Decade of Equal Opportunities for Women and Men Year of the Bicentennial, of the consolidation of our independence, and of the commemoration of the heroic battles of Junín and Ayacucho

Superintendent Resolution

No. 017-2024-SMV/02

Lima, 26 February 2024

The Superintendent of the Securities Market

WHEREAS:

File No. 2022005605 containing, among others, the appeal filed by Diviso Bolsa Sociedad Agente de Bolsa S.A. (hereinafter, "Diviso"), against Deputy Superintendent Resolution No. 032-2022-SMV/10, Report No. 1858-2023-SMV/06 issued by the Legal Advisory Office, as well as Diviso's supplementary brief; and having heard the oral report of Diviso's representatives;

CONSIDERING:

That, by Deputy Superintendent Resolution No. 032-2022-SMV/10 (hereinafter, the "Sanction Resolution"), the Deputy Superintendent of Prudential Supervision sanctioned Diviso with a fine of 11 UIT, for having incurred the following infractions:

a) A very serious infraction, typified in Annex X, subsection 1, item 1.4 of the Sanctions Regulation of the Superintendency of the Securities Market – SMV, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, the "Sanctions Regulation"), for allowing persons not authorized as Representatives to act as such in their intermediation activities, specifically in the activity of placement of securities, failing to comply with the provisions of article 40 of the Intermediation Agents Regulation, approved by SMV Resolution No. 034-2015-SMV/01 (hereinafter, the "RAI"); and,

b) A serious infraction, typified in Annex X, subsection 2, item 2.16 of the Sanctions Regulation, for failing to timely submit the Control System Evaluation Audit Report.

That, Diviso filed an appeal against the Sanction Resolution, requesting the use of the floor before the Superintendent of the Securities Market, before its challenge is resolved;

That, through Report No. 1858-2023-SMV/06, the Legal Advisory Office issued its legal opinion on the appeal filed by Diviso (hereinafter, the "OAJ Report");

That, by Official Letter No. 5897-2023-SMV/14, Diviso was notified with the OAJ Report, granting it a period of five (5) business days, to formulate

"Decade of Equal Opportunities for Women and Men"

"Year of the Bicentennial, of the consolidation of our independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

its arguments, if it deems it pertinent; likewise, it was granted the use of the floor before the Superintendent of the Securities Market;

That, on 11 January 2023, the requested oral report was held before the Superintendent of the Securities Market, by Diviso's legal representatives;

That, on 12 January 2023, Diviso submitted a supplementary defense brief, developing the grounds that were set forth in its intervention of use of the floor before the Superintendent of the Securities Market;

DIVISO'S DEFENSE ARGUMENTS

That, below are succinctly set forth the arguments contained in the appeal filed by Diviso, its supplementary brief, as well as those indicated in the oral report made by its representatives:

A. The Sanction Resolution is null and void for violating the principles of typicity, motivation and presumption of lawfulness

That, Diviso states that the Deputy Superintendency maintains the erroneous criterion of equating the act of inviting or transmitting information about a certain security to potential investors, with the legal act of placement of securities in a Private Offering of Securities, such as the placement of securities issued by Esquema Investment S.A. (hereinafter, "Esquema");

That, in that sense, Diviso adds that the Sanction Resolution states that Messrs. [redacted] and [redacted] (hereinafter, the "Involved Persons"), persons who have not been nor are Representatives of Diviso, approached investors to offer Esquema's securities, sending investment proposals, interest rate, investment maturity, purchase orders, among others, which would evidence the carrying out of placement of securities issued by Esquema;

That, Diviso maintains that the persons indicated in the previous paragraph only provided administrative, secretarial support, such as the issuance of emails (with basic information on eventual issuances), which does not constitute in any way a legal act of placement of securities;

That, Diviso indicates that the Deputy Superintendency intends to give the category of "placement of securities" to the simple "invitation to offer", it also maintains that on this matter the Sanction Resolution has a position diametrically opposed to that sustained in the very documents issued by the Superintendency of the Securities Market, such as in the "SMV Informative Document – Constitutive Elements of the Public Offering of Securities (hereinafter, the "Informative Document"), in which the criteria to determine when an offer qualifies as public or private are analyzed;

That, Diviso alleges that in the Informative Document the concept of invitation and that of placement of securities are defined both in public offerings

PERÚ
Ministry of Economy and Finance
SMV
Superintendency of the Securities
Market

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

as in private ones. Diviso states that it can be seen from a reading of the Informative Document that the invitation does not have the nature of a legal act but only has as its object to disseminate or receive proposals linked to carrying out a placement of securities;

That, due to the foregoing, Diviso maintains that when analyzing the term "invitation", the SMV concludes in the Informative Document that:

"As indicated in subsection a) of article 6 of the ROPPV, the invitation made by the offeror may have the character of an invitation to offer, a simple offer, a unilateral promise, or another whose purpose is to make or receive proposals linked to the placement or disposal of securities."

That, likewise, Diviso points out that when analyzing the legal act of placement of securities, the Informative Document concludes the following:

"d) Legal act referring to the placement or disposal of securities

The invitation made by the offeror to the general public or to a segment thereof must be related to the performance of a legal act referring to the placement or disposal of securities. Said legal act may involve the creation of patrimonial rights over securities (for example, in the case of a primary public offering) or the transfer of said rights (for example, in the case of a public offering for sale). Likewise, included within the same is the right or option of subscription or acquisition of securities, as for example, in the negotiation of preferential subscription certificates, in accordance with the provisions of article 105 of the LMV."

That, in accordance with the foregoing, Diviso maintains that in the invitation to offer, the issuer of the securities communicates to potential interested parties that, upon its issuance, the recipients of the invitation submit their offers for a possible acquisition of the securities. On that basis, Diviso adds, the person who receives the invitation to offer will be precisely the one who submits their offer, which may or may not be accepted by the issuer;

That, in accordance with the aforementioned, Diviso states that in the invitation to offer, the issuer is not generating the legal act of placement of securities, since this will only be formalized with the acceptance by the issuer of the offer made by the investor who received the invitation to offer, which entails the completion (through payment) of an act of investment for said investor;

That, Diviso points out that in the Sanction Resolution itself, in its recital 145, it is indicated that "...there is evidence that DIVISO SAB, through persons who did not have the status of Representatives, has made offers of securities to potential investors, who have then ordered the purchase of these offered securities." (Underlining and boldface by Diviso).

That, Diviso alleges that the aforementioned statement reinforces its position that the Involved Persons have not intervened in the placement of securities, but have only conveyed information that only the issuer or the Representatives of the Brokerage Agent can generate and provide, such as

PERÚ
Ministerio de Economía y Finanzas
SMV
Superintendency of the Market de Valores

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

investment proposals, interest rates, maturity of investments, purchase order, investment or reinvestment terms;

That, Diviso adds that institutional investors, after analyzing the information received, submit their acquisition offer, which, if accepted by Diviso's investment representatives, will generate the placement of the securities, the only moment in which a legal act occurs that generates the creation of patrimonial rights over securities issued by Esquema;

That, due to the foregoing, Diviso states that the Involved Persons did not have the capacity to deliver information that was not instructed by an authorized Representative of Diviso. However, according to the SMV, these persons would have carried out placement acts merely by sending some emails, conveying information that the duly qualified institutional investor analyzes and, based on its own criteria, makes an investment decision;

That, in that sense, Diviso points out that the tasks carried out by the aforementioned persons have been solely of an administrative nature, being responsible for the offering and delivery of information related to the services provided by Diviso, activities that are not exclusive to a Representative in the securities placement process, as indicated by article 40 of the Brokerage Agents Regulation itself in its final part;

That, likewise, Diviso states that an attempt has been made to establish that any invitation or offer is a legal act that forms part of the placement of securities. However, a legal act requires that the person making it be a capable agent or have full legal capacity, as established by article 140 of the Civil Code. Therefore, the persons to whom the SMV seeks to attribute having generated a legal act did not have the authority to offer securities, and those who offered the securities of Esquema were the authorized Representatives of Diviso;

That, furthermore, Diviso states that the investors who acquired the securities issued by Esquema in the transactions that are the subject of analysis in this sanctioning procedure did not learn of the nature of the investment and its conditions from the emails sent by the Involved Persons, but rather already knew about said investment beforehand, because they had already been carrying out purchase transactions of private debt issuances since previous years;

That, Diviso indicates that the foregoing is recognized in recital 160 of the Sanction Resolution, in which it is stated that these investors already had prior investments. Likewise, Diviso details the list of some investors (through the indication of their RUT code) who had already been purchasing privately issued securities, through transactions between 2018 and 2021;

That, Diviso argues that with said information it is proven that the aforementioned clients not only had the category of institutional investors (taking into account that pursuant to article 5 of the Securities Market Law this type of offers is aimed exclusively at investors

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

institutional), but were also knowledgeable and habitual buyers of securities issuances equivalent to those that are the subject of this process;

That, therefore, Diviso indicates that the persons who provided the administrative service of communicating the information under investigation, related to the issuance and placement of Esquema securities, did not influence in any way the investment decision in the securities and even less created legal acts of placement of securities, because the emails did not constitute an invitation to invest;

That, in the oral report made before this Office, as well as in its complementary brief, Diviso points out that the error incurred by both the Sanction Resolution and the OAJ Report is to consider that the Involved Persons carried out invitation or placement activities on issued series or securities, when in reality this was never the case;

That, in that sense, Diviso points out that in numeral 3.2.9 of the OAJ Report the following is expressly stated:

"As can be seen, the information in Table No. 2 refers to different series of securities included within an issuance program of Esquema securities and contains information regarding the term of the security, the rate offered, the total amount of the acquisition of the securities, among others. It should be noted that Diviso has not contradicted or denied the information contained in Table No. 2, limiting itself to stating that the information provided by the Involved Persons to its clients is not included within the placement activity of Esquema securities.

In this regard, and in accordance with the foregoing, we consider that Diviso's statement does not conform to the reality of the facts, since as stated in numeral 144 of the Sanction Resolution, the work carried out by the Involved Persons, as can be seen from the emails sent to Diviso's clients, included quotes and investment proposals regarding the securities issued by Esquema, even offering certain types of rate and term". (Bold and underlining by Diviso).

That, Diviso maintains that it is incorrect to affirm that when the so-called Involved Persons contacted the clients, the "series" of securities existed or that the "term of the security, the rate offered, the total amount of the acquisition of securities, among others" were already available;

That, in that sense, Diviso states that each of the series and characteristics of the securities were established after the communications held by the Involved Persons with the clients;

That, Diviso adds that the foregoing is relevant to demonstrate that the Involved Persons did not carry out a placement activity of securities, since the series or characteristics of each of the issuances did not exist at the time;

PERU
Ministry of Economy and Finance
SMV
Superintendency of the Market of Securities

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

That, Diviso alleges that it was precisely the communication with the clients that led to defining whether a series should be created or not, or what type of securities should be issued (bonds or short-term instruments), elements necessary in their existence to initiate the "placement process" or "placement activity";

That, Diviso points out that at best, as has been maintained by its part, the activities carried out by the Involved Persons would qualify as acts of a civil nature called an "invitation to offer", on whose validity to be included within a placement activity in a private offer, has not been the object of evaluation or pronouncement by the first instance nor by the OAJ Report;

That, due to the foregoing, Diviso indicates that it is appropriate to declare the nullity of the Sanction Resolution, so that in any case the first instance states whether, as has been pointed out, at best, "an invitation to offer" in a private offer forms part of the placement activity;

That, Diviso reaffirms its position that the activities carried out by the Involved Persons have not been placement activities, to the extent that they were limited to carrying out a prospecting or market evaluation, gathering information and knowing the level of investment appetite; whereas subsequently, Diviso would initiate the placement process or activity;

That, Diviso maintains that the placement activity is not part of the proposal or invitation to offer phase carried out by the Involved Persons to the clients, whereas for Diviso said placement activity begins with the dissemination of the offer, and it is appropriate that the administration substantiate or state the reasons why it considers that there is a placement activity in a private offer from the moment an invitation to offer is made;

That, Diviso considers that such reasoning is unavoidable, since the Sanction Resolution is only based on differentiating what corresponds to the placement act as reception of orders from the activities of placement in general, but it has not been evaluated: i) when the placement activity begins in a private offering, ii) whether the invitation to offer is part of the placement of a private offering and even more importantly, iii) that the acts carried out did not occur as has been sustained by the first instance, that is, as if the securities had been subject to issuance, with series already created and defined characteristics;

That, therefore, Diviso indicates that the Sanction Resolution is null and void for being improperly motivated, affecting the principle of typicity and violating the principle of lawfulness;

That, additionally, regarding the principle of typicity, Diviso has pointed out in its appeal brief that the Sanction Resolution violates said principle, since the SMV intends to sanction conduct, attributing to it results that the securities market regulations do not recognize, such as that the delivery of information about securities in the invitation to offer generates a legal act;

"Decade of Equal Opportunities for Women and Men"

"Year of the Bicentennial, of the consolidation of our independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

That, in that sense, Diviso maintains that the SMV incorrectly states that the provisions of article 40 of the Regulation of Intermediation Agents have been breached, and then tries to fit this alleged conduct into the infraction type provided in numeral 1.4 of subsection 1 of Annex X of the Sanction Regulation, referring to an intermediation agent allowing unauthorized persons as Representatives to act as such in its intermediation activity, specifically in the placement of securities;

That, in this regard, Diviso cites numeral 4 of article 248 of the Single Ordered Text - TUO of Law No. 27444, General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS (hereinafter, the "TUO LPAG"), referring to the principle of typicity, concluding that said provision aims to establish that norms describing conduct constituting infractions must have a sufficient level of precision to allow administered parties to adapt their conduct in order to avoid the commission of unlawful acts;

That, according to the foregoing, Diviso states that the Sanction Resolution attempts to relativize the need to comply with a full typification of the infracting conduct, since it tries to place within an infraction type conduct that does not constitute the exercise of powers reserved for the representatives of the intermediation agent, which flagrantly violates the principle of typicity;

That, Diviso cites legal doctrine that develops the scope of the principle of typicity, referring to the sufficiency of the infraction type, so that administered parties can know with a sufficient degree of certainty the conducts typified as infractions. Diviso states that in the present case, by the mere fact of the marked discrepancy between Diviso and the SMV regarding whether the offering or transfer of information constitutes or not a legal act within the placement of securities, it demonstrates that the typification of the conduct intended to be sanctioned does not comply with the requirement of lex certa;

That, therefore, Diviso adds that it has been demonstrated that there is doubt in the interpretation of what constitutes the placement of securities and an invitation to offer made by the Involved Persons, so the principle of lawfulness is applicable, which establishes that entities must presume that administered parties have acted in compliance with their duties as long as there is no evidence to the contrary, in accordance with the provisions of numeral 9 of article 248 of the TUO LPAG, and consequently it must be considered that Diviso has not incurred any sanctionable infraction;

B. Use of Inquisitorial Evidence

That, on the other hand, Diviso states that both the Sanction Resolution and the OAJ Report suffer from a violation of due process by imposing a burden on the administered party to prove its innocence or the non-commission of the infraction; therefore, the so-called diabolical evidence or inquisitorial evidence would be applied;

Electronic document digitally signed within the framework of Law No. 27269, Law of Signatures and Digital Certificates, its Regulation and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

That, Diviso alleges that what is indicated in the preceding recital is observed in grounds No. 145 and 162 of the Challenged Resolution, which expressly states:

"145. However, Diviso SAB has not been able to demonstrate in the preliminary inquiries and in the present administrative procedure that as an agent company, and therefore its Representatives, in the private offering of securities issued by ESQUEMA, they have only participated in the reception of purchase orders and execution thereof, but rather there is evidence that Diviso SAB, through natural persons who did not have the status of Representatives, has made offers of securities to potential investors, who have then ordered the purchase of these offered securities;

162. Therefore, in the events that occurred, it is observed that the acts of offering securities cannot be separated from the acts of receiving and executing purchase orders in this primary private offering of securities, so it is not possible to ignore that [redacted] and [redacted] participated in the placement process of the analyzed securities in accordance with the content of the emails detailed above. Likewise, the brokerage firm has not been able to demonstrate that only its duly authorized Representatives participated in the securities placement process;" (Underlining and boldface by Diviso).

That, Diviso adds that said reasoning is repeated in numeral 3.2.14 of the OAJ Report, in which the following is indicated:

"(...) as stated in recital 145 of the Sanction Resolution, Diviso has not been able to demonstrate in this administrative proceeding that as a brokerage firm, and therefore its Representatives, in the private offering of securities of Esquema, only participated in the receipt of purchase orders and their execution, but on the contrary there is concrete evidence that proves that some natural persons who did not have the status of Representatives have carried out the offering of securities to potential investors". (Underlining and boldface by Diviso).

That, according to the foregoing, Diviso states that the Political Constitution of Peru has established an accusatory system, in which the administration has the burden of proof to demonstrate the commission of an infraction by the accused administered party, and must investigate the facts constituting the infraction, which will demonstrate or prove the responsibility or innocence of the accused;

That, in that sense, Diviso maintains that in this administrative sanctioning proceeding, the imputation of an infraction and a subsequent sanction is manifestly observed, transferring the burden of proof to demonstrate innocence to the administered party, whereby said proceeding suffers from nullities due to impairment of due process and the accusatory system of Administrative Sanctioning Law;

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

That, likewise, Diviso reiterates that the principle of lawfulness is affected, since to the extent that the Sanction Resolution has not determined that the prospecting acts of the Involved Persons form part of the placement act, these should be deemed as an action in accordance with lawfulness, pursuant to the provisions of subsection 9 of article 246 of the TUO LPAG;

That, therefore, Diviso points out that it must be evaluated at the time of resolving that this administrative sanctioning proceeding does not affect its right to due process, the principle of an accusatory system and the presumption of innocence in its modality of lawfulness of acts of the administered party;

EVALUATION OF DIVISO'S ARGUMENTS

That, from the evaluation carried out, it is appreciated that the appeal filed by Diviso complies with the requirements established in articles 124°, 218°, 220° and 221° of the TUO LPAG¹, given that it was filed within the term of fifteen (15) days of notification of the administrative act, it indicates the act being appealed and is founded;

A. Regarding the arguments on typicity, motivation and lawfulness

That, in the first place, it must be noted that the arguments contained in Diviso's appeal refer exclusively to the very serious infraction, typified in Annex I, subsection 1, numeral 1.4 of the Sanctions Regulation, taking into account that Diviso has acknowledged the commission of the serious infraction typified in Annex X, subsection 2, numeral 2.16 of the Sanctions Regulation, for failing to timely submit the Audit Report on Evaluation of the Control System, as stated in recital 103 of the Sanction Resolution;

[1] "Article 124.- Requirements of writings
Every writing submitted before any entity must contain the following:
1. Full names and surnames, domicile and number of National Identity Document or foreigner's card of the administered party, and where applicable, the capacity of representative and of the person represented. 2. The concrete expression of what is requested, the factual grounds supporting it and, when possible, the legal grounds. 3. Place, date, signature or digital fingerprint, in case of not knowing how to sign or being impeded. 4. The indication of the body, entity or authority to which it is addressed, understood as such, as far as possible, the authority of the grade closest to the user, according to the hierarchy, with competence to hear and resolve it. 5. The address of the place where notifications of the proceeding are to be received, when different from the real domicile stated by virtue of numeral 1. This designation of domicile takes effect from its indication and is presumed subsistent, as long as its change is not expressly communicated. 6. The list of documents and annexes accompanying it, indicated in the TUPA.
7. The identification of the file of the matter, in the case of proceedings already initiated. Article 218. Administrative appeals
(...) 218.2 The term for the filing of appeals is fifteen (15) peremptory days, and they must be resolved within thirty (30) days. Article 220.- Appeal An appeal shall be filed when the challenge is based on a different interpretation of the evidence produced or when it involves questions of pure law, and must be addressed to the same authority that issued the act being challenged so that it may forward the proceedings to the hierarchical superior. Article 221.- Requirements of the appeal The appeal writing must indicate the act being appealed and comply with the other requirements provided in article 124."

That, Diviso has indicated that the Involved Persons have not carried out any act of placement of securities, since they merely limited themselves to performing administrative tasks, forwarding, by instruction of Diviso's Representatives, information related to the issuance of the securities of the Esquema offer to potential investors, whereas the SMV confuses the invitation to offer with the act of placement of securities;

That, in this regard, it must be taken into account that the type of infraction imputed to Diviso is the one indicated in Annex X, item 1, numeral 1.4 of the Sanctions Regulation, because it would have allowed unauthorized persons as its Representatives to act as such in its intermediation activities, specifically in the activity of placement of securities;

That, in relation to the activity of placement of securities, article 6 of the Securities Market Law – LMV, Legislative Decree No. 861, states that it is one of the operations whose habitual performance is considered intermediation in the securities market². Likewise, item c) of article 194 of the LMV expressly states that stock brokerage firms are empowered to carry out the operation of “placing in the national or international market, securities with or without total or partial guarantee of their placement, within the terms and subject to the agreed conditions”;

That, for its part, item d) of article 40 of the RAI establishes that the Representative of the investment officer type of a stock brokerage firm may carry out, among others, the operation contemplated in item c) of article 194 of the LMV, previously cited regarding the placement of securities;

That, in accordance with the foregoing, it can be seen that the activity of placement of securities is included within the process of securities intermediation, and is carried out on behalf of stock brokerage firms by their authorized Representatives;

That, likewise, regarding the placement of securities, Torres Méndez states that “(…) Placement consists simply in causing the acquisition of securities not yet in circulation, and this acquisition may be made by several acquirers or a single acquirer³.”

That, it is important to take into account that article 46 of the RAI provides that, in the primary market, stock brokerage firms may participate as placers of financial instruments that are issued only by legal persons, whether as public or private offer, and that their participation in the placement must be formalized in express contracts

[2] “Article 6.- INTERMEDIATION
Habitual performance, for the account of others, of operations of purchase, sale, placement, distribution, brokerage, commission or negotiation of securities is considered intermediation in the securities market. Likewise, acquisitions of securities made on one's own account on a habitual basis for the purpose of subsequently placing them with the public and receiving a price differential are considered intermediation.” Underlining added.

[3] TORRES MÉNDEZ, Miguel. "The Contracting of the Securities Market. Parte General”, Grijley, 2012, Lima, pp. 420.

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

with the issuer, which must include the terms and conditions corresponding to the services that the stock brokerage firm will provide⁴;

That, in accordance with the foregoing, it can be seen that the placement of securities is related to the activities carried out so that securities of legal persons that have not yet been put into circulation are acquired, and such activity may be carried out through a public or private offer;

That, Diviso affirms that the Involved Persons would have simply participated in the delivery of information of an administrative nature, within the framework of an invitation to offer that had the objective of disseminating or receiving proposals related to carrying out a placement of securities;

That, in this regard, it must be noted that it has not been a matter of evaluation in this administrative proceeding whether the invitation to offer forms part or not of an activity of placement of securities, as raised by Diviso, but rather what has been imputed to Diviso is that the Involved Persons, who were not its authorized Representatives, would have concretely offered to its clients the acquisition of securities that would be issued by Esquema, thus participating in the placement of said securities;

That, therefore, in order to determine whether the Involved Persons concretely offered the acquisition of securities that would be issued by Esquema or whether they merely forwarded information of a general nature to receive potential investment proposals as Diviso states, this Office considers that it is essential to analyze the content of Table No. 2 detailed in recital 155 of the Sanction Resolution, which includes the information contained in the emails that the Involved Persons sent to Diviso's clients:

TABLE No. 2

[4] Article 46.- Markets in which the Intermediation activity is carried out Agents may carry out the intermediation activity, on their own account or for third parties, of Financial Instruments in any of the markets detailed below:
a) Primary Market.- In this market Agents may act as placers of Financial Instruments that are issued only by legal persons. The Agent, prior to its participation as placer in this market, must determine jointly with the issuer, whether the placement of Financial Instruments, by its characteristics or conditions, constitutes a public offer. In public offerings, the Agent must observe the provisions established in the Law, and in the specific rules that regulate said offerings. The participation of the Agent, in the placement of Financial Instruments, must be formalized in express contracts with the issuer, which will include the terms and conditions corresponding to the services that the Agent will provide."

PERU
Ministry of Economy and Finance
SMV
Superintendency of the Market of Securities

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our independence, and the commemoration of the heroic battles of Junín and Ayacucho"

Unauthorized Person as Representative of Diviso SAB	Client	Security	Offer notice	Proposals to the potential client prior to the placement date	Client's purchase order and award on the placement date
[?]	001	ESQUE5PY	Term: 912 days; Rate: 8.02% Amount: S/ 1 700 000	"As per your instructions, I attach the indicated quotes"; "I attach quote for 2.5 years"	Term: 912 days (2.5 years); Rate: 8.02% Amount: S/ 1 700 000
[?]	002	ESQ6CP2J	Term: 180 days; Rate: 7.0% Amount: S/ 4 000 000	"I attach investment proposal"	Term: 180 days; Rate: 7.0% Amount: S/ 4 000 000
[?]	003	ESQ6BC1I	Term: 370 days; Rate: 7.5% Amount: S/ 1 600 000	"Attached you will find the investment proposal (...). If you have any questions, do not hesitate to let me know"	Term: 370 days; Rate: 7.5% Amount: S/ 1 600 000
[?]	004	ESQ6CP1W	Term: 60 days; Rate: 5.25% Amount: S/ 1 030 909,80	"Attached you will find our reinvestment proposal. I await your instructions"; "I send reinvestment proposal for the requested time"	Term: 60 days; Rate: 5.25% Amount: S/ 1 030 909,80
[?]	005	ESQ6CP3A	Term: 150 days; Rate: 5.25% Amount: S/ 2 205 218	"I attach quote for the renewal for today with a term of 150 days" and client responds "please renew"	Term: 150 days; Rate: 5.25% Amount: S/ 2 205 218
[?]	006	ESQ6BC2D	Term: 546 days; Rate: 7.5% Amount: S/ 1 200 000	"(...) on Tuesday the 19th an investment in soles in ESQUEMA matures, rates in general have dropped a little in the Peruvian financial system, the improved rates that I can offer you at this moment are the following: 360 days 6.75%, 546 days 7%"; "(...) I requested a rate improvement: 360 days 6.75%; 546 days 7.25%."	Term: 546 days; Rate: 7.5% Amount: S/ 1 200 000

Electronic document digitally signed within the framework of Law No. 27269, Law of Signatures and Digital Certificates, its Regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml

"Decade of Equal Opportunities for Women and Men"

"Year of the Bicentennial, of the consolidation of our independence, and the commemoration of the heroic battles of Junín and Ayacucho"

That, from the information contained in Table 2, this Office notes that the tasks carried out by the Involved Persons were not limited to the simple transfer of information of an administrative nature, but rather they forwarded, as expressly indicated in some of said emails, investment proposals, for the acquisition of securities that would be issued by Esquema;

That, likewise, it is important to state that this Office does not share Diviso's argument referring to the fact that both the Sanction Resolution and the OAJ Report make the error of considering that the Involved Persons carried out invitation or placement activities on series or securities already issued, because it is noted that the reference made by the Sanction Resolution and the OAJ Report to the securities indicated in Table No. 2 is made in order to detail the activities carried out by the Involved Persons to achieve precisely the placement of said securities, and not that said securities were already previously issued or placed, which would also lack foundation, in the case of a primary placement. In that sense, in recital 158 of the Sanction Resolution cited in the OAJ Report, it is stated that "(...) as a result of those offers, the direct dealing with the client and the transmission of relevant information for the decision-making of the investor to whom they are addressed, the placement of the securities detailed above in Table No. 2 is successfully carried out (...)". (Underline added);

That, therefore, this Office clearly notes that neither the Sanction Resolution nor the OAJ Report have considered that the securities indicated in Table No. 2 were already previously issued, but rather, on the contrary, they have detailed the activities carried out by the Involved Persons to achieve the placement of said securities;

That, according to the foregoing, from the information contained in Table No. 2 as well as from what is indicated in the Sanction Resolution and the OAJ Report, this Office considers that the Involved Persons did carry out the activity of placement of securities. In that sense, by way of example, it can be seen that the first of the clients indicated in Table No. 2 is offered, with respect to the security ESQUE5PY, an investment term of 912 days, a rate of 8.02% and a total award amount of S/ 1’700,000. Likewise, in the case of the second client detailed in Table No. 2, they are offered, with respect to the security ESQ6CP2J, an investment term of 180 days, a rate of 7% and a total award amount of S/ 1’200,000, even indicating that the investment proposal is attached;

That, furthermore, it can be seen that in the cases described in Table No. 2, the purchase order of Diviso's clients on the date of award of the Esquema securities fully matched the investment proposal that had been sent to them;

That, in this way, the third client in Table No. 2 is told that the investment proposal is attached with respect to the security ESQ6BC1I, in which an investment term of 370 days, a rate of 7.5% and a total award amount of S/ 1’600,000 are offered, and subsequently the purchase order sent by said client, on the placement date, is made exactly under the same conditions as those contained in the investment proposal, so that an acceptance of the offer contained in the investment proposal is clearly seen

Electronic document digitally signed within the framework of Law No. 27269, Law on Signatures and Digital Certificates, its Regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmapenug.gob.pe/web/validador.xhtml

"Decade of Equal Opportunities for Women and Men"

"Year of the Bicentennial, of the consolidation of our independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

sent to the client; which also shows that Diviso's statement that the Involved Persons only sent information of a general nature so that potential investors would later send their investment proposals does not conform to the reality of the facts;

That the foregoing also contradicts Diviso's statement that at the time the Involved Persons sent the emails to the clients, the characteristics of the securities to be issued were not yet taken into account, since as can be seen from the text of said emails, the Involved Persons concretely offered interest rates, investment terms, among others, for the placement of the Esquema securities;

That, therefore, this Office observes that the Involved Persons did not send information of a merely administrative nature or general informative documents generated by the issuer or the placement agent, but rather concretely offered investment proposals for the placement of the Esquema securities, indicating specific information referring to said investment proposals, such as investment terms, interest rates, among others;

That, with respect to Diviso's argument that the investors to whom the offer was addressed had the status of institutional investors and were habitual buyers of the private placements in which it participated as placement agent, so that the information conveyed by the Involved Persons did not influence their investment decision, it must be indicated that what is not discussed in this proceeding is the status of institutional investors that the potential buyers of the Esquema securities offer had or whether or not they had previously participated in the purchase of securities from private offers, but specifically whether the Involved Persons carried out the activity of placement of securities of the Esquema offer, regardless of the characteristics or conditions that the recipients or potential investors of said offer could have;

That, therefore, in accordance with the foregoing, this Office agrees with the conclusions indicated in section B) of numeral 3.4 of the Sanction Resolution, regarding the fact that the Involved Persons carried out the activity of placement of securities of the Esquema offer, without having the status of Diviso Representatives;

That it is important to take into account that, in accordance with subsection q) of article 2 of the RAI, Representatives are the natural persons who, duly authorized as such, may act on behalf of the stock brokerage firm for the performance of the operations indicated in article 194 of the LMV, among them the placement in the domestic and international market of securities, an activity that, in accordance with subsection d) of article 40 of the RAI, cited above, is reserved for the investment officer type Representative of a stock brokerage firm;

That, on the other hand, with respect to Diviso's argument that the Sanction Resolution would have infringed the principle of typicity, it must be taken into account that said principle is set forth in numeral 4) of article 248 of the TUO LPAG;

Electronic document digitally signed within the framework of Law No. 27269, Law on Signatures and Digital Certificates, its Regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at: https://apps.firmaperu.gob.pe/web/validador.xhtml

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

Article 248.- Principles of the administrative sanctioning power

The sanctioning power of all entities is additionally governed by the following special principles:

(...)

4. Typicality.- Only infractions expressly provided for in norms with the rank of law, through their classification as such, constitute administratively sanctionable conducts, without admitting extensive interpretation or analogy. The regulatory provisions for development may specify or graduate those aimed at identifying conducts or determining sanctions, without constituting new sanctionable conducts beyond those legally provided for, except in cases where the law or Legislative Decree permits the classification of infractions by regulatory norm.

Through the classification of infractions, the compliance of obligations not previously provided for in a legal or regulatory norm, as applicable, cannot be imposed on the administered.

(...)." Underlining added.

That, likewise, in the Judgment issued in Exp. No. 01873-2009-PA/TC, the Constitutional Court has indicated regarding the principle of typicality that:

"(...). This requirement derives from two specific legal principles: that of freedom and that of legal certainty. According to the first, conducts must be exactly delimited, without indeterminacies, while in relation to the second, citizens must be in a position to predict, in a sufficient and adequate manner, the consequences of their acts, so that general or indeterminate clauses of infraction that allow action left to the "arbitrium" of the administration are not admissible, but rather it must be prudent and reasoned.". Underlining added.

That, as can be seen from the foregoing, the principle of typicality requires that the conducts established as infractions must be exactly limited and without indeterminacies, so that citizens can know the consequences of their acts. In that sense, the infraction type for which Diviso is sanctioned is the one contained in Annex X (referring to intermediation agents, among others), item 1, numeral 1.4 of the SMV Sanctions Regulation, which states textually the following:

"1.- Very Serious

(...)

Maintain directly or indirectly persons who have any legal or regulatory impediment, not observe that these comply with the requirements established in the current regulations, or allow or facilitate these to develop activities related to those of the intermediation agent."

Electronic document digitally signed within the framework of Law No. 27269, Law of Signatures and Digital Certificates, its Regulation and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmapenug.gob.pe/web/validador.xhtml

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

That, in this regard, from a literal reading of the infraction type cited above, it can be seen that it refers, among others, to the intermediation agent allowing or facilitating that persons who do not have the proper authorization carry out activities related to the functions of the intermediation agent, which in the opinion of this Office has occurred in the present case since as has been proven, the Involved Persons who are not authorized Representatives of Diviso, carried out the activity of placement of securities of the Esquema offer, an activity that according to the provisions of subsection d) of article 40 of the RAI can only be carried out by the Representatives (investment officer) of the intermediation agent;

That, Diviso alleges that the Sanction Resolution violates the principle of typicality, since the SMV intends to sanction a conduct, attributing to it results that the securities market regulations do not recognize, such as that the delivery of information on securities in the invitation to offer generates a legal act.

That, in this regard, it must be indicated, as has already been pointed out, that the Involved Persons have not transferred to potential investors information of a general nature, such as informative prospectuses or offer notices, but rather it is seen from the emails in the file, that quotes and/or investment proposals were sent regarding the securities that would be issued by Esquema, even offering certain types of rate and term;

That, therefore, there is no doubt as Diviso points out regarding what should be understood by placement of securities and an invitation to offer, taking into account that it has been reliably proven that the Involved Persons carried out activities of placement of securities of the Esquema offer. In that sense, the principle of lawfulness is not applicable, taking into account that there is evidentiary material in the present proceeding that proves the commission of the imputed infraction.

B. Regarding the use of "Inquisitorial Evidence"

That, on the other hand, this Office does not appreciate, as Diviso refers, that in the present administrative sanctioning proceeding the burden of proof would have been shifted, requesting or requiring that Diviso prove that it did not incur the infractions that were imputed to it;

That, in that sense, it is observed that the reading that Diviso makes of the paragraphs of the Sanction Resolution and the OAJ Report, in its complementary defense brief, is partial, since in the same paragraph that it cites it is stated that "(...) there is evidence that Diviso SAB, through natural persons who did not have the status of Representatives, has made offers of securities to potential investors (...)":

145. No obstante, Diviso SAB no ha podido demostrar en las indagaciones preliminares y en el presente procedimiento administrativo que como sociedad agente, y por tanto sus Representantes, en la oferta privada de valores mobiliarios emitidos por ESQUEMA, sólo han participado en la recepción de órdenes de compra y ejecución de las mismas, sino que más bien se cuenta con evidencias de que Diviso SAB, a través de personas naturales que no tenían la calidad de

Decenio de la Igualdad de Oportunidades para Mujeres y Hombres Año del Bicentenario, de la consolidación de nuestra Independencia, y de la conmemoración de las heroicas batallas de Junín y Ayacucho

Representatives, has made offers of securities to potential investors, who have then ordered the purchase of these offered securities;” (Underline added);

That, in the same manner, in paragraph 162 of the Sanction Resolution cited by Diviso it is indicated that from the events that occurred and the content of the aforementioned emails, it is appreciated that the Involved Persons participated in the process of placement of the securities:

“162. Therefore, in the events that occurred it is observed that the acts of offering securities cannot be dissociated from the acts of receiving and executing purchase orders in this primary private offering of securities, so it is not possible to ignore that in the process of placement of the analyzed securities [illegible text] and [illegible text] intervened in accordance with the content of the emails detailed above. Likewise, the brokerage firm has not been able to demonstrate that only its duly authorized Representatives participated in the process of placement of securities;” (Underline added);

That, in accordance with the foregoing, this Office appreciates that the paragraphs cited by Diviso from the Sanction Resolution in no way shift the burden of proof to the administered party imputed for the commission of the infraction, but rather from a logical reading of them, it is appreciated that reference is made to the existence of evidentiary evidence (emails) that confirm that Diviso has incurred the imputed infraction and that the administered party has not been able to contradict or rebut during the preliminary inquiries and the present administrative procedure;

That, in that line, it must be noted that this Office has had before it, among others, the emails sent by the Involved Persons to Diviso's clients, which were incorporated into the record of the present procedure, as part of the investigation tasks carried out by the instructing body, and which have been detailed in Table No. 2 cited in the present resolution;

That, in addition to all of the foregoing, in the paragraphs following those cited by Diviso in the Sanction Resolution, the analysis of the evidentiary material that led the first-instance body to the conviction that Diviso incurred the imputed infraction is developed. In that sense, some of said considerations are transcribed below:

“146. The evidence is mentioned below, analyzing the content of each of the questioned emails;

147. Thus, with respect to the security ESQUE5PY, it is held that [illegible text] and [illegible text] sent, respectively, emails on 2 September 2019 at 12:44 p.m. and 16:19 p.m. (to the email address of the

Decenio de la Igualdad de Oportunidades para Mujeres y Hombres Año del Bicentenario, de la consolidación de nuestra independencia, y de la conmemoración de las heroicas batallas de Junín y Ayacucho

same client⁵), in which they state that they attach the quotations indicated by the client. In the case of the email sent by [redacted], it is expressly stated: "As per your instructions, I attach the indicated quotations; as agreed, I will contact you by telephone"; then, in the case of the email sent by [redacted], it is expressly stated: "Good afternoon, I attach quotation for 2.5 years" and the following is seen as an attachment: "Esquema 2.5 años.pdf". It should be noted that on 9 September 2019, the client to whom [redacted] and [redacted] addressed themselves acquired the security ESQUE5PY of the "Quinto Programa Privado de Emisión de Instrumentos de Corto Plazo y Bonos Corporativos de Esquema Investment SERIE Y", as can be corroborated from the written purchase order signed by the client⁶, as well as from the information in the purchase policy⁷;

148. Then, in relation to the security ESQ6CP2J, it is the case that [redacted] sent an email on 14 September 2020 in which they expressly state: "I attach investment proposal (…)." It should be noted that on the same date, the client to whom [redacted] addressed the email acquired the security ESQ6CP2J of the "Segunda Emisión de Instrumentos de Corto Plazo del Sexto Programa Privado de Emisión de ICP y BC de Esquema Investment S.A. SERIE J", as can be corroborated from the purchase order signed by the client, as well as from the information in the purchase policy; (Underline added);

That, therefore, this Office considers that there is evidentiary material that, as has been indicated above, proves the commission of the imputed infraction by Diviso, so there has been no transfer or breach of the burden of proof in this administrative sanctioning procedure, which was at all times borne by the administration; and,

In accordance with the provisions of numeral 26 of article 12° of the Regulations on Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF;

RESUELVE:

Article 1°.- Declare unfounded the appeal filed by Diviso Bolsa Sociedad Agente de Bolsa S.A., against Deputy Superintendency Resolution SMV No. 032-2022-SMV/10.

Article 2°.- Consider the administrative remedy exhausted.

Article 3°.- Transcribe this resolution to Diviso Bolsa Sociedad Agente de Bolsa S.A. and the Bolsa de Valores de Lima S.A.

[5] Email registered in the Intermediation Contract of the aforementioned client.

[6] According to the orders sent by DIVISO SAB to the IGSE in the preliminary inquiry stage.

[7] Policies that DIVISO SAB presents in compliance with its information submission obligations as a stock brokerage firm, and which is obtained from the SLAI system.

PERU
Ministry of Economy and Finance
SMV
Superintendency of the Market in Securities

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

Article 4.- Order the publication of this resolution on the Institutional Page of the Superintendency of the Market in Securities on the Single Digital Platform of the Peruvian State (www.gob.pe/smv).

Register, communicate and publish.

Signed by: MASIAS QUIRO[?]
FAU [?] 20131016396 soft
Reason: [?]

Lorena Masias Quiroga
Superintendent of the Market in Securities

Signed by: GIL VASQUEZ Liliana FAU 20131016396 soft Reason:

Signed by: VARGAS PIÑA Julio Cesar FAU 20131016396 Reason: