1 to 6 of Annex 1 of the Regulation of Institutional Investors as well as the particularities that each of them requires;
139. In the present case, it has been verified that none of the complainants, nor the natural and legal persons acquirers of the securities issued by ESQUEMA INVESTMENT mentioned, by way of example, in the NOTICE OF CHARGES met the qualification of Institutional Investor;
140. Therefore, it is observed that DIVISO SAB failed to comply with Article 46 of the RAI which states that the agent, prior to its participation as a placer, must jointly with the issuer, determine if the placement of the securities to be issued, due to their characteristics or conditions, constitutes a public offer, that is, DIVISO SAB had to verify whether the future acquirers of the securities issued by ESQUEMA INVESTMENT were or were not institutional, not only some but all acquirers because it was supposedly a private offer directed exclusively to institutional investors, as stated by DIVISO SAB in its defenses;
141. Likewise, it must be highlighted that DIVISO SAB is a stock agent company with more than 9 years of operation as an intermediary at the time the events occurred, knows the regulations that govern it and the correct application of the regulations that govern it to determine if an investor is institutional or not, which had already been in force for more than 5 years at the time the events occurred

25 Article 8.- Terms.- The terms indicated have the following scope in the present law:
(…) j) Institutional investors: Banks, financial institutions, and insurance companies governed by the General Law of the Financial System and of the Insurance System and Organic Law of the Superintendence of Banking and Insurance, intermediary agents, private administrators of pension funds, investment fund management companies, mutual fund management companies, as well as foreign entities that develop similar activities and other persons that the SMV qualifies as such;

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría evaluated in the present procedure; however, in the present case, what is stated is not observed;
142. On its part, it must be indicated that the penultimate and last paragraph of Annex 1 of the REGULATIONS FOR INSTITUTIONAL INVESTORS do not apply to the present case insofar as said legal provisions are regulated only for those public offers directed exclusively to institutional investors, therefore, according to what is mentioned in the preceding considerations, exceptionally Article 6 of the resolution that approves the REGULATIONS FOR INSTITUTIONAL INVESTORS states “…those persons included under the scope of Article 3 of the Regulation of the Market of Institutional Investors… will be considered as institutional investors…”, therefore it provides that for the definition of institutional investors only “persons included” in Article 3 of said norm are contemplated, and these are the natural and legal persons strictly indicated in Annex 1, from numeral 1 to 6;
143. Then, in a supposed private offer directed exclusively to institutional investors, which is what ESQUEMA INVESTMENT supposedly carried out with the placement of DIVISO SAB, as stated in the defenses by the latter, although the issuer and the intermediary can collect a sworn declaration from the investor, it does not legally and validly correspond to affirm that collecting a sworn declaration of institutional investor is sufficient to attribute to a person the quality of such, especially if the fact that all investor acquirers of the securities must be institutional is essential for the offer to be private. This implies that it has not been directed to investors who require the protection of the State, a fundamental aspect of securities market legislation that the intermediary agent must diligently care for, therefore, in compliance with Article 46 of the RAI as indicated, DIVISO SAB had to determine if the placement of the securities to be issued, due to their characteristics or conditions, constitutes a public offer, that is, DIVISO SAB had to verify if the future acquirers of the securities issued by ESQUEMA INVESTMENT were or were not institutional investors and obviously by its inherent function as a stock agent company it had to diligently apply its know-your-customer function, a basic and essential aspect in the fulfillment of its functions as an intermediary in the securities market;
144. This is done in order to provide legal certainty to the market and to have certainty that transactions are being carried out with Institutional Investors within the Peruvian securities market;
145. On the other hand, in the NOTICE OF CHARGES it has been accredited that said offer was not directed exclusively to Institutional Investors but that, by way of example, it was evidenced that thirteen (13) investors did not qualify as such;
146. On its part, in the preliminary inquiries and in the present administrative sanctioning procedure, DIVISO SAB has not accredited that DENUNCIANTE1, DENUNCIANTE3, DENUNCIANTE2, EMPRESA1 and other legal persons and natural persons to whom it placed the securities issued under the PROGRAMS of ESQUEMA INVESTMENT have the characteristics of being institutional investors; that is, that they are banks, financial institutions, insurance companies, funds, autonomous estates, legal persons that have as one of their activities investment in

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría securities, among other persons indicated in the numerals from 1 to 6 of Annex 1 of the REGULATIONS FOR INSTITUTIONAL INVESTORS;
147. It should be noted that in the file there are the sworn declarations of having the condition of institutional investors of the complainants DENUNCIANTE1 and DENUNCIANTE3. Regardless of the fact that DIVISO SAB has not presented the sworn declarations of having the condition of institutional investors of the other legal persons and natural persons to whom the securities issued under the PROGRAMS were offered (which are shown in Annex 2 of the NOTICE OF CHARGES), it is worth reiterating that the mere fact that, in the process of placement of securities, the stock agent company collects these sworn declarations from clients does not demonstrate that these persons have the condition of institutional investors, although they can be taken as an additional starting point, among others, in the diligent analysis that every stock agent company, such as DIVISO SAB, must perform to know its client, without prejudice to the knowledge of its potential clients prior to the placement of the securities, according to the stages of the process;
148. As stated in the NOTICE OF CHARGES, for example, thirteen (13) investors who bought the securities issued under the PROGRAMS of ESQUEMA INVESTMENT do not have the condition of institutional investors;
DENUNCIANTE1
149. DENUNCIANTE1 is a non-profit civil association, whose legal framework is the laws of the Catholic Church and the norms of Canon Law, the constitutions of the Dominican Order and the ordinances of the master of the Order, headquartered in Rome, whose primary purpose is the implantation of the Catholic faith in all peoples and human groups and its extended purposes are those required by the evangelization of the culture of the Peruvian people, not having as one of its activities investment in securities to have the condition of institutional investor according to numeral 4 of Annex 1 of the REGULATIONS FOR INSTITUTIONAL INVESTORS;
150. As a religious association to fulfill its purpose, DENUNCIANTE1 allocates its resources (mainly donations) to the construction and maintenance of convents, houses, and missions, as well as hospitals26;
DENUNCIANTE2
151. The civil association DENUNCIANTE2 also of the Dominican Order like DENUNCIANTE1 is a non-profit organization whose purposes are to contribute to the education of mass social groups and to the integral human promotion of man, using means of communication such as radio, television, written press, cinema or any other means of social communication, among others, not having as one of its activities investment in securities to have the condition of institutional investor according to numeral 4 of Annex 1 of the REGULATIONS FOR INSTITUTIONAL INVESTORS;
DENUNCIANTE3

26 https://www.peru.op.org/

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría
152. It is a joint-stock company whose corporate object is to commercialize vehicles of different brands, as well as spare parts, accessories, auto parts and other inputs of the same, as well as providing repair and maintenance services for vehicles of various brands and commercializing related and complementary products of various brands as long as they do not mean competition to its products; not having as one of its activities investment in securities to have the condition of institutional investor according to numeral 4 of Annex 1 of the REGULATIONS FOR INSTITUTIONAL INVESTORS;
153. Additionally, it should be noted that, in the intermediation contract of May 15, 2020, signed between DENUNCIANTE3 and DIVISO SAB, this client declared that it had not invested before in securities, which is evidence that the referred investor did not meet one of the conditions that the norm requires for a legal person to be qualified as an institutional investor, which is to have a portfolio of investments in securities equal to or greater than one million New Soles (S/ 1,000,000) updated according to the First Complementary Final Provision of the TUO of the LMV and therefore it was contradictory with the declaration of having the condition of institutional investor, which could have been noticed by DIVISO SAB before carrying out the purchase operation of the security issued by ESQUEMA INVESTMENT;
EMPRESA1
154. EMPRESA1 is a closed joint-stock company whose corporate object is the commercialization, representation, distribution, repair and maintenance of major and minor motor vehicles; land, air, sea and cargo transport service, among others; not having as one of its activities investment in securities to have the condition of institutional investor according to numeral 4 of Annex 1 of the REGULATIONS FOR INSTITUTIONAL INVESTORS;
155. Likewise, before the purchase of the short-term instruments issued by ESQUEMA INVESTMENT, carried out on May 14, 2020, EMPRESA1 was not the owner of any security and therefore also did not meet one of the conditions that the norm requires for a legal person to be qualified as an institutional investor, which is to have a portfolio of investments in securities equal to or greater than one million New Soles (S/ 1,000,000) updated according to the First Complementary Final Provision of the TUO of the LMV. This situation could have been noticed by DIVISO SAB with the declarations made by the client in the intermediation contract regarding their experience in investment in securities and before carrying out the purchase operation of the security issued by ESQUEMA INVESTMENT;
156. On its part, for example, the following eight (8) natural persons, before carrying out the purchase of the securities issued by ESQUEMA INVESTMENT on the dates indicated in the following table, were not owners of any security:
No. OPERATION DATE RUT CODE CLIENT NAME
1 5/11/2019 01306745 CLIENT1

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría N° FECHA OPERACIÓN CÓDIGO RUT NOMBRE CLIENTE 2 5/12/2019 01332798 CLIENTE2 3 18/08/2020 01338050 CLIENTE3 4 11/09/2020 01297680 CLIENTE4 5 24/11/2020 00259815 CLIENTE5 6 4/12/2020 00335984 CLIENTE6 7 17/02/2021 00668046 CLIENTE7 8 23/02/2021 01340903 CLIENTE8
157. On the other hand, CLIENTE9, before making the purchase of the securities issued by ESQUEMA INVESTMENT on January 5, 2021, was the owner of securities issued by more than one company, valued at S/ 38,918.35;
158. Therefore, as in the previous cases, the aforementioned individual investors did not meet the requirement of having a portfolio of investments in securities equal to or greater than one million Peruvian Soles (S/ 1,000,000) updated in accordance with the First Complementary Final Provision of the TUO of the LMV. Therefore, they did not have the status of institutional investors as established in numeral 6 of Annex 1 of the REGULATIONS FOR INSTITUTIONAL INVESTORS;
159. It should be added that DIVISO SAB has alleged that its securities offering was within one of the scenarios of private offering of securities referred to as having supposedly directed the offering exclusively to institutional investors. This implies that said company had to be diligent in complying with the regulatory framework for securities offerings, ensuring that its securities offering was directed exclusively to institutional investors. To this end, prior to the placement of the securities, it could have reviewed the activity of its potential corporate clients in the Register of Legal Entities of the Public Registries and/or in the financial statements and notes to the financial statements that it can obtain from these clients in the customer due diligence process it carries out as part of its securities intermediation activity, which it has been carrying out for more than nine (9) years, at the time the facts occurred;
160. Likewise, in the case of non-state legal entities whose activity is investment in securities, it could have also requested their investment portfolio in securities in order to demonstrate that it is higher than the amount (updated) established in numeral 4 of Annex I of the REGULATIONS FOR INSTITUTIONAL INVESTORS. It should be noted that said updated value for 2019 amounted to S/ 1,999,633.00, for 2020 to S/ 1,997,322.00 and for 2021 to S/ 2,028,474.00;
161. On the other hand, regarding natural persons, DIVISO SAB could have incorporated into the intermediation contract an express declaration by its clients stating whether they have or do not have experience in securities investment, as well as, if applicable, requesting information about their portfolio of

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría securities in order to demonstrate that it is higher than the amount (updated) established in numeral 6 of Annex I of the REGULATIONS FOR INSTITUTIONAL INVESTORS. It should be noted that said updated value for 2019 amounted to S/ 1,999,633.00, for 2020 to S/ 1,997,322.00 and for 2021 to S/ 2,028,474.00;
162. Likewise, with the aim of ensuring that only institutional investors participate in this
offering, it could have chosen to refrain from attending to purchase orders from investors who do not provide the documentation supporting that they have the status of institutional investors; DEFENSE PRESENTED Corporate purpose of the complainants and powers of legal representatives
163. DIVISO SAB states that according to the registry information of the legal representatives of DENUNCIANTE227,
DENUNCIANTE328 and DENUNCIANTE129, these have as their activity "investment in securities", thus corroborating the condition of these being institutional investors according to the sworn declarations mentioned above;
164. Likewise, DIVISO SAB refers that
DENUNCIANTE2 and DENUNCIANTE1 have a common legal representative, the gentleman REPRESENTATIVELEGAL1, a priest by profession, who is president of DENUNCIANTE2 and member of the provincial council of DENUNCIANTE1;
165. DIVISO SAB specifies that regarding
DENUNCIANTE2, the aforementioned REPRESENTATIVELEGAL1 has powers to, among others:
"A. Exercise the legal representation of the association (...)
B. Represent the association before all kinds of authorities (.) As well as the special ones to dispose of substantive rights (...)
C. Conclude contracts (...)
E. Manage monetary loans before banking, financial entities (...)

27 Registry of Legal Entities of Quillabamba, it is recorded that REPRESENTATIVELEGAL1 is authorized to, among other activities, "...conclude sales and purchase contracts, promises of sale and purchase and/or options, accept and grant donations, being able to sell and/or buy real estate and/or movable property, including shares, bonds and other securities mobiliarios, as well as carry out repurchase operations regarding these last..." (highlighted by Diviso SAB) 28 Registry of Legal Entities of Cusco, it is recorded that, the General Manager Mr. REPRESENTATIVELEGAL2 , is authorized to that with a single signature, he can "...negotiate, conclude, modify, resolve and execute all types of operations with financial derivative products, including by way of example but not limited to, forwards, futures, options and swaps, as well as subscribe all contracts, agreements, declarations, communications and any additional or complementary document necessary for this purpose or related to these operations..." 29 Registry of Legal Entities of Lima, it is recorded that the gentlemen REPRESENTATIVELEGAL3, REPRESENTATIVELEGAL4 and REPRESENTATIVELEGAL5 , can with a single signature exercise, among other activities, the following powers "...draw, endorse, accept, guarantee, discount, deposit, withdraw, collect, protest, re-accept, renew, cancel, and/or give as guarantee or as procurement, according to their nature, bills of exchange, promissory notes, vouchers, checks, and in general all types of securities as well as any other commercial document and/or deposit, warrants, guarantee credit, financial and/or commercial operations with banks, financial institutions, insurance companies, savings banks, cooperatives or with any other credit institution...in general all types of credit obligations with which it guarantees or obtains beneficial credits in favor of the Association, conclude all types of contracts of Leasing, Financial Leasing, Factoring, Joint Venture, Franchising, Franchise, Underwriting, ...in general sign all kinds of contracts or documents whether civil or commercial, typical or atypical and/or banking without reservation or limitation of any kind...request investments, open Mutual Funds, cancel or redeem Mutual Funds, draw checks, bills of exchange, issue promissory notes."

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría Accept, endorse, collect, guarantee, guarantee, renew, extend and/or discount bills of exchange, promissory notes, confirmed invoices, negotiable invoices and any other title value (...) As well as any other title value or commercial or credit document transferable, deposit and withdraw securities in custody; likewise encumber and alienate them, carry out any operation (...) Conclude financial leasing or "Leasing", "Lease Back", Factoring and/or Underwriting contracts (...) Being able to sell and/or buy real estate and/or movable property, including shares, bonds and other securities, as well as carry out repurchase operations regarding these last. Conclude loan contracts, loan, lease, payment in kind, trust, guarantee, loan for use, use, usufruct, option, assignment of rights (.....) As well as constitute pledge, movable guarantee, mortgage or encumber in any way the movable or immovable property of the association, being able to affect accounts, deposits, titles securities or securities in guarantee, even in guarantee trust. " (highlighted by DIVISO SAB);
166. Therefore, DIVISO SAB considers that it is demonstrated that the complainants are legal entities that qualify as
institutional investors by virtue of the fact that, among their activities, is included investment in securities - purchase and sale of securities, shares, bonds, etc.; Evaluation of defense
167. Regarding what was stated by DIVISO SAB,
it is necessary to cite numeral 4 of Annex 1 of the REGULATIONS FOR INSTITUTIONAL INVESTORS:
ANNEX 1
INSTITUTIONAL INVESTORS
The following persons are institutional investors for all purposes of this Regulation:
(...)
Private or public law legal entities that have as one of their activities, according to the legal or conventional provisions that govern them, investment in securities. (...)
168. According to this, it is observed that the norm
in question establishes that the "activity" of "Investment in securities" is of the legal entity, and not of the legal representatives of these, it being necessary to add that the cited regulation stipulates "activities" and not "powers";
169. Without prejudice to this, the corporate purpose of the complainant legal entities is cited below:
DENUNCIANTE1. Article 6 of its Social Statute30:
"Article Sixth: Of the purposes:

30 Registry of Legal Entities, Registry Office of Lima.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría -The primary purpose of the implantation of the faith revealed by Jesus Christ and professed by the catholic church, in all peoples and human groups. -Perform charitable works to benefit people with few resources, providing food and clothing. -Creation of a solidarity hospital that will provide quality medical services at low cost, this with the aim of benefiting the entire population." DENUNCIANTE231:
"Purposes and objectives: Purposes: The (...) has as its purpose:
A. Contribute to the education of mass social groups and to the integral human promotion of man, using communication media such as radio, television, written press, cinema or any other social communication medium. B. Implement and manage the realization of academic and educational activities in order to promote lecture cycles, workshops, conversations or other similar ones, in order to spread the importance of education.
C. Edit, publish, print, distribute and circulate books, brochures, flyers, newspapers,
videos and any other visual, spoken or written medium, related to the dissemination of the activities of the association.
D. Provide sound and television broadcasting services at the national level for the achievement of its institutional objectives, being able to obtain the respective titles enabling through application by the party or by public competition before the corresponding authorities. Likewise, it can make use of other spoken or written communication media such as newspapers, magazines and/or radio over the internet. E. Others that are complementary to its purposes and institutional objectives, or that determine the general assembly. (...) " DENUNCIANTE332:
"Object: commercialize vehicles of different brands, as well as spare parts, accessories, auto parts and other inputs of the same. Provide services of repair and maintenance to vehicles of various brands. Commercialize products conexos and complementary of various brands always that it does not mean competition to its products. "
170. As can be appreciated from the reading of the corporate purpose of the
legal entities complainants, none of them, has as activity, purpose or object, the "invest in securities", therefore the defense presented lacks foundation;
171. Without prejudice to the above, it must be indicated that the
fact that its social statutes have included within the "powers" to exercise of its representatives, among them, the commercial ones in general –such as for example the acquisition of securities- this does not replace legally nor supposes under no interpretation, the replacement or expansion of its corporate purpose or its ends by such "powers";
172. It should be added that a legal entity can
decide to custody or generate returns on the funds of its shareholders or partners in the financial system through savings, time deposits, shares or bonds, granting for this powers to its representatives to open or close bank accounts, as well as buy and sell shares and bonds, but this does not mean that its activity, the purpose for which the legal entity has been constituted, is to maintain or generate returns on its income in the financial system, but that the activity is the commercialization of automobiles, the performance of religious activities, activities with media, among others;
173. In its additional written allegations, DIVISO SAB
indicates that a restrictive reading of what the corporate purpose of a company is should not be had since what is provided in article 11 of the General Law of Companies must be considered:
"Article 11.- Corporate Purpose The company circumscribes its activities to those lawful businesses or operations whose detailed description constitutes its corporate purpose.
Acts related to the same that contribute to the achievement of its purposes are understood to be included in the corporate purpose, even if they are not expressly indicated in the social pact or in the statute. The company cannot have as its object to develop activities that the law attributes with exclusive character to other entities or persons. " The company may carry out the lawful businesses, operations and activities indicated in its corporate purpose. Acts related to the same that contribute to the achievement of its purposes are understood to be included in the corporate purpose, even if they are not expressly indicated in the social pact or in the statute."(*) (Emphasis added by Diviso SAB)
174. Based on this, the intermediary interprets
that the modification introduced to the text of article 11 referred to, establishes a broad concept of what the corporate purpose of a legal entity comprises, such that, it is not limited to what is expressly stated in the social statute regarding this, but rather, it must also include all those activities that, although not described in the corporate purpose, are necessary for the achievement of the company's purposes;
175. Likewise, it indicates that although the corporate purpose of the
legal entities complainants does not expressly contemplate that they will carry out securities investment activities, this activity does contribute to the achievement of their purposes, even if not expressly indicated in the social pact or in the statute;
176. In this sense, for DENUNCIANTE1, DIVISO SAB
indicates that given what is provided by article sixth of its social statute mentioned above, activities such as the performance of charitable works and, the creation of a hospital, require financing, which may come from the development of activities that said legal entity considers, including investment in the stock exchange and in the securities market in general. Additionally to this, the broker dealer company states that institutions linked to DENUNCIANTE 1 such as the Secretariat of State of the Vatican and the German Bishops' Conference, which despite having a corporate purpose of social help, when making their investments, also act as institutional investors;

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría
177. Regarding DENUNCIANTE2, given the activities
described in its corporate purpose, DIVISO SAB indicates that the same require financing without which, according to the intermediary, it would be impossible to contribute to education to some extent, the editing, publishing, printing and distribution of books and other materials, as well as providing sound broadcasting services at the national level among others. It is also consistent to obtain higher returns on its liquid assets for a better development of its purposes;
178. Similarly, with respect to DENUNCIANTE3,
the broker dealer company indicates that the activities described in its corporate purpose require having the necessary financing that contributes to their realization, which can be obtained by the mechanisms allowed by our legal system, one of them being investment in securities. Such is the case that some of the complainants participated previously in activities oriented towards investment in the securities market. For this reason, it was granted to their legal representatives the power to sell and/or buy real estate and/or movable property, including shares, bonds and other securities mobiliarios;
179. On the other hand, DIVISO SAB states that it must
consider what is established in the first paragraph of article 12 of the General Law of Companies, Law No. 26887, which provides as follows:
Article 12.- Scope of representation
" The company is obligated towards those with whom it has contracted and towards third parties in good faith for the acts of its representatives celebrated within the limits of the powers that have been conferred upon them even if such acts commit the company to businesses or operations not included within its corporate purpose."(*) (Emphasis added by DIVISO SAB)
180. Based on this, Diviso SAB concludes that the
legal representatives of legal entities in general, do not act on their own account, so their actions, being authorized, bind the company, as expressed by Elías Laroza33 "Article 13 establishes that those who are not authorized to exercise the representation of the company do not bind it with their acts, even if they celebrate them in its name. In addition, responsibility corresponding to such acts, whether civil or penal, falls on them.";
181. In this sense, DIVISO SAB states that it must
consider that the action of the representatives of a legal entity, do not act on their own account, nor in their own name and, therefore, their actions respond precisely to a social interest, being strictly linked to its corporate purpose and specifically authorized by the mandates and powers granted by the competent social organ; and that the same occurs with public officials, insofar as they do not act in their own name, but in representation of the State Entity to which they belong;
182. Regarding this, it is incorrect to affirm that this
Deputy Superintendent is making a restrictive reading as to the corporate purpose of the COMPLAINANTS, since in its allegations DIVISO SAB has not demonstrated what

33 ELIAS LAROZA Enrique. Ley General de Sociedades Comentada. Editora Normas Legales, Lima, 1998. Pg. 47.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría regulation would be non-compliant by the SMV to sustain such arguments, which denotes the lack of an evident legal justification as will be demonstrated;
183. In effect, the extensive interpretation that
DIVISO SAB seeks in its allegations seeks to hinder the reading and legal understanding of an evident fact backed by article 11 of the LGS;
184. To maintain that a company by the fact of investing
in securities is already part of its corporate purpose and therefore permitted by the regulation would imply assuming, in DIVISO SAB's reading, that a company dedicated to the sector of vehicle imports (as is the case of one of the complainants) can also dedicate itself to the purchase and sale of securities on behalf of third parties abroad (which is an activity exclusive to broker dealers, because if it has to do with contributing to the fulfillment of its purposes it can also carry out other activities that can be "considered" as part of its corporate purpose. As extreme is the theory shown in its allegations, which does not allow valid legal reasoning in any sense;
185. DIVISO SAB intentionally forgets in its
allegations that the proposed "extend the corporate purpose whenever it contributes to the achievement of its purposes" would imply disorder in the market not being able even to determine to which sector a company would belong according to the activities it carries out and given the freedom proposed as to the corporate purpose;
186. On the other hand, DIVISO SAB's extensive interpretation
would imply that the SMV disregards what is regulated in numeral 4 of Annex 1 of the REGULATIONS FOR INSTITUTIONAL INVESTORS, which, allows to predict with sufficient degree of certainty (lex certa), the characteristics that every institutional investor must have; this in concordance with the principle of legality contained in the LPAG;
187. Likewise, it is appropriate to note that in the present
procedure the conduct of the legal representatives of the COMPLAINANTS has not been questioned or if they acted or not in representation or in accordance with the purposes of their represented parties, as DIVISO SAB intends to discuss in its allegations and eagerness to evade its responsibility;
188. On its part, it must be specified that with
independence of what was argued by DIVISO SAB, in the present administrative procedure the powers and authorities held by the representatives of the COMPLAINANTS have not been questioned, but on the contrary, a set of indications have been evaluated that allow to accredit that the COMPLAINANTS did not have the status of institutional investors at the time of acquiring the securities of the PROGRAMS of ESQUEMA INVESTMENT; among them, that the corporate purpose of the COMPLAINANTS expressly states as an activity the one of investing in securities; DEFENSE PRESENTED Of other cases resolved by the SMV
189. DIVISO SAB states that the mere presentation of the
sworn declaration prescribed by Annex I of the REGULATIONS FOR INSTITUTIONAL INVESTORS for the purpose of accrediting that it is a private offering would have been endorsed by the Deputy Superintendent of Prudential Supervision in the considerations 61, 215 and 230 of Resolution No. 031-2021-SMV/10 ;

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DIVISO SAB adds that the same criterion would have been assumed by the Superintendent of the Securities Market in Resolution No. 057-2024-SMV/02 dated May 13, 2024, regarding the fact that the presentation of the sworn statement indicated in Annex I of the REGULATIONS FOR INSTITUTIONAL INVESTORS is sufficient to prove that an offering was private and that the investors held the status of institutional investors;
DIVISO SAB states that the General Superintendent of Prudential Compliance (hereinafter, IGCP) requested the presentation of the aforementioned sworn statement;
Therefore, DIVISO SAB considers that, based on what is stated in Article 5 of the LMV, Article 3 and Annex I of the REGULATIONS FOR INSTITUTIONAL INVESTORS, as well as what was resolved by the Deputy Superintendent of Prudential Supervision and the Superintendent of the Securities Market, it would be clear that it is sufficient to present the sworn statement of the investor indicated in Annex I of the aforementioned regulation to prove that a person has the status of institutional investor and therefore operated within a private securities offering; the application of Article 6 of the ROPPV being unnecessary;
It should be noted that in its additional written allegations, DIVISO SAB reiterates, without making further clarifications, that in previous procedures, the SMV has validated the criterion that sworn statements prove or demonstrate the status of institutional investor;

Evaluation of Defense

Regarding the fact that the sworn statement regulated in Annex I of the REGULATIONS FOR INSTITUTIONAL INVESTORS is sufficient to prove that it is a private offering because the signatory is considered an institutional investor, we refer to the analysis previously carried out regarding the fact that to define an investor as institutional, one must first verify if they meet the definition contemplated in Article 3 and the items from 1 to 6 of Annex I of the REGULATIONS FOR INSTITUTIONAL INVESTORS, which in this case has been demonstrated that neither the complainants, nor the natural and legal persons cited, by way of example, in the NOTICE OF CHARGES, have such quality; therefore, the citations of the resolutions of the Deputy Superintendent and Superintendent made are not applicable to the present case, since in them, DIVISO SAB has only selectively cited the considerations regarding the mention of sworn statements without taking into account the context and characteristics of the case;
In effect, the cited considerations have as their objective to highlight that for an offering to qualify within the case of private offering referred to as being directed exclusively to institutional investors, it is not enough that only the acquirers of the offered securities qualify as institutional investors, but it is also necessary that all other recipients of the offering qualify as such, even if after such offering, they had not acquired or subscribed to the offered securities;
Within this context, it must be indicated that neither Resolution of the Deputy Superintendent No. 031-2021-SMV/10 nor Resolution of the Superintendent No. 057-2024-SMV/02 have pronounced themselves in the sense that the mere presentation of the sworn statements is a sufficient requirement to prove the

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship

status of Institutional Investors of the persons; the same are limited only to noting the absence or lack of presentation of the sworn statements by Zest;

Regarding the "per se" sufficiency of the sworn statements, it must be indicated that the SMV has pronounced itself on this matter through Resolution of the Superintendent No. 153-2024-SM/02. In said resolution, it is stated in its considerations 22 and 23 that in the specific case of intermediation agents acting as placement agents, in addition to the sworn statement that must be collected, the regulation requires that procedures be implemented and applied so that the investors who participate in this market are exclusively institutional investors. Likewise, it is stated that the last paragraph of Annex 1 of the Institutional Investors Regulation must be read jointly with the penultimate paragraph of said annex and that a joint and integral reading of said paragraphs cannot lead to the conclusion that the obtaining of the sworn statement in which the investor declares having the status of institutional investor is sufficient, since accepting such interpretation would empty the additional requirement for the case of intermediation agents established in the last paragraph of Annex 1 of the aforementioned regulation, because it would not provide any additional obligation to the placer than the obtaining of the sworn statement already required in the penultimate paragraph of said Annex 1;
For its part, it must be noted that the objective of the norm is clear, the responsibility in a supposedly private offering lies with the intermediation agent who carries out the placement of the financial instruments on behalf of the issuer of the securities, who also has this responsibility; both, diligently, must know the client and potential client and take the necessary measures with the greatest effort to determine as accurately as possible whether they are or are not institutional investors, which in the present procedure DIVISO SAB has not concentrated on proving, having not presented any evidence of its actions directed to this end, in compliance with the regulation cited in the preceding paragraphs;
Consequently, it is the intermediation agent who, in its role as placer, must guarantee with due diligence that in a private offering directed exclusively to institutional investors, only persons who meet the requirements established by the regulation participate;
Therefore, when the intermediation agent lacks sufficient information to ensure this, it must request it from the interested parties, since it is fundamental for an intermediation agent to verify that future acquirers of the securities meet the requirements they must have to be qualified as institutional investors, prior to the placement of financial products directed to this type of investor, being able to abstain from attending to the orders of those who do not provide sufficient documentation to ensure that they do not require State protection;
Regarding the information requests of the IGCP contained in letters No. 3501-2024-SMV/10.3 and No. 4049-2024-SMV/10.3 mentioned, which according to DIVISO SAB refer to the qualification of institutional investors, for which only the presentation of the sworn statement of COMPLAINANT1 and COMPLAINANT3 was required when the respective complaints were filed, we must indicate that the requests for information and documentation are part of the preliminary investigations duly contemplated

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in Article 734 of the REGULATIONS OF SANCTIONS in order to clarify the facts denounced by COMPLAINANT1, COMPLAINANT235 and COMPLAINANT3, which in no way represents a pre-judgment, as DIVISO SAB suggests, so the fact that a certain document was requested does not imply a recognition or a possible regulatory compliance, especially since this imputation questions precisely the verification of the quality of institutional investor of its investors;

It is worth remembering that none of the legal person complainants COMPLAINANT1, COMPLAINANT2 and COMPLAINANT3 register in their purpose or objective or social object as activity the "investment in securities", so they are not within the case of item 4 of Annex 1 of the REGULATIONS FOR INSTITUTIONAL INVESTORS and therefore, cannot be considered as institutional investors;
For its part, in its additional written allegations, DIVISO SAB states that the SMV has validated private offerings with similar characteristics in previous cases, so it mentions the legal basis based on the principle of Predictability and Legal Security in administrative procedures. It adds that in previous cases, the SMV has recognized as private offerings those directed to institutional investors, even when the nominal value was below the threshold of S/ 250,000, adding that: i) There is no normative change that justifies a different interpretation in this case, ii) The SMV is applying inconsistent criteria to force the qualification of public offering and iii) In that sense, the SMV cannot arbitrarily change its criteria without a normative basis to support it;
Regarding this, it must be indicated that in said allegations, the stock exchange agent society again repeats its arguments however does not specify which previous cases it refers to;
Without prejudice to what has been stated, it is opportune to point out that item 1.15 of Article IV of the TUO LPAG36 specifies that the principle of predictability or legitimate trust requires that the decisions of the authority

Article 7.- PRELIMINARY INVESTIGATIONS AS A CONSEQUENCE OF A COMPLAINT
The General Superintendencies of Compliance will carry out prior investigation actions or preliminary investigations with the object of determining if circumstances concur that justify the start of an administrative sanctioning procedure, as a consequence of a complaint by a party. The prior actions or preliminary investigations may include, taking statements, requesting information, among other activities that prove pertinent. (…) 35 The sworn statement of COMPLAINANT2 was also requested, but it was not presented by DIVISO SAB.

Article IV. Principles of the Administrative Procedure
"1. The administrative procedure is fundamentally based on the following principles, without prejudice to the validity of other general principles of Administrative Law:
1.15. Principle of Predictability or legitimate trust. - The administrative authority provides the regulated parties or their representatives with true, complete and reliable information about each procedure under its charge, so that, at all times, the regulated party can have a certain understanding of the requirements, procedures, estimated duration and possible results that could be obtained.
The actions of the administrative authority are congruent with the legitimate expectations of the regulated parties reasonably generated by practice and administrative antecedents, unless for reasons that are explicitly stated, in writing, it decides to depart from them. The administrative authority is subject to the current legal framework and cannot act arbitrarily. In this sense, the administrative authority cannot vary unreasonably and without motivation the interpretation of the applicable norms."

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administrative are issued with a high degree of predictability, with the objective that the regulated party knows in advance the outcome that its request will have. Likewise, the aforementioned article indicates that the administrative authority must submit to the legal framework, since it cannot vary in an unreasonable and arbitrary manner the interpretation of the norms applicable to the cases it analyzes, and that its actions must be congruent with the administrative antecedents. As a consequence of this, through the principle of predictability or legitimate trust, legal security is provided to the supervised regulated parties, since they will receive coherent, precise, reasonable and predictable decisions;

However, it is pertinent to indicate that to carry out an analysis of the principles of Predictability and Legal Security in a concrete case, it is indispensable that whoever alleges its violation, present the cases and previous precedents that would have established a regularity of criteria applicable to identical facts, as well as the legal arguments that allow supporting their allegations. In that sense, the stock exchange agent society has not referred to any administrative precedent that has defined binding criteria to the situations indicated by DIVISO SAB, nor has it mentioned any of the previous cases it refers to in its additional allegations. Consequently, in the present case, no non-compliance with the principles of Predictability and Legal Security is observed;

DEFENSE PRESENTED

DIVISO SAB has fulfilled carrying out the placement of securities observing the provisions established in the regulations of the matter.

Regarding the obligation of DIVISO SAB to prove that it has diligently applied procedures so that the investors who participate are exclusively institutional investors, said company states that it has the Internal Procedure: "Evaluation of compliance with the status of institutional investors within the framework of a private offering directed exclusively to institutional investors". In said procedure, the activities that the company's personnel must perform are detailed, which are:

a. Inform the investor about the requirements required by Article 4 of the LMV and Article 3 and Annex I of the Regulations for Institutional Investors to qualify as an institutional investor.

b. Ask the investor and verify to the extent that it is legally possible and permitted that the investor meets the requirements required by Article 3 and Annex I of the Regulations for Institutional Investors.

c. Collect the sworn statement required by Annex I of the Regulations for Institutional Investors duly signed by the investor.

d. Ensure that in the offering prospectus and placement notice it is expressly stated that it is a private offering;

In that sense, DIVISO SAB maintains that it has complied with what is required by Article 5 of the TUO LMV, as well as what is stated in Article 3 and Annex I of the REGULATIONS FOR INSTITUTIONAL INVESTORS.
In observance of Article 46, letter a), second paragraph of the RAI, which establishes that the Agent, prior to its participation as

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placer in the primary market, must determine jointly with the issuer, if the placement of financial instruments, due to their characteristics or conditions, constitutes a public offering, DIVISO SAB states having fulfilled such obligation through meetings held with the issuer and the communication sent to it formally on December 18, 2018, through which it was recorded that with regard to the interest of carrying out the issuance of these, they would indeed constitute private offerings and not public offerings because:

a. Private offerings will be carried out solely and exclusively under the protection of what is established in Article 5 of the LMV, that is, considering that they are directed exclusively to institutional investors. The securities acquired by these investors cannot be transferred to third parties, unless they do so to another institutional investor or the security is previously registered in the Public Registry of the Securities Market.

b. In the prospectuses. Notices and other communications, it will be expressly stated that the offerings are of a private nature.

c. The sworn statement required by Annex I of the Regulations for Institutional Investors duly signed by the investor will be collected.

In that sense, DIVISO SAB cites the following documents issued in which it was fulfilled to emphasize that the offering made by ESQUEMA INVESTMENT was private, consigning in the Offering Notice and in the Master Prospectus, various texts such as, for example, "Private Offering Notice"; "Type of Offering: Primary Private Offering"; "Negotiation: As it is a Private Offering …"; "Important Notice: The Corporate Bond(s) issued will not be registered in the Public Registry of the Securities Market of the Securities Market Superintendency, nor will the provisions contained in the Securities Market Law nor the regulations that regulate public offerings apply to it"; "This document is made known to a limited number of potential investors, whose number is less than one hundred (100) persons (…)"; "it is a Private Offering that is not regulated nor supervised by said entity [the SMV]"; Secondary Market: The ICPs and/or BCs cannot be transferred to third parties, unless they do so to another institutional investor"; "As it is an Issuance Program under a Private Offering, the Issuances that are planned to be carried out will only be directed to institutional investors", etc.;

Evaluation of the Defense

On this matter, it must be indicated that in its defense DIVISO SAB states having the procedure: "Evaluation of compliance with the status of institutional investors within the framework of a private offering directed exclusively to institutional investors";
Likewise, DIVISO SAB maintains having complied with what is required by Article 5 of the TUO LMV, as well as what is stated in Article 3 and Annex I of the REGULATIONS FOR INSTITUTIONAL INVESTORS, since, among others, it informed its investors about the requirements required by Article 4 of the TUO; and, asked the investor and verified to the extent that it is legally possible and permitted that the investor meets the requirements required by Article 3 and Annex I of the aforementioned regulation;

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Regarding the previous consideration, it should be noted that according to Article 173°, item 173.2 of the TUO LPAG, which indicates that it corresponds to the regulated parties to provide evidence through the presentation of documents and reports, propose expert opinions, testimonies, inspections and other permitted diligences, or adduce allegations. On the other hand, Article 196° of the Civil Procedural Code, applicable supplementarily to administrative procedures, establishes that the burden of proof corresponds to the one who affirms the facts that configure their claim;
In that sense, DIVISO SAB has not proven what is stated in its defense with its Operational Procedures Manual and documents that support its application to this case, since it is only supported by its word, so it is not possible to evaluate the alleged regulatory compliance;
Regarding the compliance with Article 46, letter a), second paragraph of the RAI, which establishes that the Agent, prior to its participation as placer in the primary market, must determine jointly with the issuer, if the placement of financial instruments, due to their characteristics or conditions, constitutes a public offering, it should be noted that it is not enough for the stock exchange agent society in meetings with the issuer or in documents to state that it will participate in the placement of an offering directed exclusively to institutional investors, when in fact, in the process of client and fund capture, it only limits itself to collecting signatures of sworn statements from investors who clearly do not have the status of institutional investors, and who probably are not understanding the process, so the objective of the applicable regulation, previously cited, is not fulfilled in this way;
For its part, in its additional written allegations, DIVISO SAB states that in the present administrative sanctioning procedure, the rules are confused by considering that the threshold of S/ 250,000.00 is mandatory for every private offering, when in its opinion, it is possible the existence of private offerings of securities with securities lower than those indicated in the LMV;
Regarding this, it must be indicated that the current regulation has not determined amounts lower than that established in letter b) of Article 5 of the LMV (nominal value or lowest placement value being equal to or greater than S/ 250,000.00) to sustain whether a securities offering is a private offering, in that sense, given the existence of an imperative norm which has not been modified, it is not legally possible to allege a confusion given the clarity of the cited regulation; sustaining the contrary would suppose the violation of the principle of legality which in its allegations DIVISO SAB presents to sustain that there is a private offering even when the nominal value of the securities to be offered is lower than that previously established;
Without prejudice to the above, it is worth remembering that the other case to determine if an offering is private is that it is directed to institutional investors, which has also been the subject of evaluation in the present procedure regarding which DIVISO SAB, throughout the same, has not substantiated nor less proven with any instrumental evidence;
In that sense, it is worth reiterating that in the present administrative procedure, a set of indications is evaluated that allow concluding that the placements carried out through DIVISO SAB of the securities issued by

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SMV
Superintendency of the Securities Market
Electronically signed document within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship ESQUEMA INVESTMENT constituted a public offering, which has not been disproven by DIVISO SAB; DEFENSE FILED Regarding the non-application of Article 6 of the ROPPV
220. DIVISO SAB argues that having accredited that the complainants are institutional investors and that the ESQUEMA
INVESTMENT offering was private by adhering to one of the safe harbors, it reiterates that there is no justification for the need for protection neither by the status (institutional investors), nor by the number of complainants (two) so the analysis of the requirements established in
Article 6 of the ROPPV is not applicable;
221. DIVISO SAB indicates that, notwithstanding this, even if the analysis of the concurrence of said elements were carried out, it sustains
below that it is confirmed that we are facing a private offering; Negotiability of the securities
222. The brokerage firm in its additional written allegations states that there was no free negotiation market for the
securities, to the extent that: i) each series had specific conditions (interest rates, terms and own characteristics), which made them not fungible with each other, ii) there was no secondary market in which these securities could be freely negotiated and iii) the securities were not designed for open negotiation, but for being held until maturity by institutional investors. Thus, based on this, DIVISO SAB argues that if the securities were not freely negotiable, then they could not be considered part of a public offering; Evaluation of defense
223. Regarding this, it must be reiterated that according to the
ROPPV, the securities that can be the object of a public offering are those issued not only simultaneously, but also successively as part of the same financial operation or as part of financial operations of a similar nature, being homogeneous or not among themselves;
224. In this sense, it must be indicated that the corporate bonds and short-term instruments issued by ESQUEMA INVESTMENT, which do not necessarily are homogeneous among themselves, since for each series of bonds and
short-term instruments issued the characteristics are different from one another, have been issued successively in financial operations of a similar nature, exceeding the issuance, within a one-year period, in a number greater than ten (10) securities, thereby meeting the requirement of "mass issuance" contemplated in letter b) of Article 5 of the ROPPV;
225. Additionally, according to what is stated in the
respective master issuance contracts, the corporate bonds and short-term instruments issued under the Programs are freely negotiable; therefore, what is stated by DIVISO SAB regarding that the securities were not freely negotiable, is incorrect and contradicts what is established by the master contracts, which constitute the basis of investment decisions;
226. Being so, the corporate bonds and short-term instruments issued by ESQUEMA INVESTMENT constitute securities

PERU Ministry of Economy and Finance

SMV
Superintendency of the Securities Market
Electronically signed document within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship susceptible of being the object of a public offering of securities, as required by Article 5 of the ROPPV; Adequately disseminated invitation
227. DIVISO SAB cites what is stated in the OFFICE OF CHARGES indicating that the purchase of the financial instruments by the
complainants would have been made at the suggestion of its Commercial Chief and the following Diviso Bolsa officials: Julio Willis Cobarrubias, Katherine Cortes Lewis and Carlos Franco Cuzco;
228. DIVISO SAB states that regarding what was indicated
previously, the OFFICE OF CHARGES has only limited itself to taking as true the facts narrated by the complainants and that with respect to alleged copies of electronic mails and communications that are reproduced in the cited office, to the extent that none of the persons mentioned currently work at DIVISO SAB it cannot ensure that they or their content are true;
229. DIVISO SAB requests considering that the common representative of the complainants, REPRESENTATIVECOMMON, is using
its clients and does not spare failing the truth, distorting the facts and avoiding an agreement between the parties. Proof of the above are the intimidating and threatening notarial letters repeatedly sent to the officials and executives of DIVISO SAB, as well as the defamatory statements it has made in the media, as well as the criminal complaints it has filed not only against legal representatives of the company, but against assistants, pre-professional interns, former officials who worked in the company more than 8 years ago and persons who have nothing to do with the issuances and placement subject of the complaint, as evidenced by the complaint writings themselves which are also directed against Diviso Grupo Financiero S.A., among others;
230. For the reasons stated, DIVISO SAB highlights that there are
sufficient reasons to call into question the assertions made by the complainants, as well as the veracity of the content of the copies of the documents that they have presented. In this sense, it considers that it is not possible to take as certain only under the principle of presumption of truthfulness what is stated by the complainants for the purpose of proving that the invitations have been adequately disseminated as prescribed by the ROPP; Evaluation of defense
231. Regarding this matter, it corresponds to point out that DIVISO
SAB has not disproven the evidence presented regarding the placement of the securities issued by ESQUEMA INVESTMENT, nor disproven the participation in the placement of such securities by the Commercial Chief of Diviso Grupo Financiero and the gentlemen Julio Willis Covarrubias, Katherine Cortes Lewis and Carlos Franco Cuzco;
232. In effect, DIVISO SAB has only limited itself to
stating: "to the extent that none of the persons mentioned currently work at DIVISO SAB it cannot ensure that they or their content are true";
233. Regarding this, what is stated by DIVISO SAB would
give to understand, as it slips or intends, to indirectly support denying the existence of the referenced persons, however, this is not true since it is evident that the cited persons are not only or were officials of the Diviso Group companies,

PERU Ministry of Economy and Finance

SMV
Superintendency of the Securities Market
Electronically signed document within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship but also one of them was the highest administrative official of DIVISO SAB at the date the events occurred;
234. Mr. Carlos Alexis Franco Cuzco was
vicepresident of the Board of Directors of DIVISO SAB (from March 2019 to January 2021) and general manager of DIVISO SAB (from January 2019 to January 2021) within the imputed period37;
235. Regarding the Commercial Chief of Diviso Grupo
Financiero, member of the economic group to which Diviso SAB belongs (from February 2018 to March 2020) within the imputed period38;
236. Regarding Mr. Julio Willis Covarrubias, he was
part of the Rest of Personnel with the position "Others" of DIVISO SAB (from January 2020 to
december 2023) within the imputed period39;
237. Likewise, it should be added that in file No.
2022005605 it was evidenced that Mr. Julio Willis participated on behalf of DIVISO SAB in the placement of securities of the FIFTH PROGRAM of ESQUEMA INVESTMENT on September 9, 2019;
238. Mrs. Katherine Cortez Lewis was part of
the Rest of Personnel with the position "Others" of DIVISO SAB (from November 2019 to March
2022) within the imputed period40;
239. It should be specified that the adequately disseminated invitation is
supported by the documents presented by the COMPLAINANTS that are in the file and not only by the statements of these, so that, by not having disproven the former, nor having issued any comment regarding the content of the emails sent by the persons questioned by DIVISO SAB, it demonstrates that the placement of the securities issued by ESQUEMA INVESTMENT was adequately disseminated;
240. Additionally, it must be indicated that Mr. Willis
holds the position of Director in the company NCF Servicios Compartidos S.A. since July 1, 2021, said company belongs to the Economic Group of Diviso Grupo Financiero. Likewise, Mr. Franco has held various positions within various companies that belong to said economic group, for example he was Vicepresident of the Board of Directors of Diviso Fondos SAFI from February 19, 2021 to June 28, 2021, Central Manager of Diviso Grupo Financiero S.A. from April 11, 2022 to October 3, 2022, Director of NCF Servicios Compartidos S.A. since July 1, 2021 to date, and within the imputed period, he was Director of ESQUEMA INVESTMENTS from March 31, 2017 to December 10, 2020; so that regardless of the labor relationship that Mr. Willis and Mr. Franco may have with DIVISO SAB, they maintain links with it through the functions they perform in other companies that belong to the same economic group as the intermediary;

37 Source Public Registry of the Securities Market.
38 Source own declaration on the professional Linkedin network. 39 Source Public Registry of the Securities Market. 40 Source Public Registry of the Securities Market.

PERU Ministry of Economy and Finance

SMV
Superintendency of the Securities Market
Electronically signed document within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship
241. In its additional written allegations, DIVISO SAB
states that there was no mass dissemination of the offering in question in the measure that each i) series of securities was placed with a single investor, without there being indiscriminate access to the offering, ii) mass media were not used, nor advertising campaigns for the placement, and iii) the offerings were made through direct contact with institutional investors, without open dissemination. In this sense, indicates the brokerage firm that the lack of mass dissemination is a key characteristic of the private offering, which it considers that a public offering was not configured;
242. Regarding this, it must be reiterated what is stated in the
analysis of the section of the "nature of the offering of bonds and of the short-term instruments issued by ESQUEMA INVESTMENTS", that is, that according to Article 6, letter a) of the ROPPV, the invitation referred to in Article 4 of the LMV (now Article 4 of the TUO LMV), is any manifestation of will that has as its purpose an invitation to offer, simple offer or another that has as its object to make or receive proposals related to an investment act. Which can be carried out either directly or through third parties;
243. In this sense, considering that DIVISO SAB is the
placement agent for the bonds and short-term instruments issued by ESQUEMA INVESTMENTS, the offering of said investment alternative by DIVISO SAB to the COMPLAINANTS, by means of emails or meetings, constituted an adequately disseminated invitation in the terms established in the provisions mentioned. This is because, said offerings necessarily had as their purpose to receive investment proposals and that they materialize in legal acts of placement of said securities, in addition to the fact that the invitations were directed to their recipients, whether individually or not, simultaneously or successively, by means that proved suitable to make these invitations known to their recipients, fulfilling in this way what is provided in Article 6, letter b) of the ROPPV;
244. For its part, it must be pointed out that said
Article 6, letter b), does not circumscribe the scope of the term "adequately disseminated"
to invitations made through open dissemination as ESQUEMA INVESTMENT intends to argue, but also considers "meetings" as a suitable means, even if they are individual. It is for this reason that the meetings with the officials of DIVISO SAB with the representatives of the legal persons complained against, prove to be a suitable means to make said offering known; Directed to the general public or a certain segment of it
245. DIVISO SAB states that with respect to this requirement
the SMV in the Information Document has stated:
"(...) offerings directed to a particular segment of the public constitute the majority of "gray areas" in the determination as public or private of a securities offering. The first paragraph of subsection d) of Article 6 of the ROPPV states that a segment of the public is considered as the set of persons determined or not that, according to the circumstances, require protection, provided that their number is such that it involves public interest. In this sense, for the purpose of determining if the offering is public or not by being directed to a segment of the public, it is not relevant that the persons of said segment are identified or not, but that: (i) require protection and (ii) their number involves public interest (...)".

PERU Ministry of Economy and Finance

SMV
Superintendency of the Securities Market
Electronically signed document within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship
246. Then, the need for protection and the number of
investors are two concomitant requirements, where only the presence of both (not one of them) will be able to conclude whether this requirement is met or not;
247. Regarding the need for protection,
COMPLAINANT1 states that it made an investment of S/ 2,378,395.42 and USD 460,501.10, while COMPLAINANT3 for S/ 4,000,000.00 (so it is about institutional investors, of high net worth) and, in addition, since it is only about two persons, it does not involve a public interest; Evaluation of the Defense
248. DIVISO SAB states that COMPLAINANT1 and
COMPLAINANT3 are high-net-worth legal persons so they are institutional investors;
249. Regarding this, it should be pointed out that, according to
numeral 4 of Annex 1 of the REGULATIONS FOR INSTITUTIONAL INVESTORS the condition that legal persons of private or public law must meet is that they have as one of their activities the investment in securities. Then, complying with this condition, it is verified if the non-state legal persons have a portfolio of investments in securities equal to or greater than one million soles (S/ 1 000 000,00), updated, before making the investment in the securities object of the offering;
250. Then, in the present administrative procedure
it has been demonstrated that COMPLAINANT1 and COMPLAINANT3 did not have, nor have as one of their activities the investment in securities, but that the first is a non-profit association dedicated to religious activities and the second is a car trading company;
251. Notwithstanding what is stated in the previous
consideration, COMPLAINANT3 had not invested before in the securities market as it stated in its intermediation contract with DIVISO SAB prior to its investment in the securities issued by ESQUEMA INVESTMENT;
252. With respect to the fact that it is only about these two legal persons so it does not involve public interest, it should be pointed out that in the present procedure it has been evidenced, as a sample, that thirteen (13) investors who acquired the securities of the PROGRAMS of ESQUEMA INVESTMENT are not institutional so they require State protection;
253. Regarding this, it should be pointed out that regarding the investor natural persons who did not have a securities portfolio before investing in securities of the FIFTH and SIXTH PROGRAMS of ESQUEMA INVESTMENT, DIVISO
SAB has not sustained the reasons why these persons are institutional and do not require State protection, Regarding the number of investors to whom the offering was directed
254. In its oral report, DIVISO SAB stated that the limit number that must be considered if one is facing a public offering is that of 100
investors, which is not met in the present case; so the charge of carries an error when considering that in the present case there is a segment

PERU Ministry of Economy and Finance

SMV
Superintendency of the Securities Market
Electronically signed document within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship of the public and a public interest to protect, since, the regulation clearly states the number of persons that must concur for this purpose; Evaluation of the defense
271. Regarding this matter, Article 6, letter d) of the
ROPPV, defines the segment of the public as the set of persons determined or not, that, according to the circumstances, require the protection referred to in Article 2 of the cited regulation, when their number is such that it involves public interest. Likewise, it establishes that such protection is required when, in order to the possibility of access to relevant information by said persons and/or that it be processed by them, they find difficulties in adopting a free and informed decision regarding the invitation made;
272. In this sense, it is important to take into account what is stated in Article 2 of the ROPPV, that is, the need for protection of the
investors, which constitutes an indispensable condition to attribute to a determined offering of securities, the character of public;
273. In this way, considering what is established in the
mentioned article, to determine the need for protection it is necessary to conclude that by the characteristics of the recipients of the offering it is required that these have all the information that is required in a public offering, in order to only by accessing it, they can take a duly informed decision about it, based on equal treatment, which guarantees among others, the same conditions;
274. On the other hand, notwithstanding the above, it must be taken into account, the presumption of need for protection for the investor, contained in the second paragraph of the aforementioned letter d) of Article 6 of the ROPPV, by which it is considered that for the purposes of its qualification as a segment of the public, a set of recipients composed of a number equal to or greater than one hundred (100) persons involves public interest;
275. It should be specified, that this does not suppose in any way that an offering directed to less than one hundred (100) persons does not involve public interest,
given that, said case could also involve public interest, as long as all or part of the recipients of the offering require the protection of the State and it is about securities issued massively (more than 10 in a year);
276. Regarding this, it should be pointed out that 89
series were issued in the FIFTH PROGRAM between March 21, 2019 and August 28, 2020 and 64 series in the SIXTH PROGRAM from July 23, 2020 and February 26, 2021; to a total of 64 natural person investors and 17 legal persons; in total 81 investors, of which, by way of example, it has been evidenced that at least thirteen (13) of them are not institutional investors;
277. In the present case it is appropriate to point out that in the
OFFICE OF CHARGES it was imputed that at least 13 recipients of the securities offering did not qualify as institutional investors and in this regard, in its defenses DIVISO SAB has not disproven the imputed facts, accrediting that the referred persons qualified in their entirety as institutional investors, and that, consequently, all of them did not require the respective protection;

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría
278. In this regard, it has been verified that at least 13 of the persons to whom the offer of securities placed through DIVISO SAB was directed required the protection provided for in the regulations. Therefore, this group of offer recipients qualifies as a segment of the public that requires protection;

DEFENSE SUBMITTED

Regarding the violation of the principle of legality and typicity

DIVISO SAB states that the NOTICE OF CHARGES violates the principle of legality;
DIVISO SAB indicates that in order to determine if a sanctioning process is being legally initiated against it, it is important to take into consideration the requirements imposed by the principle of legality, which provides that every act of the administration must be framed and justified by a prior Law (lex praevia) that allows for predicting with sufficient certainty (lex certa) those behaviors and knowing what to expect regarding administrative responsibility and any eventual sanction;
On this matter, DIVISO SAB explains that the Principle of Legality is regulated in article 2, numeral 24, literal d) of the Constitution, which provides that:

“Nobody shall be prosecuted or convicted for an act or omission that at the time of its commission was not previously classified in the law, expressly and unequivocally, as a punishable offense, nor sanctioned with a penalty provided for in the law.” (The highlighting is added by DIVISO SAB)

DIVISO SAB specifies that the TUO LPAG has incorporated this constitutional principle in numeral 1.1 of article IV of its Preliminary Title, which provides as follows:

“Administrative authorities must act with respect for the Constitution, the law, and the law, within the powers attributed to them and in accordance with the purposes for which they were conferred.”

According to this constitutional principle incorporated in the TUO LPAG, DIVISO SAB notes that entities of the public administration, including the SMV, must exercise their administrative powers, including the administrative sanctioning power, within the provisions established by our legal system. In this sense, the Constitutional Tribunal, the supreme interpreter of the Constitution, has indicated in various jurisprudence that:

Exp. No. 601-98-AA/TC.

“(…) the Political Constitution of the State enunciates the basic principles that govern the legal system according to which public entities must proceed, such as the principle of legality, according to which, in general, all public powers are subject to the law, and in particular, administrative action must conform in all respects to said system, both in its formal procedures and in the objectives of its action; related to this principle is the principle of interdiction of arbitrariness, for it is precisely the action of the administration within the legal system that allows excluding arbitrary behaviors41.” (The highlighting is by DIVISO SAB)

Exp.: 00197-2010-PA/TC

“2.- The principle of legality constitutes a constitutional guarantee of the fundamental rights of citizens, enshrined in the Constitution in its article 2nd, clause 24, literal d), with the following wording: “Nobody shall be prosecuted or convicted for an act or omission that at the time of its commission was not previously classified in the law, expressly and unequivocally, as a punishable offense; nor sanctioned with a penalty not provided for in the law”.
3. The principle of legality in sanctioning matters prevents the commission of an offense from being attributed if it has not been previously determined in the law, and also prohibits the application of a sanction if it is not determined by the law. As this Tribunal has expressed (Cf. File No. 010-2002-AI/TC), this principle imposes three requirements: the existence of a law (lex scripta), that the law be prior to the sanctioned fact (lex praevia), and that the law describe a strictly determined factual situation (lex certa).
4. It has also been established that “This principle comprises a double guarantee; the first, of a material nature and absolute scope, both referred to the strictly penal field and that of administrative sanctions, which reflects the special importance of the principle of legal certainty in these limiting fields and implies the imperative need for prior normative determination of infringing conduct and the corresponding sanctions; that is, the existence of legal precepts (lex praevia) that allow predicting with sufficient certainty (lex certa) those behaviors and knowing what to expect regarding the attached responsibility and the eventual sanction; the second, of a formal nature, relative to the requirement and existence of a norm of adequate rank and which this Tribunal has identified as law or norm with the rank of law”. (Cf. Judgment of the Spanish Constitutional Tribunal No. 61/1990).
5. However, the principle of legality should not be identified with the principle of typicity. The first, guaranteed by article 2nd, clause 24, literal d) of the Constitution, is satisfied when the prediction of infractions and sanctions in the law is fulfilled. The second, on the other hand, defines the conduct that the law considers as an offense. Such precision of what is considered unlawful from an administrative point of view, therefore, is not subject to an absolute reservation of law, but can be complemented through the respective regulations.
6. Consequently, and in accordance with what was stated in the judgment issued in File No. 2192-2004-AA/TC, the sub-principle of typicity or taxativity constitutes one of the manifestations or concretions of the principle of legality regarding the limits imposed on the penal or administrative legislator, in order for the prohibitions that define sanctions, whether penal or administrative, to be drafted with a sufficient level of precision that allows any citizen to

41 Exp. No. 601-98-AA/TC. Judgment published in the Official Gazette El Peruano on 29.07.2000.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría understand without difficulty what is being proscribed, under threat of sanction in a specific legal provision. (the highlighting is by DIVISO SAB).

In line with the above, DIVISO SAB cites Morón Urbina42 who states that:

“If in private law capacity is the rule, and incapacity the exception, in public law the relationship is precisely the inverse, since, in safeguarding individual freedom and citizens' rights, the law does not assign to each subject of law, a predetermined scope and purpose, rather their aptitudes are determined by positive, declarative, and marginally limiting propositions. (…) It is correctly pointed out that while subjects of private law can do everything that is not prohibited, subjects of public law can only do that which is expressly authorized.” (The highlighting is by DIVISO SAB)

The general principles of administrative law as a manifestation of the principle of legality.

DIVISO SAB describes that, as developed in the previous section, entities in the public sector must act observing the provisions established by law. Nevertheless, it specifies that even though the traditional denomination of legality has been maintained when referring to this principle, it is true that the subjection of the administration to the law and not only to one of its sources, such as the law, but to the law in all its maximum breadth of sources, must be recognized;
DIVISO SAB again cites Morón Urbina43 who states:

“Even though the traditional denomination of legality has been maintained to refer to this principle, it must be recognized in truth that the subjection of the Administration is to the law and not only to one of its sources such as the law, which some authors prefer to denominate “juridicity”. By virtue of this principle, it must be understood that entities are subject to the entire normative system, from the general principles of law and the National Constitution, to simple administrative precedents whose follow-up compromises the guarantee of equality, passing through formal law, general-scope administrative acts, and eventually, certain administrative contracts.” (The highlighting is added by DIVISO SAB)

DIVISO SAB emphasizes that in this sense, the subjection of public sector entities is not only to the law, in the strict sense, but to all those sources of law that constitute our legal system. Regarding this, article V of the Preliminary Title of the TUO LPAG establishes what the sources of administrative law are, one of which are the general principles of administrative law. In detail, it provides as follows:

42 MORÓN URBINA, Juan Carlos. Comments on the General Administrative Procedure Law. Gaceta Jurídica, third edition, 2004. pp. 62.
43 MORÓN URBINA, Juan Carlos. Ibid. pp. 62.

PERÚ Ministry of Economy and Finance

“Sources of administrative procedure are:
(…)
10. The general principles of administrative law.
The sources indicated in numerals 2.7, 2.8, 2.9 and 2.10 serve to interpret and delimit the field of application of the positive legal system to which they refer.”
(The highlighting is by DIVISO SAB)

DIVISO SAB indicates that in this way, the general principles of administrative law inform the entire administrative system, constituting its support and base, and also serve as orientation, delimiting the action of legal operators and limiting the exercise of powers of public entities;
Consequently, DIVISO SAB points out that the general principles of administrative law and particularly, the general principles of sanctioning administrative law serve as criteria for interpreting positive law norms and as a limit for the exercise of the administrative sanctioning power;
DIVISO SAB cites Cassagne who states that,

“(…) applying principles to Administrative Law, it is found that some of them fulfill a function of protection means tending to prevent arbitrariness of public powers, limiting the exercise of the so-called discretionary powers, as well as constituting limits to the exercise of powers and authorities of Administration entities, such as the regulatory power, the ablator powers or the always feared sanctioning power of the Administration44.” (The highlighting is added by DIVISO SAB)

DIVISO SAB considers that the commission of an offense cannot be imputed if the limits imposed by the principles of the sanctioning administrative procedure have not previously been met, such as the principles of typicity, legality, causality, reasonableness, etc.;
In this sense, DIVISO SAB argues that the SMV can only exercise those powers that have been recognized by law, in the form and opportunity established by the corresponding authorizing law. In this way, in the particular case of the sanctioning power, the SMV must observe what is provided in the LMV, its Organic Law, its SANCTIONS REGULATION and subsidiarily in the TUO LPAG;
DIVISO SAB cites the Organic Law of the SMV (formerly CONASEV), approved by Decree Law No. 26126, which provides in its article 2nd45 as follows:

44 CASSAGNE, Juan Carlos. Administrative Law. Volume I. Seventh edition. Editorial Lexis – Nexis, Buenos Aires, 2002. pp. 197-198.
45 Article 5 of the Organic Law of CONASEV (now called SMV) states as follows:
“The powers of the Board of Directors of the Superintendency of the Securities Market (SMV) are the following:
(…)

PERÚ Ministry of Economy and Finance

“The functions of the National Commission for the Supervision of Companies and Securities are the following:
(…) o) To typify infringing conduct in the securities market, products market, and collective funds, as well as to issue the respective corrective measures, when appropriate.
(The highlighting is by DIVISO SAB)

DIVISO SAB emphasizes that from the above, it is derived that the legislator has considered that the specialized entity in the securities market is the best qualified to establish, in light of the norms regulating the securities market, the negative behaviors deserving of sanction. In this sense, the SMV is empowered to typify and sanction, via regulation, the infringing conduct of the securities market;
In effect, article 1 of the SANCTIONS REGULATION provides that:
Article 1.- OBJECT This Regulation regulates the exercise of the sanctioning power attributed to the Superintendency of the Securities Market - SMV through the Unified Concordant Text of its Organic Law, Decree Law No. 26126; the Securities Market Law, Legislative Decree No. 861; Decree Law No. 21907 on Collective Fund Administrating Companies; the General Companies Law, Law No. 26887; the Law that promotes the swap or redemption of investment shares, Law No. 28739; and other norms that grant sanctioning powers to the SMV.
This norm regulates the sanctioning procedure in charge of the competent organs indicated in the Organization and Functions Regulation of the SMV and establishes the administrative infractions to the norms under the competence of this Superintendency, as well as the sanctions applicable to them. (The highlighting is by DIVISO SAB);
According to this provision, DIVISO SAB highlights that the SANCTIONS REGULATION itself determines that infractions are established in this Regulation. In this way, the SMV can only sanction those behaviors that are clearly, certainly, and unequivocally typified as an infraction in its own SANCTIONS REGULATION;
On the other hand, regarding the exception of reservation of law to typify punishable conduct as infractions, DIVISO SAB cites numeral 7 of the dissenting vote issued by Doctors Alva Orlandini and Gonzales Ojeda in the Judgment of the Constitutional Tribunal, Exp. No. 1105-2002-AA/TC, which states as follows:

“[…] On the other hand, although the reservation of law contained in the article under examination must be attended to in an absolute manner when it comes to the imposition of penal types and penalties, the same rigor cannot be demanded when it comes to the regulation of administrative infractions and sanctions, as this could lead to the dysfunctionality of the competencies of the Public Administration which translate par excellence into its regulatory power. Nevertheless, it must be required that infractions and regulatory sanctions find a direct subordination in the law, in such a way that they do not appear as “gears in the void”, but are the consequence, at least, of a legal determination that grants competence to the administrative sanctioning organ, that establishes the protected good from which the regulated infraction derives and that contains, in general, the sanctions that said organ is empowered to impose.” (The highlighting is by DIVISO SAB)

Regarding this, DIVISO SAB considers it important to highlight that regulatory sanctions must:
a. Have a direct subordination in the law. b. Be the consequence, at least, of a legal determination that grants competence to the administrative sanctioning organ.
c. Establish the protected good from which the regulated infraction derives.
d. Contain, in general, the sanctions that said organ is empowered to impose;
Having said this, DIVISO SAB exposes that the principle of legality (reservation of law) does not exclude the intervention of the regulation to typify infractions and sanctions; as long as they find a direct subordination in the law, in such a way that they are the consequence of a legal determination; otherwise, we are facing a violation of the principle of legality;
In the present case, DIVISO SAB narrates that the SANCTIONS REGULATION itself must typify (understand, the description of infringing situations in a clear, certain, and unequivocal manner) the infractions in its annexes; and not that the law complements what is stated in said annexes. In this way, the SMV can only sanction those behaviors that are clearly, certainly, and unequivocally typified as an infraction in its SANCTIONS REGULATION;
Notwithstanding the above, DIVISO SAB cites the NOTICE OF CHARGES where it indicates that the infractions in which it would have incurred are the following:
a. DIVISO SAB would have failed to comply with article 46, literal a), second paragraph, of the RAI; articles 4, 5 literals a) and b), 87, 90 and 195, literal j) of the LMV (now articles 4, 5 literals a) and b), 92, 95 and 191, literal j) of the TUO LMV), for which it would have incurred the infraction classified as very serious typified in inciso 1.2, numeral 1, of Annex I of the SANCTIONS REGULATION, which establishes as an infraction of a very serious nature: “Carrying out operations or activities prohibited by the applicable regulations, as appropriate, or carrying out operations or activities unrelated to its corporate object, or activities that aid or are complementary to its corporate object, without having obtained prior authorization from the SMV. b. DIVISO SAB would have contravened what is established in articles 5, literal a) and 59, literal a) of the RAI; and, consequently would have incurred in a (1) infraction typified as very serious in numeral 1, inciso 1.9, of Annex X of the SANCTIONS REGULATION, which establishes as an infraction: “Intermediating securities, financial instruments or derivatives, without complying with the requirements, conditions and other provisions established by the regulations”;
On this matter, DIVISO SAB affirms that the imputed infractions, on the basis of which it is intended to be sanctioned, do not comply with describing in a clear, certain, and unequivocal manner which conduct is prohibited. In effect, the description of the behaviors typified as infraction resorts to ambiguous, indeterminate, and imprecise terms such as “Carrying out operations or activities prohibited by the applicable regulations…”, or “Intermediating securities, financial instruments or derivatives, without complying with the requirements, conditions and other provisions established by the regulations”;
DIVISO SAB considers that these descriptions do not allow identifying which conduct is prohibited. Consequently, to give content to the infringing situations typified in numeral 2.9 of Annex I of the SANCTIONS REGULATION, the SMV has resorted to what is provided in norms of the LMV and the RAI;
Regarding this, DIVISO SAB points out that resorting to various articles of the LMV and the RAI, to give content to numeral inciso 1.2, numeral 1, of Annex I and to inciso 1.9, of Annex X of the SANCTIONS REGULATION, constitutes a violation of the principle of legality; inasmuch as; the LMV and the Organic Law of CONASEV (authorizing norms) have established that it is the SANCTIONS REGULATION of the Securities Market that must foresee in a clear, certain, and unequivocal manner which conduct is prohibited, and not that it should refer to other norms to give content to those behaviors that the Regulation has typified as infractions;
DIVISO SAB adds that the SMV indicates that the SAB would have contravened articles 5, literal a) and 59, literal a) of the RAI which establish the following:

Article 5.- Operations of Clients with the Agent or its Related Parties
In the case that intermediation activity is carried out outside centralized mechanisms, the Agent must, prior to the execution of any operation, communicate to its client:
a) That the Agent or its related party, will be the counterparty of the operation; and, (…) The Agent must credibly prove the timing and content of these communications when the SMV requires it.

Article 59.- Requirements to operate
In the intermediation of Financial Instruments not registered in the Registry, the Agent must comply with the following:
a) Deliver to the buying client, a declaration indicating whether it has a relationship or not with the main obligor to payment, issuer, or with the seller of the financial instrument; (…);

Likewise, DIVISO SAB additionally maintains that although these norms establish a duty to be, a norm of conduct, its non-compliance is not foreseen in the SANCTIONS REGULATION as an infraction. Consequently, it is not susceptible to sanction;

PERÚ Ministry of Economy and Finance

In its additional arguments, DIVISO SAB states that it must be considered that both the principle of legality and the principle of typicity constitute basic principles of sanctioning administrative law, whose purpose is to serve as a guarantee for the accused administrative party and, in turn, represent an essential limit on the administration's actions. In this way, the principle of legality in sanctioning matters "prevents the commission of an offense from being attributed if it has not been previously determined by law, and also prohibits the application of a sanction if it is not also determined by law. As this Tribunal has expressed (Case of Anti-Terrorist Legislation, File No. 010-2002-AI/TC), the principle imposes three requirements: the existence of a law (lex scripta), that the law be prior to the sanctioned act (lex previa), and that the law describe a strictly determined factual scenario (lex certa)"46. For its part, the principle of typicity requires "the precise definition of the conduct that the law considers as an offense (...)"47
Furthermore, DIVISO SAB adds that regarding the content of the principle of legality, Morón Urbina specifies that we are facing a rule of competence reservation for two aspects of the sanctioning power: first, for attributing sanctioning competence to a public entity, and second, for identifying the sanctions applicable to administrative parties for committing administrative offenses. Regarding the second, it states unequivocally:

"It is convenient to establish that this reservation not only implies that a norm with the rank of law fulfills the requirement of stating what penalty will be applicable (...) but must also fix with the greatest possible precision its margins of application, its quantity, duration, etc."48

For its part, regarding the principle of Typicity, the broker society indicates that the guarantee this principle represents for the administrative party must be taken into consideration, allowing it to know at all times and with certainty, the conduct that is classified as infringing and that will be subject to sanction. Regarding its content, Morón Urbina49 states:

"This principle requires the fulfillment of three concurrent aspects: i) the reservation of law for the description of those conduct subject to sanction by the Administration; ii) the requirement of certainty or sufficient exhaustiveness in the description of sanctionable conduct constituting administrative offenses; iii) the interdiction of analogy and extensive interpretation in the application of the scenarios described as illicit (from the concrete point of view, the typification is of restrictive and concrete interpretation).

(...)

(...) we appreciate that the second aspect contained in the principle, that is, the requirement of exhaustiveness in the typification formula, is indeed applicable to all possibilities of typification of administrative offenses. According to this aspect, administratively sanctionable conduct can only be the infractions expressly provided for through the certain identification of what is considered illicit for the public purposes of each state sector. In this sense, the legal norm must describe specifically and taxatively all the elements of the sanctionable conduct, reducing the vagueness of the sanctionable statement so that both the administrative party and the Administration foresee with a sufficient degree of certainty (lex certa) what constitutes the sanctionable illicit" (Emphasis added by DIVISO SAB)

Additionally, DIVISO SAB refers that, in line with the above, Víctor Sebastián Baca Oneto50 explains the following:

"The principle of taxativity requires that the norm precisely typify the infringing conduct, excluding excessively generic or open typifications. This principle, which is generally expressed in the realm of the Latin maxim nulla poena sine lege certa, "consisting in the requirement that both the prohibited or prescribed behaviors, and the sanctions to be imposed, be described clearly and unequivocally, so as not to generate legal insecurity. It is, in short, a matter of citizens being able at all times to foresee the sanctioning consequences that may derive from their conduct".

In this sense, based on what has been stated, the intermediary indicates that it is reasonable to demand clarity from the administration in the determination of infringing conduct and the sanction it entails, so that any person is capable of determining with exactness all the conduct that will be subject to sanction with the sole reading of the normative text. To what has already been cited, Morón Urbina51 adds:

"We consider that for the typification of an offense to be legally valid, the instructing authority must subsume the conduct into that offense which clearly contains the objective and subjective elements of the conduct described. Correlatively, it will not be satisfactory with the principle of typicity if the Administrative Authority subsumes the conduct in any of the following cases: i) When the normative description of the illicit is generic or imprecise, so that it cannot be verisimilitudinous to appreciate what the sanctionable conduct is; ii) When the normative description of the illicit contains some objective or subjective element of the type that has not occurred in the concrete case." (Emphasis added by DIVISO SAB)

For its part, Diviso SAB indicates that the Constitutional Tribunal has resolved in the sentence issued in file No. 2192-2004-AA/TC:

"The sub-principle of typicity or taxativity constitutes one of the manifestations or concretizations of the principle of legality regarding the limits imposed on the penal or administrative legislator, in order for the prohibitions that define sanctions, whether penal or administrative, to be drafted with a sufficient level of precision that allows any citizen of basic training to understand without difficulty what is being proscribed under threat of sanction in a given legal provision". (Emphasis added by Diviso SAB)

With regard to what was stated, the broker society cites as an example of the transgression of the principle of typicity the now repealed Law No. 28411, General Law of the National Budget System, which provided in its article 65 as follows:

"Article 65.- Non-compliance with the provisions of the National Budget System The non-compliance with the provisions established in the General Law, the Public Sector Budget Laws, as well as the Directives and complementary provisions issued by the National Directorate of Public Budget, gives rise to the applicable administrative sanctions, without prejudice to the civil or penal liability to which there may be grounds."

DIVISO SAB states that from the mere reading of the cited norm, it is not determined with precision even an elementary one to which conduct it refers specifically. Regarding the content of this norm, Morón Urbina52 states:

"Here we are facing a typical case of a blank sanctioning law, which despite its title, lacks material content, since it does not specify the hypothesis that defines the sanctionable conduct, but rather, through a vague or generic formula, places in the administrative authority the possibility of establishing, case by case, and with wide discretion, whether a certain conduct is sanctionable or not, which translates into a violation of the principle of typicity." (Emphasis added by Diviso SAB)

Additionally, the intermediary indicates that a similar situation arises regarding the regulation that contemplated the unconstitutional article 46 of the Organic Law of the National Control System and of the Comptroller General of the Republic, whose text was:

"Article 46.- Infringing Conducts Infringing conducts in matters of functional administrative responsibility are those in which public servants and officials incur when they contravene the administrative legal framework and the internal norms of the entity to which they belong. Among these we find the following conducts:
a) Fail to comply with the provisions that integrate the legal framework applicable to entities for the development of their activities, as well as internal provisions linked to the functional performance of the public servant or official. b) Incur in any action or omission that implies the serious transgression of the principles, duties, and prohibitions indicated in the norms of ethics and probity of public service. c) Perform acts pursuing a purpose prohibited by law or regulation. d) Incur in any action or omission that implies negligence in the performance of functions or the use of these for purposes different from the public interest." (Underline added by DIVISO SAB)

In this sense, DIVISO SAB indicates that it cannot be determined with total precision to which specific conducts the first paragraph of the article previously cited refers due to its margin of comprehension being too broad, and despite the fact that, in the following lines, it describes some of the conducts that should be understood as infringing, the Constitutional Tribunal declared the entire article 46 unconstitutional due to connectivity.
Based on this, the intermediary indicates that there would be similarity in the "formulas" contained in the sanctioning systems in the areas of the General Budget Law, the Comptroller General of the Republic, and the Securities Market Superintendence; that is, the prohibited use of a blank sanctioning norm.
The broker society adds that in this sense, the Constitutional Tribunal, when analyzing the constitutionality of its content in the sentence issued in file No. 00020-2015-PI/TC, resolved the following:
Based on this, DIVISO SAB concludes that the norm that typifies infringing conducts must be endowed with clarity and certainty, so that the administrative party can know its content in advance and with certainty in order not to incur in them, and that the description of actions or omissions must necessarily be included in the legal or administrative norm that describes with precision the infringing conducts and their corresponding sanctions, paying attention to the principles of rationality and proportionality between offense and sanction.
On the other hand, Diviso SAB indicates that the SMV intends to validate the indeterminacy in which the SANCTIONS REGULATION incurs by typifying as infringing conducts the following:

ANNEX I
Of General Infractions
Infractions common to Participants and liquidators, as applicable:
1.- Very Serious
Subsection 1.2, numeral 1, of Annex I of the Sanctions Regulation
1.2 Carry out operations or activities prohibited by the applicable regulations, as applicable, or carry out operations or activities unrelated to their corporate object, or activities that aid or are complementary to their corporate object, without having obtained prior authorization from the SMV. (Emphasis added)

ANNEX X
Of Infractions of the Intermediation Agent, of Representatives, of those responsible for the control system, and of any person who provides a service related to the functions and services provided by the Intermediation Agent Infractions of intermediation agents, representatives, internal control system responsible persons, and any person who provides a service related to the functions and services provided by the intermediation agent, as applicable:
1.- Very Serious
Subsection 1.9, numeral 1, of Annex X of the Sanctions Regulation
1.9 Intermediating securities, financial instruments, or derivatives, without complying with the requirements, conditions, and other provisions established by the regulations. (Emphasis added by DIVISO SAB)

Regarding this, Diviso SAB indicates that subsection 1.2 is limited to naming that it will be an infringement to carry out operations or activities prohibited by the applicable regulations; however, it does not detail at all, and even less with precision, what operations or activities the regulations proscribe. It seriously omits not indicating with clarity which specific norm it refers to, so, in its arguments, it states that according to the Constitutional Tribunal, the interpretation of this subsection is left to the open criterion of the administrative authority in charge, without the administrative party having certain knowledge of the content of the infringement, prior to the imputation of charges and the imposition of a sanction.
Similarly, it adds that subsection 1.9 presents as the proscribed conduct the intermediation of securities, financial instruments, or derivatives, without complying with the requirements or conditions and other provisions established by the regulations, so it reiterates that, as considered by the Constitutional Tribunal, the administration does not delimit at all nor with clarity to which conditions nor to which provisions it refers;
In this sense, the intermediary points out that it is evident that, as is known, the securities market regulations contain hundreds of provisions, so it alleges that this abundance of rules makes the lack of protection for administrative parties very serious, and the authority's power discretionary consequently;
Regarding the above, Diviso SAB states that the SMV admits that there is a certain degree of indeterminacy in the content of the aforementioned infractions, nevertheless, it considers that "(...) the principle of typicity admits a certain degree of indeterminacy, greater or lesser depending on the case, as long as there are previously established criteria in the legal system, such as legal provisions (as is the case here), which provide clear and sufficient information about the behavior that is intended to be sanctioned (...)";
Regarding this, DIVISO SAB points out that although the indeterminacy referred to may fall on the definition of a concept that may have external complementarity to the content of the norm, the fact is that the principle of typicity does not protect as valid those legal provisions that include in their regulation texts as ambiguous as the one indicated in subsection 1.2, numeral 1, of Annex I of the SANCTIONS REGULATION that establishes the administration's faculty to sanction an administrative party for carrying out activities and operations "prohibited by the applicable regulations" or "without complying with the requirements, conditions, and other provisions established by the regulations" as attempted in Subsection 1.9, numeral 1, of Annex X of the SANCTIONS REGULATION. For Diviso SAB, these phrases would result ambiguous, and it affirms that the level of imprecision they contain is not backed by the principles governing sanctioning administrative law, specifically by the principle of typicity widely analyzed by the Constitutional Tribunal;
It adds that, given the degree of ambiguity and indeterminacy of subsection 1.2, numeral 1, of Annex I of the SANCTIONS REGULATION, due to its wording, any operation or activity "prohibited by the regulations" could qualify as very serious, with which, according to DIVISO SAB, it would be sanctionable as very serious both an omission in complementary information that the SMV determines in the information prospectus (provided for in article 56 LMV), as the omission to inform a material event, which although both represent a non-compliance, the level of gravity does not match the classification of an infringement as very serious;
DIVISO SAB argues that the classification of an infringement as very serious is reserved for those infringements that involve a significant violation of established laws, regulations, or rules. In the securities market, very serious infringements are considered those that threaten the integrity and transparency of the market, so they must be the subject of clear and precise typification;
DIVISO SAB indicates that a proper typification of the conducts considered as very serious infringements must allow the administrative party to clearly understand what conducts are prohibited and the consequence of their non-compliance, in order to avoid ambiguities and erroneous interpretations; so not any activity "prohibited by the regulations" can be qualified as a very serious infringement, so it is imperative that the legislation typify the infringing conduct clearly, precisely, and prior to the imposition of a sanction;
In this sense, it reiterates argumentatively that the securities market regulations contain hundreds of precepts, each with its special description, so the rules are of diverse importance for the market and for the participants and protect rights of different hierarchy. Therefore, according to law, sanctions must correspond to the gravity or importance of the infringement. It is openly contrary that any act not permitted by the regulations deserves the same classification as a very serious infringement.
For its part, with respect to what was indicated by the SMV regarding "Similarly, doctrine also refers that it is impossible to detail all the legal types deserving of sanction, as viable DIVISO SAB states, since

SMV
Securities Market Superintendence
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship it is materially impossible, to such an extent that even the intermediary itself could not regulate in its operational procedure manual all the positions that have to do with the intermediation of financial instruments.”, DIVISO SAB states that this is not only incorrect in the aspect that attempts to equate or confuse the obligations that an administrative subject has in charge with those imposed on the administration, regarding who is bound to respect the principles of sanctioning administrative law such as Legality and Typicity, which imply the requirement to specify in advance, certain and clear the conduct that will be qualified as infringing and deserving of a sanction, which is alien to an administrative subject by its nature, whose origin is not referred to what provided by the Law. Furthermore, the statement expressed by the SMV, incurs in an error by attempting to excuse the indeterminacy that the infractions imputed to DIVISO SAB suffer from, in the impossibility of detailing the legal types that deserve sanction;
307. Regarding this, Diviso SAB cites what was stated by Morón
Urbina53 in the following terms:
“The application of indirect typification was already warned by NIETO when he gave account that administrative typification, unlike criminal typification, is concretized generally through three provisions: i) A first element of the type that establishes a mandate or a specific prohibition for the administrative subject (which indicates “it is prohibited to do X”); ii) a second element of the type that warns that this non-compliance constitutes a sanctionable infraction (“constitutes an infraction the non-compliance of X”); and, finally a third element (the sanction applicable to the case). As these three elements usually do not appear in the same norm, but disaggregated in different norms, and even separate normative bodies, we speak of the indirect typification of the administrative offense, unlike the criminal legal type, which is unique. As can be seen, indirect typification allows Sanctioning Administrative Law to identify an infraction through the integration of several norms of legal rank and regulations. But this figure, so convenient for not swelling the legislation with description of the sanctionable in several different norms, presents two inconveniences that put it in conflict with other principles: that the sanctioning norm is used to be punishable a duty that has not been imposed before by some norm or that the reference or referral is so general or uncertain that it is impossible for the administrative subject to define with clarity and anticipation what is really punishable (as when the sanctionable norm says simply “it will be a sanctionable infraction any norm of this law or regulation”. To limit the first noted distortion, the reform of the LPAG has established that the norm typifying infractions does not serve to impose on the administrative subjects the compliance of new obligations that are not previously provided in a legal or regulatory norm, according to which at least we must have two norms: that which establishes with clarity the active or passive duty to the administrative subject and then the one that makes that sanctionable. In the second case, the distortion implies a blank typification or an authorization for the administrative authority to finally discriminate what is sanctionable and what is not, losing all predictability”. (Emphasis added by DIVISO SAB).

53 MORÓN URBINA, Juan Carlos, “Comments on the General Administrative Procedure Law”, Gaceta Jurídica, Volume II, 17th edition, Lima – 2023, p. 442 and 443.

PERU Ministry of Economy and Finance

SMV
Securities Market Superintendence
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship
308. Based on this, DIVISO SAB argues that
from what is stated it is observed that the SMV resorts to indirect typification in the drafting of the infractions subsection 1.2, numeral 1, of Annex I and subsection 1.9, numeral 1, of Annex X contained in the SANCTIONS REGULATION, which refer to other norms in order to obtain the content that they do not possess by themselves; however, it points out that in the drafting of these norms, the requirements of the principle of typicity would not be taken into consideration, which requires that the referral to other norms not be general or uncertain, so that it does not allow the administrative subject to define in advance and with clarity which is the punishable conduct, as stated before by Juan Carlos Morón Urbina, this is configured when the sanctionable norm simply says “it will be a sanctionable infraction any norm of this law or regulation”, a fact that is present in the drafting of the subsections cited above of the SANCTIONS REGULATION, which grant, in its opinion, a wide margin of discretion to the administrative authority in charge to discern what is and what is not sanctionable, which represents for the administrative subject the loss of the required predictability;
309. In this line, it states that the Constitutional Court
has expressed in the ruling issued in case No. 05487-2013-PA/TC, foundation 8, the following:
“In general, the Constitutional Court has admitted that the principle of typicity in sanctioning matters requires that the conduct considered as offenses must be defined with a sufficient level of precision, so that the recipient of the same can understand without difficulty or be in conditions to know and predict the consequences of their acts; this based on the clear provision of the conduct proscribed and the applicable sanction. On the contrary, a norm will be totally indeterminate if the words in which it is expressed lack sufficient clarity or precision, which makes it difficult to apply to a concrete fact, since the competent body either finds itself in the presence of a large number of application options, or simply it is not possible for it to know any of the application options (…).” (Emphasis added by DIVISO SAB)
310. DIVISO SAB affirms that with this, it is clear that
the conduct qualified as sanctionable requires a level of precision that does not allow the administrative authority to discriminate between a wide margin of scenarios that fall within the vagueness of the text in question;
311. For its part, the stock exchange company indicates
that with respect to judicial jurisprudence, the criterion expressed by the Constitutional Court has clear concordance with what was stated in the judicial venue. Thus, in Casación No. 6254-2022, consideration number nineteen, it states:
“Nineteenth. In that sense, the principle of typicity constitutes one of the basic principles of sanctioning administrative law, also applicable in criminal law; being a guarantee, that the offenses and disciplinary sanctions must be previously typified and indicated in the Law. In this order of ideas, the principle of typicity implies the legal description of a conduct that appears connected to an administrative sanction, and that derives from two legal principles such as freedom and legal security; because on the first, the conduct must be exactly delimited, without indeterminacies, while in relation to the second principle, citizens must be in conditions to be able to predict, in a sufficient and adequate manner, the consequences of their acts, for which reason there are no general or indeterminate clauses of infraction that allow an action

PERU Ministry of Economy and Finance

SMV
Securities Market Superintendence
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship freed to the “arbitrariness” of the administration, but that it be prudent and reasoned.” (Emphasis added by DIVISO SAB).
312. Thus, DIVISO SAB adds, in the case cited above, the
Permanent Constitutional and Social Chamber of the Supreme Court of Justice of the Republic, analyzes numeral 4.1 of the Typification and Scale of Fines and Sanctions of the Natural Gas Supervision Department of OSINERGMIN, which indicated as infraction “4.1.9 Not comply with the norms and/or provisions related to the Quinquennial Plan”. Regarding this, the Chamber stated in consideration twenty-four that this norm “(…) accounts for the need to foresee such conduct (non-compliance with the Quinquennial Investment Plan) as an infraction subject to disciplinary sanction”. In this way it concludes:
“Twenty-fifth. In this scenario, it is appreciated that the entity sued in the case concrete, has violated the principle of typicity, a fact that was not noticed by the Superior Chamber; for which reason, this cassation cause is also supported.”
313. On the other hand, Diviso SAB states that in the report
of the instructing body it is attributed to him that he has incurred in the following:
314. Thus, it indicates that it is attributed the commission of two (2)
infractions by reason of subsection 1.2, numeral 1, of Annex I of the SANCTIONS REGULATION based on citing various articles both of the LMV TUO as well as the RAI; however, in no aspect is it specified what constitutes one infraction or the other, it does not delimit the content, nor does it make the correspondence regarding which alleged non-compliance with the articles of the TUO of the LMV or RAI takes place one or the other infraction.
315. DIVISO SAB adds that in the same way, a third
infraction is cited based on 1.9, numeral 1, of Annex X of the SANCTIONS REGULATION, with which in total it would be imputing the commission of three infractions in total, a situation of which knowledge is taken at the moment of reading the conclusions of the report of the instructing body and not beforehand, which deprives him of exercising a due defense as provided for in numeral 14 of article 139 of the Political Constitution;
316. Therefore, DIVISO SAB concludes that all the
stated places him in a state of defenselessness because not only is he not allowed to have certainty of the conduct that qualifies as infractions, in advance of the start of the administrative sanctioning process, but also he is not allowed to know with clarity which is the imputation made to him by the instructing body;

PERU Ministry of Economy and Finance

SMV
Securities Market Superintendence
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship
317. DIVISO SAB reiterates in its allegations that the
alleged very serious infractions imputed to it are not provided for in the SANCTIONS REGULATION. It states that the SMV is empowered to typify the conduct infringing the securities market (Article 5 of the Organic Law of CONASEV, now SMV) and as stated by article 1° of the Sanctions Regulation itself, approved by SMV Resolution No. 035-2018-SMV/01, establishes the infractions administrative to the norms under the competence of the SMV, as well as the sanctions that apply to them, so Diviso SAB indicates that in the present process the SMV is attacking its own regulations by attempting to sanction for conduct qualified as very serious infractions that are not typified in the SANCTIONS REGULATION;
318. The stock exchange company argues that the
SMV intends to supplement the insufficiency of its typification with the mention of norms of the LMV and RAI whose non-compliance, in its argumentation, is not considered an infraction conform, according to DIVISO SAB, it has demonstrated;
319. For its part, DIVISO SAB alleges that in the present
sanctioning procedure the principle of typicity is transgressed by attempting to impose a sanction on it supported by a provision of the SANCTIONS REGULATION, which in its argumentation, lacks its own material content, referring for such purpose to articles of the LMV and the RAI, even though the Organic Law of the Supervisory Commission of Companies and Securities - CONASEV (now called SMV), approved by Decree Law No. 26126, states in its article 5 (article modified by Law No. 29782, article 2), the following:
“Article 5. Attributes of the Board of Directors of the Securities Market Superintendence (SMV) The attributes of the Board of Directors of the Securities Market Superintendence (SMV) are the following:
(…) d) To typify the infringing conduct of those who participate in the securities market, product market, collective fund systems and other matters under its competence, observing what is provided in articles 343, 349, 350 and 351 of the Legislative Decree 861, Securities Market Law.” (Emphasis added by DIVISO SAB).
320. From the above, the intermediary indicates, it is appreciated
that it corresponds to the SMV, as a specialized entity, to establish the negative conduct deserving of sanction via Sanctions Regulation, typification that must fulfill being clear, certain and unequivocal, so that it is not the law that complements what is stated in the Annexes that integrate it; however, it adds, that this does not occur in the present case because subsection 1.2, numeral 1, of Annex and subsection 1.9, numeral 1, of Annex X of the SANCTIONS REGULATION, do not point out with certainty which is the infringing scenario. The stock exchange company complements the preceding, stating that not every unlawful conduct is susceptible to being

PERU Ministry of Economy and Finance

SMV
Securities Market Superintendence
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship sanctioned, but only those that are duly qualified as infractions, for which it cites Manuel Rebollo Puig and others54, state:
“1.1.1. Not everything reprehensible is an infraction In this sense, there are constant judicial pronouncements that recall that it is not enough for a behavior to be censurable or for it to suppose an open violation of a prohibition, for it to constitute an administrative infraction. The unlawfulness of the conduct, the injury to the legal good that it may suppose, are necessary, but not sufficient, by themselves, for an infraction to be understood as committed. Only unlawful conduct expressly typified as infraction may be considered as such. It matters little, therefore, that the conducts that the Administration attempts to fit into a concrete type are clearly reprehensible, if they do not fit into the conduct described by this.” (Emphasis added by Diviso SAB)
321. In this line, DIVISO SAB states that it is attempted to
attribute to it the alleged commission of conduct that is not properly typified in the SANCTIONS REGULATION, and specifies that although it can be considered that various conduct qualify as “prohibited by the applicable regulations”, and therefore unlawful, the truth is that this regulation does not fulfill to clearly determine which conduct it refers to and that result, by such, punishable, for which reason, it considers that the principle of typicity is transgressed; Evaluation of the Defense
322. In its defenses DIVISO SAB has cited
jurisprudence and treatises to allege its position regarding a supposed non-observance of the principle of typicity and legality incurred in the NOTICE OF CHARGES, but in none of them has it evidenced that the administrative decisions issued by the SMV, and in particular, the infringing types imputed, have incurred in the violation of the legal principles that it, in its interpretation, claims to have not been observed in the present case. Likewise, from its defenses it is inferred that the stock exchange company intends for the legal types collected in a SANCTIONS REGULATION to cover all infringing scenarios;
323. Regarding this matter, it must be indicated that DIVISO SAB
has not recognized that the facts that motivated the imputation of charges constitute administrative infraction, that is, with respect to the first charge55 and second charge56, the which are also duly proven with the documents that are in the administrative file to which this administrative sanctioning procedure refers;
324. As for the discussion on the legality of the
infringing types imputed to DIVISO SAB regarding the facts mentioned in the preceding consideration, that is, subsection 1.2, numeral 1, Annex I and numeral 1, subsection 1.9, of Annex X of the SANCTIONS REGULATION which states that constitutes serious infraction the “carrying out operations or activities prohibited by the regulations that are applicable to them” and “intermediating securities, financial instruments without complying with the requirements, conditions and other provisions established by the regulations”, respectively, which according to the intermediary infringes the principle of legality contemplated in letter d) of subsection 24) of article 2 of the Political Constitution of Peru, as well as also contravenes the principle of typicity established in numeral 4 of article 230 of the TUO LPAG, it must be indicated the following;
325. In administrative matters, the description of the
infringing conduct must allow the knowledge by the administrative subjects of the obligations they must fulfill and the consequences derived from their non-compliance. In this sense, this knowledge can occur through the norm dispositive and the corresponding sanctioning norm, which has occurred in the present case;
326. In effect, on this aspect, the same treatise
that DIVISO SAB has cited, Moron Urbina57 specifies that:
“(…) it would not be contrary to the principle, by itself the use of indeterminate legal concepts in the definition of the sanctionable conduct, as long as the concretization of such concepts is reasonably feasible by virtue of being referred to logical, technical or experience criteria, which allow to foresee, with sufficient security, the nature and essential characteristics of the conduct constitutive of the infraction typified848. The unit of solution that underlies the indeterminate legal concept, makes that its use in sanctioning norms is, in principle, admissible, because with a single solution, the application of the norm does not entail margin of discretion for the official in the definition of the sanctionable conduct”;
327. From the above it is inferred that the principle of
typicity admits a certain degree of indeterminacy more or less depending on the case, as long as there are previously established criteria in the legal system, such as legal provisions (as occurs in the present case), that provide clear and sufficient information about the behavior that is intended to sanction, allowing to foresee with sufficient security the nature and characteristics of an infringing conduct, not leaving the administration margin of discretion, since the elaboration of these criteria only allows a single solution and not several possible solutions;
328. It is in that sense that the
Constitutional Court has pronounced itself in Case No. 2050-2002-AA/TTC, since it has recognized the possibility of resorting to the “elaboration” of regulations in order to eliminate the risk of legal insecurity, as long as independent regulations are not created and not clearly subordinate to the law, as expressed in the following text:
“The principle of legality in sanctioning matters prevents that the commission of an offense can be attributed if it has not been previously determined in the law, and also prohibits that a sanction can be applied if it is not also determined by the law (...). The principle of legality should not be identified with the principle of typicity. The first, guaranteed by the ordinal “d” of subsection 24) of article 2 of the Constitution,

57 Juan Carlos Morón Urbina, Comments on the General Administrative Procedure Law, 14th edition, page 423.

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship are satisfied when the provisions on infractions and sanctions in the law are met. The second, however, constitutes the precise definition of the conduct that the law considers as an offense. Such precision of what is considered unlawful from an administrative point of view (...) is not subject to an absolute reservation of law, but can be complemented through the respective regulations (...);
329. Apart from the jurisprudence mentioned, doctrine
indicates that the legislator selects the most intolerable and most harmful behaviors towards the most important legal interests;
330. Thus, for Muñoz Conde58, "From the wide range of
unlawful behaviors that occur in reality, the legislator selects according to the principle of minimum intervention those that are most intolerable and most harmful towards the most important legal interests and threatens them with a penalty, describing them in the factual premise of a penal norm, thus fulfilling, in addition, the requirements of the principle of legality or legalized intervention."
331. Likewise, doctrine also refers that it is
impossible to detail all the legal types deserving of sanction, as proposed by viable DIVISO SAB, since this is materially unsustainable, to the extent that even the intermediary itself could not regulate in its operational procedures manual all the situations that have to do with the intermediation of financial instruments;
332. On this matter, Muñoz Conde59 states "This does
not mean that the legislator has to describe with complete exactness and down to its most intimate details the behaviors that he deems should be punished as a crime.
This would imply an exaggeration of the principle of legality that, taken to its last consequences, would lead to an overwhelming casuism that, in any case, would always leave some factual situation outside of the legal description.";
333. In this sense, continuing with the analysis, for
the principle of legality and the principle of typicity to be fulfilled, it is sufficient that from the norm, that which contains the general description of the factual premise, it is reasonably possible to extract the infringing conduct;
334. In this way, in the present case, the type
of infraction of the first infraction established in paragraph 1.2, number 1, Annex I of the SANCTIONS REGULATION is validly complemented with the norms contained in the LMV and the RAI, which contain provisions that establish that one cannot intervene in prohibited operations and the obligations that must be fulfilled when assuming the role of placement agent; and, that one cannot intervene as a representative of the bondholders when the issuer is its related party, among others;
335. Consequently, in the present case it is indeed
feasible to know what the sanctionable conduct is as it is based on a completely objective criterion;
336. In effect, according to what is established in
article 195 letter j) of the LMV (now article 191, letter j) of the TUO LMV) and article 46
of the RAI, brokerage companies are prohibited from participating in unauthorized operations, therefore, it should not have participated as a placement agent for the

58 Francisco Muñoz Conde, General Theory of Crime, Second Edition, page 31.
59 Francisco Muñoz Conde, General Theory of Crime, Second Edition, pages 31 and 32.

PERU Ministry of Economy and Finance

SMV
Superintendency of the Securities
Market
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship bonds and short-term instruments issued by ESQUEMA INVESTMENT because it was clear that the offer of them was not a private offer but a public one, according to the reasons explained in the NOTICE OF CHARGES, among them, that the offer in question did not comply with article 5 of the LMV;
337. Likewise, as provided by articles 1 and 87,
second paragraph, of the LMV (now articles 1 and 92 of the TUO LMV), it is prohibited to intervene in unauthorized operations, in particular, to be designated as representative of bondholders of an issuance in which one has a link with the issuer of such securities, in this case, ESQUEMA INVESTMENT;
338. The non-observance of these obligations is a
breach subject to a sanction determined previously in the SANCTIONS REGULATION, as it is qualified as an infraction of a very serious nature. In this way, the discretion of the administration is limited since the determination of the infraction and the corresponding sanction are previously established in the norms;
339. Thus, having clarified the scope of the norms under
analysis, it presents a sufficient degree of determination to delimit the scope of the breach and its consequence and in this way to communicate to the obligated subjects the scope of the same, so it would not be violating the principle of typicity and therefore neither the principle of legality;
340. On the other hand, in its pleadings, DIVISO SAB
again repeats its argument referring to the fact that the infringing types imputed do not comply with the principle of typicity; Regarding this, it is appropriate to mention and reiterate that neither in its defenses nor pleadings, DIVISO SAB has clarified its participation nor presented instrumental evidence that disproves the charges formulated, which denotes a clear omission by a brokerage company that has been in the market for more than fifteen years and has not been able or does not want to clarify the facts that have affected the market, in special to all those natural persons who do not have sufficient experience or knowledge nor did they receive complete information to decide to invest in the financial products offered to them by Diviso SAB;
341. Another important circumstance that DIVISO SAB has
not mentioned or explained is that the financial products offered as a private offer, which in reality and as has been demonstrated in the present procedure constitutes a public offer, come, for the most part, from its related companies, that is, from its economic group, which evidences a direct benefit to said companies;
342. Having made the clarification, as the regulator of the
securities market and in order to substantiate, once again, the legality and solidity of the present procedure, we reiterate that the position reflected in the SANCTIONS REGULATION in which the infringing types imputed to DIVISO SAB have been detailed does clearly describe the infringing conduct and allows for its clear understanding as has been developed in the preceding considerations;
343. In effect, it is legally valid to maintain that the
infringing type can be complemented through the respective regulations in administrative sanctioning matters. Regarding this, the Constitutional Court60 indicated the following:
"5. (...) regarding what must be understood by the principle of legality and typicity: the first is satisfied when the provision of infractions and sanctions in the law is met; the second, however, constitutes the definition of the conduct that the law considers as an offense. This precision of what is considered unlawful, from the administrative point of view, is not subject to an absolute reservation of law, but can be complemented through the respective regulations, as happens in the present case. (...)" (Highlight added).
344. Regarding the complementarity between norms in light
of the principle of typicity, what is sought is a normative unit formed by the referring norm and the complementary norm. Regarding this, Magistrate Lesdesma Narvez states that:
"The use of this legal technique lies in the existence of matters that by their nature and technical complexity, require flexibility and dynamism at the moment of configuring the infringing conduct, situations in which the complementary regulation constitutes a relevant element. Nevertheless, the constitutional validity of these provisions is conditioned to the normative unit -formed by the referring norm and the complementary norm- observing the guarantees derived from the principle of legality, especially those that require that the prohibited conduct be defined in advance, clearly and unequivocally" (Highlight added)
345. Therefore, the requirement to fulfill the
principle of typicity cannot be interpreted in the sense that there must be absolute precision or mere "literalism" exactness of the sanctionable conduct in the SANCTIONS REGULATION, which is materially impossible to capture for the legislator, because it even escapes the possibilities of language, it is sufficient that the subsumption of the fact in the norm is verifiable with "relative certainty"61. Regarding this, the Constitutional Court62 affirmed the following:
"(...) The guarantee of this principle cannot be exacerbated in any context to the point of requiring a level of absolute precision in the provision of those behaviors considered as offenses or prohibited conduct, not even in the scope of sanctioning criminal or administrative law (...)" (Underlining added)
346. According to the jurisprudence of the Constitutional Court cited above, it is legitimate that in matters of administrative
sanctioning law, recourse can be made to the complementarity between norms (normative unit), with the aim that the sanctionable conduct be fully identifiable by the administrated in order to observe the principle of typicity;
347. Regarding this, DIVISO SAB cites the reasoning 8 of the
judgment issued in file No. 05487-2013-PA/TC, which states that a norm will be totally indeterminate when its drafting lacks clarity and

60 Reasoning 5 of the Judgment of the Constitutional Court issued in Exp. 05262-2006-PA/TC. Which is concordant with the reasoning 9 of the Judgment of the Constitutional Court issued in Exp. 2050-2002-AA/TC and reasoning 5 of the Judgment of the Constitutional Court issued in Exp. 00197-2010-PA/TC. 61 Reasoning 46, Judgment of the Constitutional Court issued in file No. 010-2002-AI/TC. 62 Reasoning 10, Judgment of the Constitutional Court issued in file No. 05487-2013-PA/TC.

PERU Ministry of Economy and Finance

SMV
Superintendency of the Securities
Market
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship sufficient precision, which generates that the competent body cannot know with certainty the options for application;
348. However, in its eagerness to evade its
responsibility and confuse the regulator, DIVISO SAB, does not cite what the Administrative Tribunal in the same judgment specified subsequently on the matter:
"9. Now well, this Tribunal has also said that, in the case of the application of the principle of typicity in the legislative scope, the requirement of lex certa cannot be understood in the sense of 'requiring from the legislator absolute clarity and precision in the formulation of legal concepts', since the proper nature of language with its characteristics of ambiguity and vagueness, admit a certain degree of indeterminacy, greater or lesser, depending on the case (reasoning 46 of STC 0010-2022-PA/TC) (...)"
10. Consequently, the principle of typicity only requires that the conduct
that the law considers as an offense be defined, so that what is considered unlawful, or what is the same, the precision of its scope, can be complemented through the respective regulations (Cf. STC 2050-2022-AA/TC, Reason. No. 9). The guarantee of this principle cannot be exacerbated in any context to the point of requiring a level of absolute precision in the provision of those behaviors considered as offenses or prohibited conduct, not even in the scope of sanctioning criminal or administrative law." (...) (ii) What is guaranteed is the duty that the prohibitions that define sanctions be drafted with a level of sufficient precision that allows any citizen of basic training to understand without difficulty the proscribed conduct (STC 00156-2012-HC/TC), as well as the consequences of its possible transgression. (highlight ours)
349. Note that the Constitutional Court explicitly states
that clarity and precision should not be understood as absolute, which is materially impossible. Likewise, special emphasis must be noted on the term "sufficient precision" that allows any administrated to understand without difficulty what is being proscribed. Regarding this the Constitutional Court63 indicates the following:
"(...)
214. Administrative offenses must be defined with a level of sufficient precision
so that the administrated can understand without difficulty or be in conditions to know and predict the consequences of their acts (...)
216. The degree of indeterminacy of the legal provision will be inadmissible when it no longer
allows the citizen to know which behaviors are prohibited and which are permitted (...)" (Highlight added)
350. Regarding the judgment of the Constitutional Court
cited by DIVISO SAB in its pleadings: 2192-2004-AA/TC we must clarify that this is not applicable to the present sanctioning procedure given that the case of the Tribunal under comments was due to the fact that the municipal authority did not have a

63 Judgment of the Constitutional Court of April 26, 2016, issued in the Jurisdictional Plenary (Exp. 0025-2013-PI/TC, 0003- 2014-PI/TC, 008-2014-PI/TC, 0017-2014-PI/TC)

PERU Ministry of Economy and Finance

SMV
Superintendency of the Securities
Market
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship regulation where the sanctioning regime was developed, a situation completely different from that of this Superintendency:
"6. In the present case, the challenged resolution that establishes the maximum sanction possible in administrative route, that is, the dismissal of the appellants, has as legal backing article 28°, paragraphs a) and d) of Legislative Decree No. 276, which establishes that "(...) are disciplinary offenses that, according to their gravity, can be sanctioned with temporary dismissal or with dismissal, prior to administrative process: a) The non-compliance with the norms established in this law and its regulation; and d) Negligence in the performance of their functions".
7. This Tribunal considers that the two provisions invoked in the resolution
that establishes the dismissal from their jobs of the appellants, are referral clauses that require, from the municipal administration, the development of normative regulations that allow delimiting the scope of the sanctioning power, due to the degree of indeterminacy and imprecision of the same; consequently, the sanction imposed based on these generic provisions is unconstitutional, for violating the principle enshrined in article 2, paragraph 2.4, letter d), of the Constitution, according to the criteria developed in the preceding reasoning"; (highlight ours)
351. Likewise, DIVISO SAB states that it must be taken into
consideration that the principle of typicity implies that the administrated can know at all times with certainty and clarity, the conduct that is qualified as infringing and the sanction that its commission entails. Notwithstanding that previously it has already been developed and substantiated the legality and typicity of the infringing types imputed, it is surprising that DIVISO SAB, in its capacity as a brokerage company, by stating that it is not clear to it which infraction it has committed, when we understand that it knows the norms that regulate its activity among them the RAI and the TUO LMV, for which it knows which were the conduct that were subject to sanction, as well as the sanctions applicable to said conduct, which are determined in the SANCTIONS REGULATION, normative provisions that were in force before the imposition of charges and which were of prior, certain and express knowledge, by the brokerage company;
352. Regarding the degree of ambiguity and indeterminacy of paragraph 1.2, number 1, of Annex I of the SANCTIONS REGULATION,
by its drafting could qualify as very serious any operation or activity "prohibited by the regulations", such as the omission to inform of a material fact, it must be indicated that this is not accurate since said Regulation contemplates such fact as a serious infraction according to number 2.1064 of Annex I of the same; it must also be added that the facts imputed, due to their gravity, cannot be qualified as equal to the non-presentation of a material fact;
353. Regarding the challenge formulated by Diviso
SAB that the infringing types imputed would incur in a blank typification or that the imputed typification is general, uncertain, or that the indirect typification is not the correct one because, in its opinion, it prevents the administrated from knowing with clarity and anticipation the fact that is punishable, it corresponds to state that in the considerations

64 2.10 Not communicating material facts or not presenting individual or consolidated audited financial statements, the individual or consolidated interim financial statements, management report or special audit report and annual reports.

PERU Ministry of Economy and Finance

SMV
Superintendency of the Securities
Market
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship preceding and in the NOTICE OF CHARGES itself it has been explained and detailed what is the express and unequivocal conduct that DIVISO SAB has breached (duty to be), what is its correlate in the SANCTIONS REGULATION (infringing type) and the sanction applicable to those facts;
354. On the other hand, regarding the conclusions of the
Instructor Report where it states that Diviso SAB has incurred in three infractions and that this has not been warned previously, which deprives it of exercising a due defense as provided by number 14 of article 139 of the Political Constitution, it corresponds to state that in the NOTICE OF CHARGES, whose parts are transcribed below, it was explicitly indicated in the first charge that DIVISO SAB had incurred in two facts considered as infractions:

Likewise, in the second charge the fact
constitutive of infraction was detailed:
For the above, it is clear that the three
infractions were expressly communicated at the beginning of the administrative sanctioning procedure through the notification of the NOTICE OF CHARGES regarding which Diviso SAB presented its defenses, so the argument of violation of the right to defense referred to that it did not know with clarity which is the imputation made by the instructor body under comment lacks foundation;
For the above, DIVISO SAB did not comply with
article 46, letter a), second paragraph of the RAI; articles 4, 5, letters a) and b) and 195,
letter j) of the LMV (now articles 4, 5, letters a) and b), and 191, letter j) of the TUO LMV), by participating as a placement agent for the bonds and short-term instruments issued by ESQUEMA INVESTMENT; likewise, DIVISO SAB did not observe what is established in article 87 of the LMV (now article 92 of the TUO LMV), by participating as Representative of Bondholders in the issuance of the bonds issued by ESQUEMA INVESTMENT, for which it has incurred the commission of two (02) infractions of a very serious nature, typified in Annex I, number 1, paragraph 1.2 of the SANCTIONS REGULATION;
II. SECOND CHARGE: INTERMEDIATE SECURITIES WITHOUT MEETING THE REQUIREMENTS,
CONDITIONS AND OTHER PROVISIONS ESTABLISHED BY THE APPLICABLE REGULATIONS
Regarding the requirements for operations
outside centralized mechanisms and with financial instruments not registered in the RPMV intermediated by the brokerage company, articles 5, letter a) and 59, letter a) of the RAI establish the following:
Article 5.- Operations of Clients with the Agent or its Related Parties
In the case that the intermediation activity is carried out outside centralized mechanisms, the Agent must previously, before executing any operation, communicate to its client:
a) That the Agent or its related party, will be the counterparty of the operation; and, (...)
The Agent must credibly demonstrate the timeliness and content of these communications when the SMV requires it.
Article 59.- Requirements to operate
In the intermediation of Financial Instruments not registered in the Registry, the Agent must comply with the following:
a) Deliver to the buying client, a declaration indicating if it has a link or not with the main obligor for payment, issuer, or with the seller of the financial instrument; (...); OF THE FACTS OCCURRED
By written submission presented to the SMV on August 2,
2024, the COMPLAINANT1 states, among others, that he carried out a series of investments in short-term instruments and/or bonds at the suggestion of the officials of DIVISO SAB. He adds that the private instruments were negotiated over-the-counter, information that was not communicated in a timely manner before the placement by DIVISO SAB;
The COMPLAINANT1 states that, at no
moment, before the placement of the private instruments by DIVISO SAB, this company fulfilled in providing details of these operations, according to articles 5 and 59, among others of the RAI. He states that the documents he attaches in his complaint were obtained on a date subsequent to the placement of the financial instruments;
According to the information from the operation policies intermediated by DIVISO SAB65, on December 7 and 15, 2020, the
COMPLAINANT1 carried out the following securities purchase operations not registered in the RPMV, which can be observed in the Table:
TABLE:
OPERATIONS CARRIED OUT BY THE COMPLAINANT
Date Market Seller Client Buyer Client
Issuer Value

65 Sent by DIVISO SAB to the SMV through structured files in compliance with its information submission obligations.

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Document electronically signed digitally under Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and authorship 7/12/20 Primary OTC Scheme Investment S.A. COMPLAINANT1 ESQ6CP1Y Scheme Investment S.A. 14/12/20 Secondary OTC Diviso SAB COMPLAINANT1 GYG2P2ES Representations Yago S.A.C. 15/12/20 Secondary OTC Diviso SAB COMPLAINANT1 GYG2P2E T Representations Yago S.A.C.
362. Through Office No. 3501-2024-SMV/10.3 dated August 12, 2024, DIVISO SAB was requested to provide comments regarding the complaint filed by
COMPLAINANT1, as well as to submit, among other documents, a copy of the sworn statement delivered by said company to COMPLAINANT1 in compliance with Article 59, subsection a) of the RAI, prior to the securities purchase operations not registered in the RPMV, carried out by COMPLAINANT1 in December 2020, among others;
363. Through a letter dated September 6, 2024,
regarding the points mentioned in the preceding consideration, DIVISO SAB did not submit comments regarding the complaint and stated that it was unable to obtain the aforementioned sworn statement;
364. Regarding this matter, Article 59 subsection a) of the RAI
establishes that in cases where financial instruments not registered in the RPMV are intermediated, the intermediation agent must deliver to the buying client a sworn statement indicating whether it has or does not have a link with the issuer or with the seller of the financial instrument. Likewise, Article 5 subsection a) of the RAI provides that prior to carrying out an operation outside a centralized mechanism, it must inform its client that the intermediation agent or its affiliate will be the counterparty to the operation;
365. Therefore, from the operations described in the
preceding Table, it is observed that COMPLAINANT1 was the buyer in the operation carried out on December 7, 2020, which was a primary placement of a security issued by ESQUEMA INVESTMENT, a company linked to DIVISO SAB;
366. In this regard, DIVISO SAB has not proven
compliance with Article 59 subsection a), regarding the delivery of a sworn statement to COMPLAINANT1 indicating that it has a link with the issuer of the financial instrument, who is at the same time the seller of this, as it is a primary placement. It should be noted that a similar obligation is established in Article 5, subsection a) of the RAI, because, in this case, DIVISO SAB, prior to the realization of the operation, had to communicate to COMPLAINANT1 that the counterparty to the operation was a company linked to the brokerage agent company;
367. On the other hand, regarding the operations
carried out on December 14 and 15, 2020, it is observed that COMPLAINANT1 was the buyer in these operations, while the seller in both (2) operations was DIVISO SAB; therefore, DIVISO SAB had to communicate to COMPLAINANT1, prior to the realization of each operation, that the brokerage agent company was the

PERÚ Ministry of Economy and Finance

SMV
Superintendency of the Securities
Market
Document electronically signed digitally under Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and authorship counterparty to the operation, in compliance with Article 5, subsection a) of the RAI; however, this has not been proven by DIVISO SAB; DEFENSE SUBMITTED
368. DIVISO SAB states that the second charge incurs
the same error as the first infraction by imputing an infraction without content;
369. DIVISO SAB indicates that the SMV states that the
SAB would have incurred a very serious infraction typified in numeral 1, subsection 1.9, of Annex X of the SANCTIONS REGULATION, which establishes as an infraction: "Intermediating securities, financial instruments or derivatives, without complying with the requirements, conditions and other provisions established by the regulations";
370. DIVISO SAB emphasizes that this is an infraction
whose content lacks certainty, since "the requirements, conditions and other provisions established by the regulations" covers an infinity of norms whose non-compliance is not part of the SANCTIONS REGULATION; The charge office violates the principle of legality.
371. DIVISO SAB maintains that the legal system
recognizes the Principle of Legality as a constitutional principle enshrined in Article 266 subsection 24 subsection d) of the Political Constitution. In this way, the principle of legality serves as protection for the administrative subject, in the sense that only conduct that is expressly indicated in the norm will be sanctioned67, so extensive or analogical interpretation is not admitted;
372. The principle of legality has been incorporated in
numeral 4 of Article 248° of the TUO LPAG which provides:
"4. Legality.- Only conduct sanctionable administratively are the infractions expressly provided for in norms with the rank of law by typifying them as such, without admitting extensive interpretation or analogy. The regulatory development provisions may specify or grade those aimed at identifying the conduct or determining sanctions, without constituting new sanctionable conduct from those legally provided for, except in cases where the law allows typification by regulatory means." (Highlight added by DIVISO SAB);
373. Therefore, DIVISO SAB considers that this principle
seeks that the norms that typify infractions have a sufficient level of precision that allows the administrative subjects to adapt their conduct in order to avoid the commission of illegal acts;

66 Article 2º subsection 24 subsection d) of the Political Constitution states that "Every person has the right to:
A. Personal freedom and security. Consequently: (...) d. No one shall be prosecuted or convicted for an act or omission that at the time of committing it was not previously qualified in the law, expressly and unequivocally, as a punishable infraction, nor sanctioned with a penalty provided for in the law". (Highlight added by DIVISO SAB). 67 Indeed, the Constitutional Tribunal in repeated and uniform jurisprudence has established that, "Reflects the special transcendence of the principle of legal certainty in said limiting fields and implies the imperative need for normative predetermination of infringing conduct and the corresponding sanctions, that is, the existence of legal precepts (lex previa) that allow predicting with a sufficient degree of certainty (lexcerta) those conduct and know what to expect regarding [concerning] liability. (Highlight added by DIVISO SAB).

PERÚ Ministry of Economy and Finance

SMV
Superintendency of the Securities
Market
Document electronically signed digitally under Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and authorship
374. DIVISO SAB adds that the requirement, established
both in the Constitution and in the TUO LPAG lies in the fact that any vagueness of the norm regarding sanctionable conduct must be eliminated completely, or to the extent possible, as this allows the configuration of arbitrariness, sanctioning scenarios that do not even intend to protect the legal good protected by law;
375. DIVISO SAB cites Eduardo García de Enterría68
who states that:
"The specificity of the conduct to be typified comes from (...) the correlative requirement of legal certainty..., which would not be fulfilled if the description of the sanctionable did not allow a sufficient degree of certainty so that citizens can predict the consequences of their acts (lexcerta)". (The highlight is from DIVISO SAB);
376. DIVISO SAB complements that the constitutional requirement of typification requires that the unlawful conduct provided for by law be also expressly considered as an infraction (whether by law, or a regulation, in case of legal authorization), since the fact that the law foresees a conduct as unlawful does not mean that this necessarily entails the commission of a sanctionable infraction;
377. DIVISO SAB cites Rebollo Puig69 who states:
"The main consequence that derives from this need for typification (...) is 'The unlawfulness of the conduct, the injury to the legal good that it may suppose, are necessary, but not sufficient, by themselves, for it to be understood that it has been committed (...) "The main consequence that derives from this need for typification (...) is the fact that the non-compliance with any prohibition does not automatically translate into an infraction, since not always the coercive efficacy of an unfulfilled mandate or a non-respected prohibition determines a sanctionable infraction, (...)70" (The highlight is from DIVISO SAB);
378. Likewise, DIVISO SAB cites the Spanish professor
Antonio Bueno Armijo states that,
"The main consequence that derives from this need for typification (...) is the fact that the non-compliance with any prohibition does not automatically translate into an infraction, since not always the coercive efficacy of an unfulfilled mandate or a non-respected prohibition determines a sanctionable infraction, (...)71"

68 GARCÍA DE ENTERRÍA, Eduardo and FERNÁNDEZ, Tomás-Ramón. Course of Administrative Law Volume II.
Twelfth Edition. Editorial Civitas. Madrid. 2011. pp.184.
69 REBOLLO PUIG Manuel and others. Sanctioning Administrative Law. Lex Nova. Madrid, 2009. P. 162 70 BUENO ARMIJO, Antonio. The principle of sanctioning legality (ii) the principle of legality. In: Sanctioning Administrative Law. Lex Nova, Madrid, 2009. pp. 162. 71 BUENO ARMIJO, Antonio. OP Cit. pp. 162.

PERÚ Ministry of Economy and Finance

SMV
Superintendency of the Securities
Market
Document electronically signed digitally under Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and authorship (The highlight is from DIVISO SAB). (...) "The unlawfulness of the conduct, the injury to the legal good that it may suppose, are necessary, but not sufficient, by themselves, for it to be understood that an infraction has been committed. Only expressly typified unlawful conduct as an infraction may be considered as such72". (The highlight is from DIVISO SAB);
379. DIVISO SAB refers that in consonance with what
is stated, extensive or analogical interpretation of sanctionable conduct is prohibited, to qualify them as infractions. The requirement of certainty guarantees predictability and legal certainty so it is necessary to limit the application of interpretation to include within a sanctioning regime conduct that in principle have not been considered as infractions;
380. In this regard, DIVISO SAB cites GARBERI
LLOBREGAT73 who explains that:
"(...) analogy cannot be applied in sanctioning law to include, as sanctionable conduct, facts or behaviors that the law did not consider constituted an infraction, as it did not limit them, typifying others that it considered more serious";
381. DIVISO SAB emphasizes that in virtue of this, the
prohibition of extensive or analogical interpretation, supports the conclusion that the principle of legality would actually constitute itself as a principle of taxativity, since the sanctionable scenarios that constitute infractions, will only be those that are expressly considered as such;
382. DIVISO SAB argues that in virtue of this, the mandate
of legality requires that when imposing a sanction it is verified that the sanctioned infraction complies with the reservation of law, the requirement of certainty and the proscription of extensive or analogical interpretation; An unlawful conduct that is not expressly qualified as an infraction is not subject to sanction
383. DIVISO SAB considers that the CHARGE OFFICE does
not comply with the principle of legality; insofar as, it is intended to impose a sanction based on a provision of the SANCTIONS REGULATION lacking its own material content, referring to articles of the LMV and the RAI even though the Organic Law of the SMV has expressly disposed that the Regulation would contemplate the conduct that is typified as an infraction. In this relation, the conduct that is imputed to us is not described;
384. DIVISO SAB repeats its argument regarding the
first infraction, referring to the fact that the SMV states that it would have incurred the infraction qualified as very serious typified in subsection 1.2, numeral 1, of Annex I of the SANCTIONS REGULATION, which establishes as an infraction of a very serious nature:
"Carrying out operations or activities prohibited by the regulations applicable to them, as appropriate, or carrying out operations or activities foreign to their corporate object, or activities that contribute to or are complementary to their corporate object, without having obtained prior authorization from the SMV;

72 BUENO ARMIJO, Antonio. Ibid. pp. 162. 73 GARBERI LLOBREGAT, José. The administrative sanctioning procedure. Tirant Lo Blanch, Vol I. Valencia, 2001.
P. 96-97.

PERÚ Ministry of Economy and Finance

SMV
Superintendency of the Securities
Market
Document electronically signed digitally under Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and authorship applicable, as appropriate, or carrying out operations or activities foreign to their corporate object, or activities that contribute to or are complementary to their corporate object, without having obtained prior authorization from the SMV;
385. DIVISO SAB again states that this provision
has no content by itself, as it is open and does not point out with certainty which is the infringing scenario. Thus, to give support to this assertion, the IGCP affirms that DIVISO SAB would have failed to comply with Article 46, subsection a), second paragraph, of the RAI; articles 4, 5 subsections a) and b), 87, 90 and 195, subsection of the LMV (now articles 4, 5 subsections a) and b), 92, 95 and 191, subsection j) of the TUO LMV);
386. DIVISO SAB highlights that it has analyzed each of
the conduct contained in the norms cited above, and concludes the following:
387. Intermediation Agents Regulation:
Article 46.- Markets in which the Intermediation activity develops
a) Primary Market.- In this market, Agents can act as placement agents of Financial Instruments that are issued only by legal entities.
The Agent, prior to its participation as a placement agent in this market, must determine jointly with the issuer, if the placement of Financial Instruments, due to its characteristics or conditions, constitutes a public offer. SECURITIES MARKET LAW
Article 4.- Public Offer
A public offer of securities is the invitation, adequately disseminated, that one or more natural or legal persons direct to the general public, or to certain segments of it, to carry out any legal act referred to the placement, acquisition or disposal of securities.
Article 5. Private Offer
The offer of securities not included in the previous article is private. Without prejudice to this, the following are considered private offers:
The offer directed exclusively to institutional investors. The securities acquired by these investors cannot be transferred to third parties, unless they do so to another institutional investor or the security is previously registered in the Public Registry of the Securities Market. a) The offer of securities whose nominal value or unit placement value lowest is equal to or greater than two hundred fifty thousand new soles (S/. 250 000,00). In this case, the securities cannot be transferred by the original acquirer to third parties with nominal values or placement prices lower.
Article 92.- Bondholder Representative.- Every issuance of bonds, including financial leasing bonds, requires the designation of the bondholder representative, except when the issuances are directed to institutional investors under the conditions established by the SMV.
Any natural or legal person who meets the requirements established by the SMV through a general character norm may be designated as bondholder representative. In any case, the issuer, the structured entity nor the persons with whom they have a link, according to the norms approved by the SMV, cannot be designated as bondholder representative.

PERÚ Ministry of Economy and Finance

SMV
Superintendency of the Securities
Market
Document electronically signed digitally under Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and authorship bondholder representative, the structured entity nor the persons with whom they have a link, according to the norms approved by the SMV.
Article 95.- Guarantees.-
In the issuance, in addition to the guarantees contemplated in the Law of Companies, a bank guarantee, bank deposit, foreign currency bank certificate deposited in a financial institution in the country, surety policy of insurance companies and others that are established through general character provisions may be constituted. For the inscription or registration of these guarantees it is not necessary to individualize the bondholders and it is enough that the name of their representative is stated. The custodian or depositary of the guarantees, if applicable, cannot have a link with the issuer.
Article 191.-
j) Intervene in unauthorized operations;
388. DIVISO SAB refers that the conduct described in
the articles cited above, constitute duties whose non-compliance does not lead to the commission of any infraction susceptible to be sanctioned, since such conduct is not typified as an infraction in the SANCTIONS REGULATION;
389. In that sense, DIVISO SAB only considers as
infraction an unlawful conduct that is considered as such in the SANCTIONS REGULATION for it to be subject to sanction. The mere existence of an unlawful conduct does not generate a sanction by itself if it has not previously been considered as an infraction susceptible to sanction;
390. Consequently, DIVISO SAB considers that,
qualifying as infraction "Carrying out operations or operations prohibited by the regulations applicable to them" or "intermediating securities, financial instruments or derivatives, without complying with the requirements, conditions and other provisions established by the regulations", violate the principle of legality since the supposed unlawful conduct lacks its own content;
391. DIVISO SAB highlights that in the case sub litis it is even more serious, since in the CHARGE OFFICE, the impugned resolution is not trying to "link" with a specific norm, but to "Carry out operations or activities prohibited by the regulations applicable to them" or "without complying with the requirements, conditions and other provisions established by the regulations", that is, to thousands of laws, decrees, resolutions, circulars, etc. In summary, for the intermediary it is evident that it is an absolutely imprecise, indeterminate, and contentless norm;
392. DIVISO SAB maintains that this normative provision
opens a wide margin of arbitrariness and discretion in favor of the IGCP who may qualify as a very serious infraction, and consequently impose the corresponding sanction on any conduct, regardless of the importance or, if this merits or not such qualification and consequent sanction;
393. DIVISO SAB specifies to keep in mind that we
are in a State of Law, and therefore it is "(...) impossible to accept (is

PERÚ Ministry of Economy and Finance

SMV
Superintendency of the Securities
Market
Document electronically signed digitally under Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and authorship more, they must be extirpated) irrational actions of public powers, based solely on their respective authority (in the exercise of naked powers)"74;
394. Therefore, DIVISO SAB considers that qualifying
as a very serious infraction this imprecise and indeterminate normative provision, and consequently trying to impose a sanction on any conduct, is a procedure that must be banished for violating the principles (among which we have the principle of legality) that define any State of Law;
395. Regarding the principle of legality in the administrative
sede, DIVISO SAB cites the Constitutional Tribunal which indicates the following:
"12. (...) b. Principle of legality, by virtue of which, the legal description of a specific conduct appears connected to an administrative sanction. This requirement derives from two specific legal principles; the principle of freedom and the principle of legal certainty. According to the first, conduct must be exactly delimited, without indeterminations, while in relation to the second, citizens must be in conditions to be able to predict, in a sufficient and adequate manner, the consequences of their acts, so general or indeterminate infraction clauses that allow an action left to the "arbitrariness" of the administration are not admissible, but rather that it be prudent and reasoned. According to this principle, generic legal types must be proscribed and although the Administration sometimes acts based on deontological standards of conduct, these are insufficient, by themselves, to sanction, since although they can be interpreted as indeterminate legal concepts, the sanction must be based on concrete and detailed analysis of the facts (...)."75 (The highlight is ours); Evaluation of the defense
396. Regarding this matter, it is necessary to point out that DIVISO
SAB has not formulated any argument regarding the normative non-compliance formulated and imputed.
397. Indeed, the brokerage agent company has not
cleared up the facts that are observed as charges and even less has presented any instrumental evidence that allows clarifying such facts, which is expected from a company that participates in the securities market that is also part of the State of Law.
398. It is clear then that when DIVISO SAB
carried out operations on behalf of its client COMPLAINANT1 it did not deliver to this, in advance, the declaration where it informed that in the operations of December 14 and 15 of 2020 with the values issued by Representaciones Yago SAC the counterparty to the operation was the SAB itself, that is, it did not inform that who sold the values was DIVISO SAB; as required by Article 5, subsection a) of the RAI;
399. On the other hand, it must be mentioned that DIVISO SAB, in
its letter of September 6, 2024 issued in response to Office No. 3501-2024-

74 VIGNOLO CUEVA, Orlando. Discretion and Administrative Arbitrariness. Palestra: Lima, 2012. pp. 223.
75 Sentence issued by the TC Nº01873-2009-PA/TC, Fj 12 subsection b)

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría SMV/10.3 of August 12, 2014, regarding the operations mentioned in the previous consideration and others, acknowledged that it could not obtain the declaration delivered to the buyer indicating whether it had a link or not with the seller of the financial instrument, which in these operations was the same brokerage firm; however, today, in its defense, it has not declared this, which shows that it seeks to evade its responsibility;
400. Likewise, it must be indicated that regarding the operation carried out on December 7, 2020, it does not constitute an infringement insofar as in this resolution it is concluded that the securities of ESQUEMA INVESTMENT should have been registered in the RPMV as they constituted a public offering;
401. On the other hand, in its defense DIVISO SAB has reiterated its position regarding a supposed non-observance of the principle of legality incurred in the NOTICE OF CHARGES, indicating that extensive or analogical interpretation of sanctionable conduct is prohibited to qualify them as infractions; that in the present case it is intended to impose a sanction based on a provision of the SANCTIONS REGULATION lacking its own material content, referring to articles of the SMV LAW and the RAI: "intermediating securities, financial instruments or derivatives, without complying with the requirements, conditions and other provisions established by the regulations", which goes against the principle of legality;
402. Regarding this, we refer to the analysis carried out in the "Evaluation of the Defense" section performed on the same argument raised by DIVISO SAB on the matter;
403. Without prejudice to this, we reiterate that it is a legal impossibility to assume the interpretive theory raised by DIVISO SAB insofar as it is not valid to affirm that in a SANCTIONS REGULATION all infringing types must be detailed that include all applicable regulations for each of them;
404. Likewise, we also point out that in the present charge the description of the sanctionable conduct attributed allows DIVISO SAB to know what the unfulfilled obligation is and the consequence derived from its non-compliance, which is evidenced in the dispositive norm and the corresponding sanctioning norm;
405. Likewise, and in order to support such an assertion, the relevant parts of the NOTICE OF CHARGES that describe the illegal conduct incurred by DIVISO SAB are transcribed below;
"(...)
IV. SECOND CHARGE: INTERMEDIATE SECURITIES WITHOUT MEETING THE REQUIREMENTS, CONDITIONS AND OTHER PROVISIONS ESTABLISHED
BY THE REGULATIONS
(...)
INFRACTION ALLEGED TO HAVE BEEN COMMITTED BY DIVISO SAB For the above reasons, DIVISO SAB would have contravened what is established in articles 5, letter a) and 59, letter a) of the RAI; and, therefore, would have incurred in one (1) infringement classified as very serious in numeral 1, subsection 1.9, of Annex X of the SANCTIONS REGULATION, which establishes as an infringement: "Intermediating securities, instruments

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría financials or derivatives, without complying with the requirements, conditions and other provisions established by the regulations". (...)"
406. For the above reasons, in order to comply with the principle of legality, it is sufficient that from the norm, that which contains the general description of the factual situation, it is reasonably possible to extract the sanctionable conduct;
407. The infringing type mentioned above is validly referred to the "intermediation of securities without meeting the requirements established in the regulations", that is, intermediating securities without complying with the legal provisions of the RAI;
408. In effect, it has been expressly indicated in the infringing type i) the "intermediation activity" that can only be carried out by intermediation agents76, that is, a brokerage firm, in this case DIVISO SAB; and that ii) "without complying with the requirements established in the regulations", specifically articles 5, letter a) and 59, letter a) of the RAI, which state that prior to the execution of any operation, it must communicate to its client that the Agent or its affiliate, will be the counterparty of the operation;
409. As can be seen, it is indeed possible to know what the sanctionable conduct is as it is based on a totally objective criterion;
410. It must be added that the non-observance of these obligations is a breach subject to a previously determined sanction in the SANCTIONS REGULATION, as it is classified as a very serious nature infringement. In this way, the discretion of the administration is limited since the determination of the infringement and the corresponding sanction are previously established in the regulations;
411. Thus, having clarified the scope of the infringing type of the charge attributed, there is no doubt that it indicates a sufficient degree of determination to delimit the scope of the breach and its consequence and in this way to communicate to the obligated subjects the scope of the same, so that no violation of the principle of legality and even less of the principle of legality is evidenced;
412. For the above reasons, DIVISO SAB did not comply with article 5, letter a) of the RAI, by intermediating the operations carried out on December 14 and 15, 2020, without having informed, prior to the carrying out of the operations, that the counterparty was itself, therefore it incurred in the commission of the very serious nature infringement, typified in Annex X, numeral 1, subsection 1.9 of the SANCTIONS REGULATION;
DEFENSE PRESENTED
Violation of the principle of non bis in idem
413. DIVISO SAB states that in the NOTICE OF CHARGES, it is erroneously concluded that "there are sufficient indications that would allow concluding that the offer of bonds and short-term instruments issued by ESQUEMA INVESTMENT meets all the elements that configure a public offering of securities";
414. DIVISO SAB refers that from this qualification it is attributed as the first charge to carry out operations or activities prohibited by the regulations by DIVISO SAB, this on the basis that the offer of the bonds and short-term instruments issued by ESQUEMA INVESTMENT, must be considered a public offering;
415. Regarding this, DIVISO SAB emphasizes that it carried out the offer of the indicated instruments through a private offer because the investors were institutional clients and for other considerations indicated in its defenses. As a consequence of this, the SMV considers that it would have incurred in a very serious infringement for the charge of carrying out operations or activities prohibited by the regulations;
416. In the hypothetical case that this attribution is valid, DIVISO SAB specifies that the sanction would cover all acts carried out by it in the negotiation and placement of the securities, however, it is intended to sanction it additionally (Second Infringement) the fact that, being considered as a public offering, these operations, DIVISO SAB would not have complied with communicating to the complainants that it had a link with the issuer in compliance with what is established in article 5 letter a) of the RAI;
417. DIVISO SAB details that the communication of the link between the placer and the issuer is an obligation derived from the fact that a public offer is made, so that one part of the operationality of a public offer cannot be separated to pretend to sanction this supposed omission. Admitting this erroneous attribution of the IGCP, results in the violation of the principle of non bis in idem;
418. DIVISO SAB highlights that the principle of Non Bis in Idem, recognized by article 248, numeral 11 of the TUO LPAG, provides that a penalty and an administrative sanction cannot be imposed successively or simultaneously for the same fact in cases where the identity of the subject, fact, and basis is appreciated;
419. According to this, DIVISO SAB points out that the law requires proving the existence of a triple identity between subject, fact, and basis. What Non Bis In Idem seeks, is to prohibit double sanction based on the triple identity;
420. DIVISO SAB describes that in the present case both supposed infractions are based on the fact that the SAB carried out the offer of the instruments issued by ESQUEMA INVESTMENT through a private offer, when it should have been a public offer;
421. DIVISO SAB emphasizes that in said infractions the identity of subject is observed: DIVISO SAB; the identity of fact: the placement of instruments issued by ESQUEMA INVESTMENT and the identity of basis: That both infractions are based on the supposed qualification of the operations as a public offer;

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría
422. DIVISO SAB cites Morón Urbina77 who states:
These two aspects have been referred to by our Constitutional Tribunal (citing STC No. 2050-2002-AA/TC) when it affirms that "The principle ne bis in idem has a double configuration: on the one hand, a substantive version, and on the other, a procedural connotation:
a. In its material formulation, the statement according to which, 'no one can be punished twice for the same fact', expresses the impossibility that two sanctions fall on the same subject for the same infringement, since such conduct would constitute an excess of sanctioning power, contrary to the guarantees proper to the Rule of Law. 37 Its application, therefore, prevents a person from being sanctioned or punished two (or more) times for the same infringement when there is identity of subject, fact, and basis. (...) (Emphasis by DIVISO SAB);
423. DIVISO SAB considers that in its case, the IGCP proposes that it be sanctioned for two supposed infractions, identifying in them the triple identity, so the principle of non bis in idem would be violated;
Evaluation of the defense
424. Regarding this matter, DIVISO SAB considers that the imputations formulated in the NOTICE OF CHARGES violate the principle of Ne bis in idem given that the communication of the link between the placer and the issuer is an obligation derived from the fact that a public offer is made, so that one part of the operationality of a public offer cannot be separated to pretend to sanction this supposed omission;
425. Likewise, DIVISO SAB maintains that the triple identity is supported by the fact that the subject is DIVISO SAB itself; that the fact is the same: the placement of instruments issued by ESQUEMA INVESTMENT; and, that the identity of basis: is that both infractions are based on the supposed qualification of the operations as a public offer;
426. Regarding this matter, DIVISO SAB alludes to a supposed violation of the principle of non bis in idem alleging that every infringement committed is considered as a whole since this occurs when the offer made by ESQUEMA INVESTMENT is considered as a public offer;
427. As for this, it is necessary to point out that DIVISO SAB makes an incorrect reading of the legal principles intentionally in order to generate confusion and in this way evade its responsibility;
428. Due to the above, it is necessary to know the scope and constitutional foundations of the cited principle to determine if there has been an affectation to it, as expressed by DIVISO SAB;

77 MORON URBINA, THE PRINCIPLES DELIMITING THE SANCTIONING POWER OF THE PUBLIC ADMINISTRATION IN PERUVIAN LAW. Article published in Advocatus No. 13, 2005, pp. 237-238 and also in Ibero-American administrative law: 100 authors in homage to the postgraduate of Administrative Law of the Universidad Católica Andrés Bello, Coord. Victor Hernandez Mendible Vol. 3, Caracas, 2007. 1

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría
429. The principle of non bis in idem prohibits the imposition of two or more sanctions on a person for the same fact and the same basis (non bis in idem material). This principle, likewise, prohibits double processing or prosecution of the same person for the same facts and for the same basis (non bis in idem procedural);
430. Here it does not correspond to evaluate the material non bis in idem since there is no previous sanction imposed on DIVISO SAB with which to contrast it with the one that is now intended to be applied in the present procedure, so this principle, in that aspect, is not applicable for the present procedure;
431. As for the procedural non bis in idem, it is necessary to point out that we are not facing such an aspect either insofar as there is not, to date, two parallel administrative sanctioning procedures against DIVISO SAB in which it is sought to sanction it for the same facts contemplated in the present sanctioning procedure;
432. On the other hand, in its additional written allegations, DIVISO SAB states that it is attributed that it would have incurred in the following infractions: "1. DIVISO SAB has incurred in two (2) very serious infractions typified in subsection 1.2, numeral 1, of Annex I of the SANCTIONS REGULATION, approved by Resolution SMV No. 035-2018-SMV/01, for failing to comply with what is established in article 46, letter a), second paragraph, of the RAI; articles 4, 5 letters a) and b), 87, 90, 195, letter j) of the SMV LAW (today articles 4, 5 letters a) and b), 92, 95 and 191, letter j) of the TUO LMV) 2. DIVISO SAB has incurred in one (1) very serious infringement typified in subsection 1.9, numeral 1, of Annex X of the SANCTIONS REGULATION approved by Resolution SMV No. 035-2018-SMV/01, for failing to comply with what is established in article 5, letter a) of the RAI."
433. Regarding this, the brokerage firm states that Annex I of the SANCTIONS REGULATION classifies as a very serious infringement "1.2 Carrying out operations or activities prohibited by the regulations applicable to them, as appropriate, or carrying out operations or activities unrelated to their corporate object, or activities that aid or are complementary to their corporate object, without having obtained prior authorization from the SMV."
434. Based on this, DIVISO SAB states that the quoted text contemplates a very wide margin of conduct that can qualify as an infringement and the sanction based on said infringement would cover all acts carried out by it in the negotiation and placement of the securities;
435. However, DIVISO SAB states that additionally it is intended to sanction it for the alleged commission of a second infringement typified in 1.9, numeral 1, of Annex X of the SANCTIONS REGULATION, specifically, for failing to comply with what is established in article 5, letter a) of the RAI which states that in case the intermediation activity is carried out outside centralized mechanisms, the agent must, prior to the execution of any operation, communicate to its client that the agent or its affiliate, will be the counterparty of the operation, an obligation derived from the fact that a public offer is made, so that one part of the operationality of a public offer cannot be separated to pretend to sanction this supposed omission, so it adds that admitting this attribution implies a violation of the principle of non bis in idem.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría
436. Likewise, it is pointed out that the instructing body dismisses this argument by considering that in the present case non bis in idem material or procedural is not configured, by indicating that "(...) we are not facing such an aspect either insofar as there are, to date, no parallel administrative sanctioning procedures against DIVISO SAB in which it is sought to sanction it for the same facts contemplated in the present sanctioning procedure.", from which, according to the intermediary, the SMV considers that only the procedural non bis in idem principle is transgressed, when having imposed a previous sanction on an administrative entity, it is intended to sanction the same in a subsequent sanctioning procedure for the same facts and bases exposed in the first sanctioning procedure. With this, it excludes cases like the present one in which it is intended to attribute to DIVISO SAB the commission of infractions typified in subsection 1.2, numeral 1, of Annex I and subsection 1.9, numeral 1, of Annex X of the SANCTIONS REGULATION, which have as their main premise the supposition that the offer of bonds and short-term instruments issued by ESQUEMA INVESMENT meets all the elements that configure a public offering of securities; that is, it excludes from the content of the principle of non bis in idem the situations in which an entity intends to sanction an administrative entity in the same procedure for the same facts and for the same bases, which represents a clear contravention of what is established in numeral 11 of article 230 of the General Administrative Procedure Law, Law No. 27444, which states:
"Article 230. Principles of administrative sanctioning power The sanctioning power of all entities is additionally governed by the following special principles:
(...) 11. Non bis in idem. - A penalty and an administrative sanction cannot be imposed successively or simultaneously for the same fact in cases where the identity of the subject, fact, and basis is appreciated. This prohibition also extends to administrative sanctions, except for the concurrence of the situation of continuation of infractions referred to in subsection 7." (Emphasis added by Diviso SAB)
437. Regarding this, DIVISO SAB states that from this norm it is derived that the administrative authority within an administrative procedure is impeded from imposing a penalty simultaneously when there is triple identity in infractions attributed to the administrative entity, that is, identity in the subject, identity in the fact, and identity in the basis, so that with the reasoning of the SMV cited previously, it only recognizes the prohibition of imposing a sanction on the administrative entity successively, when there is a previous procedure in which said administrative entity has been sanctioned, but said reasoning does not consider that double sanction in transgression of the principle non bis in idem can also occur in the same sanctioning procedure;
438. Regarding this matter, Morón Urbina78 states:
"As we have mentioned, the principle enshrined in this article has two aspects of guarantee, according to whether it excludes a second procedure (procedural dimension) or a second sanction (substantive dimension). In its material aspect, the principle excludes that two sanctions fall on the same subject for the same

78 MORON URBINA, Juan Carlos, "Comments on the General Administrative Procedure Law", Gaceta Jurídica, tenth edition, Lima - 2014, p. 787.

PERÚ Ministry of Economy and Finance

infracción, while, in its formal or procedural aspect, the principle excludes that if someone has already been subjected to a process to apply a sanction—regardless of the outcome reached by the entity—can be processed again for the same conduct in a new procedure.” (Emphasis added by Diviso SAB)

With regard to the cited, DIVISO SAB points out that
one of the aspects that this principle seeks to guarantee regarding the administered is to prevent two sanctions from being imposed on him for the same facts and grounds, an extreme that the instructing organ intends to disregard arbitrarily;
In line with this, the broker society
adds that the Constitutional Tribunal, in the sentence issued in the case N°2868-2004/TC has stated:

“(…) a material dimension, according to which the statement “no one can be punished twice for the same fact”, “expresses the impossibility of two sanctions falling on the same subject for the same infringement, since such conduct would constitute an excess of sanctioning power contrary to the guarantees proper to the Rule of Law. Its application, therefore, prevents a person from being sanctioned or punished twice (or more) for the same infringement when there is identity of subject, fact, and grounds.”

Additionally, DIVISO SAB indicates that the
application of the principle of non bis in idem requires the concurrence of three operational prerequisites, in order to process the exclusion of the second sanctioning claim, which are the identity in the subject, the identity in the fact, and the identity of the grounds. Regarding this, Morón Urbina13 states:

“Therefore, in all cases, the operational prerequisites for the exclusion of the second sanctioning claim are three:

The subjective or person identity (eadem personae) consisting in both
punitive claims being exercised against the same administered, regardless of how each of them values their degree of participation or form of culpability imputed. (…).
The identity of fact or objective (eadem rea) consists in the fact or conduct
incurred by the administered being the same in both punitive claims, regardless of the legal qualification that the norms assign to them or the factual premise that the norms contain. The nomen juris or how the legislator has named the infringement or title of imputation that is given is not relevant, but the factual perspective of the facts or omissions carried out.
Finally, the causal or grounds identity (eadem causa petendi) consists
in the identity in both incriminations, that is, that there is exact overlap between the protected legal goods and the interests protected by the different sanctioning norms, such that if the protected legal goods pursued turn out to be heterogeneous there will be diversity of grounds, while, if they are equal, double punishment will not proceed. As the Spanish Constitutional Tribunal established well:
“For the dual sanctions for the same fact—penal and administratively—to be constitutionally admissible, it is necessary that the normative that imposes it can be justified because it contemplates the same facts from the perspective of a legally protected interest that is not the same as that which the first sanction—of a penal order—tries to safeguard or, if you will,

PERÚ Ministerio de Economía y Finanzas

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría from the perspective of the different legal relationship between sanctioner and sanctioned””. (Emphasis added)

According to what has been stated, DIVISO SAB points out
that the infractions attributed to it are based on the fact that it would have carried out the offer of instruments issued by ESQUEMA INVESMENTS through a private offer when it should have been a public offer. Thus, from the infractions it is evident that in them concur the three prerequisites required for the application of the principle non bis in idem, that is, the identity in the subject, DIVISO SAB, the identity in the fact, consisting in the placement of instruments issued by ESQUEMA INVESMENT and the identity in the grounds, which in this case comprises that both infractions are based on the alleged qualification of the operations as a public offer.
DIVISO SAB adds that regarding the infractions
imputed, it is worth noting that the one described in numeral 1.9, numeral 1, of
Annex X of the SANCTIONS REGULATION, which states as prohibited conduct
“Intermediating securities, financial instruments or derivatives, without meeting the requirements, conditions and other provisions established by the regulations”, is included within the broad text of numeral 1.2, numeral 1, of Annex I of the Sanctions Regulation, which proscribes “Carrying out operations or activities prohibited by the regulations applicable to them, as appropriate, or carrying out operations or activities unrelated to their corporate object, or activities that contribute to or are complementary to their corporate object, without having obtained prior authorization from the SMV”. In this sense, the intermediary concludes that intermediating securities without meeting requirements established in the regulations also represents carrying out operations or activities that are prohibited by the regulations applicable to them;
On this matter, it is necessary to recall again that in the present
sanctioning procedure the infractions committed by DIVISO SAB are evaluated: “carrying out operations prohibited by the regulations”: in which it is appreciated that the broker society incurred in two infractions: (i) placing securities knowing that their offer corresponds to a public offer since the clients/investors to whom such securities were offered were not institutional investors and that the individual nominal value of these securities does not meet the minimum established, that is, S/ 250,000.00 (amount to which its respective update must be added according to the first final provision of the LMV); and, (ii) participating in the issuance of the securities issued by its affiliate ESQUEMA INVESTMENT as representative of the bondholders, being impeded from exercising such function;
Likewise, the other infraction detailed in the
Instruction Report referring to DIVISO SAB not “intermediating the issued securities without meeting the requirements established in the regulations”: for having intermediated the sale of the securities issued by Representaciones Yago S.A.C. without having previously informed the COMPLAINANT1 in two (2) operations (on December 14 and 15, 2020) that DIVISO SAB was the selling counterparty;
It should be specified that the operation of December 7
of 2020 in which DIVISO SAB intermediated the sale operation of the securities issued by ESQUEMA INVESTMENT where the latter was the seller and the COMPLAINANT1 the buying client, has not been considered as an infraction by the Instructor Report. In that sense, no connection of facts is appreciated between the infractions detailed in the previous considerations;

PERÚ Ministerio de Economía y Finanzas

For the above, it is evident that we are facing two
completely distinct facts from each other, which, as explained above have, additionally, different legal grounds, so that, if a denied theory were assumed that there was a connection between the facts contained in the present sanctioning procedure, it has been clearly disproven;
For the above, the argument regarding the configuration of the principle of non bis in idem has been disproven according to the analysis mentioned above;

IV. EVALUATION OF THE SANCTION TO BE IMPOSED

In accordance with what is established in the regulations, the
determination of sanctions will be carried out in accordance with article 348 of the TUO LMV and article 25° of the SANCTIONS REGULATION, in concordance with article 248, numeral 3, of the TUO LPAG79, and the mitigating and exonerating circumstances of responsibility regulated in articles 26 and 27 of the SANCTIONS REGULATION, in concordance with what is established in article 257° of the TUO LPAG;
In accordance with article 348° of the LMV and article
25° of the SANCTIONS REGULATION, in concordance with article 246°, numeral 3 of the TUO LPAG and article 255° of the aforementioned normative body, the administrative sanctions that are imposed must take into account the criteria disposed by the LMV, the SANCTIONS REGULATION and in the TUO LPAG;
Within this framework, the evaluation of the sanction
must consider: a) antecedents of the offender; b) recidivism; c) the circumstances of the commission of the infraction; d) the damage caused and the repercussion on the market; e) the illicit benefit resulting from the commission of the infraction; f) probability of detection of the infraction; g) gravity of the damage to the public interest and/or protected legal good; h) the existence or not of intent in the conduct of the offender; i) Voluntary declaration of the commission of the infraction and the contribution of the offender to its clarification;
In that sense, in order to concord the criteria
of the TUO LPAG with those indicated in the TUO LMV and the SANCTIONS REGULATION and for these criteria to be considered adequately in order that their valuation observes the principle of reasonableness and that the sanction to be imposed adapts to these, it proceeds to analyze the following criteria;
With regard to the antecedents of the offender, in
conformity with what is provided by article 25 of the SANCTIONS REGULATION,

79 “Article 248°.- Principles of administrative sanctioning power (…)
3. Reasonableness.- The authorities must foresee that the commission of the sanctionable conduct does not result in more advantage
for the offender than complying with the infringed norms or assuming the sanction. However, the sanctions to be applied must be proportional to the non-compliance classified as an infraction, observing the following criteria that are indicated for the purposes of their graduation:
a) The illicit benefit resulting from the commission of the infraction; b) The probability of detection of the infraction; c) The gravity of the damage to the public interest and/or protected legal good; d) The economic damage caused; e) Recidivism, for the commission of the same infraction within a period of one (1) year from when the resolution sanctioning the first infraction became final. f) The circumstances of the commission of the infraction; and g) The existence or not of intent in the conduct of the offender”.

PERÚ Ministerio de Economía y Finanzas

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría constitute antecedents of the offender the sanctions imposed by the SMV and that have become final within four (04) years prior to the date of the commission of the infraction. In this sense, from the review carried out in said period, it has been verified that DIVISO SAB has no record of sanction antecedent;

With reference to recidivism for the commission of
the same infraction, that final sanction imposed by the SMV within the period of one (1) year prior to the commission of the infraction to be sanctioned is taken into account. In that sense, it must be stated that considering what was stated regarding the sanction antecedents, DIVISO SAB has no record of sanctions for the commission of the infractions subject of analysis in the present administrative sanctioning procedure, in the mentioned period, so the situations that configure a recidivism are not presented;
As for the circumstances of the commission of the
infraction, it must be indicated that according to the facts exposed and means of proof described, it was determined that the offer of the securities issued by ESQUEMA INVESTMENT was of a public nature;
Likewise, it was observed that DIVISO SAB, given its
quality as placer of said securities, had to determine, jointly with ESQUEMA INVESTMENT, if the placement of those constituted or not a public offer, more so considering that it is a company of its same economic group;
It must be specified that DIVISO SAB previously
to the placement had access to all information about the conditions of the offer of the securities issued by ESQUEMA INVESTMENT, such as the fact that it was not directed exclusively to institutional investors and, during the placement, it could know that the nominal value of the respective securities in most cases did not exceed the amount of S/ 250,000.00 (Two hundred fifty thousand and 00/100 Soles) 80, among others. However, DIVISO SAB did not observe the regulations and obligations established in the LMV. Likewise, said broker society, as representative of the bondholders of such securities, by belonging to the same economic group to which ESQUEMA INVESTMENT, issuer of the securities, belongs, was impeded from assuming such function;
Regarding the circumstances of the commission of the
infraction, DIVISO SAB has not formulated any defense. Nor has it explained or detailed how it was appointed as placer of the securities to be issued by ESQUEMA INVESTMENT nor less has it explained, in its defenses, how it conducted the intermediation of the securities issued by Representaciones Yago S.A.C. in which it was the selling counterparty, in particular, why it did not previously inform its buying client, COMPLAINANT1, that it was the broker society that was selling such securities;
Without prejudice to this, it must be indicated that the
placements of the securities issued by ESQUEMA INVESTMENT were not isolated actions, carried out in a short period of time, with little frequency, or to a number of investors not significant, such that, in these circumstances, when DIVISO SAB carried out the registration of the investor as a client and registration of the operation

80 As established by the First Final Provision of the Securities Market Law, the updated amount for the year 2019 amounted to S/ 499,908.31, for 2020 S/ 499,330.38 and for 2021 S/ 507,118.58.

PERÚ Ministerio de Economía y Finanzas

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría of placement, it may have been difficult for the broker society to notice the risk regarding that they were participating in a public offering of securities;

On the contrary, the facts evidence that the
process of placement of the securities issued by ESQUEMA INVESTMENT initiated on March 21 of 2019 was a continuous process until February 26, 2021, that is, twenty-four (24) months; 89 series were issued in the FIFTH PROGRAM between March 21, 2019 and August 28, 2020 and 64 series in the SIXTH PROGRAM from July 23, 2020 and February 26, 2021 (see graph); to a total of 64 investors natural persons and 17 legal persons; in total 81 investors, of which, by way of example, it has been evidenced that at least thirteen (13) of them, are not institutional investors. Therefore, it is considered that it should have been properly warned by the control mechanisms of the broker society;
As for what was stated, it must be reiterated that of
the thirteen (13) clients analyzed, only in the case of two (2) of them, had holdings of securities prior to the placement of the ESQUEMA INVESTMENT securities, which had an appreciation that represented 35% of the minimum value required to qualify as an institutional investor for the case of the client COMPLAINANT1 and in the case of CLIENT9, its portfolio had a value that represented only 2% of the minimum value required for such qualification. In the case of the remaining 11 clients, they were neither nor had been owners of any security according to the information of the Accounting Registry of CAVALI S.A. ICLV;

N° Person Type
Owner of any value before the purchase of the values issued by EI Value in S/ of the Holdings of Securities that were held before the investment in securities issued by EI Date first purchase of values issued by ESQUEMA INVESTMENT (EI) Updated value of the minimum portfolio required as Institutional Investor in S/ 1 COMPLAINANT1 PJ YES 707,700.00 23/07/2020 1,997,322.00 2 COMPLAINANT2 PJ NO NO 06/12/2019 1,999,633.00 3 COMPLAINANT3 PJ NO NO 15/05/2020 1,997,322.00 4 COMPANY1 PJ NO NO 14/05/2020 1,997,322.00 5 CLIENT1 PN NO NO 05/11/2019 1,999,633.00 44 103 6 0 20 40 60 80 100 120 2019 2020 2021 Number of Series Placed Number of Series Placed 21/03/2019 26/02/2021

PERÚ Ministerio de Economía y Finanzas

N° Person Type
Owner of any value before the purchase of the values issued by EI Value in S/ of the Holdings of Securities that were held before the investment in securities issued by EI Date first purchase of values issued by ESQUEMA INVESTMENT (EI) Updated value of the minimum portfolio required as Institutional Investor in S/ 6 CLIENT2 PN NO NO 05/12/2019 1,999,633.00 7 CLIENT3 PN NO NO 18/08/2020 1,997,322.00 8 CLIENT4 PN NO NO 11/09/2020 1,997,322.00 9 CLIENT5 PN NO NO 24/11/2020 1,997,322.00 10 CLIENT6 PN NO NO 04/12/2020 1,997,322.00 11 CLIENT7 PN NO NO 17/02/2021 2,028,474.00 12 CLIENT8 PN NO NO 23/02/2021 2,028,474.00 13 CLIENT9 PN YES 38,918.35 5/01/2021 2,028,474.00

Likewise, the gross amount placed by ESQUEMA
INVESTMENT through DIVISO SAB in foreign currency amounted to a total of US$ 13,717,770.04 and in national currency to a total of S/ 101,710,401.8381. Of this amount, values were placed with the aforementioned 13 clients for a total of S/ 29 million82, as detailed in the following graph and table;

Placed to 13 Clients

81 The detail by operation of the placements carried out is available in Annex 2 of the Charges Letter.
82 The figures in US$ are expressed in Soles using the selling exchange rate published by the SBS corresponding to the last operation in US$ registered by the client.

$4,051,904
$9,218,567
$447,300
S/23,520,468
S/74,689,934
S/3,500,000
0
10,000,000
20,000,000
30,000,000
40,000,000
50,000,000
60,000,000
70,000,000
80,000,000
2019 2020 2021
Total Amounts Placed by Year
DOLLARS SOLES
Total S/ 101,710,402
Total US$ 13,717,770

PERÚ Ministerio de Economía y Finanzas

N° Person Type
Owner of any value before the purchase of the values issued by EI Amount invested in securities issued by EI in US$ Amount invested in securities issued by EI in S/ Total amount invested in securities issued by EI in S/ 1 COMPLAINANT1 PJ YES 921,601.77 4,624,296.76 7,942,063.13 2 COMPLAINANT2 PJ NO 300,000.00 300,000.00 3 COMPLAINANT3 PJ NO 8,000,000.00 8,000,000.00 4 COMPANY1 PJ NO 350,000.00 350,000.00 5 CLIENT1 PN NO 200,000.00 720,000.00 6 CLIENT2 PN NO 301,836.63 1,088,422.89 7 CLIENT3 PN NO 200,000.00 200,000.00 8 CLIENT4 PN NO 3,529,512.10 3,529,512.10 9 CLIENT5 PN NO 110,000.00 110,000.00 10 CLIENT6 PN NO 300,000.00 3,600,000.00 4,678,800.00 11 CLIENT7 PN NO 277,300.00 1,013,531.50 12 CLIENT8 PN NO 1,000,000.00 1,000,000.00 13 CLIENT9 PN YES 400,000.00 400,000.00 TOTAL S/ 29,332,329.62

On the other hand, it must be indicated that in the process
of placement, personnel from DIVISO SAB participated, who although they no longer work in the broker society, did so within the imputed period, and at the same time, despite the labor termination with the intermediary, they maintained linkage by exercising different positions during the period of imputation of charges and subsequently continued maintaining the linkage given the various functions they exercise in several companies that belong to the same economic group of DIVISO SAB, as is the case of the Messrs. Willis and Franco who as of today are Directors in the company NCF Shared Services S.A.
With regard to what was stated; it is worth highlighting that in
the case of Mr. Carlos Franco Cuzco during the imputed period he held the position of Vice President of the Board of Directors of DIVISO SAB (from March 20, 2019 to January 20
2021) and simultaneously was Director of ESQUEMA INVETSMENTS (from March 31
2017 to December 10, 2020), so considering that the placements were carried out between March 21, 2019 and February 26, 2021, during almost the entirety of said period, that is 22 of 24 months, Mr. Franco participated as
part of the placements in both companies;
As for the second infraction, it must be indicated that in the preliminary investigation stage, DIVISO SAB was requested to prove that it had previously informed its client COMPLAINANT1 if it had linkage or not with the seller of the financial instrument, being that in these operations the SAB was the
selling counterparty, responding that it did not have such declaration, without

PERÚ Ministerio de Economía y Finanzas

SMV
Securities Market Superintendency
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations, and amendments. The integrity of the document and the authorship

however, today in its defenses it has not explained the circumstances of the commission of the infraction nor even less ratified that it did not have such a document;

It should be noted that the infractions were
committed by an entity that has a valid operating authorization since February 09, 2010 by CONASEV Resolution No. 021-2010-EF/94.01.1, so that, being a regulated company, it knows about the regulatory framework that governs its activities, however, despite this, it incurred in the commission of the infractions charged. Likewise, it must be considered that the infraction was committed by a company whose functions as an underwriter are framed in responsibilities such as carrying out the review and analysis of the documentation and information related to the business and activities of the issuer, its financial solvency, credit risk, among others; as a bondholders' representative, it must safeguard the interests of bondholders, that the issuer provides timely, truthful information, adopts measures in case of non-compliance, among others and in general, contribute to the deepening of the capital market; that is, it is an entity that must comply with technical and specialization standards that imply an obligation of due diligence whose objective at all times must be to protect investors and the market; objectives that are not met when infractions charged are committed;
Regarding the damage caused and the repercussion in
the market, it must be indicated that the complainants: COMPLAINANT1, COMPLAINANT3 and COMPLAINANT2, have stated that as of the date of the presentation of their complaint, ESQUEMA INVESTMENT has not fulfilled honoring the values acquired from said issuer. It must also be highlighted that as of the date of this resolution, this Adjunct Superintendency has not been informed about the fulfillment of the payment of such values;
Likewise, it must be indicated that in its defenses
DIVISO SAB has neither specified nor even accredited what its action has been in compliance with its role as representative of the bondholders, especially since from the facts exposed it is evident that the offer of the securities issued by ESQUEMA INVESTMENT was a public offer;
It should be highlighted that, in the hypothetical case that the
offer of such securities had been private, it is also expected that the representative of the bondholders fulfills its duties, however given its link with the issuer, it took no action, at least this has not been accredited in the present procedure, which denotes intentionality on its part;
For the above, the placement of the securities
issued by ESQUEMA INVESTMENT and its subsequent non-payment of the principal by said issuer, linked to DIVISO SAB; added to the fact that such intermediary, in its capacity as representative of the bondholders, would not have acted in such situation in defense of its bondholders or security holders, has caused a concrete economic harm to the participants of the market;
Likewise, it must be indicated that the carrying out of
public offers without the prior registration of the securities in the RPMV is a conduct that contributes significantly to the increase in the perception of risk of investing in this type of financial instruments, and also constitutes an incentive for, under the denomination of private offer, to structure issuances

PERU Ministry of Economy and Finance

of securities without providing the market, through the RPMV, all the relevant information to such issuances, thus avoiding the protection of investors through the continuous dissemination of all the necessary information about the issuer that allows them to evaluate the risk assumed and its relationship with the return offered at that level of risk;

Likewise, this type of actions does have an impact
on the market since the purposes pursued by the requirements that the regulations impose on entities authorized by the SMV and that are empowered to participate as underwriters or representatives of obligations or custodians as part of an issuance are violated. Thus, by participating DIVISO SAB in an offer that should have been carried out as public; it generated additional risks to investors and potential investors of such offers by exposing them to investment alternatives without considering that in 79% of the cases they were natural persons, thus affecting the protection for them;
In this regard, it must be indicated that brokerage companies must carry out the functions for which they have received
authorization with responsibility and diligence, caring for the best interest of clients and the integrity of the market. For this purpose, intermediaries must have a system effective control system, which, among others, establishes the preventive and supervisory measures that are necessary so that intermediaries and their representatives, do not carry out, allow or omit activities that imply an infraction of the current regulation. In this sense, acting contrary, as observed in the present case, affects confidence in the market and the role it plays as an entity that channels investment and financing decisions of investors;
On the other hand, it must be considered that the
primary public offer in the securities market is based on an environment in which participants underwriters, structurers, bondholders' representative, custodians, among others, participate, which generates confidence in this type of offers as a means of financing for issuers;
It should be noted that according to Ezio Torre Tagle83
“the primary public offer aims to obtain money from potential investors, in order to inject it in favor of the issuing company of said securities, either to capitalize it, to venture into new projects or to replace other liabilities that are more burdensome for it”; therefore, if any entity assumes the role of some of the mentioned participants while being impeded to do so, in particular being in a situation of conflict of interest, it could affect the confidence of potential investors in public offers as a mechanism of financing, thus impacting confidence and the development of the securities market;
Regarding the illicit benefit resulting from the
commission of the infraction, it must be noted that during the use of the word, DIVISO SAB indicated that it made charges for its work as an underwriter of the securities issued by ESQUEMA INVESTMENT and for its work as representative of the bondholders of the issuances of the referred securities;

83 Ezio Piaggio Torre Tagle, the Public Offer of the Securities Market, Themis 2000.

PERU Ministry of Economy and Finance

Notwithstanding the above, additionally to what was indicated,
DIVISO SAB by participating as an underwriter of the securities, without complying with its obligations as an authorized and regulated entity participating in a specialized market, in its role as underwriter by not determining and requiring that the securities issued by ESQUEMA INVESTMENT be registered in the RPMV, benefited its economic group, insofar as it helped a company that belongs to its economic group to finance itself by saving the costs that must be assumed with the purpose of not affecting the legal goods related to the protection of investor, transparency and integrity of the market; which implies carrying out the referred registration, in addition to complying with the transparency requirements in the presentation of financial information and material events of the issuer while the securities are registered in the RPMV, adopt standards for the prevention of money laundering and terrorist financing, risk management, internal control systems, among others;
Regarding the gravity of the damage to the public interest
and/or protected legal good, it must be indicated that with respect to the infractions referred to the carrying out of unauthorized operations or activities, charged, it must be indicated that this violates the legal good relative to the integrity of the market, since the brokerage company has the obligation to manage its activity in an orderly and prudent manner, which includes observing which activities or operations it can carry out, which includes adequate management of its risks in order to avoid opting for options that are not regulated as authorized activities that can be carried out by a brokerage company such as providing underwriting services without previously verifying that it is participating in a public offer in which securities must be previously registered in the RPMV or acting as representative of the bondholders while being impeded to do so given its link and belonging to the same economic group;
It must be mentioned that DIVISO SAB by not having
questioned that the securities to be issued by ESQUEMA INVESTMENT be registered previously in the RPMV, affected the principle of transparency since the market, and in particular, the investors acquiring the securities who were not institutional, did not have truthful, sufficient and timely information that allows these and other investors, regardless of not opting to acquire said value, to be able to know said value as well as the issuer that backs it. In a private offer directed exclusively to institutional investors, such investors have the sufficient knowledge to ask the right questions, require and obtain the necessary information to adopt a sensible investment decision, appreciate and assume the risk of a securities investment, among others84, characteristics that are not necessarily observed in a public offer, so there is an impact on the legal goods of investor protection and transparency;
These situations contravene what is established in the
SMV Law and the Regulations, which goes against the adequate development and integrity of the market, creating distrust among its participants;
On the other hand, it must be indicated that the action of
DIVISO SAB in the commission of the infraction analyzed in the present procedure

84 Rony Jara Amigo, “Public and Private Offer of Securities in the North American Market: A Comparative View”, page 19.

PERU Ministry of Economy and Finance

sanctioning authority has caused damage to the public interest, since through the provision of its services as an underwriter, and bondholders' representative, it made possible that public offers of securities are carried out without previously presenting to the RPMV and consequently to all recipients of such offers, the information necessary for the recipients of the offer to have sufficient and timely information to adopt their investment decisions. It is necessary to specify that a situation of this nature would not have occurred if the offer of the securities had been public since the relevant regulations establish the information that must be provided to potential investors through the RPMV, within a framework of transparency; within the framework of its duty of diligence, the brokerage company should not have provided underwriting or bondholders' representative services, thus becoming a vehicle that allowed the carrying out of a disguised public offer, thus affecting its action to the public interest;

In this sense, it must be taken into account that the non
registration of a publicly offered security without its prior registration in the RPMV affects the protected legal good referred to the protection of the investor, since it is the investor to whom all the necessary information must be provided to be able to take a due investment decision;
With respect to the existence or not of intentionality
in the conduct of the offender, it must be indicated that it has been evidenced that DIVISO SAB acted with intentionality in the commission of the infraction charged;
In effect, it must be indicated that the placement of
securities through a public offer and the assumption of the function of representative of the bondholders, despite the existence of norms that expressly prohibited it, have been intentional acts;
The following indications reflect the intentionality of
DIVISO SAB to participate as an underwriter in a public offer without having previously registered the securities in the RPMV:
a. It belongs to an economic group that has experience and years in the market of securities and financial markets: DIVISO GROUP, Financial, which has within its structure a brokerage company, a fund administrator company, among others. b. It is a company that participates in the market since 2010, so it does not seems acceptable that it ignores the limitations established by the SMV Law and the Regulations referred to the placement of securities by private offer; aspects that by the nature of its business of intermediation in the securities market, it had to know necessarily.
c. This economic group in its objective of financing ESQUEMA INVESTMENT, could
have resorted to the banking system to finance itself with the public savings with the intermediation of a financial entity that is under the regulation and supervision of the State; however, it opted to capture public funds through the issuance of securities in the securities market, but evading the regulations that protect investors of this market through the protection provided by the State in a public offer of securities.

PERU Ministry of Economy and Finance

d. The offer of the securities was carried out, as has been described and explained in the present resolution, without observing that the offer of the securities is directed exclusively to institutional investors. a. In effect, the offer of the securities under analysis was directed to natural and legal persons who required the protection referred to in article 2 of the RPPV. e. The offer of securities was not an isolated process, carried out in a short period, but it was a continuous process of placement of almost twenty-four (24 months) where the issuers were atomized in series for their continued placement in the market. f. The offer of the securities was carried out by the sales force of DIVISO SAB, as well as by third parties unrelated to DIVISO SAB itself, such as employees of the other companies in the group. g. The offer of securities did not have adequate supervision that allows knowing to whom exactly the offer of the securities was directed as well as knowing if these potential clients met or did not meet the requirements to be considered as institutional investors. h. It was not verified that the investor natural persons acquiring the securities issued by DIVISO SAB, which are almost 80% of the total acquirers, meet with the own minimum requirements established to be accepted as institutional investors, among others, amount of their portfolio of securities marketable previously to the acquisition of the securities issued by ESQUEMA INVESTMENT;

The above stated evidences that DIVISO
SAB never had the intention to abstain from placing securities issued by ESQUEMA INVESTMENT that were not registered in the RPMV nor has it substantiated that it had the necessary legality to be appointed as representative of the bondholders of said securities;
Notwithstanding the above, it must be indicated that
DIVISO SAB has failed to comply with the SMV Law and the Regulations, norms that are of its absolute knowledge and that it even applies daily in its work as a brokerage company, such as placing securities in the market previously verifying that these are registered in the RPMV, registering clients, registering operations, among others, which shows a deficient diligence and internal control in its main activities as an intermediary;
Such non-observance of the regulations has been accredited
by DIVISO SAB having accepted to act as an underwriter without previously verifying that it is participating in a public offer in which it is required that the securities be previously registered in the RPMV; as well as representative of the bondholders of the securities issued by ESQUEMA INVESTMENT knowing that the issuer of the same was a company that belonged to its same economic group, showing an obvious conflict of interest, which cast doubt on the exercise of correct compliance with its work as such and which put at risk the interest of the holders of said securities;
With respect to the probability of detection of
the infractions, it must be indicated that in the present case, the facts constitutive of the infractions in question were evidenced in attention to the complaints filed

PERU Ministry of Economy and Finance

against DIVISO SAB, ESQUEMA INVESTMENT and others, so the probability of the detection was low;

It should be noted that although intermediaries remit
daily information of policies from which the SMV takes knowledge of the participation of some brokerage company as an agent underwriter of the placements charged; it must be specified that the policy information by itself does not allow determining if the placement carried out was a public offer or not; so that to determine the commission of the infractions, the SMV had to evaluate the information submitted by the complainants and request information from DIVISO SAB through letters;
In addition to the above, it corresponds to analyze the
exempting and mitigating conditions of responsibility established in article 257° of the TUO LPAG85 and in articles 27 and 26 of the SANCTIONS REGULATION, respectively;
With respect to the recognition of the
responsibility of the offender, it must be indicated that DIVISO SAB has not recognized the commission of the three (3) infractions charged in the present sanctioning procedure;
Regarding the contribution of the offender to its
clarification, it corresponds to point out that DIVISO SAB has also not contributed to the clarification of the facts linked to the infraction object of the present sanctioning procedure, since it has only limited itself to presenting its defenses questioning the legality of such procedure;
With respect to the subsequent remediation of the
commission of the infraction, it must be indicated that the infractions imputed have not been remedied by DIVISO SAB;
On the other hand, in the present administrative
sanctioning procedure, it corresponds to point out that it is not observed that any of the scenarios that constitute conditions exempting responsibility have been configured;
From the above, it is concluded that DIVISO SAB, by
failing to comply with article 46, letter a), second paragraph, of the RAI; articles 4, 5 letters a) and b), 87, and 195, letter j) of the SMV Law (today articles 4, 5 letters a) and b), 92, and 191, letter j) of the TUO SMV Law), 49 of the SMV Law (today article 51 of the TUO SMV Law), has incurred in the

85 “Article 257.- Exempting and mitigating conditions of responsibility for infractions 1.- The following constitute conditions exempting responsibility for infractions:
a) Force majeure or fortuitous event duly proven. b) Acting in compliance with a legal duty or the legitimate exercise of the right of defense. c) Mental incapacity duly proven by the competent authority, provided that this affects the aptitude to understand the infraction. d) Mandatory order of competent authority, issued in the exercise of its functions. e) Error induced by the Administration or by confusing or illegal administrative provision. f) Voluntary remediation by the possible sanctioned party of the act or omission imputed as constitutive of administrative infraction, prior to the notification of the charge referred to in subsection 3) of
article 235.
2.- The following constitute mitigating conditions of responsibility for infractions:
a) If a sanctioning administrative procedure has been initiated and the offender recognizes its responsibility in an express and written form.
In cases where the applicable sanction is a fine, it is reduced to an amount not less than half of its amount. b) Others that are established by special regulation.”

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Document electronically signed digitally under the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship commission of two (02) infractions qualified as very serious typified in the clause 1.2, number 1, of Annex I of the SANCTIONS REGULATION which establishes “Carry out prohibited operations or activities by the regulations applicable to them, according to correspondence, or carry out operations or activities unrelated to their corporate object, or activities that contribute to or are complementary to their corporate object, without having obtained prior authorization from the SMV”;
497. Likewise, DIVISO SAB has failed to comply with article 5,
letter a) of the RAI; and, therefore, would have incurred one (1) infraction typified as very serious in number 1, clause 1.9, of Annex X of the SANCTIONS REGULATION, which establishes as an infraction: “Intermediating securities, financial instruments or derivatives, without complying with the requirements, conditions and other provisions established by the regulations”,
498. According to article 33 of the SANCTIONS
REGULATION, the commission of very serious infractions is subject to sanction corresponding to a fine not less than fifty (50) UIT and up to seven hundred (700) UIT; or suspension of the operating authorization for a period not less than ten (10) days and up to forty-five (45) days; or revocation of the operating authorization;
499. In this sense, considering the gravity of the
infractions incurred, the damage to the public interest, the impact on the legal assets of transparency and investor protection, and the facts exposed as part of the sanction evaluation, this Adjunct Superintendency considers that it corresponds to sanction DIVISO SAB with a fine; Being in accordance with what is provided in article 32, number 16, of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF. RESOLVES:
Article 1º.- Declare that Diviso Bolsa Sociedad
Agente de Bolsa S.A. has incurred one (1) very serious infraction typified in the clause 1.2, number 1, of Annex I of the SANCTIONS REGULATION, approved by Resolution SMV No. 035-2018-SMV/01, for failing to comply with what is established in article 46, letter a), second paragraph, of the RAI; articles 4, 5 letters a) and b), and 195, letter j) of the LMV (today articles 4, 5 letters a) and b), and 191, letter j) of the TUO LMV), by participating as placer in public offerings without the securities having been previously registered in the Public Registry of the Securities Market.
Article 2º.- Declare that Diviso Bolsa Sociedad
Agente de Bolsa S.A. has incurred one (1) very serious infraction typified in the clause 1.2, number 1, of Annex I of the SANCTIONS REGULATION, approved by Resolution SMV No. 035-2018-SMV/01, for failing to comply with what is established in article 87 of the LMV (today
article 92 of the TUO LMV), by participating as Representative of Bondholders in the
issuance of securities issued by a company linked to it.
Article 3º.- Declare that Diviso Bolsa Sociedad
Agente de Bolsa S.A. has incurred one (1) very serious infraction typified in the clause 1.9, number 1, of Annex X of the SANCTIONS REGULATION approved by Resolution

PERÚ Ministry of Economy and Finance

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