PERÚ Ministerio de Economía y Finanzas
SMV
Superintendency of the Market de Valores
“Decade of Equal Opportunities for Women and Men” "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

SMV Deputy Superintendent Resolution No. 060-2024-SMV/11

Lima, 24 September 2024

Summary: Sanction UNIÓN DE CERVECERÍAS PERUANAS BACKUS Y JOHNSTON S.A.A. with a fine of 25 UIT, for having incurred one (1) infraction of a very serious nature typified in subsection 1.1 of literal A) of Annex XIV of the Sanctions Regulation.

Administrated : UNIÓN DE CERVECERÍAS PERUANAS BACKUS Y JOHNSTON S.A.A.
Subject
:
Administrative Sanctioning Procedure with single administrative instance Main Type : Subsection 1.1 of literal A) of Annex XIV of the Sanctions Regulation VERY SERIOUS INFRACTION File No. : 2024002072

The Deputy Superintendent of Supervision of
Market Conducts

WHEREAS:

Administrative file No. 2024002072, containing the administrative sanctioning procedure initiated by the General Intendancy of Compliance of Conducts of the Superintendency of the Securities Market – SMV (hereinafter, the IGCC), against Unión de Cervecerías Peruanas Backus y Johnston S.A.A. (hereinafter, the Issuer); as well as Report No. 803-2024-SMV/11.2 (hereinafter, the Report), issued by the IGCC;

CONSIDERING:

I. Function and competence of the SASCM

1. That, the IGCC —instructing body of the administrative sanctioning procedures (hereinafter, the PAS) referred to in the present case—, has brought to the knowledge of the Deputy Superintendency of Supervision of Market Conducts of the SMV (hereinafter, SASCM), the PAS of the

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administrative file No. 2024002072 in order to issue decision as sanctioning body of single instance in said PAS. In this way, the SASCM assumes competence in observance of the exercise of the supervision function and the sanctioning power of the Superintendency of the Securities Market – SMV established by the Single Concorded Text of its Organic Law, Legislative Decree No. 26126 (hereinafter, LOSMV), and the Single Ordered Text of the Securities Market Law, Legislative Decree No. 861, approved by Supreme Decree No. 020-2023-EF-11 (hereinafter, TUO LMV); as well as by the provisions of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, Sanctions Regulation); and, in articles 42 and 43 of the Regulation of Organization and Functions of the Superintendency of the Securities Market – SMV, approved by Supreme Decree No. 216-2011-EF (hereinafter, ROF-SMV), in the sense that it is a specific function of the SASCM, to impose sanctions in single administrative instance for the commission of infractions whose compliance control corresponds to the referred Deputy Superintendency. Likewise; the SASCM has the powers to issue corrective measures tending to revert the situation altered by the commission of the infraction;

II. Facts, charge and defenses of the Administrated

2.1 Facts

2. That, it was evaluated whether the Issuer complied with carrying out the dissemination, both on its website and on the “Institutional Page of the SMV in the Single Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)”2 , of the list of unclaimed shares and uncollected dividends corresponding to fiscal year 2022, which should have been made during the present fiscal year 2023, according to the provisions of article 262-A of the General Corporations Law, approved by Law No. 26887 (hereinafter, LGS);

2.2 Charge

3. That, as a result of said evaluation, through Official Letter No. 223-2024-SMV/11.2 of 19 January 2024 (hereinafter, Charge Letter), a charge was formulated to the Issuer for omitting the dissemination provided by article 262-A of the LGS, of the list of unclaimed shares and uncollected dividends both on its website and on the “Institutional Page of the SMV in the Single Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)”, corresponding to the fiscal year 2022; despite having previously been granted a term to the issuance of the Charge Letter. This non-compliance is typified in numeral 1.1 of literal A) of Annex XIV of the Sanctions Regulation;

2.3 Defenses

4. That, the Issuer, despite being validly notified with the Charge Letter, has not presented defenses in the present

[1] Through Supreme Decree No. 020-2023-EF, published on 10 February 2023 in the Official Gazette El Peruano, the Single Ordered Text of the Securities Market Law, Legislative Decree No. 861, was approved.

[2] According to the Second Complementary Provision of SMV Resolution No. 003-2023-SMV/01 of 07 February 2023, it was provided that any reference to the term “Portal of the Securities Market of the SMV (www.smv.gob.pe)” in the “Policy on dissemination of regulatory projects, general legal norms, early agenda and other administrative acts of the SMV”, approved by SMV Resolution No. 014-2014-SMV/01 and its amendments shall be understood, from 13 March 2023, as “Institutional Page of the SMV in the Single Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)”.

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administrative sanctioning procedure;

5. That, the charge formulated and the criteria regarding the graduation of the sanction have been subject to evaluation in the Report, which has been submitted to the knowledge of the SASCM;

6. That, by Supreme Decree No. 004-2019-JUS, the Single Ordered Text of the General Administrative Procedure Law – Law No. 27444 (hereinafter, the TUO of the LPAG) was approved, which contains common rules for the actions of the administrative function of the State and regulates all administrative procedures developed in the entities, including special procedures. Likewise, numeral 3) of article 248 of the TUO of the LPAG, indicates the criteria regarding the graduation of the sanction: (a) The illicit benefit resulting from the commission of the infraction, (b) The probability of detection of the infraction, (c) The severity of the damage to the public interest and/or protected legal right, (d) The economic harm caused, (e) The recidivism, for the commission of the same infraction within the term of one (1) year from when the resolution that sanctioned the first infraction became final, (f) The circumstances of the commission of the infraction and, (g) The existence or not of intentionality in the conduct of the offender;

7. That, in observance of the provisions of numeral 5 of article 255 of the TUO of the LPAG, by Official Letter No. 2852-2024-SMV/11 of 04 July 2024, the Report was sent to the Issuer, so that it may submit its arguments within the term of five (05) business days from notification of the referred official letter. In this regard, it is necessary to indicate that as of the date of issuance of this Resolution these have not been submitted;

III. Issues to be determined

8. That, in this administrative procedure it corresponds to determine the following:

(i) Whether or not the Issuer incurred in the infraction indicated in the Charge Letter and Report.

(ii) Whether or not it corresponds to impose a sanction on the Issuer;

IV. Analysis

4.1 Applicable Regulations

9. That, the obligation of publicly traded corporations to disseminate the list of unclaimed shares and uncollected dividends must be carried out both on their website and on the "SMV Institutional Page on the Single Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)", in accordance with article 262-A of the LGS, which establishes the following:

"Article 262-A.- Procedure for the Protection of Minority Shareholders

In order to effectively protect the rights of minority shareholders, the company must disseminate within a term that shall not exceed sixty (60) days from the holding of the Mandatory Annual Meeting or after the term referred to in article 114, whichever occurs first, the following:

1. The total number of unclaimed shares and the total value thereof, according to the current quotation in the securities market. In case

of no current quotation existing, the nominal value of the shares must be recorded; 2. The total amount of uncollected and payable dividends in accordance with the dividend declaration agreement; 3. The place where the lists with detailed information are located, as well as the place and service hours so that minority shareholders can claim their shares and/or collect their dividends; 4. The list of shareholders who have not claimed their shares and/or dividends.

Such dissemination must be made on the company's website if it has one and on the CONASEV Securities Market Portal. Additionally, other means of mass dissemination may be used.

For those companies that are in liquidation, insolvency situation or with negative equity, the obligation referred to in the first paragraph of this article shall be understood as fulfilled with the sole publication of a notice indicating the place where the previously required information is located and the service hours." (Underline added);

10. That, the non-compliance referred to omitting the dissemination ordered by article 262-A of the LGS, of the list of shares to be claimed and dividends uncollected, both on its website and on the "SMV Institutional Page on the Single Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)", is typified in numeral 1.1 of literal A) of Annex XIV of the Sanctions Regulation, which constitutes a very serious infraction;

11. That, according to article 41 of the Sanctions Regulation, the indicated infraction is sanctionable with a fine greater than twelve (12) UIT and up to twenty-five (25) UIT;

4.2 Evaluation of the case

12. That, in administrative file No. 2024002072, which contains the documentation of this administrative sanctioning procedure, it is appreciated that by Report No. 803-2024-SMV/11.2, the IGCC, an organ of the Superintendency of the Securities Market – SMV that has within its functions and powers, the supervision of compliance with, among others, article 262-A of the LGS, exposed the result of its evaluation, and specifically referred to the present case;

13. That, in this way, in the evaluation of the facts related to the present PAS, another organ or administrative instance of the Superintendency of the Securities Market – SMV, functionally independent of this Office, has intervened and participated prior to the issuance of this resolution; which is the IGCC that in due course formulated the Letter of Charges and subsequently evaluated the indication of infringement through Report No. 803-2024-SMV/11.2; and at this point of the PAS, it corresponds to the Office of the SASCM to issue a pronouncement containing its decision regarding the aforementioned charge, it being necessary to indicate that by its nature, as previously stated, it will be a decision of single administrative instance;

14. That, prior to the corresponding analysis,

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it must be noted that the formulation of the charge was based on the fact that the Issuer would have omitted the presentation of the dissemination of the list of unclaimed shares and uncollected dividends corresponding to fiscal year 2022, because it did not disseminate it on its corporate website nor on the Single Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)”, despite having been granted an extension period prior to the issuance of the Letter of Charges;

15. That, considering the foregoing, the corresponding evaluation is carried out for the purpose of determining whether the Issuer has breached article 262-A of the LGS and, therefore, whether it is liable to be sanctioned for the very serious infringement referred to in numeral 1.1 of literal A) of Annex XIV of the Sanctions Regulation;

16. That, in the present administrative file it is observed that through Report No. 803-2024-SMV/11.2 (File No. 2024002072), the IGCC evaluated the non-compliance with article 262-A of the LGS by the Issuer, having omitted the dissemination of the list of unclaimed shares and uncollected dividends corresponding to fiscal year 2022. In the Letter of Charges, it is stated that said non-compliance is classified as a very serious infringement in numeral 1.1 of literal A) of Annex XIV of the Sanctions Regulation;

17. That, after the actions conducted by the IGCC, it has submitted the Report referred to in numeral 5 of article 255 of the TUO of the LPAG. In administrative file No. 2024002072, the actions carried out in relation to the present PAS can be verified;

18. That, subsequent to the evaluation carried out by the IGCC, it corresponds to issue a pronouncement and, as a starting point, it is necessary to indicate that the Superintendency of the Securities Market – SMV, as a public regulatory body of the securities market, has the objective of ensuring transparency within it, as well as promoting the development of efficient markets and protecting the investor. In that sense, from the review of the control records referring to the presentation of information to the market according to the Report, it has been verified that the Issuer omitted the dissemination of the list of unclaimed shares and uncollected dividends referred to in article 262-A of the LGS, corresponding to fiscal year 2022;

19. That, on the other hand, despite having been notified with the Letter of Charges, the Issuer, to date, has not submitted its defenses according to what was evaluated in the Report;

20. That, it should be reiterated that the SMV through Letter No. 4515-2023-SMV/11.2 granted a period of no more than ten (10) business days to the Issuer to carry out the dissemination on its corporate website and on the “Institutional Page of the SMV on the Single Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)”; therefore, it is considered that the omission of the dissemination of the provisions of article 262-A of the LGS, subject of the charge imputation, is duly accredited;

21. That, on the other hand, we must point out that, from the review of the “Institutional Page of the SMV on the Single Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)”, regarding the publication and/or submission of the information associated with the fact subject of the charge, it can be stated that to date, the Issuer has not complied with carrying out the dissemination of the list of unclaimed shares and uncollected dividends corresponding to fiscal year 2022 in

the Institutional Page of the SMV, whose obligation should have been fulfilled as a maximum deadline until 30 May 2023. Therefore, the non-compliance by the Issuer is duly accredited;

22. That, in that sense, it is appropriate to indicate that the requirement contained in article 262-A of the LGS is important, because it is intended that minority shareholders are duly informed regarding the economic results of the Issuer, as well as the total number of unclaimed shares and uncollected dividends, as it is of their legitimate interest in order to be able to make decisions in an informed manner;

23. That, in accordance with the foregoing, having verified that the conduct constituting the infringement by the Issuer regarding the non-dissemination of the list of unclaimed shares and uncollected dividends corresponding to fiscal year 2022 has been configured, the applicable sanction will be determined;

24. That, likewise, it is verified from the review of this PAS that the Issuer has not submitted its arguments regarding the Report, despite having been duly notified physically on 25 July 2024;

V. Determination of the Sanction

25. That, as indicated, the non-compliance by omitting the dissemination of article 262-A of the LGS constitutes a very serious infraction typified in numeral 1.1 of literal A) of Annex XIV of the Sanctions Regulation, which states the following: “1.1 Omit the dissemination required by article 262-A of the LGS, on the company's website, if it has one, or on the SMV's Securities Market Portal.”

26. That, in relation to article 41 of the Sanctions Regulation, it states that the commission of very serious infractions, within the framework of the protection of minority shareholders, are punishable with a fine greater than twelve (12) UIT and up to twenty-five (25) UIT; it should be specified that, in accordance with article 40 of the Sanctions Regulation, for the calculation of sanctions for publicly traded corporations related to the protection of minority shareholders, the applicable UIT is the one in force at the time of the commission of the infraction; that is, in the present case, the UIT provided for 20233 is applicable;

27. That, having determined the commission of one (01) very serious infraction corresponding to the omission of the dissemination of the list of unclaimed shares and uncollected dividends corresponding to fiscal year 2022, it is appropriate to evaluate based on the provisions of article 344 of the TUO LMV, and article 25 of the Sanctions Regulation in accordance with numeral 3) of article 248 of the LPAG (hereinafter, Sanction Criteria);

SANCTION CRITERIA

28. That, in relation to the severity of the damage to the public interest and/or protected legal interest, it should be indicated that it is the obligation of publicly traded corporations with securities registered in the Public Registry of the Securities Market – RPMV to disseminate the total number of unclaimed shares and dividends pending delivery, among other obligations established by article 262-A of the

[3] Value of the UIT (2023): S/ 4,950.00 (Supreme Decree No. 309-2022-EF).

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LGS, which allows better access to information by its shareholders, and in this way ensures better transparency of the securities market. Consequently, although it has not been possible to determine or quantify the severity of the damage to the public interest, it must be considered that the non-compliance in not disseminating the information referred to in article 262-A of the LGS affects market transparency and therefore there is damage to the public interest because the Issuer has violated market transparency by not carrying out the dissemination regarding the rights corresponding to minority shareholders, which is related to information transparency, which is a protected legal interest that must be safeguarded by the Superintendency of the Securities Market – SMV as supervisor of the securities market;

29. That, regarding the sanction antecedents, it is established that the antecedents of the offender are the sanctions that have been imposed by the Superintendency of the Securities Market – SMV and that became final within the four (04) years prior to the moment of the commission of the infraction to be sanctioned; notwithstanding this, it is specified that the commission of the same infraction in the year prior to the infraction to be sanctioned is not considered as an antecedent. In application of said criterion, it has been verified that the Issuer has antecedents in accordance with literal a) of article 25 of the Sanctions Regulation, the same ones that have been detailed in the Report;

30. That, in relation to recidivism for the commission of the same infraction, literal b) of article 25 of the Sanctions Regulation establishes that recidivism is taken into account as that final sanction imposed by the SMV within the period of one (1) year prior to the commission of the infraction to be sanctioned. In this regard, it has been verified through the SMV's Sanctions System that by Deputy Superintendency Resolution No. 079-2022-SMV/11 of 21 October 2022, a fine of 20 UIT was imposed for having incurred a serious infraction typified in subsection 1.1 of numeral 1 of literal A) of Annex XIV of the Sanctions Regulation; the Issuer was sanctioned for the commission of the same aforementioned infraction; therefore, it has the status of recidivist, according to the evaluation of the Report;

31. That, in relation to the circumstances of the commission of the infraction, it should be noted that the omission of the dissemination by the Issuer on the “SMV Institutional Page on the Single Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)”, of the list of unclaimed shares and uncollected dividends, despite the fact that, in addition to the term established in the LGS, the Superintendency of the Securities Market – SMV, through Official Letter No. 4515-2023-SMV/11.2, granted it a term of ten (10) business days; however, once the last term was fulfilled, it was verified that the Issuer had not complied with the dissemination of the list of unclaimed shares and uncollected dividends corresponding to the 2022 fiscal year;

32. That, regarding the existence of economic harm and impact on the market, it has not been evidenced that the non-compliance has produced a quantifiable harm, understood as an economic damage caused to one or several investors. Likewise, there is no knowledge of complaints filed by minority shareholders. In this regard, we must highlight that this does not exclude the configuration of a breach in the dissemination of the list referred to by article 262-A of the LGS;

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33. That, regarding the illegally obtained benefit in the present case, there are not sufficient elements to indicate that the Issuer obtained an illegal benefit as a consequence of the commission of the infringement under evaluation;

34. That, regarding the existence or not of intentionality in the conduct of the infringer, it has not been evidenced that the Issuer has obtained an illicit benefit or has acted intentionally or with malice; however, a lack of due diligence is evidenced, since it is aware; (i) that the publications of the total number of unclaimed shares and the total amount of uncollected dividends must be duly disseminated on its corporate website and on the “Institutional Page of the SMV on the Single Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)”, and (ii) that the deadline for compliance with this obligation was until 30 May 2023;

35. That, regarding the criterion referred to the probability of detection of the infringement, it must be noted that the verification of compliance with article 262-A of the LGS is carried out through the information submission applications implemented by the SMV, so it can be indicated that this type of infringement is detected through the monitoring carried out by the IGCC once the deadline established to generate the dissemination has been met; therefore, the probability of detection is less complex;

36. That, according to the analysis of the Sanction Criteria set forth above and the evaluation carried out by this Deputy Superintendence, regarding the Issuer's omission in the dissemination of the list of unclaimed shares and uncollected dividends corresponding to the 2022 fiscal year, as provided by article 262-A of the LGS, this type of non-compliance constitutes a very serious infringement, which is punishable with a fine greater than twelve (12) UIT and up to twenty-five (25) UIT;

37. That, considering that the Issuer has a sanction record, this being not the first PAS related to the protection of minority shareholders in which it incurs, it has been verified that it has not complied with carrying out the corresponding rectification as of the date of the infringement; that is, it has not complied with correcting the infringement subject to charge and no mitigating or aggravating circumstances have been presented, in the present PAS, it corresponds, in accordance with the evaluation carried out in the Sanction Criteria and the analysis carried out by this Deputy Superintendence, to impose a fine of twenty-five (25) UIT4 equivalent to S/ 123,750.00 (One Hundred Twenty-Three Thousand Seven Hundred Fifty with 00/100 Soles), and;

In accordance with the provisions of numerals 24 and 36 of article 43 of the Regulation of Organization and Functions of the Superintendence of the Securities Market – SMV approved by Supreme Decree No. 216-2011-EF and its amendments;

RESOLVES:

Article 1.- Declare that Unión de Cervecerías Peruanas Backus y Johnston S.A.A. has incurred in one (01) infringement of a very serious nature typified in numeral 1.1 of literal A) of Annex XIV of the Regulation of

[4] Value of the UIT (2023): S/ 4,950.00 (Supreme Decree No. 309-2022-EF)

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Sanctions, approved by SMV Resolution No. 035-2018-SMV/01, for having omitted the dissemination established by article 262-A of the General Corporations Law, approved by Law No. 26887, of the list of unclaimed shares and uncollected dividends corresponding to the 2022 fiscal year.

Article 2.- Sanction Unión de Cervecerías Peruanas Backus y Johnston S.A.A. with a fine of twenty-five (25) UIT equivalent to S/ 123,750.00 (One Hundred Twenty-Three Thousand Seven Hundred Fifty with 00/100 Soles), for the provisions of article 1 of this Resolution.

Article 3.- This Resolution does not exhaust the administrative route, and it may be challenged before this Deputy Superintendence of Market Conduct Supervision through the filing of a reconsideration appeal, an administrative appeal recognized in article 218 of the Single Ordered Text of Law No. 27444, General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS and its amendments, within a period of fifteen (15) business days, counted from the day following its notification, as it is a single-instance administrative procedure. If this Resolution is not challenged, it may avail itself of the corresponding sanction reduction regime.

Article 4.- If this Resolution is not subject to challenge, it must be published on the Securities Market Portal of the Superintendence of the Securities Market (www.smv.gob.pe), in observance of the provisions of numeral 1 of article 7 of the “Policy on dissemination of regulatory projects, general legal norms, early agenda and other administrative acts of the SMV”, approved by SMV Resolution No. 014-2014-SMV/01 and its amendments, and by the provisions of the last paragraph of article 14 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01.

Article 5.- Transcribe this Resolution to Unión de Cervecerías Peruanas Backus y Johnston S.A.A.

Signed by: MENESES CAMARGO Carlos Erasmo

Signed by: RIVERO ZEVALLOS Carlos

Carlos Rivero Zevallos
Deputy Superintendent
Deputy Superintendency of Market Conduct Supervision

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Deputy Superintendent Resolution No. 060-2024-SMV/11: Fine on Unión de Cervecerías Peruanas Backus y Johnston S.A.A.