Resolution of the General Superintendence for Prudential Compliance No. 091-2017

PERÚ Ministry of Economy and Finance

SMV
Superintendence of the Securities Market

YEAR OF GOOD SERVICE TO THE CITIZEN

Adjunct Superintendent Resolution SMV
No. 091-2017-SMV/10

Lima, October 4, 2017

Subject: The administrative sanctioning procedure against Larraín Vial Brokerage Company S.A. is archived for not having committed a minor infraction typified in Annex X, numeral 3, item 3.14 of the Sanctions Regulation.

Administrated Party: Larraín Vial Brokerage Company S.A.
Subject: Administrative sanctioning procedure
File No.: 2017003147

The Adjunct Superintendent for Prudential Supervision

HAVING SEEN:

Administrative File No. 2017003147, Report No. 988-2017-SMV/10.3 issued by the General Superintendence for Prudential Compliance, as well as the defenses presented by Larraín Vial Brokerage Company S.A.; and,

CONSIDERING:

1. In accordance with Article 1 of Law No. 29782, Law on Strengthening the Supervision of the Securities Market, the name of the National Commission for the Supervision of Companies and Securities (CONASEV) is replaced by that of the Superintendence of the Securities Market (SMV); therefore, any reference to CONASEV in legal norms shall be understood as referring to the SMV;

I. Facts

2. Within the supervisory functions assigned to the SMV, an evaluation was carried out regarding the timely presentation of relevant facts by Larraín Vial Brokerage Company S.A. (hereinafter, LARRAÍN VIAL SAB);

3. As a result of said evaluation and under the authority of the Single Consolidated Text of the General Administrative Procedure Law, Law No. 27444, approved by Supreme Decree No. 006-2017-JUS (hereinafter, TUO of the LPAG), through Office No. 579-2017-SMV/10.3 (hereinafter, OFFICE OF CHARGES), charges were formulated against LARRAÍN VIAL SAB for infringement of Articles 97 and 98 of the Regulation of Intermediary Agents, approved by CONASEV Resolution No. 045-2006-EF/10.3 and its amendments, in force at the time the facts were committed (hereinafter, REGULATION), for not having presented within the period established in the regulations the relevant fact of April 22, 2015, referring to the communication of the registration in the Public Records of the agreement to modify the bylaws due to a change in share capital, agreed upon in the General Shareholders' Meeting of March 31, 2015. Said relevant fact had to be reported by April 23, 2015¹; however, it was reported on April 28, 2015²;

4. The non-compliance mentioned in the preceding consideration is typified in Annex X, numeral 3, item 3.14 of the Sanctions Regulation, approved by CONASEV Resolution No. 055-2001-EF/94.10 and its amendments, in force on the date the facts occurred (hereinafter, SANCTIONS REGULATION), which prescribes as a minor infraction: "To not communicate relevant facts or not to do so within the period established in the regulations";

5. With a document received on February 7, 2017, LARRAÍN VIAL SAB presents its defenses;

6. The charges formulated, as well as the defenses presented by LARRAÍN VIAL SAB, have been the subject of evaluation in Report No. 988-2017-SMV/10.3, which has been submitted for consideration to this Adjunct Superintendence;

7. In observance of the Principle of Due Process contemplated in Article IV, item 1, numeral 1.2 of the Preliminary Title, as well as in Article 246, item 2, of the TUO of the LPAG, through Office No. 5953-2017-SMV/10, the administrative file to which this resolution refers was made available to LARRAÍN VIAL SAB for review;

II. Issues to be Determined

8. In the present administrative sanctioning procedure, in the opinion of this Adjunct Superintendence, it corresponds to determine the following:

a. Whether LARRAÍN VIAL SAB incurred or did not incur an infraction by not presenting the relevant fact of April 22, 2015, referring to the communication of the registration in the Public Records of the agreement to modify the bylaws due to a change in share capital, subject of charges, within the period established in Article 98 of the REGULATION;

b. Whether it corresponds or does not correspond to impose a sanction on LARRAÍN VIAL SAB;

III. Analysis

3.1 Applicable Norms

9. Article 97³ of the REGULATION establishes that the relevant facts of the agent are considered to be situations, acts, facts, decisions, agreements, or contingencies that affect or may affect the agent or its economic group. Likewise, the information of the agent or its economic group that, by its nature, is necessary to inform the SMV for supervision and control purposes has the qualification of a relevant fact, unless it is a fact of importance of any company in its economic group, the obligation to inform corresponding to the same;

10. Likewise, Article 98⁴ of the REGULATION establishes that agents must inform the SMV of their relevant facts within the next business day after the fact or act occurred or after having taken knowledge of it, as applicable, in accordance with the means and forms established by the SMV. Likewise, it is stated that the General Manager is responsible for timely communicating the relevant facts of the agent;

11. In addition to the above, it should be noted that Annex 9, numeral 23⁵, of the REGULATION establishes as a relevant fact the registration in the Public Records of modifications related to the share capital of the Agent, which do not require prior authorization from the SMV. In this case, a copy of the corresponding testimony and of the registration certificate must be sent additionally;

12. The non-observance of the obligation described above is sanctioned in accordance with what is provided for in Annex X, numeral 3, item 3.14 of the SANCTIONS REGULATION, in force at the time the facts were committed, as stated in the fourth consideration of this resolution;

3.2 Charges

13. Through the OFFICE OF CHARGES, charges were formulated against LARRAÍN VIAL SAB for not communicating, within the period indicated in the regulations, the relevant fact indicated in the third consideration of this resolution;

3.3 On the Presentation of Defenses

14. Regarding this, LARRAÍN VIAL SAB states that the deadline to communicate the Relevant Fact was April 23, 2015, and in that sense, on April 23, 2015, through File No. 2015014840, it sent to the SMV via the MvNet System the relevant fact subject of charges. On that date, the company sent both the copy of the notarial testimony of the capital increase and the registration certificate in the Public Records, in accordance with the obligation established in Annex 9, numeral 23 of the REGULATION; therefore, it complied with the obligation in a timely manner. In this sense, it considers that it has not incurred the imputed infraction;

EVALUATION

15. It has been corroborated that the brokerage company presented the copy of the registration of the capital increase of LARRAÍN VIAL SAB from the National Superintendence of Public Records-SUNARP on April 23, 2015, as a relevant fact (File No. 2015014840), complying with presenting a copy of the testimony and of the registration certificate. In that sense, the brokerage company timely communicated to the SMV the relevant fact subject of charges that occurred on April 22, 2015;

16. In view of the above, it is concluded that LARRAÍN VIAL SAB has not incurred an infraction typified in Annex X, numeral 3, item 3.14 of the SANCTIONS REGULATION, since it has been verified that the brokerage company did comply with presenting the relevant fact detailed in the third consideration of this resolution in a timely manner. Therefore, it has not failed to comply with what is established in Articles 97 and 98 of the REGULATION, as well as Annex 9, numeral 12 of the REGULATION; and,

In accordance with Article 32, numeral 16 of the Organization and Functions Regulation of the SMV, approved by Supreme Decree No. 216-2011-EF and its amendments.

RESOLVES:

Article 1st.- Declare that Larraín Vial Brokerage Company S.A. has not incurred a minor infraction typified in Annex X, numeral 3, item 3.14 of the Sanctions Regulation, approved by CONASEV Resolution No. 055-2001-EF/94.10 and its amendments, regarding the relevant fact of April 22, 2015; and consequently, conclude this administrative sanctioning procedure to this extent.

Article 2nd.- Transcribe this resolution to Larraín Vial Brokerage Company S.A. and to the Lima Stock Exchange S.A.A.

Register, communicate, and publish.

Omar Gutiérrez Ochoa
Adjunct Superintendent
Adjunct Superintendence for Prudential Supervision

---

¹ According to a copy of the registry inscription sent by LARRAÍN VIAL SAB, the Public Deed of April 10, 2015 regarding the modification of bylaws due to an increase in share capital was registered on April 22, 2015.
² File No. 2015015557.
³ The aforementioned obligation is contained in Article 97 of the Regulation of Intermediary Agents, approved by SMV Resolution No. 034-2015-SMV/01 (hereinafter, NEW RAI).
⁴ Currently, the aforementioned obligation is contained in Article 98 of the NEW RAI.
⁵ Said relevant fact is regulated in Annex I, numeral 25 of the NEW RAI