Resolution of the Deputy Superintendent of Prudential Supervision No. 023-2025-SMV/10 — SMV — PE

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 authorship Resolution of the Deputy Superintendent of Prudential Supervision SMV No. 023-2025-SMV/10 Lima, May 7, 2025 Summary: Esquema Investment S.A. is sanctioned with three hundred (300) UIT, equivalent to S/ 1,260,000.00 (one million two hundred sixty thousand and 00/100 Soles) for having committed one (01) very serious infringement type in Annex III, letter A), paragraph 1, subsection 1.1 of the Sanctions Regulation, for making a public offer without having previously registered the securities in the Registry or having registered the corresponding prospectus, except for the cases of exception established in the regulations. Likewise, the registration of said securities in the Public Registry of the Securities Market is established as a corrective measure. Administered by: Esquema Investment S.A. Subject: Administrative sanctioning procedure. File No.: 2024050013. The Deputy Superintendent of Prudential Supervision SEEN:
The administrative file No. 2024050031, Report No. 345-2025-SMV/10.3, issued by the General Superintendent of Prudential Compliance; as well as the defenses and arguments presented by Esquema Investment S.A.; and, CONSIDERING:
Pursuant to Article 1 of Law No. 29782, Law for the Strengthening of 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 Superintendence (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
15:42:15

PERU 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 Esquema Investment S.A. (hereinafter, ESQUEMA INVESTMENT) and others, for alleged non-compliance with the regulations governing the securities market;
Through Office No. 3501-2024-SMV/10.3 of August 12,
2024, the complaint was transferred to Diviso Bolsa Brokerage Society S.A.
(hereinafter, DIVISO SAB) in order to present the respective comments; on the basis of this, in writing on August 26, 2024, the brokerage society requested an extension of time to respond to the request; which was granted in accordance with the indication in Office No. 3758-2024-SMV/10.3 of August 27, 2024;
By letter received on August 27, 2024, the
COMPLAINANT3 filed complaint3 against ESQUEMA INVESTMENT, 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, additional documentation was requested from DIVISO SAB to the information provided through the aforementioned letters;
2Through Office No. 4049-2024-SMV/10.3, notified on
August 13, 2024, the complaint filed by COMPLAINANT3 was transferred to DIVISO SAB in order to 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 time to present the missing documentation; which was granted through Office No. 4182-2024-SMV/10.3 of 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 letter of September 18, 2024;
With Office No. 5507-2024-SMV/10.3, notified on December 5,
2025 (hereinafter, OFFICE OF CHARGES), an administrative sanctioning procedure was initiated against ESQUEMA INVESTMENT for possible non-compliance with the Law of the Securities Market, approved by Legislative Decree No. 861 and its amendments (hereinafter, LMV) and the Single Text of the Order of the Law of the Securities Market, approved by Supreme Decree No. 20-2023-EF (hereinafter TUO LMV), and the Regulation of Primary Public Offer and Sale of Securities, approved by CONASEV Resolution No. 141-1998-EF/94.10 (hereinafter, ROPPV), in force at the time the facts occurred;
Through a document sent to the SMV on December 26,
2024, ESQUEMA INVESTMENT requested a date for the reading of the file;

1 In Annex attached to this resolution, the complete data of the natural persons to whom the denominations used in this resolution belong are detailed, and likewise, if applicable, the email addresses. 2 File No. 2024033417, 3 File No. 2024036651.

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 authorship
11. Through Office No. 5912-2024-SMV/10.3, the
response was given to the document presented on December 26, 2025;
12. By document received on January 13, 2025
ESQUEMA INVESTMENT requested an extension of time to present the respective defenses; which was granted through Office No. 247-2025-SMV/10.3;
13. On February 5, 2025, ESQUEMA INVESTMENT
presented the defenses requested by the OFFICE OF CHARGES;
14. The charges formulated against ESQUEMA INVESTMENT,
the defenses of the latter and their evaluation have been the subject of analysis in the Report No. 345-2025-SMV/10.3 (REPORT IGCP), which has been submitted to the knowledge of this Deputy Superintendence;
15. In observance of the Principle of Due
Process contemplated both in Article IV, paragraph 1.2, of the Preliminary Title and in article 248, subsection 2, of the Single Text of the Order of Law No. 27444 Law of the General Administrative Procedure, approved by Supreme Decree No. 004-2019- JUS (hereinafter TUO LPAG), through Office No. 1323-2025-SMV/10, it was made available to ESQUEMA INVESTMENT the administrative file referred to in Report No. 345-2025-SMV/10.3, for its review;
16. On March 13, 2025, ESQUEMA INVESTMENT
requested an additional period to that indicated by Office No. 1323-2025-SMV/10 to present additional arguments, which was granted by Office No. 1412-2025-SMV/10, notified on March 17, 2025;
17. On March 25, 2025, ESQUEMA INVESTMENT
presented additional written arguments;
II. MATTERS TO BE DETERMINED
18. In the present administrative procedure, at
the discretion of this Deputy Superintendence, it corresponds to determine the following:
a) Whether ESQUEMA INVESTMENT incurred or not in infringement of what is provided in article 49 of the LMV (today article 51 of the TUO LMV) and articles 4 and 11 of the ROPPV, for making a public offer without having previously registered the securities in the Registry or having registered the corresponding prospectus, except for the cases of exception established in the regulations; b) Whether it corresponds or not to sanction ESQUEMA INVESTMENT for what is stated in the previous subsection;
III. ANALYSIS
OF THE PUBLIC OFFER WITHOUT HAVING PREVIOUSLY REGISTERED THE SECURITIES IN THE REGISTRY From the regulation
19. Article 1 of the Single Text of the Order of the Law
Organic Superintendence of the Securities Market, approved by Decree Law No. 26126 (hereinafter, ORGANIC LAW), states:
“Article 1. Definition, purpose and functions of the Securities Market Superintendence (SMV) (…) The functions of the Securities Market Superintendence (SMV) are the following:

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 authorship a. Issue the legal norms that regulate matters of the securities market, product market and collective fund system. b. Supervise compliance with the legislation of the securities market, market of products and collective fund systems by natural and legal persons who participate in said markets. (…)”;
20. 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.
Public offers of securities and their issuers, public offer securities, intermediation agents, stock exchanges, securities clearing and settlement institutions, securitization societies, mutual funds for investment 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 reach private offers of securities”. “Article 4°.- PUBLIC OFFER It is a public offer of securities the invitation, adequately disseminated, that one or more natural or legal persons address 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 thereof, the following are considered private offers:
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 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. c) Those established by Conasev”. “Article 049°.- OBLIGATION OF REGISTRATION Public offers of securities require the prior registration of the same in the Registry, except when it concerns 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”.

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 authorship
21. Articles 2, 4, 6 and 11, as well as the Fifth
Final Provision of the Regulation of Primary Public Offer and Sale of Securities Mobiliarios, 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 market of securities through the revelation, in a truthful, sufficient, timely and clear manner, of all that information that is relevant for the purpose of understanding the positive and negative implications of the transactions proposed to them, with the purpose that they are in conditions to adopt free and informed decisions regarding them, and that said 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 offer. 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 offers of securities are only subject to the prior requirement of registration of the security to be offered and/or registration of the informative prospectus to be used in the Registry, according to what is provided 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 OFFER” 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 offer of securities, has the scope
that is indicated below:
a) Invitation.- An invitation is considered to be any manifestation of will that is carried out 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 indicated in subsection 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, computer systems or any other that technology allows, which is suitable to give to know the content of the same to its recipient. It also includes the use of the services of stock exchanges or of entities in charge of the conduct of centralized negotiation mechanisms (Underlining ours). c) General public.- The general public is composed of the set of persons, national or foreign, who are potential investors in the national territory.

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 authorship d) Segment of the public.- A segment of the public is considered to be the set of persons determined or not that, 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, find difficulties in adopting a free and informed decision regarding the invitation made. Without prejudice to what is provided 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 by 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 protection mentioned above. Shareholders or other holders of participation rights in a legal entity are susceptible to be considered a segment of the public in the terms of the present subsection regarding invitations made by said legal entity; and, e) Legal act referred to the placement or disposal of securities.- Comprises that related 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 act of investment for its subscriber or acquirer. When the rights referred to in subsection e) have the condition of securities, the public offer of the same is also considered a public offer of the securities regarding which their rights revolve, and what is provided in this Regulation regarding both securities must be complied with. In such a case, a common informative prospectus must be registered and used”. “Article 11° PROCEDURES APPLICABLE TO PUBLIC OFFERS (…) a) Primary Public Offers.- 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 of it, through a disguised public offer or through the use of the mechanisms provided for in this Regulation or in the Law, in order to avoid the application of the investor protection devices contained in said norms or in those that complement them, is prohibited”.
22. Likewise, article 3 and Annex I of the
Regulation of the Institutional Investors Market, approved by Resolution SMV 021-2013-SMV/01 (hereinafter, REGULATION OF INSTITUTIONAL INVESTORS), regulate the following:
“Article 3.- Institutional Investors
Institutional investors are persons who, by their nature, characteristics or knowledge, understand, manage and evaluate adequately the risks associated with their investment decisions.
Institutional investors are the natural and legal persons indicated in
Annex 14 INSTITUTIONAL INVESTORS”.
23. Regarding the securities, object of
public offer, it corresponds to note the following;
24. Article 3° of the LMV (today article 3 of the TUO
LMV) establishes the following:
“Article 3.- Securities.-
Securities are those issued in a massive and freely negotiable manner that confer to their holders credit, dominial or patrimonial rights, or those of participation in the capital, the patrimony or the profits of the issuer. (…) Any limitation to the free transferability of the securities contained in the statute or in the respective issuance contract, lacks legal effects.”
25. Article 5 of the ROPPV, provides the following:
“Article 5.- Scope of the term “securities”.
(…) b) Massive issuance.- Massive issuance is considered to be that which is carried out in a simultaneous manner, or successive in a determined period and as part of the same financial operation or of a similar nature, of a number of securities, homogeneous or not

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

Banks, financial institutions and insurance companies and other companies indicated by article 16 of the Law
General of the Financial System and of the Insurance System and Organic of the Superintendence of Banking and Insurance, Law No. 26702 and its modifying norms; intermediation agents; private administrators of pension funds; investment fund management societies; mutual fund management societies and securitization societies.
Entities from abroad that carry out activities similar to those indicated in paragraph 1 and/or Qualified
Institutional Buyers to which Rule 144A of the U.S. Securities Act of 1933 refers.
Health Service Providers to which the Law of Modernization of Social Security in
Health, Law No. 26790, the Previsional Normalization Office – ONP and the Social Health Insurance – Essalud refer.
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 an investment portfolio in securities equal to or
greater than one million New Soles (S/. 1,000,000.00).
Funds and autonomous estates administered by the persons indicated in the previous paragraphs,
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 an investment portfolio in securities equal to or greater than one million New Soles (S/. 1,000,000.00).
Regarding the institutional investors detailed in paragraphs 4, 5 and 6 of this Annex, the verification carried out must be documented at least with the sworn declaration signed by said investors, in which they manifest: (i) knowledge of the scope of such qualification; and (ii) having such condition. The intermediation agents that act as placement agent must implement and apply diligently procedures, in order that the investors who participate in this market are exclusively institutional investors. In case that issuers carry out the placement of securities, they must ensure to have the sworn declarations 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.

PERU Ministry of Economy and Finance

SMV
Securities Market Superintendence
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 between them, such that it makes possible its subsequent distribution to the public or to a segment thereof. The issuance of a number of securities equal to or less than ten (10) simultaneously, or successively in 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 previous paragraph entails the presumption, unless proof to the contrary regarding what is stated in the first paragraph of this subsection, of having been subject to massive issuance. Such 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 a function, among others, to supervise compliance with the legislation of the securities market by natural and legal persons who participate in such market;

From the facts occurred
From the complaints presented

The Complaints 1, 2 and 3 (hereinafter,
COMPLAINANTS) filed a complaint against ESQUEMA INVESTMENT, DIVISO SAB and others 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). They cite as an example of this, 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 specified
that they do not qualify as institutional investors, mainly due to the fact that they do not have sufficient knowledge about the functioning of the market of securities;

Preliminary Considerations

DIVISO SAB is a joint-stock company, authorized
to operate as a stockbroker society by Resolution CONASEV No. 021- 2010-EF/94.01 of February 9, 2010. Likewise, according to what was informed by the stockbroker society, it carries out the activities authorized by the SMV, in its offices located at the address 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 what was informed by
DIVISO SAB5
, based on the Regulation on Indirect Ownership, Linkage and Economic Groups, approved by Resolution SMV No. 019-2015-SMV/01 and its amendments (hereinafter, Economic Group Regulation), the stockbroker

5
By written communication of December 14, 2020 in File No. 2020030807.

PERU Ministry of Economy and Finance

SMV
Securities Market Superintendence
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 society and ESQUEMA INVESTMENT were part of the same economic group called Diviso Financial Group6 ;

On the participation of DIVISO SAB

According to the information on file in the
files of the complaints presented by the COMPLAINANTS, which includes the securities issuance contracts, as well as the information of a sample of offer notices presented by DIVISO SAB to the SMV7 , the stockbroker acts in the capacity of placement agent and representative of bondholders;
In effect, 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, referred by the COMPLAINANTS and/or DIVISO SAB; as well as the information on 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 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 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;

On 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 can be constituted for each issuance or series to be issued, which will be properly informed in the offer notices of the respective series. Thus, in the offer notices referred, 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 of the bonds and
short-term instruments is based on the success of the substitution of liabilities and of the future projects of ESQUEMA INVESTMENT, operations that may be complex or not; as well as the effectiveness of the guarantees. Thus, each of the risks that these investments entail must be known and with the possibility of being

6
On April 11, 2022, in the economic group report presented with the annual report (File No.
2022015520), Diviso Financial Group S.A. did not include ESQUEMA INVESTMENT as a member of the economic group Diviso Financial Group. 7 By File No. 2023049838.

PERU Ministry of Economy and Finance

SMV
Securities Market Superintendence
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 understood by the investors of the bonds and short-term instruments issued and all recipients of the offer of said securities;

On the nature of the offer of the bonds and of the short-term instruments issued by Esquema Investment

In principle, it must be stated that such offer
qualified as private in nature, according to the documents referred and the information available to the SMV, is not framed within the circumstances considered by Article 5 of the LMV (today Article 5 of the TUO LMV). Since, considering the characteristics of some of the investors who acquired the securities, such offer is not directed exclusively to institutional investors8 and considering additionally that the nominal value or unit placement value of the bonds in most cases are lower than the amount referred to in letter b) of the aforementioned Article 5 of the LMV (today Article 5 of the TUO LMV)9 , according to information of a sample of the placements with the nominal value, according to the information of the offer notices and securities certificates, which can be observed in
Annex 1 of the NOTICE OF CHARGES, reconciled with the information of all the
placements, communicated daily by DIVISO SAB, which can be observed in
Annex 2 of the NOTICE OF CHARGES;
In that sense, taking into account what was stated
above, it is necessary to analyze if the offer of the bonds and the 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, for the purpose of determining if the offer
of securities in the present case qualifies or not as a public offer of securities mobiliarios, it is necessary to perform an analysis based on the definition of public offer of securities mobiliarios contained in the aforementioned Article 4 of the LMV (today Article 4 of the TUO LMV) and the complementary legislation that develops said concept;
Now, it must be stated that Articles 5 and 6
of the ROPPV develop the different elements that determine the condition of a public offer of securities mobiliarios, contained in the definition of Article 4 of the LMV (today Article 4 of the TUO LMV), therefore, considering the information obtained in the investigation carried out, it proceeds to analyze if the referred offer of bonds qualifies as a public offer of securities mobiliarios or not, from the development of each of said elements;

Securities mobiliarios 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 so-called series of corporate bonds or short-term instruments, to which a certain value (amount) is assigned, a different one from another. In each of the

8
According to Article 3 and Annex 1 of the INSTITUTIONAL INVESTORS REGULATION. 9 Even without considering the updated amounts according to the First Final Provision of the LMV.

PERU Ministry of Economy and Finance

SMV
Securities Market Superintendence
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 so-called series, a quantity of bonds is issued. As can be observed in Annex 1 of the NOTICE OF CHARGES, from 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 is approximately S/ 41 million and USD 5.5 million. x The applicable interest rates for 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 mobiliarios
that can be subject to 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) securities, with which the requirement of “massive issuance” contemplated in letter 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;
Thus, the corporate bonds and short-term instruments
issued by ESQUEMA INVESTMENT constitute securities mobiliarios susceptible of being subject to a public offer of securities, as required by Article 5 of the ROPPV;

Adequately disseminated invitation

With respect to the means employed in the process
of placement of the bonds and short-term instruments issued by ESQUEMA INVESTMENT and according to the information on file 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 the officials of DIVISO SAB;
They were contacted by a person who identified
himself as Commercial Head of DIVISO SAB and by Mr. Julios Willis Covarrubias10 (hereinafter, MR. WILLIS) who presented himself as Sales Head of the South Region

10 According to the RPMV he was Commercial Manager of DIVISO SAB from August 01, 2018 to September 09, 2019. Subsequently he was hired as part of the staff of DIVISO SAB from January 14, 2020 to December 21, 2023.

PERU Ministry of Economy and Finance

In the case of COMPLAINANT2, in addition to the
indicated persons, it is stated that they were also contacted by Mrs. Katherine Cortez 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 a 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
listed companies 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 quote 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 of my Management maintaining the rate of 7.5% BOND ESQUEMA a180 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 renewal of short-term instruments at 180 days issued by ESQUEMA INVESTMENT where she states: “(…) The proposal is at 180 days joining the 2 capitals and granting 5.5% rate. Payment at the end of the operation. (…)”;
According to what was stated by COMPLAINANT1,
COMPLAINANT2 and COMPLAINANT3 in their complaints13, it must be stated that according to Article 6, letter a) of the ROPPV, the invitation referred to in Article 4 of the LMV (today 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 as its object to make or receive proposals linked to an investment act. Which can be carried out either directly or through third parties;
Thus, according to the aforementioned norm,
any manifestation of will or offer that has the purpose of making or receiving some proposal that is linked to an investment act, that is, that has as its object to carry out legal acts either of placement or disposal of securities constitutes an invitation within the scope established in Article 4 of the LMV (today Article 4 of the TUO LMV) and Article 6 of the ROPPV;
Therefore, considering that DIVISO SAB is the
placement agent of the bonds and short-term instruments issued by ESQUEMA INVESTMENT, the offer of said investment alternative by DIVISO SAB to the COMPLAINANTS constitutes an invitation in the terms established in the

11 According to the RPMV he was hired as part of the staff of DIVISO SAB from November 04, 2019 to March 31, 2022. 12 According to the RPMV he was General Manager of DIVISO SAB from January 03, 2018 to January 29, 2021. 13 They are considered based on the Principle of Presumption of Truthfulness, established in Article IV, numeral 1.7 of the TUO of the LPAG.

PERU Ministry of Economy and Finance

SMV
Securities Market Superintendence
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 provisions mentioned above. This is because, said offers necessarily have the purpose of receiving investment proposals and they end up being concretized 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 were suitable to make these invitations known to their recipients, thus complying with what is provided in Article 6, letter b) of the ROPPV;
Additionally, this premise is reinforced
considering that the aforementioned 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 transferring the entirety
of the complaints to DIVISO SAB, said society 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 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;
Article 6, letter 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 the 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 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 offer of securities mobiliarios, the character of public;
In this way, considering what is established in the
mentioned article, to determine the need for protection it is necessary to conclude that due to the characteristics of the recipients of the offer it is required that these have all the information that is required in a public offer, in order that, only by accessing it, they can take a duly informed decision on it, on the basis of an equal treatment, which guarantees among others, the same conditions;
With respect to this criterion, in principle it must 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 presented before the SMV, as well as the information that has been collected, the following investors would require the protection referred to in Article 2 of the ROPPV;

COMPLAINANT1

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 orders 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 as one of its activities the investment in securities; this according to what is recorded in the Registry of Legal Persons of the Registry Office of Lima and Callao
Likewise, according to information from the Accounting Registry 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 mobiliarios of a company, acquired with the intermediation of DIVISO SAB, valued at S/ 707 700;

COMPLAINANT2

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 social communication medium, among others, not having as one of its activities the investment in securities; this according to what is recorded in the Registry of Legal Persons of the Registry Office of Quillabamba in the Registry Zone No. X headquarters Cuzco;
Likewise, according to information from the Accounting Registry 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 mobiliarios;

COMPLAINANT3

It is a joint-stock company whose corporate object is
to commercialize vehicles of different brands, as well as spare parts, accessories, autoparts and other inputs of the same, as well as provide repair and maintenance services of vehicles of various brands and commercialize 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 the investment in securities, this according to what is recorded in the Registry of Legal Persons of the Registry Office of Cuzco;
Likewise, according to information from the Accounting Registry 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 mobiliarios;

PERU Ministry of Economy and Finance

Additionally, it should be noted that in the intermediation contract of May 15, 202014, signed between DENUNCIANTE3 and DIVISO SAB,
this client declared that he had not previously invested in securities; EMPRESA1
It is a closed corporation whose corporate purpose is the marketing, representation, distribution, repair, and maintenance of
large and small motor vehicles; land, air, sea transport, and cargo services, among others; not having investment in securities as one of its activities; as recorded in the Register of Legal Entities of the Tarapoto Registry Office;
Likewise, before the purchase of the short-term instruments issued by ESQUEMA INVESTMENT, made on May 14, 2020, it
was not the owner of any securities; according to the information from the Accounting Registry of CAVALI S.A. ICLV;

NATURAL PERSONS

For their 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 Registry of CAVALI S.A. ICLV, were not owners of any securities:

N° OPERATION DATE RUT CODE CLIENT NAME
1 5/11/2019 01306745 CLIENTE1
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

Likewise, 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; according to the information from the Accounting Registry of CAVALI S.A. ICLV;
On the other hand, without prejudice to what is stated, the presumption of the need for investor protection must be taken into account, contained in the second paragraph of said letter d) of article 6 of the ROPPV, by which it is considered that, for the purposes of their classification as a segment of the public, a set of recipients composed of one hundred (100) or more persons involves public interest;
It should be clarified that this does not mean at all that an offer directed to fewer 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

14 Sent by DIVISO SAB in File No. 2024036651.

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 of the recipients of the offer require State protection 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 to have provided 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;
Therefore, they would need access to all necessary information so that, by accessing it alone, they can adopt informed decisions or can correct any situation of difficulty in processing said information, as established in article 6, letter d) of the ROPPV;
Therefore, considering the aforementioned, 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 of said securities 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. 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 their 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 investment act 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 investment act with the acquisition of such securities;
Likewise, the facts described and carried out by ESQUEMA INVESTMENT constitute continuing infringements that would have started on March 21, 2019, continuing even until February 26, 2021, which would constitute non-compliance with article 49 of the LMV (now article 51 of the TUO LMV);

PERÚ Ministry of Economy and Finance

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 offering of securities;
Regarding this, article 49 of the LMV (now article 51 of the TUO LMV), cited previously, provides that public offerings of securities require the prior registration of the same in the RPMV, with the exceptions indicated in the same article;
In this sense, by determining that there are indications that the offer of bonds and short-term instruments mentioned above would constitute one of a public nature, it corresponds that the issuance programs, as well as the securities to be offered, are duly registered in the RPMV and that the informative documents are registered therein, as established in articles 4 and 11 of the ROPPV, in conjunction with what is provided in article 49 of the LMV (now article 51 of the TUO LMV);
Therefore, it was attributed to ESQUEMA INVESTMENT that it would have carried out a primary public offering of the bonds and short-term instruments issued by it without having registered said securities in the RPMV and without having complied with registering the corresponding prospectus in said registry;

PRELIMINARY QUESTION
NULLITY OF OFFICE OF THE INSTRUCTOR'S REPORT
Nullity of the report for considering in its evaluation persons different from those considered in the charge notice

ESQUEMA INVESTMENT states that according to what is stated textually in the CHARGE NOTICE, said act was supported solely on the complaints presented against it by DENUNCIANTE1, DENUNCIANTE2, and DENUNCIANTE3 (hereinafter, DENUNCIANTES);
In this sense, it states that it exercised its defense assuming that the sanctioning procedure is based on the three (3) complaints presented as referred to in the CHARGE NOTICE;
However, ESQUEMA INVESTMENT argues that in the IGCP REPORT, mentions of evaluations that would have been made on other investors in debt instruments issued by ESQUEMA INVESTMENT, different from the complainants, are made;
Based on this, ESQUEMA INVESTMENT states that the instructor body initiated the sanctioning procedure considering the complaint presented by three (3) persons and concludes its report alluding to 81 investors, so according to what is stated, the company specifies that it has not presented documentary evidence, nor any other means of proof that accredits that the other persons different from the complainants were institutional investors, or deserved State protection, since, bound by the charge imputation notice, it considered its defense solely considering what was alleged regarding the three (3) complainants;
In this sense, ESQUEMA INVESTMENT alleges that if the instructor body considers it necessary to refer to the condition of institutional investors of 81 investors, it can do so, but it points out that for the purposes of safeguarding due process, for this it will be necessary to previously declare the nullity of the charge imputation notice and issue a new administrative act arranged according to law;
Regarding this, ESQUEMA INVESTMENT cites article 252, numeral 3 of the LPG, which establishes that the exercise of sanctioning power requires that the regulated parties be notified of the facts attributed to them as charges, the qualification of the infringements that such facts may constitute and the expression of the sanctions that, if applicable, could be imposed on them, as well as the competent authority to impose the sanction and the norm that attributes such competence;
The company adds that 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 its right of defense, such as precision, clarity, immutability, and sufficiency, and that non-compliance with these requirements would lead to the administrative act not producing legal effects; likewise, having not been known by the regulated party, said act generates a state of defenselessness and constitutes a violation of its rights;
Given the allegations stated, ESQUEMA INVESTMENT states that the nullity of the instructor's report must be declared and the file returned to a moment prior to the issuance of the IGCP REPORT, the instructor body must issue a new report considering only the facts alleged by the complainants and their defenses presented on this point;

Evaluation of the nullity

In its defenses, ESQUEMA INVESTMENT states that by not including all the complainants or clients affected by the actions of its representative in the first paragraph of the CHARGE NOTICE, there would be a lack of precision, clarity of the facts, and a lack of support, and therefore nullity of said notice would have been incurred;
On this particular matter, it must be pointed out that the charge imputation is not composed solely and exclusively by the first paragraphs of the administrative act but by the entire content of this;
In effect, numeral 3 of article 255 of the TUO LPAG in conjunction with article 254, numeral 3 of said single text, expressly states that the charge imputation is composed of the following data: (i) the facts attributed to them as charges; (ii) the qualification of the infringements that such facts may constitute and the expression of the sanctions that, if applicable, could be imposed on them, (iii) as well as the competent authority to impose the sanction and the norm that attributes such competence;
As described, the CHARGE NOTICE meets all the indicated requirements, observing no legal provision to the contrary or arbitrary and unfounded legal interpretation as ESQUEMA INVESTMENT claims;
With regard to the fact that the imputation of the CHARGE NOTICE was supported only on the complaints of the DENUNCIANTES, we must indicate that this is not correct since the charge imputed was based on the evaluation that

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 notice exposes regarding the nature of the offer of the bonds and short-term instruments issued by ESQUEMA INVESTMENT. In this sense, in the CHARGE NOTICE it is stated that the result of said evaluation, “would indicate that there are indications that allow presuming that ESQUEMA INVESTMENT would have carried out a primary public offering of the bonds and short-term instruments issued by it without having registered said securities in the RPMV and without having complied with registering the corresponding prospectus in said registry”. In this sense, in the CHARGE NOTICE it is referred that said bonds and short-term instruments would constitute securities susceptible to being the object of a public offering of securities, would have been issued massively, the invitations made by DIVISO SAB would have been adequately disseminated, the segment of the public to which the offer was directed would have required the protection referred to in article 2 of the ROPPV and the placement would have implied the carrying out of an investment act;

Likewise, in the CHARGE NOTICE, the case of the DENUNCIANTES is not presented only, but also the case of 10 additional investors is presented as an example, with which the CHARGE NOTICE considers a total of 13 investors, as cited textually below15:
“ 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 be considered, in addition, 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.”
For its part, as part of the analysis of the CHARGE NOTICE, the universe of series placed and number of investors to whom the financial instruments were placed is considered. In addition, the CHARGE NOTICE includes as annexes the detail of all the placements made corresponding to each of the 81 investors who participated in the placement, as cited textually below;
“Directed to the General Public or to Certain Segments of It As noted, a total of 153 series of corporate bonds or short-term instruments have been issued in the PROGRAMS, 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 entities.” “ON THE NATURE OF THE OFFER OF THE BONDS AND SHORT-TERM INSTRUMENTS ISSUED BY ESQUEMA INVESTMENT 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 situations 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 securities, said offer is not directed exclusively to institutional investors6 and considering in addition that the nominal value or unit placement value of the bonds in most cases are less 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 from a sample of the placements with the nominal value, according to the information of the offer notices and securities 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. In this sense, taking into account what was stated above, it is necessary to analyze if the offer of the bonds and short-term instruments issued by ESQUEMA INVESTMENT falls within the scope of a public offering 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.” (Underline added).
It should be noted that the preceding texts cited textually from the CHARGE NOTICE, form part of the analysis of facts carried out by the instructor body, and were made known to ESQUEMA INVESTMENT as part of the charge imputation, and as a result of the evaluation of the defenses, were incorporated into the IGCP REPORT;
For the reasons stated, having been proven that the facts imputed as charges are not supported solely on the complaints of the DENUNCIANTES, no cause for nullity of the IGCP REPORT is observed;

NULLITY OF OFFICE OF THE INSTRUCTOR'S REPORT
Nullity of the report for concluding that norms different from those imputed have been violated

ESQUEMA INVESTMENT states that through the CHARGE NOTICE it was imputed to have incurred an infringement for having violated the norm detailed below:
“The facts described and carried out by ESQUEMA INVESTMENT constitute continuing infringements that would have started on March 21, 2019, continuing even until February 26, 2021, which would constitute non-compliance with article 49 of the LMV (now article 51 of the TUO LMV). INFRINGEMENT THAT ESQUEMA INVESTMENT WOULD HAVE COMMITTED For the reasons stated, ESQUEMA INVESTMENT would have incurred the infringement classified as very serious typified in clause 1.1, numeral 1, letter A) of Annex III of the SANCTIONS REGULATION, which establishes as a very serious nature infringement of the participants20 in a POP: “Carry out a public offering without having previously registered the securities in the Registry or having registered the corresponding prospectus, except for the exception cases established in the regulations.” PENALTY THAT COULD BE IMPOSED ON ESQUEMA INVESTMENT IF APPLICABLE” (highlight added by ESQUEMA INVESTMENT)
ESQUEMA INVESTMENT states that notwithstanding the above, in the IGCP REPORT it concludes that it has violated two (2) norms, as indicated in the conclusion of said report:
“ESQUEMA INVESTMENT has incurred one (1) very serious infringement typified in clause 1.1, numeral 1, letter A) of Annex III of the Sanctions Regulation, approved by Resolution SMV No. 035-2018-SMV/01, for failing to comply with what is provided in article

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 49 of the Securities Market Law (now article 51 of the TUO LMV) and articles 4 and 11 of the Regulation on Primary Public Offering and Sale of Securities, approved by CONASEV Resolution No. 141-1998-EF/94.10.” (highlight added by ESQUEMA INVESTMENT)

In this sense, ESQUEMA INVESTMENT states that numeral 2 of article 230 of the LPAG establishes that due process constitutes one of the principles of administrative sanctioning power. In this sense, it is established that sanctions cannot be imposed without the respective procedure having been processed, respecting the guarantees of due process. Therefore, the company alleges that it is not legally possible for the instructor body to initiate the present sanctioning procedure imputing the violation of article 51 of the Securities Market Law and subsequently, the same instructor body concludes in its report that the violation is only by article 51 of the Securities Market Law, but also by the violation of articles 4 and 11 of the ROPPV;
Based on this, ESQUEMA INVESTMENT affirms that this situation causes it a state of defenselessness, the only remedy being the declaration of nullity of the IGCP REPORT, returning the proceedings to the moment prior to its issuance.
The company specifies that articles 10 and 12 of the LPAG are applicable to the present case:
ESQUEMA INVESTMENT concludes that upon declaring the nullity of the IGCP REPORT, in observance of the CHARGE NOTICE, the procedure must be processed solely considering the alleged violation of article 49 (now article 51) of the LMV, which prescribes that public offerings of securities require their prior registration in the Public Registry of the Securities Market;
For its part, ESQUEMA INVESTMENT adds that it does not correspond to the instructor body to refer to articles 4 and 11 of the ROPPV as violated norms, nor to consider them within the valuation it performs. The company alleges that the articles of said regulation that were not the subject of imputation and that the instructor body irregularly considers in its report state the following:
“Article 4°.- GENERAL RULE
(...)
Primary public offerings and/or sale of securities are only subject to the prior requirement of registration of the security to be offered and/or registration of the informative prospectus to be used in the Registry, as applicable according to what is provided 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 11°.- PROCEDURES APPLICABLE TO PUBLIC OFFERS (...) a) Primary Public Offers.- It is required to previously carry out the procedure for registration of the securities in the Registry. Evaluation of the nullity

PERÚ Ministry of Economy and Finance

In its defense, ESQUEMA INVESTMENT maintains that the Investigative Report concludes that it violated two norms: the TUO LMV and the ROPPV, which does not correspond to what was stated in the CHARGES OFFICE, thereby violating due process and resulting in the nullity of the present administrative sanctioning procedure;
Regarding this, we must indicate that the CHARGES OFFICE expressly included the non-observance of articles 4 and 11 of the ROPPV, as transcribed literally below:

“In this sense, upon determining that there are indications that the offer of bonds and short-term instruments mentioned above would be of a public nature, it corresponds that the issuance programs, as well as the securities to be offered, be duly registered in the RPMV and that the informative documents be registered therein, as established in articles 4 and 11 of the ROPPV, in accordance with what is provided in article 49 of the LMV (now article 51 of the TUO LMV).

Therefore, the above would indicate that there are indications allowing us to presume that ESQUEMA INVESTMENT carried out a primary public offer of the bonds and short-term instruments it issued without having registered said securities in the RPMV and without having complied with registering the corresponding prospectus in said registry.

The facts described and carried out by ESQUEMA INVESTMENT constitute continuous infractions that would have begun on March 21, 2019, continuing until February 26, 2021, which would constitute the non-observance of article 49 of the LMV (now article 51 of the TUO LMV)” (Underlining added)

As can be observed in the texts previously cited from the CHARGES OFFICE, the non-observed regulation is clearly delimited, among which are articles 4 and 11 of the ROPPV and article 49 of the LMV (now article 51 of the TUO LMV);
The above once again evidences that the arguments presented by ESQUEMA INVESTMENT intentionally omit information in order to take isolated and decontextualized texts;
Without prejudice to the foregoing, it is worth clarifying that ESQUEMA INVESTMENT has pointed out the non-compliance with article 10 of the LPAG; however, it does not specify what the assumption is that grounds the nullity of the administrative act; therefore, its request for nullity lacks support;

NULLITY OF OFFICE OF THE REPORT OF THE INVESTIGATIVE BODY Nullity of the report for non-violation of the principle of lawfulness and impact on due process

ESQUEMA INVESTMENT states that paragraph 9 of article 230 of the LPAG prescribes as one of the principles of the sanctioning power of the public administration the principle of presumption of lawfulness, according to which, until it proves the contrary, it must be presumed that the conduct of the regulated party is in accordance with the Law;

PERÚ Ministerio de Economía y Finanzas

Regarding this, the company indicates that there is a mistake when the CHARGES OFFICE and the IGCP REPORT give probative merit to what was maintained by the complainants in their arguments by virtue of the Principle of Truthfulness contemplated in paragraph 1.7 of article IV of the LPAG, since it is not taken into account that said principle applies to the regulated parties only for the purposes of carrying out an administrative procedure, and not for complaints filed within a sanctioning procedure;
ESQUEMA INVESTMENT adds that another mistake is observed on the part of the investigative body when it states that ESQUEMA INVESTMENT has not presented instrumental evidence to prove that the persons to whom it placed its securities did not require State protection, nor even to prove that they were institutional investors;
With regard to the aforementioned, ESQUEMA INVESTMENT states that if there is a lack of evidence in the procedure, it is the sole responsibility of the investigative body and not of the company. The company adds that the investigative body does not take into account that it is not its obligation to prove its innocence, but rather it is its responsibility to demonstrate the responsibility of the accused and, if applicable, the intent. Additionally, ESQUEMA INVESTMENT argues that as long as this does not occur, it is presumed that its acts are lawful and not the contrary as intended. The company specifies that it does not correspond to refer to investors other than the complainants as long as this is not the object of the sanctioning procedure as stated in the CHARGES OFFICE;
On the other hand, ESQUEMA INVESTMENT states that when the IGCP REPORT affirms that “ESQUEMA INVESTMENT has also not transparented to which other persons it has placed its securities nor even accredited that these were institutional investors,” another mistake is committed since the company argues that the administration cannot simply assume that there are other persons to whom securities have been placed and that they were institutional investors without further argumentation. Thus, it indicates that the obligation of the investigative body is to “prove,” carry out all sufficient administrative acts to reach the conviction that an infraction has or has not been committed, and not to remain at the level of speculation, or what is more serious, invert the burden of proof pretending to give them probative weight;
In this sense, ESQUEMA INVESTMENT argues that the investigative body has not carried out any administrative act aimed at reaching the conviction of whether an infraction really existed. The company affirms that after the imputation of charges, said body has limited itself to replicating in the IGCP REPORT the argumentation already stated in the CHARGES OFFICE, when, according to paragraph 4 of article 235 of the LPAG, once the deadline has expired and with the respective defense or without it, the authority instructing the procedure must carry out ex officio all necessary actions for the examination of the facts, gathering the data and information that are relevant to determine, if applicable, the existence of responsibility subject to sanction. However, ESQUEMA INVESTMENT indicates that instead of doing so, the investigative body has preferred to opt for: (i) presuming the “truthfulness” of what was alleged by the complainants (despite having questioned the motivation in their actions) and (ii) inverting the burden of proof and affirming that it is ESQUEMA INVESTMENT who must prove that it is not responsible, even for those placements that it “presumes would have occurred,” but that were not “transparented” to it by the company itself. Furthermore, ESQUEMA INVESTMENT affirms that the investigative body never required it to inform the aforementioned in order to be able to “transparent” from its position that which it now considers laden with opacity;

PERÚ Ministerio de Economía y Finanzas

Based on the above, ESQUEMA INVESTMENT manifests that when the investigative body refers to emails presented by the complainants, as well as invitations or meetings held with different people who worked at DIVISO SAB, despite having stated that it does not know the truthfulness of what was alleged by the complainants, the investigative body has not carried out any action that allows it to conclude that the documentation, as well as the statements made by the complainants, is true, beyond having LinkedIn as a source of information—as if this could endorse the reliability or certainty of what is published on said social network;
Likewise, the company considers that it is also insufficient to state that the names of the persons referred to by the complainants appear in the Public Registry of the Securities Market, so ESQUEMA INVESTMENT argues that this proves nothing, and specifies that on the contrary, since it is a public source of information, it could have been taken by the complainants in their interest to file the complaints;
Additionally, ESQUEMA INVESTMENT refers to the fact that the investigative body affirms that it has not only presumed as true what was alleged by the complainants, but also affirms that they have presented supporting documentation that is in the file and therefore it is proven that there was an adequately disseminated invitation;
Regarding this, the company considers that it would be necessary to specify which documents in the file and presented by the complainants the IGCP refers to, other than the notice, the prospectus, or the contract or certificates;
On the other hand, with regard to the emails, ESQUEMA INVESTMENT argues that instead of carrying out examinations on them to accredit their authenticity or citing the persons mentioned to give their testimony, it has preferred to simply accept the statements of the complainants under the so-called principle of truthfulness;
The company adds that the fact that DIVISO SAB omitted comment on some aspect that the investigative body expected to be made has no relevance or probative weight for the purposes of a sanctioning procedure. Thus, ESQUEMA INVESTMENT indicates that silence does not imply a manifestation of will, especially if it refers to the behavior of a third party (DIVISO SAB) to its detriment;
ESQUEMA INVESTMENT concludes by stating that the violation of the principle of lawfulness, the inversion of the burden of proof, as well as the non-action of the minimum means of proof as commented above, also constitute an impact on due process, therefore carrying the nullity of the IGCP REPORT, and therefore what was previously stated must be applied;

Evaluation of the nullity

In its arguments, ESQUEMA INVESTMENT alleges violation of the principle of lawfulness, the inversion of the burden of proof, the non-action of the means of proof, impact on due process, among other aspects specific to the administrative sanctioning procedure to avoid evaluating its responsibility for observing the regulations governing the securities market and to clarify the imputed facts;
Indeed, in the present sanctioning procedure, the primary public offer carried out by ESQUEMA INVESTMENT without observing the regulations is questioned, that is, the observance of the LMV, the ROPPV, and the INSTITUTIONAL INVESTORS REGULATION;
In that context, charges were imputed and supported by the evidence in the file regarding which ESQUEMA INVESTMENT formulated its defenses. It must be clarified that ESQUEMA INVESTMENT has not discharged the non-compliance with the norms observed in the CHARGES OFFICE regarding the facts constituting the infraction;
In its arguments, ESQUEMA INVESTMENT reiterates a supposed impact on the principle of truthfulness, affirming that this principle does not apply to sanctioning procedures;
In this sense, it is necessary to cite the principle of presumption of truthfulness contemplated in paragraph 1.7 of paragraph 1, of article IV of the Preliminary Title of the TUO LPAG:

“1.7. Principle of presumption of truthfulness.- In the processing of the administrative procedure, it is presumed that the documents and declarations formulated by the regulated parties in the manner prescribed by this Law, respond to the truth of the facts they affirm. This presumption admits proof to the contrary.”

As can be appreciated, the text of said norm does not prohibit that it be applied to sanctioning procedures or to complaints as ESQUEMA INVESTMENT affirms in its arguments;
On the other hand, it must be reiterated that with respect to the thirteen persons observed, who acquired the securities issued by ESQUEMA INVESTMENT (Complainants 1, 2, 3 and other 10 acquirers of the securities issued by ESQUEMA INVESTMENT mentioned in the CHARGES OFFICE), who, as has been demonstrated in the present procedure, do not have the status of institutional investors, in addition to the fact that such securities do not have the minimum nominal value established in letter b) of article 5 of the LMV, among other evidence, constitute objective facts regarding which said society has not disproved such observations, for which reason no violation of the principle of lawfulness or impact on due process is appreciated;
It is worth adding that ESQUEMA INVESTMENT has also not supported in the present procedure to which other persons it has placed its securities, with the aim of accrediting its argument that such placement was directed exclusively to institutional investors. This last point is not a supposition or a hypothesis raised by the SMV but rather it derives from the affirmation of ESQUEMA INVESTMENT when stating that the three complainants are institutional investors, therefore, in its theory, it could not have placed with third parties who did not have such status;
It is clear then, along with the evidence presented and in the file, that it is ESQUEMA INVESTMENT who must disprove that the investors to whom it placed its securities expressly cited in the CHARGES OFFICE really have the status of institutional investors. This has not occurred in the present procedure, which ratifies once again the infraction incurred by ESQUEMA INVESTMENT;
With respect to the evidence accredited in the file regarding the persons who, in the name of the placer of the securities, that is, of DIVISO SAB, offered and placed the securities with the affected persons, among them Complainants 1, 2, 3 and other 10 acquirers of the securities issued by ESQUEMA INVESTMENT mentioned in the CHARGES OFFICE, ESQUEMA INVESTMENT has also not disproved such evidence, limiting itself to stating that it is false and that its clients took their names from public sources to file their complaint, however, ESQUEMA INVESTMENT bases its defense only on its word and does not disprove such evidence as expected in these cases before an imputation made by the regulator;
At this point, it is appropriate to clarify that the information that accredits that the persons mentioned by the COMPLAINANTS as the representatives of DIVISO SAB, in their role as placer of the securities and in attention to the commission given by ESQUEMA INVESTMENT, a company that is part of the same economic group, were obtained from the information contained in the RPMV, which is fed by the information that the supervised entities send to the SMV, among them, DIVISO SAB itself;
The mention of the persons who in the name of DIVISO SAB and ESQUEMA INVESTMENT had the role of placer of the securities issued by the latter (plus the no less important fact that they work for companies of the same economic group), is not only the only evidence supporting the imputed charge but one of several that have been detailed in the present procedure through the CHARGES OFFICE and the Instruction Report, and regarding which ESQUEMA INVESTMENT has also not presented instrumental evidence to disprove them, but only theories or interpretations without foundation that seek to confuse the regulator and evade its responsibility at all costs, as is the case of qualifying its clients, today complainants, as “fact inventors”;
As for the fact that, in the opinion of ESQUEMA INVESTMENT, the imputation of charges does not support an adequately disseminated invitation of the offer of securities issued by ESQUEMA INVESTMENT, we refer to the section “Adequately Disseminated Invitation” of this resolution, in which the means of proof accrediting the same are detailed;
According to the foregoing considerations, no violation of the presumption of lawfulness or of the principle of due process is noted; therefore, these points must be dismissed;

ON THE DEFENSES PRESENTED
Defense presented
Legal framework of private offers

As part of its defenses, ESQUEMA INVESTMENT cites that in the US experience, the exception to 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;

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ESQUEMA INVESTMENT states that the application of this exception has been subject to 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 whether the class of persons affected need the protection of the Securities Act and that the recipients of the offer 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 adequate sophistication and information to protect themselves;
ESQUEMA INVESTMENT indicates that another factor to consider to determine if we are facing a private placement is the fact that a private placement cannot be promoted publicly, as has been stated by the SEC. Then, private placements are promoted through direct contact of the issuer with potential investors. Additionally, restrictions are established so that securities placed by private offers are subsequently resold to the public, so these securities receive the qualification of “restricted securities”;
ESQUEMA INVESTMENT adds that in the Peruvian case, the SMV has stated that the classification of a securities offer as public or private constitutes an “angular matter” in the regulation of the securities market, because it determines the application of said sectoral regulation (securities market) or if, on the contrary, the offer will be subject exclusively to private law norms;
Likewise, ESQUEMA INVESTMENT states that article 5 of the LMV defines a private offer of securities as that which is not included in the definition of a public offer of securities, and contains the so-called “safe harbors,” assumptions in which it is considered indubitably that a securities offer qualifies as private: (i) offers directed exclusively to institutional investors, and (ii) offers whose lowest unit nominal value or placement value is equal to or greater than S/ 250,000.00;
ESQUEMA INVESTMENT considers that whenever a securities offer is made considering at least the compliance with one of the safe harbors, we will be facing a private offer of securities, therefore governed by the norms of private law and not those of the securities market;
ESQUEMA INVESTMENT adds that if any of the safe harbors is not complied with, for the purposes of concluding if we are facing a public offer of securities, it will be necessary to carry out the analysis of the compliance with the requirements of article 6 of the ROPPV insofar as it develops the scope of the definition of public offer comprised in article 4 of the LMV;
ESQUEMA INVESTMENT considers that a securities offer 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 accredit the compliance of said condition by the investors, the article 6 of the ROPPV -especially the one referred to the “segment of the public” comprised in paragraph d) - becoming irrelevant to consider the number of institutional investors to whom the offer was directed, and, given the

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condition of institutional investors who possess, there is no "need for" public tutelage;
154. ESQUEMA INVESTMENT concludes that it is therefore indispensable for the purposes of the present sanctioning procedure to have clarity on the regulatory scope that determines the condition of institutional investor and the obligations that have been established for the agents participating in a private offering of securities of this type;

Condition of Institutional Investor
155. ESQUEMA INVESTMENT cites Article 3 and Annex I of the REGULATIONS FOR INSTITUTIONAL INVESTORS regarding the definition of institutional investor and who is considered as such;
156. In this sense, ESQUEMA INVESTMENT points out that from what is prescribed in Articles 4 and 5 of the Single Text of the Securities Market Law (TUO LMV) and Article 3 and Annex I of the REGULATIONS FOR INSTITUTIONAL INVESTORS, for the purpose of accrediting that an offering 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;
157. ESQUEMA INVESTMENT adds that in the present case, in the complaint writings presented by DENUNCIANTE1 and DENUNCIANTE3, they themselves have presented the sworn declarations signed by each of them in accordance with what is required by Article 3 and Annex I of the REGULATIONS FOR INSTITUTIONAL INVESTORS;
158. ESQUEMA INVESTMENT states that the same sworn declarations were requested from DIVISO SAB via Letter No. 3501-2024-SMV/10.3 of August 12, 2024 and Letter No. 4049-2024-SMV/10.3 of September 12, 2024, and presented to the SMV;
159. In view of this, ESQUEMA INVESTMENT considers that with the presentation of said documents, it has complied with accrediting that the offering was private and was directed exclusively to institutional investors;

Evaluation of Defense
160. ESQUEMA INVESTMENT considers that with the presentation of the aforementioned sworn declaration, it has complied with accrediting that the offering was private and was directed exclusively to institutional investors;
161. On this matter, it must be indicated that in its defenses, ESQUEMA INVESTMENT has not disproven nor less accredited with any probative means its statement that the offering of the securities issued by it constituted a primary private offering, nor less so substantiated and duly accredited that the investors to whom the offering was directed, that is to say, those to whom, through the intermediation of DIVISO SAB, it placed the securities issued by itself, had the quality of institutional investors;
162. It is worth highlighting that its defense has only been directed to point out that only two of its investor acquirers of the securities issued by it, which coincidentally are part of the complainants, are institutional investors and that therefore its securities offering is of a private nature, however, it has not specified whether the other acquirers of its securities are institutional investors or

PERU Ministry of Economy and Finance

SMV
Superintendency of the Securities Market
Electronically signed document under Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship not, which does not disprove one of the indications of the non-compliance imputed as will be demonstrated in the present procedure;
163. As for what is understood or the legal definition of what it implies to be an institutional investor, we must point out that this is contained in Article 3 of the REGULATIONS FOR INSTITUTIONAL INVESTORS and in Annex 1 of the same:

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 1 INSTITUTIONAL INVESTORS.

ANNEX 1
INSTITUTIONAL INVESTORS
For all purposes of this Regulation, the following persons are institutional investors:

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 Superintendency of Banking and Insurance, Law No. 26702 and its modifying norms; intermediation agents; private pension fund administrators; 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 No. 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 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).
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 superior to two million New Soles (S/. 2,000,000.00), and a portfolio of

PERU Ministry of Economy and Finance

SMV
Superintendency of the Securities Market
Electronically signed document under Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship investments in securities equal to or greater than one million New Soles (S/. 1,000,000.00);
164. It must be specified that although Articles 1 and 2 of the REGULATIONS FOR INSTITUTIONAL INVESTORS establish that the provisions of said regulation apply only to the exceptional regime of primary public offerings directed exclusively to institutional investors who are within the scope of such regulation, Article 6 of Resolution SMV 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.- To provide that for the purposes of what is established in literal j)16 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.
(added highlight and underline);
165. Therefore, regardless of whether it is a public offering or a private offering, to identify whether an investor is institutional or not, every potential market participant, in this case ESQUEMA INVESTMENT in its capacity as issuer, must verify that the future acquirer of the security is defined in any of the six cases of institutional investor;
166. For this, and in this particular case, ESQUEMA INVESTMENT had to verify that the future acquirer of the security met the definitions of numerals 1 to 6 of Annex 1 of the REGULATIONS FOR INSTITUTIONAL INVESTORS as well as the particularities that each of them requires;
167. 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;
168. Likewise, in its defenses, ESQUEMA INVESTMENT has not referred to nor less qualified the persons mentioned in the preceding consideration;
169. Likewise, it is appropriate to point out that ESQUEMA INVESTMENT had DIVISO SAB as the placer of its securities, who in observance of Article 46 of the Regulation of Intermediation Agents (hereinafter, 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, by their characteristics or conditions, constitutes a public offering, also had the opportunity to verify if the future acquirers of the securities issued by ESQUEMA

16 Article 8.- Terms.- The terms indicated have the following scope in this 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 Superintendency of Banking and Insurance, intermediation agents, private pension fund administrators, investment fund management companies, mutual fund management companies, as well as foreign entities that carry out similar activities and other persons whom the SMV qualifies as such;

PERU Ministry of Economy and Finance

SMV
Superintendency of the Securities Market
Electronically signed document under Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship INVESTMENT were or were not institutional, not only some but all acquirers because it was supposedly a private offering directed exclusively to institutional investors, as stated by ESQUEMA INVESTMENT in its defenses;
170. For 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 offerings directed exclusively to institutional investors; therefore, according to what is mentioned in the preceding considerations, exceptionally Article 6 of the resolution approving 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...", thus providing 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 indicated strictly in Annex 1, from numeral 1 to 6;
171. Then, in a supposed private offering directed exclusively to institutional investors, which is what ESQUEMA INVESTMENT supposedly carried out, as stated in its defenses, although the issuer and the placement agent (in this case, the brokerage company DIVISO SAB) may collect a sworn declaration from the investor, it does not legally and validly affirm that collecting a sworn declaration of institutional investor is sufficient to attribute to a person the quality of such;
172. In effect, if it is maintained, as ESQUEMA INVESTMENT has done, that all investor acquirers of the securities are institutional, it is essential for the offering to be private. This implies that it has not been directed to investors who require State tutelage, a fundamental aspect of securities market legislation, that all future acquirers of the securities, by their characteristics or conditions, are institutional investors; therefore, ESQUEMA INVESTMENT and the placement agent of the securities it has issued recurrently, had to verify if the future acquirers of its securities were or were not institutional investors;
173. 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;
174. On the other hand, in the NOTICE OF CHARGES, it has been accredited that said offering was not directed exclusively to Institutional Investors but that, by way of example, it was evidenced that at least thirteen (13) investors did not qualify as such;
175. For its part, in the preliminary inquiries and in the present administrative sanctioning procedure, ESQUEMA INVESTMENT 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 to say, that they are banks, financial institutions, insurance companies, funds, autonomous estates, legal persons that have as one of their activities investment in securities, among other persons indicated in the numerals 1 to 6 of Annex 1 of the REGULATIONS FOR INSTITUTIONAL INVESTORS;

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Electronically signed document under Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship
176. It should be noted that in the file, the sworn declarations of having the condition of institutional investors of the complainants DENUNCIANTE1 and DENUNCIANTE3 are found. Regardless of the fact that ESQUEMA INVESTMENT 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 placing securities, the issuer and/or the brokerage company, as placer, collects these sworn declarations from clients does not demonstrate that these persons have the condition of institutional investors;
177. 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
178. 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;
179. 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 hospitals17;

DENUNCIANTE2
180. 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
181. 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 provided that 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;

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

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Electronically signed document under Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship
182. 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 has 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 was contradictory with the declaration of having the condition of institutional investor;

Empresa1
183. 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;
184. 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, placer of the securities on behalf of ESQUEMA INVESTMENT, with the declarations made by the client in the intermediation contract regarding its experience in investment in securities and before carrying out the purchase operation of the security issued by ESQUEMA INVESTMENT;
185. For 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 CODE RUT CLIENT NAME
1 5/11/2019 01306745 CLIENT1
2 5/12/2019 01332798 CLIENT2
3 18/08/2020 01338050 CLIENT3
4 11/09/2020 01297680 CLIENT4
5 24/11/2020 00259815 CLIENT5
6 4/12/2020 00335984 CLIENT6
7 17/02/2021 00668046 CLIENT7
8 23/02/2021 01340903 CLIENT8
186. It should be noted that CLIENT9 before carrying out the purchase of the securities issued by ESQUEMA INVESTMENT on January 5, 2021, was

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 the authorship ownership of securities issued by more than one company, valued at S/ 38,918.35;
187. Therefore, just as in previous cases, the aforementioned natural person 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 paragraph 6 of Annex 1 of the REGULATIONS FOR INSTITUTIONAL INVESTORS;
188. It should be added that ESQUEMA INVESTMENT has alleged that its securities offering was within one of the scenarios of private securities offering referred to the fact that it 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, with or without the support of its securities placement agent, it knew the corporate purpose of these potential legal entity investors through public information available in the Legal Entities Registry of the Public Registries and in this way it could verify whether they were institutional investors or not;
189. Likewise, in the case of non-state legal entities whose activity is investment in securities, with or without the support of its securities placement agent, ESQUEMA INVESTMENT could also request their investment portfolio in securities in order to demonstrate that it is higher than the amount (updated) established in paragraph 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;
190. On the other hand, regarding natural persons, ESQUEMA INVESTMENT could also request DIVISO SAB, who was the placement agent for the securities, to incorporate in 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 securities portfolio in order to demonstrate that it is higher than the amount (updated) established in paragraph 6 of Annex I of the REGULATIONS FOR INSTITUTIONAL INVESTORS;
191. Likewise, with the aim of ensuring that only institutional investors participate in this offering, ESQUEMA INVESTMENT could also request DIVISO SAB in its capacity as the placement agent for the securities, to refrain from attending to purchase orders from investors who do not provide documentation supporting that they have the status of institutional investors;

Additional written submissions
192. In its additional written submissions, ESQUEMA INVESTMENT states that there is no norm that obliges the issuer to carry out additional actions beyond obtaining the sworn declaration of institutional investor, and therefore it is necessary to resort to article 46 of the RAI. Thus, it indicates that if the placement agent failed to comply with any norm, it should be attributed to the agent itself and not to ESQUEMA INVESTMENT;

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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
193. On its part, the company indicates that it cannot "create law", nor pretend to "interpret" that current norms say what they clearly do not say. Thus, it points out that the "ought to be" argued is proscribed in an administrative sanctioning procedure so clearly that it considers it unnecessary to provide further argumentation on this matter;
194. In this sense, ESQUEMA INVESTMENT states that since the application of article 3 and Annex I of the Regulations of the Institutional Investors Market, approved by SMV Resolution 021-2013-SMV/01, is not a controversial matter, the present administrative sanctioning procedure must adhere to what it regulates, within the framework of due process;
195. With regard to what was stated, ESQUEMA INVESTMENT alleges that according to what is expressly established in the penultimate paragraph of Annex I of the Regulations for Institutional Investors, in its capacity as issuer, the obligation to "Have at least the sworn declaration signed by the investors" is considered fulfilled; being this the minimum diligence standard and requirement that under the current legal framework corresponds to issuers to comply with in the case of public offerings directed to institutional investors; therefore, it argues that it cannot be interpreted that current norms say more than what they really say and therefore, it cannot be claimed that the issuer, with or without the support of its placement agent, must prove having complied with a series of acts or a series of additional activities that the norm does not impose or that it could have performed;
196. ESQUEMA INVESTMENT adds that under current regulation, the only obligation of the issuer in a private offering directed to institutional investors is to ensure having the sworn declaration through which the person records that they are an institutional investor, declaring in this case that they have the assets, investments or business activity detailed in Annex I of the Regulations for Institutional Investors, therefore given what was stated, it considers that the declaration of compliance with the requirements established by said regulation is understood to be fulfilled with the mere signing of the sworn declaration;
197. In this sense, ESQUEMA INVESTMENT states that if it is indicated that in its role as issuer it is obliged to guarantee with due diligence that in a private offering directed exclusively to institutional investors only persons who meet the requirements established by the norm participate, it is necessary to ground what due diligence is referred to and supported by what norm that is different from the minimum diligence standard that has been complied with;
198. In the same way, the company alleges that it must be specified which compliance norms were breached as an issuer, as well as which obligations as an issuer of a private offering were breached in which norms are stipulated;
199. Esquema Investment adds that similarly, it must be indicated which norm imposes the duty of abstention of the issuer in a securities offering when it has complied with collecting the sworn declaration indicated in the regulation;
200. On the other hand, ESQUEMA INVESTMENT states that within the "ought to be" of the norms, the interpretations of them should not derive into what they do not regulate, therefore considering that from the reading of

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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 the authorship articles 1 and 2 of the REGULATIONS FOR INSTITUTIONAL INVESTORS and article 6 of Resolution SMV No. 021-2013-SMV-01, which approves said regulation, it is not possible to interpret that regardless of whether it is a public offering or a private offering, to identify whether an investor is institutional or not, all potential market participants, in this case the issuer, must verify that the future acquirer of the value is defined in any of the six types of institutional investor, this because in the company's arguments, in a private offering, natural or legal persons referred to in Annex I of the REGULATIONS FOR INSTITUTIONAL INVESTORS qualify as institutional investors, and this is the only thing prescribed by article 6 commented, without establishing any obligation on the issuer, as is mistakenly intended to be interpreted;
201. Regarding the argument that the penultimate and last paragraphs 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 offerings directed exclusively to institutional investors, ESQUEMA INVESTMENT states that even in said case it is not possible to demand any diligence standard different from that acted upon by its part;
202. With regard to what was stated, ESQUEMA INVESTMENT indicates that if for private offerings directed to institutional investors there were only the 6 paragraphs of Annex I of the REGULATIONS FOR INSTITUTIONAL INVESTORS, what diligence standard should the issuer employ to prove that it complied with directing its offering to institutional investors? For the company, the answer would be that considering that current norms do not indicate it, it will be that in a private offering directed to institutional investors, the issuer will have complied with a minimum diligence standard if at least it has collected a sworn declaration from the investors by which they state that they qualify as institutional investors;

Evaluation of additional written submissions
203. In these submissions, ESQUEMA INVESTMENT repeats its argumentation and adds to this theories or assumptions interpreting in its favor that the sworn declaration, in addition to being sufficient, is the only requirement to prove that a person is an institutional investor;
204. On this particular matter, we refer to the legal analysis of the defenses presented by ESQUEMA INVESTMENT on the same topic that is developed in the previous considerations of this resolution;
205. Likewise, recall that the normative application of article 5 of the TUO LMV, of article 3 and Annex I of the REGULATIONS FOR INSTITUTIONAL INVESTORS and of all the norm cited in this resolution, cannot be alien to the present administrative sanctioning procedure as ESQUEMA INVESTMENT intends in its submissions, since precisely to support the legal observance of its action it is necessary to evaluate what is defined as an institutional investor and everything that such definition legally entails, therefore it is not valid to affirm that Annex I of said regulation must be analyzed in isolation from the rest of the applied norm;
206. As for the diligence of any issuer to verify whether an acquirer of its securities is or is not an institutional investor, if the REGULATIONS FOR INSTITUTIONAL INVESTORS applies to a private or public offering, or to what scenarios said regulation applies, we refer to the analysis carried out in the section "Status of Institutional Investor" of this resolution, highlighting that it has been explained in this sanctioning procedure which norms were breached by ESQUEMA INVESTMENT and which particular facts are constitutive of the infringement, where it is explained, based on the cited norm, "what is understood by Institutional Investor, for which such additional argumentation lacks foundation;

Defense presented
Corporate purpose of the complainants and powers of the legal representatives
207. ESQUEMA INVESTMENT states that the status of the complainants is corroborated by the investment in securities activity that, according to legal or conventional provisions, they carry out;
208. For this, ESQUEMA INVESMENT refers that in the case of DENUNCIANTE2, registered in the Legal Entities Registry of Quillabamba, it appears that its president, REPRESENTATIVELEGAL1, is authorized to, among other activities:
"(…) enter into sales contracts, promises of sale 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, as well as carry out repo operations regarding these last ones (…)";
209. Likewise, ESQUEMA INVESMENT states that in the case of the complainant DENUNCIANTE3, registered in the Legal Entities Registry of Cusco, it appears that, the General Manager, REPRESENTATIVELEGAL2, is authorized to, with sole signature, be able to:
"(…) negotiate, celebrate, 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 (…)".
210. Likewise, ESQUEMA INVESMENT indicates that in the case of DENUNCIANTE1, registered in the Legal Entities Registry of Lima, it appears that the gentlemen REPRESENTATIVELEGAL3, REPRESENTATIVELEGAL4 and REPRESENTATIVELEGAL5, can with sole signature exercise, among other activities, the following powers:
"(…) draw, endorse, accept, guarantee, discount, deposit, withdraw, collect, protest, reaccept, renew, cancel, and/or give as guarantee or as procurer, 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, enter into all types of Leasing, Financial Leasing, Factoring, Joint Venture, Franchising, Franchise, Underwriting contracts, (…) in general sign all kinds of contracts or documents whether civil or commercial, typical or atypical and/or banking without reservation or limitation whatsoever…request

PERÚ 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 the authorship investments, open Mutual Funds, cancel or redeem Mutual Funds, draw checks, bills of exchange, issue promissory notes."
211. Additionally, ESQUEMA INVESTMENT states that according to the Intermediation Contract of DIVISO SAB dated June 25, 2019, DENUNCIANTE2 is represented by REPRESENTATIVELEGAL1, being his position as President and legal representative of the Association;
212. ESQUEMA INVESTMENT adds that according to the Legal Entities Registry, as president, REPRESENTATIVELEGAL1, has important Powers in DENUNCIANTE2, as detailed below:
"A. Exercise the legal representation of the association (…) B. Represent the association before all types of authorities (….) As well as the special ones to dispose of substantive rights (….)
C. Enter into contracts (….)
E. Manage monetary loans before banking entities, financial (….)
Accept, endorse, collect, guarantee, endorse, renew, extend and/or discount bills of exchange, promissory notes, confirmed invoices, negotiable invoices and any other security (….)
As well as any other security or commercial or transferable credit document, deposit and withdraw securities in custody; likewise encumber and alienate them, carry out any operation (….)
Enter into 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 repo operations regarding these last ones. Enter into loan contracts, loan, lease, dation in payment, trust, guarantee, loan for 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, securities or securities in guarantee, even in guarantee trust. "
213. ESQUEMA INVESTMENT states that according to the mentioned public records, REPRESENTATIVELEGAL1 integrates the Provincial Council of DENUNCIANTE1;
214. ESQUEMA INVESTMENT considers that from what was exposed, it is demonstrated that the complainants are legal entities that qualify as institutional investors by virtue of the fact that, within their activities, is the investment in securities - purchase and sale of securities, shares, bonds, etc.;

Evaluation of defense
215. With regard to what was stated by ESQUEMA INVESTMENT, it is necessary to cite paragraph 4 of Annex 1 of the REGULATIONS FOR INSTITUTIONAL INVESTORS:
ANNEX 1
INSTITUTIONAL INVESTORS

PERÚ 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 the authorship For all purposes of this Regulation, the following persons are institutional investors:
(…)
Private or public legal entities that have as one of their activities, according to the legal or conventional provisions that govern them, investment in securities. (….)"
216. 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 must also be added that the cited norm stipulates "activities" and not "powers";
217. Without prejudice to this, the corporate purpose of the complainant legal entities is cited below:
DENUNCIANTE1. Article 6 of its Social Statute18:
"Article Sixth: Of the purposes:

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.
Carry out 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."
DENUNCIANTE219:
"Purposes and objectives: Purposes: The…" has the 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, the 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 enabling titles 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 internet radio. E. Others that are complementary to its institutional purposes and objectives, or that the general assembly determines. (….)"

18 Legal Entities Registry, Registry Office of Lima. 19 Legal Entities Registry, Registry Office of Quillabamba.

PERÚ Ministry of Economy and Finance

DENUNCIANTE320:
“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 connected and complementary of various brands as long as it does not mean competition to their products.”

As can be appreciated from the reading of the corporate object of the
juridical persons denouncing, none of them has as activity, purpose or object, the “invest in securities”, so the defense presented lacks foundation;
Without prejudice to the above, it must be indicated that the
fact that their corporate statutes have included within the “powers” to exercise of their representatives, among them, the commercial ones in general –such as for example the acquisition of securities- this does not legally replace nor suppose under any interpretation, the replacement or expansion of their corporate object or their purposes by such “powers”;
It should be added that a juridical person can
decide to safeguard 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 juridical person was 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;

Defense presented
From other cases resolved by the SMV

ESQUEMA INVESTMENT states in its defense and
additional written allegations that the mere presentation of the sworn declaration that prescribes Annex I of the INSTITUTIONAL INVESTORS REGULATION for purposes of accrediting that it is a private offering would have been endorsed by the Assistant Superintendent of Prudential Supervision in the reasoning paragraphs 61, 66, 215, 216, 221, 222, 230, 231 and 255 of Resolution No. 031-2021-SMV/10
ESQUEMA INVESTMENT 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 that the presentation of the sworn declaration indicated in Annex I of the INSTITUTIONAL INVESTORS REGULATION is sufficient to accredit that an offering was private and the investors had the status of institutional.
ESQUEMA INVESTMENT alleges that, according to the
review of the file, when the General Intendancy of Prudential Compliance (hereinafter, IGCP) made known to DIVISO SAB the complaints presented by the complainants regarding the qualification of institutional investors, it warns that only and exclusively the presentation of the aforementioned sworn declaration was required;

20 Register of Legal Persons, Cusco Registry Office.

PERU Ministry of Economy and Finance

Therefore, ESQUEMA INVESTMENT considers
that from what is stated in article 5 of the LMV, article 3 and Annex I of the INSTITUTIONAL INVESTORS REGULATION, as well as from what was resolved by the Assistant Superintendent of Prudential Supervision and the Superintendent of the Securities Market, it would be clear that it is sufficient with the presentation of the investor's sworn declaration indicated in Annex I of said regulation to accredit that a person has the status of institutional investor and therefore, operated within a private offering of securities; the application of article 6 of the ROPPV being unnecessary;
In its additional written allegations, ESQUEMA
INVESTMENT indicates that between the Zest case and the present procedure, we are facing the same alleged infringement qualified as very serious typified in paragraph 1.1, numeral 1, letter A) of Annex III of the SANCTIONS REGULATION, which establishes as a very serious infringement of the participants in an OPP:
Make a public offering without having previously registered the securities in the Register or having registered the corresponding prospectus, except for the exception cases established in the regulations, and with the consideration that in both cases the sworn declarations have been used as a means to accredit the status of Institutional Investors of the persons; therefore, it considers that the characteristics of the issuer or the type of value issued or the roles exercised are not of interest;
In this sense, ESQUEMA INVESTMENT considers
that issuing dissimilar pronouncements for cases equal to those of Zest, violate legal security and predictability to the detriment of the rights of the regulated parties;

Evaluation of defense

Regarding the sworn declaration regulated in
Annex 1 of the INSTITUTIONAL INVESTORS REGULATION being sufficient to accredit
that it is a private offering since the person who signs it is considered an institutional investor, we refer to the analysis previously carried out regarding that to define an investor as institutional, first it must be verified if the same complies with the definition contemplated in article 3 and the numerals from 1 to 6 of Annex 1 of the INSTITUTIONAL INVESTORS REGULATION which in the present case has been demonstrated that neither the complainants nor the natural and juridical persons cited, by way of example, in the NOTICE OF CHARGES have the quality of such, therefore, the citations of the resolutions of Assistant Superintendent and Superintendent cited by ESQUEMA INVESTMENT are not applicable to the present case, since in them, ESQUEMA INVESTMENT has only selectively cited the reasoning paragraphs regarding the mention to the sworn declarations without taking into consideration the context and characteristics of the case;
In effect, the cited reasoning paragraphs have as
objective to highlight that for an offering to qualify within the assumption of private offering referred to 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
the Resolution of Assistant Superintendent No. 031-2021-SMV/10, nor the Resolution of

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 the authorship Superintendent No. 057-2024-SMV/02, have pronounced themselves in the sense that the mere presentation of the sworn declarations is a sufficient requirement to accredit the status of Institutional Investors of the persons; they are limited only to noting the absence or lack of presentation of the sworn declarations by Zest;

Regarding this, regarding the sufficiency per
se of the sworn declarations, it must be indicated that through the Resolution of Assistant Superintendent No. 013-2023-SMV/10. In said resolution it is stated in its reasoning paragraph 82 that “the sworn declaration, in particular, of natural persons, is not a sufficient requirement to accredit the status of institutional investors, due to violating what is stated in Annex 1 of the Institutional Investors Regulation”
For its part, it must be noted that the objective of the
norm is clear, the responsibility for the prior registration of the securities to be offered publicly falls on the issuer, who must also verify to whom the offering is directed since if potential clients are not institutional investors, as occurred in the present case, it is not possible to allege that it was a private offering, especially since no proof has been presented that accredits compliance with the observed regulation;
Consequently, ESQUEMA INVESTMENT in its role
as issuer as well as in that of structurer, is obliged to guarantee with due diligence that in a private offering directed exclusively to institutional investors, only persons who comply with the requirements established by the norm participate;
Likewise, ESQUEMA INVESTMENT is obliged to
supervise and require compliance with the regulatory imputed to all participants in the placement of the securities to be issued, as well as the issuer to duly comply with the norms to ensure that it is not making a public offering, as well as regarding the underwriter –DIVISO SAB-, since it is the responsibility of ESQUEMA INVESTMENT that said company directs the offering to those to whom it is really directed, situation that in the present procedure has not been proven;
Therefore, when the issuer by its own action,
and/or the underwriter, in this case DIVISO SAB, lack the sufficient information that assures them that the investors are institutional, they must request it from the interested persons, since it is fundamental to verify that the future acquirers of the securities comply with the requirements they must have to be qualified as institutional investors, prior to the placement of financial products directed to this type of investors, being able to abstain from attending the orders of those who do not provide sufficient documentation that assures them that they do not require State protection;
Regarding the request for information from the IGCP
contained in letters No. 3501-2024-SMV/10.3 and No. 4049-2024-SMV/10.3 mentioned, which according to ESQUEMA INVESTMENT refer to the qualification of institutional investors, for which only the presentation of the sworn declaration of DENUNCIANTE1 and DENUNCIANTE3 was required when the respective complaints were presented, we must indicate that the requests for information and documentation are part of the preliminary investigations duly contemplated

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 the authorship in article 721 of the SANCTIONS REGULATION in order to clarify the facts complained of by DENUNCIANTE1, DENUNCIANTE222 and DENUNCIANTE3, which in no way represents a preview of opinion, as ESQUEMA INVESTMENT suggests, so it is not valid to base a defense on affirming that the fact that a certain document was requested implies a recognition or a possible regulatory compliance, especially since it is taken into account that this imputation questions precisely the verification of the quality of institutional investor of its investors;

It should be remembered that none of the persons
juridical persons complaining DENUNCIANTE1, DENUNCIANTE2 and DENUNCIANTE3 register in their purpose or objective or corporate object as activity the “investment in securities”, so they are not within the assumption of numeral 4 of Annex 1 of the REGULATION OF INSTITUTIONAL INVESTORS and, therefore, cannot be considered as institutional investors;

Defense presented
From the investments and actions adopted by DENUNCIANTS 1 and 3

ESQUEMA INVESTMENT states that it has been accredited
that the complainants have been carrying out investment activities in securities; that they are duly authorized for this according to the information recorded in their registry entries and the amounts invested are ostensiblement greater than the amount established in letter b) of article 5 of the Securities Market Law (considering the updated value)4;
ESQUEMA INVESMENT supports this because in the
complaint writing DENUNCIANTE1 states that it invested S/ 2,378,395.42 and USD 460,501.10 respectively, while DENUNCIANTE3 would have invested S/ 4,000,000.00;
ESQUEMA INVESTMENT warns that we are not
facing minority investors, lacking information, experience or capacity to understand investment in the securities market mainly regarding the attributes and risks that it represents;
ESQUEMA INVESTMENT adds that the action of
the complainants to resort to actions in the judicial path, as well as to the media are additional proofs that it is not a matter of common investors and that they do not require public protection;

Evaluation of the defense

ESQUEMA INVESTMENT states that
DENUNCIANT1 and DENUNCIANT3 are high-wealth juridical persons so they are institutional investors;

Article 7.- PRELIMINARY INVESTIGATIONS AS A CONSEQUENCE OF A COMPLAINT
The General Intendancies of Compliance will carry out prior investigative 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 from a party. The prior actions or preliminary investigations may include, taking of declarations, request for information, among other activities that prove pertinent. (…) 22 Also the sworn declaration of DENUNCIANT3 was requested, but it was not presented by DIVISO SAB.

PERU Ministry of Economy and Finance

Regarding this, it should be noted that, according to
numeral 4 of Annex 1 of the INSTITUTIONAL INVESTORS REGULATION the condition that must be met by juridical persons of private or public law 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 juridical 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;
Then, in the present administrative procedure
it has been demonstrated that DENUNCIANT1 and DENUNCIANT3 did not have nor do they have as one of their activities the investment in securities, but the first is a non-profit association dedicated to religious activities and the second is a car commercializing company;
Without prejudice to what is stated in the reasoning
paragraph above, DENUNCIANT3 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;
Regarding the fact that it is only a matter of these
two juridical persons so it does not involve public interest, it should be noted that in the present procedure it has been evidenced, by way of example, that thirteen (13) investors who acquired the securities of the PROGRAMS of ESQUEMA INVESTMENT are not institutional so they require State protection;
Regarding this, it should be noted that regarding
the natural person investors who did not have a securities portfolio before investing in securities of the FIFTH and SIXTH PROGRAM of ESQUEMA INVESTMENT, ESQUEMA INVESTMENT has not supported the reasons why these persons are institutional and do not require State protection;

Defense presented
The investors had knowledge that the securities were issued through a private offering.

ESQUEMA INVESTMENT states that in different
documents issued regarding those acquired by the complainants, it complied with emphasizing that the offering made by it was private, consigning in the Offer Notice and in the Master Prospectus, various texts such as, for example, “Private Offer Notice”; “Type of Offering: Primary Private Offering”; “Negotiation: Since it is a Private Offering …”; “Important Notice: The Corporate Bond(s) issued will not be registered in the Public Register of the Securities Market of the Superintendencia del Mercado de Valores, 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”; “Since it is an Issuance Program under a Private Offering, the Issuances that are planned to be made will only be directed to institutional investors”, etc.

Evaluation of the defense

PERU Ministry of Economy and Finance

On this particular, it must be indicated that in its
defense ESQUEMA INVESTMENT argues that it complied with indicating in some documents that the offering of its securities was private;
Regarding this, it corresponds to clarify that the
fact that in the offer notice or in the master prospectus it is indicated that the offering is private, this does not relieve the responsibility of compliance with the entire regulatory framework referred to primary public offerings;
In effect, in the present sanctioning procedure
ESQUEMA INVESTMENT has been questioned for the fact that it did not previously register its securities in the RPMV since it has been evidenced that the offering it made offering such values was directed to a group of persons who did not have the quality of institutional investors, notwithstanding that the INSTITUTIONAL INVESTORS REGULATION defines who are institutional investors and what requirements must be met to be cataloged as such;

Defense presented
Regarding the non-application of article 6 of the ROPPV

ESQUEMA INVESTMENT argues that having
accredited that the complainants are institutional investors and that the offering of its values was a private one by adhering to one of the safe harbors, it reiterates that it is not justified the need for protection nor by the condition (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;
ESQUEMA INVESTMENT indicates that without prejudice
to 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;
In its written allegations, ESQUEMA INVESTMENT
states that the non-compliance with article 6 of the ROPP was not the matter of imputation;

Invitation adequately disseminated

ESQUEMA INVESTMENT cites what is stated in the NOTICE
OF CHARGES indicating that the purchase of the financial instruments by the complainants would have been made at the suggestion of the DIVISO SAB officials: its Commercial Head, Julio Willis Covarrubias, Katherine Cortes Lewis and Carlos Franco Cuzco;
ESQUEMA INVESTMENT states that regarding what was indicated
previously, the NOTICE OF CHARGES has only limited itself to taking as true the facts narrated by the complainants and without having corroborated the truth of such affirmation or authenticity of the communications, including the emails that refer to;
ESQUEMA INVESTMENT requests to consider that the
COMMON REPRESENTATIVE of the complainants, is using its clients and does not hesitate to lie and distort the facts. Proof of the above are the intimidating and threatening notarial letters sent recurrently, the declarations that he has calumniously made in the media, as well as the criminal complaints that he has filed;
ESQUEMA INVESTMENT cites an example, in the
publication of the weekly Hildebrant in its Trece the representative of the complainants

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 affirms that: “This demonstrates that Credinka was the petty cash of these gentlemen, they are liquidating their assets. Romero would be using his daughter as a straw man”, states lawyer Carlos Hermoza;

ESQUEMA INVESTMENT states that the resolution of the Superintendence of Banking, Insurance and AFP - SBS that declared the intervention of Financiera Credinka S.A. was publicly disseminated. It contains the reasons that led to the adoption of said measure, which were basically due to asset deterioration, given the losses incurred in recent years; it is not part of the reasons that justified the intervention the diversion of funds to ESQUEMA INVESTMENT or DIVISO SAB, to any person linked to them or their families, or the use of the company as a “petty cash” box as maliciously and irresponsably stated by the representative of the complainants before a mass circulation medium;
For the foregoing, ESQUEMA INVESTMENT considers that there are sufficient reasons for the SMV to call into question the assertions made by the complainants, as well as the veracity of the content of the copies of the documents they have presented. In this sense, it considers that it is not possible to take as certain solely under the principle of presumption of veracity what was stated by the complainants for the purpose of proving that the invitations were adequately disseminated as prescribed by the ROPPV;

Evaluation of the defense

On this matter, it is necessary to point out that in its defense ESQUEMA INVESTMENT has not lifted the imputations made regarding the facts that led to the non-compliance with public offering regulations;
Likewise, ESQUEMA INVESTMENT has not presented instrumental evidence to refute that the persons to whom it offered and placed its securities required state protection as indicated in the notice of charges, and that such recipients met the conditions to qualify as institutional investors;
Likewise, ESQUEMA INVESTMENT has not refuted the evidence presented regarding the placement of the securities it has issued, nor has it refuted the participation in the placement of such securities by the Commercial Manager and the gentlemen Julio Willis Covarrubias, Katherine Cortes Lewis, and Carlos Franco Cuzco;
In effect, ESQUEMA INVESTMENT has not denied or contradicted such participation and has only limited itself to stating: “(...) it has only limited itself to taking as certain the facts narrated by the complainants, without having corroborated the veracity of such statements or the authenticity of the communications, including the emails referred to”;
Regarding this, what is stated by ESQUEMA INVESTMENT would imply, as it slips or intends to suggest, indirectly denying the reference to these persons since it states that this is the word of the complainants; however, it is necessary to clarify that three of the cited persons were officials of DIVISO SAB, the placer of the securities issued by ESQUEMA INVESTMENT, and the fourth was an employee of one of the companies in the group to which ESQUEMA INVESTMENT belongs, all of them at the date the events occurred, as demonstrated below:

PERÚ Ministry of Economy and Finance

Mr. Carlos Alexis Franco Cuzco was Vice President 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 period23;
Regarding the Commercial Manager of Diviso Grupo Financiero, a member of the economic group to which DIVISO SAB belongs (from February 2018 to March 2020) within the imputed period24;
As for 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 period25;
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;
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 period26;
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; this company belongs to the Economic Group of Diviso Grupo Financiero. Likewise, Mr. Franco has held various positions within various companies belonging to said economic group; for example, he was Vice President 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. from July 1, 2021 to date, and within the imputed period, he was Director of ESQUEMA INVESTMENTS from March 31, 2017 to December 10, 2020; therefore, 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 belonging to the same economic group as the intermediary;
It is worth clarifying 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, having not refuted the former, nor having made any comment regarding the content of the emails sent by the persons indirectly questioned by ESQUEMA INVESTMENT, it demonstrates that the placement of the securities issued by ESQUEMA INVESTMENT was adequately disseminated;

DEFENSE PRESENTED
Directed to the general public or a specific segment of it

ESQUEMA INVESTMENT states that with regard to this requirement, the SMV has indicated in the Information Document:

23 Source: Public Registry of the Securities Market.
24 Source: own declaration on the professional social network LinkedIn 25 Source: Public Registry of the Securities Market.
26 Source: Public Registry of the Securities Market.

PERÚ Ministry of Economy and Finance

“(…) offers directed to a particular segment of the public constitute the majority of “gray areas” in determining whether a securities offering is public or private. The first paragraph of subsection d) of Article 6 of the ROPPV states that a segment of the public is considered to be the set of determined or undetermined persons who, 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 whether the offering is public or not because it is directed to a segment of the public, it is not relevant whether the persons in said segment are identified or not, but that: (i) they require protection and (ii) their number involves public interest (…)”;

Therefore, ESQUEMA INVESTMENT considers that 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;
Regarding the need for protection, ESQUEMA INVESTMENT states that COMPLAINANT1 states that he made an investment of S/ 2,378,395.42 and USD 460,501.10, while COMPLAINANT3 for S/ 4,000,000.00 (so they are institutional investors, of high net worth), and, in addition, since it is only two people, it does not involve public interest;

Evaluation of the Defense

ESQUEMA INVESTMENT states that COMPLAINANT1 and COMPLAINANT3 are high-net-worth legal entities, so they are institutional investors;
Regarding this, it should be noted that, according to numeral 4 of Annex 1 of the REGULATIONS FOR INSTITUTIONAL INVESTORS, the condition that legal entities of private or public law must meet is that they have investment in securities as one of their activities. Then, complying with this condition, it is verified whether non-state legal entities 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;
Therefore, in the present administrative procedure, it has been demonstrated that COMPLAINANT1 and COMPLAINANT3 did not and do not have investment in securities as one of their activities, but rather the first is a non-profit association dedicated to religious activities and the second is a car trading company;
Without prejudice to what is stated in the previous consideration, COMPLAINANT3 had not invested before in the securities market as stated in his intermediation contract with DIVISO SAB prior to his investment in the securities issued by ESQUEMA INVESTMENT;
Regarding the fact that it is only these two legal entities, so it does not involve public interest, it should be noted 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;

PERÚ Ministry of Economy and Finance

Likewise, ESQUEMA INVESTMENT has not transparented to which other persons it has placed its securities, nor even accredited that these were institutional investors;
Regarding this, it should be noted that with respect to natural person investors who did not have a securities portfolio before investing in securities of the FIFTH and SIXTH PROGRAMS of ESQUEMA INVESTMENT, ESQUEMA INVESTMENT has not substantiated the reasons why these persons are institutional and do not require state protection;

Defense presented
On the number of investors to whom the offering was directed

Regarding the determination of the segment of the public considering the quantity of investors or recipients, ESQUEMA INVESTMENT cites subsection d) of Article 6 of the ROPPV which expressly states that: without prejudice to what is provided 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 public interest, and it is presumed, unless proof to the contrary, that these persons require the aforementioned protection;
ESQUEMA INVESTMENT considers that the norm states that the justification of public interest is presumed when the recipients of the invitation are necessarily in a quantity of one hundred (100) persons or more. Moreover, the norm states that this starts from a presumption that admits proof to the contrary - that is, even in the case that it is more than 100 persons, the issuer has the possibility of refuting the presumption of segment of the public and therefore, of the need for the concurrence of public interest;
Therefore, ESQUEMA INVESTMENT indicates that the imputation of charges incurs an error when it considers that in the present case there is a segment of the public and a public interest to protect, since the cited norm clearly states the number of persons that must concur for this;
ESQUEMA INVESTMENT requests that the SMV must take into account that for the purposes of the sanctioning procedure it is not possible to interpret a norm in a different sense under which a case of responsibility is intended to be attributed to the regulated entity, since this implies a violation of due process, even with effects on rights of constitutional scope;

Evaluation of the defense

On this matter, Article 6, subsection d) of the ROPPV defines the segment of the public as the set of determined or undetermined persons 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 these persons and/or that it be processed by them, they find difficulties in adopting a free and informed decision regarding the invitation made;
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 investors, which constitutes an indispensable condition to attribute to a certain offering of securities, the character of public;

PERÚ Ministry of Economy and Finance

In this way, considering what is established in the mentioned article, to determine the need for protection it is necessary to conclude that due to the characteristics of the recipients of the offering, it is required that they have all the information that is required in a public offering, in order to only by accessing it, can they take a duly informed decision about it, based on equal treatment, which guarantees among others, the same conditions;
On the other hand, without prejudice to the above, it must be taken into account, the presumption of the need for protection of the investor, contained in the second paragraph of the aforementioned subsection 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;
It is worth clarifying that this does not in any way mean that an offering directed to less than one hundred (100) persons does not involve public interest, since said case could also involve public interest, as long as all or part of the recipients of the offering require state protection and it is a matter of securities issued massively (more than 10 in a year);
Regarding this, it should be noted 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 entities; in total 81 investors, of whom, by way of example, it has been evidenced that at least thirteen (13) of them are not institutional investors;
In the present case, it is appropriate to point out that in the notice of charges it was imputed that at least 13 recipients of the securities offering did not qualify as institutional investors and in response, in its defense ESQUEMA INVESTMENT has not refuted the imputed facts, accrediting that the referred persons qualified entirely as institutional investors and that, consequently, all of them did not require the respective protection;
Being so, it has been verified that at least 13 of the persons recipients of the offering of the securities issued by ESQUEMA INVESTMENT required the protection provided for in the regulations. Therefore, said set of recipients of the offering qualifies as a segment of the public that requires protection;

DEFENSE PRESENTED
On the intentionality in the commission of the offense and the principle of culpability

In its additional written allegations, ESQUEMA INVESTMENT states that it must be considered that it is a legal entity and as such, lacks intention. In this sense, it specifies that the General Law of Administrative Procedure establishes as a principle of the sanctioning power the principle of culpability, according to which administrative responsibility is subjective, except in cases where by law or legislative decree objective administrative responsibility is provided;

Evaluation of the defense

Regarding this, we must indicate that in accordance with what is provided in Article 2 of the REGULATIONS ON SANCTIONS, every natural or legal person

PERÚ Ministry of Economy and Finance

is subject to said Regulation, so that by carrying out its activities it is obliged to comply with the corresponding regulatory framework and its non-observance brings as a consequence the application of sanctions;

296. In this sense, there is no doubt that legal entities have the capacity to violate regulations and therefore be sanctioned;

297. Regarding the principle of culpability, collected in Article 248, numeral 10 of the TUO LPAG, ESQUEMA INVESTMENT maintains that legal entities lack intention, so the scope of said principle must be considered;

298. With regard to what is stated, it must be indicated that Article 230, numeral 10, of the TUO of the LPAG disposes the following:
“Article 230.- Principles of the administrative sanctioning power The sanctioning power of all entities is additionally governed by the following special principles:
(…)
10. Culpability.- Administrative responsibility is subjective, except in cases where by law or legislative decree objective administrative responsibility is provided”

299. For its part, national and international doctrine has widely developed said principle. Thus, the author Ángeles De Palma27 has exposed that:
“The principle of intent or fault, referred to the subjective elements of the offense, is the essential core of the principle of culpability. (…) Thus, it can be said that a person acts culpably or imprudently when, by disregarding a legal duty of care, they do not behave with the diligence that is required of them and carry out (in a non-intentional or intentional manner) the conduct typified as an offense, being such fact foreseeable and avoidable. Therefore, fault or imprudence implies the non-observance of the required diligence. (…) (…) On the other hand, the principle of culpability contributes to the correct application of the principle of proportionality of sanctions, by allowing a greater adequacy between the gravity of the sanction and that of the infringing fact. (…). Therefore, at the moment of concretizing the sanction within the legally provided framework, it is necessary to consider the degree of culpability, whether the offense has been committed with intent or fault.”

300. From the foregoing, it can be concluded that administrative responsibility must be evaluated subjectively, except in cases where the law specifically disposes otherwise. This means that, for the correct application of the principle of culpability in the administrative sanctioning procedure, it is required to consider not only the result of the infringing fact, but also the intention (intent) or negligence (fault) of the author. This approach allows for a greater adequacy and proportionality of sanctions, taking into consideration the various degrees of

27 DE PALMA DEL TESO, Ángeles (2001). La Culpabilidad. Justicia Administrativa: Revista de Derecho Administrativo. Pp. 29 – 51.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Electronically signed document under Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and the authorship culpability. In this way, it is ensured that the imposed sanction reflects, among others, the subjective circumstances of the offender;
301. In this sense, it must be reiterated that from the evaluation
of the nature of the bonds and short-term instruments issued by ESQUEMA INVESTMENT, it is concluded that this company carried out a primary public offering of the referenced instruments without having registered said securities in the RPMV and without having complied with registering the corresponding prospectus in said registry, to the extent that it has been determined that said bonds and short-term instruments are freely negotiable and meet the requirement of "mass issuance" contemplated in paragraph b) of Article 5 of the ROPPV, the invitations made by DIVISO SAB were adequately disseminated, the segment of the public to which the offer was directed required the protection referred to in Article 2 of the ROPPV and the placement implied the realization of an investment act. Likewise, it must be indicated that the defenses and arguments presented have not disproven the charge imputed;
302. Consequently, the facts subject to charges
in the present procedure are directly linked to the non-compliance with Article 49 of the LMV (now Article 51 of the TUO LMV) and Articles 4 and 11 of the ROPPV by the emissions carried out continuously from March 21, 2019 to February 26 2021, by ESQUEMA INVESTMENT, conduct that subsumes in the offense type imputed;
303. In this sense, according to the charge imputed,
it must be indicated that it is indeed evident that the conduct of ESQUEMA INVESTMENT involves the commission of an offense by intent; that is, by the production of an unlawful result, duly typified, completely foreseeable and avoidable, by not having complied with registering the bonds and short-term instruments it issued, prior to their placement, in the RPMV, according to what is required in the LMV and in the ROPPV; therefore, no violation of the principle of culpability is observed;
304. For the above, ESQUEMA INVESTMENT failed to comply with
Article 49 of the LMV (now Article 51 of the TUO LMV) and Articles 4 and 11 of the ROPPV
for which it incurred an offense classified as very serious typified in paragraph 1.1, numeral 1, literal A) of Annex III of the SANCTIONS REGULATION, which establishes as a very serious nature offense of participants28 in a POP: “Carry out a public offer without having previously registered the securities in the Registry or having registered the corresponding prospectus, except for the exception cases established in the regulations”;
IV. EVALUATION OF THE SANCTION TO BE IMPOSED
305. 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,

28 Article 4.- Terms and Definitions
For the purposes of this Regulation, the following words have the scope indicated:
(...) q) Participant: Natural or legal person who directly or indirectly participates in the securities market or in the collective fund system. Includes, as appropriate, the directors of: i) the legal entities of the entities to which the SMV grants operating authorization and ii) the issuers of public offering securities.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Electronically signed document under Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and the authorship numeral 3, of the TUO LPAG29, and the mitigating and exempting factors 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;
306. 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;
307. Within this framework, the evaluation of the sanction
must consider: a) offender's background; b) recidivism; c) the circumstances of the commission of the offense; d) the damage caused and the repercussion in the market; e) the illicit benefit resulting from the commission of the offense; f) probability of detection of the offense; g) gravity of the damage to the public interest and/or protected legal good; h) the existence or non-existence of intent in the offender's conduct; i) Voluntary Declaration of the commission of the offense and the offender's contribution to its clarification;
308. 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 of that these criteria are considered adequately in order for their valuation observes the principle of reasonableness and that the sanction to be imposed adapts to these, it proceeds to analyze the following criteria;
309. With regard to the offender's background, in
conformity with what is established by Article 25 of the SANCTIONS REGULATION, constitute the offender's background the sanctions imposed by the SMV and that have become final within four (04) years prior to the date of the commission of the offense. In this sense, from the review carried out in said period, it has been verified that ESQUEMA INVESTMENT has no record of sanction;
310. With reference to recidivism for the commission of
the same offense, that final sanction imposed by the SMV within the period of one (1) year prior to the commission of the offense to be sanctioned is taken into account. In this sense, it must be stated that considering what is indicated regarding the sanction background, ESQUEMA INVESTMENT has no record of sanctions for the commission of the offenses subject to analysis in the present administrative sanctioning procedure, in the mentioned period, so the situations that configure a recidivism are not presented;
311. With respect to the circumstances of the commission of the
offense, it must be indicated that ESQUEMA INVESTMENT is a company that participates in

29 “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 offense, observing the following criteria that are indicated for purposes of their graduation:
a) The illicit benefit resulting from the commission of the offense; b) The probability of detection of the offense; 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 offense within the period of one (1) year from when the resolution sanctioning the first offense became final. f) The circumstances of the commission of the offense; and g) The existence or non-existence of intent in the offender's conduct”.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Electronically signed document under Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and the authorship the Peruvian securities market since 2017 issuing securities that are placed by private offer, according to the records that have been informed to the SMV by the placers of such securities;
312. Consequently, it must be specified that ESQUEMA
INVESTMENT must know the regulation on the public and private offering of securities so, at the time of client acquisition with the participation of DIVISO SAB and through the companies of its economic group, it knew that the offer of its issued securities was not directed exclusively to institutional investors to be considered a private offer and, likewise, it could have known that the nominal value of the respective securities in their majority does not exceed the amount of S/ 250,000.00 (Two hundred fifty thousand and 00/100 Soles)30, among others. However, ESQUEMA INVESTMENT did not observe the corresponding regulation;
313. In effect, 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;
314. Likewise, it was observed that ESQUEMA INVESTMENT
jointly with DIVISO SAB, given its quality as placer of said securities, should determine if the placement of those constituted or not a public offer, even more considering that it is a company of its same economic group;
315. On the contrary, from the facts it is evident that the
placement process of the securities with respect to the FIFTH and SIXTH PROGRAM started from March 21, 2019 to February 26, 2021;
316. It is worth highlighting that if in a private placement of
securities there are elements that make it seem that certain potential investors do not qualify as institutional investors, and there is no elements to verify if those people actually qualify as institutional investors, it is diligent to abstain from carrying out the placement or sale of securities to those people until it can be corroborated their situation and in that way verify that the offer is within the safe harbors provided in Article 5 of the LMV;
317. For its part, it must be indicated that from the facts
subject to charges it is evident that the placement process of the securities issued by ESQUEMA INVESTMENT started on March 21, 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 to February 26, 2021 (see graph); to a total of 81 investors of which 64 were natural persons and 17 legal persons. As an example, it has been evidenced that at least thirteen (13) of them, are not institutional investors;

30 As established by the Final First 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 Ministry of Economy and Finance

| N° | Person | Type | Owner of
some value before the purchase of the securities issued by EI | Value in S/ of the Ownership of Securities that was held before the investment in securities issued by EI | Date first purchase of securities issued by ESQUEMA INVESTMENT (EI) | Updated value of the minimum required portfolio as Institutional Investor in S/ |

---	---	---	---	---	---	---
1	DENUNCIANTE1	PJ	YES	707,700.00	23/07/2020	1,997,322.00
2	DENUNCIANTE2	PJ	NO	NO	06/12/2019	1,999,633.00
3	DENUNCIANTE3	PJ	NO	NO	15/05/2020	1,997,322.00
4	EMPRESA1	PJ	NO	NO	14/05/2020	1,997,322.00
5	CLIENT1	PN	NO	NO	05/11/2019	1,999,633.00
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/ 101,710,401.8331. Of this amount, values were placed with the aforementioned 13 clients for a total of S/ 29 million32, as detailed in the following graph and table:

Placed to 13 Clients

---	---	---	---	---	---	---
1	DENUNCIANTE1	PJ	YES	921,601.77	4,624,296.76	7,942,063.13
2	DENUNCIANTE2	PJ	NO	300,000.00	300,000.00
3	DENUNCIANTE3	PJ	NO	8,000,000.00	8,000,000.00
4	EMPRESA1	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

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

[Graph: Total Amounts Placed by Year]
2019: US$ 4,051,904 / S/ 23,520,468
2020: US$ 9,218,567 / S/ 74,689,934
2021: US$ 447,300 / S/ 3,500,000
Total S/ 101,710,402
Total US$ 13,717,770

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Electronically signed document under Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and the authorship
320. With regard to the damage caused and the repercussion in
the market it must be indicated that the complainants: DENUNCIANTE1, DENUNCIANTE3 and DENUNCIANTE2, have stated that as of the date of the presentation of their complaint, ESQUEMA INVESTMENT has not fulfilled to honor the values acquired from said issuer. It must also be highlighted that as of the date of this resolution, this Assistant Superintendence has not been informed about the fulfillment of the payment of such values;
321. For the above, the placement of the securities
issued by ESQUEMA INVESTMENT and its subsequent non-payment of the principal by said issuer has caused concrete economic damage to the participants of the market;
322. 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 that type of financial instruments, and also constitutes an incentive for, under the denomination of private offer, to structure issuances of securities without providing the market, through the RPMV, all the relevant information on said issuances, thereby avoiding the protection of investors through the continuous dissemination of all the necessary information on the issuer that allows them to evaluate the risk assumed and its relationship with the return offered at that level of risk;
323. With regard to the illicit benefit resulting from the
commission of the offense it must be noted that by carrying out a public offer of securities issued without previously registering them in the RPMV, ESQUEMA INVESTMENT saved the costs that must be assumed in order not to affect the legal goods related to the protection of the investor, transparency and integrity of the market; which implies carrying out the registration of the securities in the RPMV, 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, adopting standards for the prevention of money laundering and financing terrorism, risk management, internal control systems, among others;
324. Likewise, the company benefited from the risk of
adverse selection that it generated for the recipients of the offer due to the asymmetry of information about the situation of the issuer of the securities. This informational asymmetry generates a strategic advantage of the issuer over the investors and allows that obtains resources in exchange for returns that do not compensate the real level of risk that represents said issuer. All this allows the issuer to obtain financing for itself at costs lower than those it would have had in a public market with symmetric information. This benefit in principle is greater than that which would be obtained in a public offer disguised as a collective investment vehicle where supposedly resources are obtained to invest them and charge a commission for such management,
325. With regard to the gravity of the damage to the public interest
and/or protected legal good it must be indicated that the conduct of ESQUEMA INVESTMENT in the commission of the offense analyzed in the present sanctioning procedure has caused damage to the public interest since public offers of securities were carried out without presenting beforehand 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 regulation establishes the information that must be provided to potential investors through the RPMV, within a framework of transparency;
326. In this sense, it must be taken into account that the non
registration of a security offered publicly 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 proper investment decision;
327. Likewise, as mentioned, the lack of
prior registration of a security in the RPMV affects the principle of transparency since the market will not have true, sufficient and timely information that allows 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;
328. It is worth adding that in a private offer directed
exclusively to institutional investors, said 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 others, characteristics that are not necessarily observed in a public offer, so there is an affectation to the legal goods of protection of the investor and transparency and integrity of the market;
329. These situations contravene what is established in the
LMV and in the ROPPV, which goes against the adequate development and integrity of the market, creating distrust among the participants in it;
330. With regard to the existence or non-existence of intent
in the offender's conduct, it must be indicated that it has been evidenced that ESQUEMA INVESTMENT acted with intent in the commission of the offense subject to charges;
331. In effect, it must be indicated that the placement
of securities to persons who did not have the quality of “institutional investor” through a public offer despite existing express norms that explicitly prohibited it, have been intentional acts;
332. The following indications reflect the intent of
ESQUEMA INVESTMENT to carry out a public offer without having previously complied with registering the securities in the RPMV:
a. Belongs to an economic group that has experience and years in the securities market and financial markets: Diviso Financial Group, which has within its structure a stockbroker company, a fund administrator company, among others. b. ESQUEMA INVESTMENT is a company that participates in the market since the year 2017, so it is not acceptable that it ignores the limitations established by the LMV and the ROPPV referred to the placement of securities by private offer; aspects that by its experience in issuances 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's 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

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. The integrity of the document and the authorship of securities in the securities market, but evading the regulations that protect investors in this market through the protection provided by the State in a public offering of securities. d. The offering of the securities was carried out, as described and explained in this report, without observing that the offering of the securities was directed exclusively to institutional investors. In effect, the offering 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 securities offering was not an isolated process, carried out in a short period, but was a continuous placement process of almost twenty-four (24 months) where the issuers were atomized into series for their continued placement in the market. f. The offering of the securities was carried out by DIVISO SAB, as well as by third parties unrelated to ESQUEMA INVESTMENT itself, such as employees of other companies in the group. g. The offering of the securities did not have adequate supervision to allow knowing exactly to whom the offering of the securities was directed, as well as to know whether these potential clients met or did not meet the requirements to be considered as institutional investors. h. It was not verified that the natural person investors acquiring the securities issued by ESQUEMA INVESTMENT, who are almost 80% of the total acquirers, meet the minimum own requirements established to be accepted as institutional investors, among others, the amount of their portfolio of securities prior to the acquisition of the securities issued by ESQUEMA INVESTMENT;

The above indicates that ESQUEMA INVESTMENT never intended to refrain from issuing securities that were not registered in the RPMV;
Regarding the probability of detection of the infractions, it must be indicated that in the present case, the facts constituting the infractions in question were evidenced in attention to the complaints filed against ESQUEMA INVESTMENT, DIVISO SAB and others, so the probability of detection was low;
In addition to the above, it corresponds to analyze the exempting and mitigating conditions of responsibility established in Article 257° of the TUO LPAG33 and in Articles 27 and 26 of the SANCTIONS REGULATION, respectively;

33 “Article 257.- Exempting and mitigating conditions of responsibility for infractions 1.- The following constitute exempting conditions of 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 ability to understand the infraction. d) Mandatory order from a 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 constituting an administrative infraction, prior to the notification of the charge imputation referred to in paragraph 3) of Article 235.

2.- The following constitute mitigating conditions of responsibility for infractions:

PERÚ Ministry of Economy and Finance

Regarding the recognition of the infringer's responsibility, it must be indicated that ESQUEMA INVESTMENT has not recognized the commission of the two infractions subject of this sanctioning procedure;
Regarding the contribution of the infringer to its clarification, it corresponds to point out that ESQUEMA INVESTMENT has also not contributed to the clarification of the facts linked to the infraction subject of the present sanctioning procedure, since it has only limited itself to presenting its defenses;
As for the subsequent remediation of the commission of the infraction, it must be indicated that the imputed infraction has not been remedied by ESQUEMA INVESTMENT;
On the other hand, in the present administrative sanctioning procedure, it corresponds to point out that none of the circumstances that constitute exempting conditions of responsibility are observed;
From the above, it is concluded that ESQUEMA INVESTMENT, by failing to comply with Article 49 of the LMV (now Article 51 of the TUO LMV) and Articles 4 and 11 of the ROPPV, incurred an infraction classified as very serious, typified in paragraph 1.1, number 1, letter A) of Annex III of the SANCTIONS REGULATION, which establishes as a very serious nature infraction of the participants34 in a POP: “To carry out a public offering without having previously registered the securities in the Registry or having registered the corresponding prospectus, except for the exception cases established in the regulations”;
In this sense, according to Article 33 of the SANCTIONS REGULATION, the commission of very serious infractions is subject to a corresponding sanction consisting of 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;
Likewise, considering the gravity of the infraction incurred, the impact on the legal goods of transparency and investor protection, the facts exposed as part of the sanction evaluation; as well as what is provided for in Annex XX, number 27 of the SANCTIONS REGULATION, this Adjunct Superintendency considers that corrective measures must be adopted that aim to frame the offerings of securities subject to charges by ESQUEMA INVESTMENT within the applicable regulations that regulate public offerings with the purpose that compliance with the infringed regulations is given;

a) If an administrative sanctioning procedure is initiated and the infringer recognizes their responsibility expressly and in writing.
In cases where the applicable sanction is a fine, it is reduced to an amount not less than half of its value. b) Others that are established by special regulation.” 34 Article 4.- Terms and Definitions For the purposes of this Regulation, the following words have the scope indicated:
(...) q) Participant: Natural or legal person who directly or indirectly participates in the securities market or in the collective funds system. Includes, as appropriate, the directors of: i) the legal persons of the entities to which the SMV grants operating authorization and ii) the issuers of public offering securities.

PERÚ Ministry of Economy and Finance

Being in accordance with what is provided in Article 32, number 16, of the Organization and Functions Regulation of the SMV, approved by Supreme Decree Nº 216-2011-EF.

RESOLVES:

Article 1º.- Declare that Esquema Investment S.A. has incurred one (1) very serious infraction typified in paragraph 1.1, number 1, letter A) of Annex III of the Sanctions Regulation, approved by SMV Resolution N° 035-2018-SMV/01, for failing to comply with Article 49 of the LMV (now Article 51 of the TUO LMV) and Articles 4 and 11 of the ROPPV, for having carried out public offerings without having previously registered the securities in the Public Registry of the Securities Market, in accordance with the facts described in this resolution.

Article 2º.- Sanction Esquema Investment S.A. with a fine of three hundred (300) UIT, equivalent to S/ 1,260,000.00 (one million two hundred sixty thousand and 00/100 Soles), for what is provided in Article 1° of this resolution.

Article 3º.- Establish as a corrective measure that within twenty (20) business days Esquema Investment S.A. requests the registration, and presents the necessary information for it, of all series of values issued under the framework of the so-called “Fifth Private Program for the Issuance of Short-Term Instruments and Corporate Bonds” and “Sixth Private Program for the Issuance of Short-Term Instruments and Corporate Bonds” that to date have not been redeemed in their entirety, regardless of the maturity date of each series.
Esquema Investment S.A. must inform the SMV of the detail of the series of values that fall within the scenario provided for in the previous paragraph within a period not greater than 05 business days after notification of this resolution.

Article 4º.- This resolution does not exhaust the administrative route, unless it is consented, and may be challenged before the Adjunct Superintendency of Prudential Supervision by filing a reconsideration or appeal appeal before the same, within the period of fifteen (15) business days counted from the day following its notification.

Article 5º.- In the event that this resolution is not subject to challenge through reconsideration or appeal within the period of fifteen (15) business days of notification and becomes final, it must be published on the Institutional Page of the SMV in the Unique Digital Platform of the Peruvian State, in observance of what is provided for in number 1, Article 7° of the Policy on diffusion of normative projects, general character legal norms, early agenda and other administrative acts of the SMV, approved by SMV Resolution Nº 014-2014-SMV/01 and its modification, and by what is provided for in Article 14° of the Sanctions Regulation, approved by SMV Resolution N° 035-2018-SMV/0.

PERÚ Ministry of Economy and Finance

Article 6º.- Transcribe this resolution to Esquema Investment S.A.
Register, communicate and publish.

Omar Gutiérrez Ochoa
Adjunct Superintendent
Adjunct Superintendency of Prudential Supervision

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