Resolution SBS No. 6420-2015: Regulation on the Acquisition of Ownership in the Share Capital of Supervised Companies and Significant Owners

Los Laureles Nº 214 - Lima 27 - Perú Telf. : (511) 6309000 Fax: (511) 6309239 Lima, October 23, 2015

Resolution S.B.S.
No. 6420 -2015

The Superintendent of Banks, Insurance, and Private Pension Fund Administrators

CONSIDERING:

That, Article 57 of the General Law of the Financial System and the Insurance System and Organic Law of the Superintendence of Banks and Insurance, Law No. 26702 and its modifying norms, hereinafter General Law, considers the requirement for prior authorization to proceed with the acquisition, directly or through third parties, of more than 10% of the share capital of a supervised company in the financial or insurance systems;

That, the aforementioned article also considers that if a legal entity, domiciled in Peru, were a shareholder in a percentage greater than that indicated above in the company, its partners must have prior authorization from the Superintendence to transfer rights or shares of the share capital of that legal entity in a proportion greater than 10%.

That, Law No. 29903, Law of the Reform of the Private System for the Administration of Pension Funds, incorporated as Article 13-A of the Single Consolidated Text of the Law of the Private System for the Administration of Pension Funds, approved by Supreme Decree No. 054-97-EF and its modifying norms, similar considerations in matters of acquisition of share capital participation in a supervised company of the private pension fund administration system;

That, through Resolution SBS No. 1025-2005 and its modifying norms, norms relating to the organization, functioning, and transfer of participation in the share capital of fund transfer companies are established, among others;

That, by Resolution SBS No. 6284-2013, the Regulation of Electronic Money Issuing Companies was approved, which in its first final and complementary provision states that the provisions contained in the General Law referred to companies in the financial system are applicable to electronic money issuing companies.

That, in accordance with international guidelines established by the Basel Committee on Banking Supervision, the International Association of Insurance Supervisors, and the International Association of Pension Fund Supervisory Authorities, this Superintendence considers it necessary to issue regulatory norms that regulate what is provided in the aforementioned legal provisions;

That, for the purpose of collecting opinions from the general public regarding the proposed modifications to the financial system regulations, the draft resolution was published on the Superintendence's electronic portal, under the provisions of Supreme Decree No. 001-2009-JUS;

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Having the approval of the Adjunct Superintendencies of Banking and Microfinance, Insurance, Private Pension Fund Administrators, Risks, Economic Studies, and Legal Advice;

In exercise of the powers conferred by items 7, 9, and 19 of Article 349 of the General Law and item d) of Article 57 of the Single Consolidated Text of the Law of the Private System for the Administration of Pension Funds;

RESOLVES:

Article First.- Approve the Regulation on the Acquisition of Ownership in the Share Capital of Supervised Companies and Significant Owners, as indicated below:

“REGULATION ON THE ACQUISITION OF OWNERSHIP IN THE SHARE CAPITAL OF SUPERVISED COMPANIES AND SIGNIFICANT OWNERS

Article 1st.- Scope
This Regulation is applicable to the companies referred to in Article 16 of the General Law, to private pension fund administrators (AFP), to fund transfer companies, and to electronic money issuing companies, hereinafter companies.

It is also applicable to the Bank of the Nation, the Agricultural Bank, the Development Financial Corporation (COFIDE), and the MIVIVIENDA S.A. Fund, insofar as it does not conflict with the specific regulations governing these companies.

Article 2°.- Definitions
For the purposes of this Regulation, the following terms are considered:

a) Beneficial owner:
i. Significant owner; and/or,
ii. Who individually or acting as a unit or through other persons or legal entities, hold powers, by means other than ownership, to:
1. Control the decisions of the company's governing bodies, or
2. Significantly influence management.

Beneficial owners are also considered to be the persons and legal entities through which the definition of beneficial owner is met.

b) Control: in accordance with what is stated in Article 9 of the Special Norms on Linkage and Economic Group approved by Resolution SBS No. 5780-2015.

c) Legal entities: according to the definition established in letter g. of Article 2 of the Special Norms on Linkage and Economic Group approved by Resolution SBS No. 5780-2015.

d) Significant influence in management: power to intervene in policy and operational decisions without having control, whether through: i) representation on the board of directors or body fulfilling the same purpose, ii) participation in policy-setting processes, including decisions on dividends and other distributions, and iii) participation in the designation of managers and principal officials in the case of legal entities or the manager, who is authorized to manage the funds, in the case of legal entities.

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e) General Law: General Law of the Financial System and the Insurance System and Organic Law of the Superintendence of Banks and Insurance, Law No. 26702 and its modifying norms.

f) Capital acquisition modalities: the purchase of shares, cash contributions to capital, underwriting contracts, exercise of purchase options, among other modalities at the discretion of the Superintendence, are considered as capital acquisition modalities.

g) Person: natural and/or legal person.

h) Through third parties: through the cases of indirect ownership contained in Article 4 of the Special Norms on Linkage and Economic Group approved by Resolution SBS No. 5780-2015.

i) Potential significant owner: person or legal entity that, through any capital acquisition modality, seeks to acquire ownership of a percentage greater than ten percent (10%) of the company's share capital directly or through third parties.

j) Significant owner: person or legal entity that directly or through third parties, through any capital acquisition modality, holds a significant participation in the company. A significant participation is understood to exist when it is above ten percent (10%) of the company's share capital.

k) Regulation: Regulation on the Acquisition of Ownership in the Share Capital of Supervised Companies and Significant Owners.

l) Superintendence: Superintendence of Banks, Insurance, and Private Pension Fund Administrators.

m) Authorization Regulation: Regulation on the authorization of companies and representatives of the Financial and Insurance Systems, approved by Resolution SBS No. 211-2021. 1

n) Days: calendar days, unless indicated as business days. 2

Article 3.- Information to be submitted to request prior authorization from the Superintendence to be a significant owner of the company, directly or through third parties through any acquisition modality contemplated in Article 4 of the Special Norms on Linkage and Economic Group 3

3.1 The potential significant owner of the company, directly or through third parties through any acquisition modality contemplated in Article 4 of the Special Norms on Linkage and Economic Group, must request prior authorization from the Superintendence, sending the following information for this purpose:

a) Request from the potential significant owner of the company, directly or through third parties through any acquisition modality contemplated in Article 4 of the Special Norms on Linkage and Economic Group, addressed to the Superintendent specifying the maximum percentage of participation in the share capital of which he intends to be owner. Such request must be presented when, as a result of the operation to be carried out, it is intended to have direct or through third parties participation through any acquisition modality contemplated in Article 4 of the Special Norms on Linkage and Economic Group, of a percentage greater than ten percent (10%) of the company's share capital. Subsequently, authorization must be requested on each occasion when the percentage to be acquired determines that the accumulated participation, since the last authorization, increases in increments equivalent to ten percent (10%) of the company's share capital; or when a participation greater than fifty percent (50%) of the company's share capital is reached.

Incorporated by Resolution SBS No. 211-2021, effective from 01.02.2021 Incorporated by Resolution SBS No. 211-2021, effective from 01.02.2021 3 Substituted by Resolution SBS No. 211-2021, effective from 01.02.2021

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b) The "Information Questionnaire" signed by the potential significant owner of the company, directly or through third parties through any acquisition modality contemplated in Article 4 of the Special Norms on Linkage and Economic Group, according to the format of Annex I of the Authorization Regulation.

c) Precise information on the origin of the resources with which it is proposed to pay for the company's shares.

d) In the case of natural persons:
i. The "Asset Situation Reports", signed by the potential significant owner of the company, directly or through third parties through any acquisition modality contemplated in Article 4 of the Special Norms on Linkage and Economic Group, corresponding to the last two fiscal years, according to the format of Annex III of the Authorization Regulation, accompanied by a credit report from a risk center.

e) In the case of legal persons:
i. Data of the registry inscription of constitution of the legal person; and, in the case of a foreign legal person, a copy of the statutes.
ii. Certified copy of the agreement of the corresponding social body, issued by the general manager of the legal person, in which the participation in the company's share capital is agreed upon, as well as the designation of the person who will represent it.
iii. The audited financial statements of the two (2) last annual fiscal years; as well as, the consolidated financial statements of the economic group to which it belongs, corresponding to the two (2) last annual fiscal years, if applicable. In case the significant owner was constituted in a period shorter than previously indicated, it must present the audited financial statements of the last annual fiscal year, if applicable, as well as the most recent financial statements of the current fiscal year.
iv. In case the legal person is obliged to have a financial strength classification, the report of the last risk classification, granted by a risk classifier registered in the Superintendence's registry or, in the case of a foreign legal person, by a recognized classifier.
v. The "Information on beneficial owners by ownership", according to the format of Annex IV of the Authorization Regulation.
vi. The "Information on beneficial owners by means other than ownership", according to the format of Annex V of the Authorization Regulation.

f) In the case of legal entities, the requirements established for legal persons must be met, insofar as applicable; without prejudice to the fact that this Superintendence may require the observance of additional requirements in order to prove compliance with what is provided in current regulations.

3.2 In case the potential significant owner of the company, directly or through third parties through any acquisition modality contemplated in Article 4 of the Special Norms on Linkage and Economic Group, belongs to an economic group, with the authorization request, the following information regarding the economic group must be presented:

a) Brief history of the economic group's antecedents, the list of legal persons and/or legal entities that compose it and main activities, indicating if they operate under the supervision of a control body.

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b) Geographic scope of operation, business volumes and market participation, expansion plans, and description of the economic-financial situation of the economic group.

c) Diagram showing the composition of the economic group and including all legal persons and legal entities or vehicles that compose it, whether or not within the financial scope, and the relationships between them.

d) The list of significant owners of the members of the economic group and the number of shares or percentage of participation they hold in them.

e) The list of beneficial owners of the members of the economic group who are not significant owners.

f) The list of directors, managers, and principal officials of the members of the economic group, legal persons and/or legal entities.

3.3 The submission of the information established in this Regulation can be carried out through electronic means, in accordance with the mechanisms established by the Superintendence.

Article 4°.- Acquisition of more than ten percent (10%) of the share capital or equivalent of the significant owner of the companies

In the case where the object is to acquire by any modality, directly or indirectly, more than ten percent (10%) of the share capital or equivalent of a significant owner of the companies, whether a legal person or legal entity, the following must be considered:

a) In case the significant owner is domiciled in Peru: third parties; or, partners, shareholders, or equivalents in the case of legal entities that seek to carry out the acquisition; must have prior authorization from the Superintendence. In this case, the requirements established in Article 3 of this norm must be met.

b) If the significant owner is not domiciled in Peru: is obliged to inform the Superintendence in case there is a modification in the composition of its shareholding or equivalent in the case of legal entities, indicating the names of the shareholders or equivalents in the case of legal entities. The aforementioned information must be submitted within a period not exceeding fifteen (15) business days from the occurrence of the modification.

Article 5.- Comprehensive evaluation, resolution, and authorization of the request 4

5.1 Within a period not exceeding thirty (30) days, the Superintendence carries out a comprehensive evaluation of the authorization request referred to in Articles 3 and 4, for which it may convene meetings with potential significant owners, as well as with the directors, managers, and principal officials of the company, among others, as it deems necessary.

5.2 The evaluation of the moral suitability and economic solvency requirements, and the non-incurrence in the impediments indicated in Article 6 of the Authorization Regulation or Article 11° of Title II of the Compendium of Regulatory Superintendence Norms of the Private System for the Administration of Pension Funds, as applicable, is carried out in accordance with the provisions established in the General Law and the Authorization Regulation.

5.3 After carrying out the comprehensive evaluation and within the period indicated in paragraph 5.1, the Superintendence issues the corresponding resolution, and if it is authorizing, the respective prior authorization is granted.

4 Substituted by Resolution SBS No. 211-2021, effective from 01.02.2021

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Article 6.- Sworn declarations of significant owners and beneficial owners by means other than ownership 5

6.1 The company must present annually to the Superintendence, considering for this purpose a period not exceeding fifteen (15) business days from the celebration of the mandatory annual shareholders' meeting, the sworn declarations of all significant owners and of all beneficial owners by means other than ownership referred to in Annexes IV and V of the Authorization Regulation.

6.2 The submission of the information is carried out through the electronic means established by the Superintendence.”

Article 7.- Information update 6

The Superintendence may require the company to update the information indicated in this Regulation, when it deems convenient.

Article 8.- Request for additional information 7

The Superintendence may require the company to provide documentary support and others that allow proving the veracity of the information presented and the sworn declarations in accordance with this Regulation.

Article 9.- Character of sworn declaration 8

All information provided to the Superintendence by the company has the character of a sworn declaration.”

COMPLEMENTARY AND FINAL PROVISION

Sole.- Annex

The Annex "Lists that contribute to the prevention of money laundering and terrorism financing" is part of this Regulation.”

Article Second.- Modify the third paragraph of Article 8 of the Regulation of Fund Transfer Companies (ETF), approved by Resolution SBS No. 1025-2005 and its modifying norms, considering the following:

“Acquisition of share capital.-

Article 8°.-

(..) ETFs included in Article 2 of this regulation and that, in addition, present income from fund transfers in amounts greater than 60% of their total annual income, are subject to the prior authorization referred to in Articles 57° and 58° of the General Law, the Regulation on the Acquisition of Ownership in the Share Capital of Supervised Companies and Significant Owners being applicable to them; and, insofar as pertinent, Article 59° of the aforementioned Law”

Article Third.- This Resolution will enter into force on January 1, 2016.

Register, communicate, and publish.

DANIEL SCHYDLOWSKY ROSENBERG
Superintendent of Banks, Insurance, and Private Pension Fund Administrators

Los Laureles Nº 214 - Lima 27 - Perú Telf. : (511) 6309000 Fax: (511) 6309239 7/8

Incorporated by Resolution SBS No. 211-2021, effective from 01.02.2021 Incorporated by Resolution SBS No. 211-2021, effective from 01.02.2021 Incorporated by Resolution SBS No. 211-2021, effective from 01.02.2021 Incorporated by Resolution SBS No. 211-2021, effective from 01.02.2021

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ANNEX
Lists that contribute to the prevention of money laundering and terrorism financing

Companies must carry out the review of the following lists in order to present the sworn declaration referred to in item ii. of letter b) and item iii of letter c) of Article 3 of the Regulation on the Acquisition of Ownership in the Share Capital of Supervised Companies and Significant Owners:

a. OFAC List: list issued by the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC), which includes countries, persons and/or entities, that collaborate with terrorism and illicit drug trafficking.

b. UN Security Council terrorist lists, in particular the Lists on persons involved in terrorist activities (Resolution No. 1267).

c. European Union terrorist list.

d. Lists related to the Financing of Proliferation of Weapons of Mass Destruction: Lists issued by the UN Security Council. Includes at least, the Consolidated List UN Resolution 1718, on the Democratic People's Republic of Korea (North Korea) and the Consolidated List UN Resolution 1737, on Iran.

e. Lists of UN Security Council Resolutions.

f. List of Non-Cooperative Countries and Territories.

g. Others indicated by the Superintendence, through a multiple letter.