Evidentiary Brief

Noncompliance with Set-off Order

The starting point. The <doc id="pty-202300033850-2023-05-09-a" /> that initiated this investigation established that the Eleventh Circuit Civil Court of Panama, in the ordinary proceeding <law id="pty-556-99" />, recognized through <doc id="pty-556-99-2018-12-05-a" /> dated December 5, 2018, that the dividends retained from Lisa, S.A. far exceeded the judgment amount in favor of Villamorey, S.A., and ordered set-off as the mechanism to conclude the proceedings without auctioning Lisa's shares.

The brief emphasizes that, as of the filing date, Juan Luis Bosch Gutiérrez has not complied with that judicial instruction. As judicial depositary, he was obligated to return the excess retained funds. His sustained omission over more than six years constitutes, according to Lisa, the factual basis for the embezzlement offense under investigation.

"Esta (VILLAMOREY) mantiene retenidos en depósito desde el 27 de octubre de 2007 dividendos de Lisa S.A. con motivo del secuestro decretado como propietaria del 33.3% del capital social de Villamorey S.A., dividendos que a la fecha de su depósito según las constancias en autos, superan en demasía el monto de la pretensión de reconvención, y la ejecución de la sentencia" (Page 2)

Illegality of Capital Increase

Practical effect. While Bosch retained Lisa's funds, Villamorey executed a capital increase through Public Deed No. 19,612 dated September 27, 2022, executed before Panama's Eighth Circuit Notary. Lisa maintains that this transaction had the sole purpose of diluting its 33.3% shareholding and concealing the unlawfully retained funds.

Legal framework. The brief presents a detailed analysis of Law No. 32 of 1927 (Panama's Corporations Law) to demonstrate that the capital increase was executed in violation of mandatory formal requirements:

• Article 10 requires that any amendment to the articles of incorporation be signed by holders of all subscribed shares with voting rights, or authorized by a majority of shareholders at a duly convened meeting.
• Articles 40 and 42 provide that notice for shareholders' meetings must be in writing, specifying the purpose, place, and time, and delivered no less than ten days and no more than sixty days in advance, by personal delivery or mail to each registered shareholder.
• Lisa, as holder of 33.3% of the share capital, was neither notified nor present at the meeting that approved the amendment.

The brief cites jurisprudence from Panama's First Superior Tribunal (judgment of December 29, 1995, Taboada Dopeso v. Taboada Dopeso et al.) that annulled a shareholders' meeting resolution for failure to properly notify the minority shareholder, holding that the omission of proper notice renders the adopted resolutions absolutely null and voids all subsequent acts derived from them.

Procedural Obstruction

Lisa reports that Galindo, Arias & López (GALA), the law firm serving as Villamorey's registered agent, has systematically obstructed procedural steps. GALA's staff have denied knowledge of the company they represent when receiving notifications from the Public Ministry's Notification Center, preventing delivery of official requests for financial information. This pattern is replicated in civil proceedings, where Lisa reports that its collection claims are deliberately delayed by Villamorey and its counsel.

Relief Sought

• That provisional seizure be applied to the funds held by Bosch as judicial depositary, pursuant to Article 253 of Panama's Criminal Procedure Code.
• That such funds be placed at the disposal of the Public Ministry, either by the financial institution where they are deposited or through transfer to the Custody Fund Account of the Attorney General's Office at Banco Nacional de Panama.

Legal Basis

• Article 253 of the Criminal Procedure Code — Authorizes provisional seizure of assets connected to a criminal investigation.
• Articles 7, 8, 10, 40, and 42 of Law No. 32 of 1927 — Govern amendments to articles of incorporation, share issuance, and shareholders' meeting notices for Panamanian corporations.

Signatories

• Carlos De Icaza Muñoz, Attorney for Lisa, S.A., ID 8-398-619