Adjunct Superintendent for Prudential Supervision Resolution No. 019-2025-SMV/10 — SMV — PE

PERU Ministry of Economy and Finance

SMV
Securities Market Superintendency
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 Adjunct Superintendent Resolution SMV No. 019-2025-SMV/10 Lima, April 7, 2025 Subject: El Dorado Asset Management Fund Management Company S.A. is sanctioned with a reprimand, for having committed one (1) serious infringement typified in
Annex I, numeral 2, clause 2.17 of the SANCTIONS
REGULATION, for having disseminated information that constitutes a material fact without having previously communicated it to the SMV.
Administered by: El Dorado Asset Management Fund Management Company S.A.
Subject: Administrative sanctioning procedure
File No.: 2025005035
The Adjunct Superintendent for Prudential Supervision SEEN:
The administrative file No. 2025005035, and Report No. 323-2025-SMV/10.3, issued by the General Superintendent of Prudential Compliance; as well as the defenses presented by El Dorado Asset Management Fund Management Company S.A. and, CONSIDERING:

Pursuant to Article 1 of Law No. 29782, Law for the Strengthening of 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 Securities Market Superintendency (SMV), therefore any reference to CONASEV in legal norms shall be understood as referring to the SMV;
I. FACTS
By Letter EMI-094/2021 dated March 9, 2021, the Lima Stock Exchange S.A. (BVL) requested information from El Dorado Asset Management Fund Management Company S.A. (hereinafter, EL DORADO SAF) regarding the statements made in the "Gestión" newspaper on the same date, March 9, 2021, concerning the upcoming placement of the ETFs of the "Van Eck El Dorado Peru ETF Fund" (hereinafter, ETF FUND), as well as the "launch" date of the ETF FUND scheduled for Friday, March 12, 2021;

PERU Ministry of Economy and Finance

SMV
Securities Market Superintendency
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
3. It should be noted that in the publication of the Gestión Newspaper of March 9, 2021, representatives of EL DORADO SAF declared regarding the ETF FUND that: "A new exchange-traded fund (ETF) will be launched this Friday at the Lima Stock Exchange (BVL).";
4. By written communication sent on March 15, 2021 1 in the capacity of a material fact, EL DORADO SAF responded to the request made by the BVL, in which it indicated that the information disseminated in the "Gestión" newspaper was public knowledge, as the ETF FUND was registered in the Public Registry of the Securities Market (RPMV);
5. Likewise, it stated that on March 10 2 and 11 3, 2021, it sent to the SMV the material facts referred to the placement date of the ETF FUND units; as well as the start date of activities of the ETF FUND, respectively. Furthermore, the intermediary specified that on Friday, March 12, 2021, the book entry of the participation units of the ETF FUND was made in CAVALI;
6. In this sense, with Office No. 702-2025-SMV/10.3, notified on February 7, 2025 (hereinafter, CHARGES OFFICE), an administrative sanctioning procedure was initiated against EL DORADO SAF having found indications of infringement regarding what is established in the Securities Market Law, Legislative Decree No. 861, whose Consolidated Text was approved by Supreme Decree No. 020-2023-EF (hereinafter, LMV), the Regulation of Mutual Investment Funds in Securities and their Management Companies, approved by CONASEV Resolution No. 0068-2010-EF/94.01.1 and its amendments (hereinafter, REGULATION), and the Regulation of Material Facts and Confidential Information, approved by SMV Resolution No. 005-2014-SMV/01 and its amendment (hereinafter, RHI), in force at the time the facts occurred;
7. By written document received on February 18, 2025, EL DORADO SAF presented its defenses to the observations made;
8. The charges formulated, as well as the defenses presented by EL DORADO SAF, have been the subject of evaluation by the General Superintendent of Prudential Compliance in Report No. 323-2025-SMV/10.3, which has been submitted to the knowledge of this Adjunct Superintendency;
9. In observance of the Principle of Due Process contemplated in Article IV, clause 1, numeral 1.2 of the Preliminary Title, as well as in Article 248, numeral 2, of the TUO OF THE LPAG, through Office No. 1296-2025-SMV/10, the administrative file to which this resolution refers was made available to EL DORADO SAF for its review;
II. MATTERS TO BE DETERMINED
10. In the present administrative procedure, in the opinion of this Adjunct Superintendency, it corresponds to determine the following:
a. Whether EL DORADO SAF incurred or did not incur infringement of what is provided in Article 30 of the LMV, Article 131 of the REGULATION and Articles 3, 9 and 18, numeral 18.1 of the RHI, by having disseminated information regarding the placement date of the ETF FUND units through the information published in the "Gestión" newspaper on March 9, 2021; which constituted a material fact that was not communicated to the SMV; b. Whether it corresponds or not to impose a sanction on EL DORADO SAF;
III. ANALYSIS
3.1. Of the applicable regulations
11. Article 30 of the LMV 4
, provides as follows regarding material facts:
"Article 30.- Material Facts
The registration of a certain security or issuance program entails for its issuer the obligation to inform the SMV and, if applicable, the respective stock exchange or entity responsible for the conduct of the centralized trading mechanism, of material facts, including ongoing negotiations, regarding itself, the security and the offer made thereof, as well as to disseminate such facts in a truthful, sufficient and timely manner. The information must be provided to said institutions and disseminated as soon as the fact occurs or the issuer takes knowledge of it, as the case may be. The importance of a fact is measured by the influence it may exercise on a sensible investor to modify their decision to invest or not in the security."
12. Similarly, Article 131 of the REGULATION establishes the following:
"Article 131.- Material Facts
The management company is obligated to send all information regarding the mutual fund under its administration that qualifies as a material fact for investors, in accordance with what is provided in the regulation on the matter, as well as by the provisions issued by the SMV. It must also be sent as a material fact any information referring to the management company itself that meets the scenario provided in the second paragraph of Article 28 of the Law for the participants and potential investors of the mutual fund under its administration. Additionally, the management company is obligated to communicate as a material fact, any information that could influence the behavior of the mutual fund, the share value and, in general, any information that could influence the appreciation of an investor regarding the performance of the mutual fund. (...)."
13. Likewise, Article 3 of the RHI states the following:
"Article 3.- Definition of material fact
A material fact is any act, decision, agreement, fact, ongoing negotiation or information referring to the Issuer, its securities or its businesses that have the capacity to significantly influence:

Digital Signature according to Article 28 of Legislative Decree No. 861 and its amendments.

PERU Ministry of Economy and Finance

SMV
Securities Market Superintendency
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
3.1. The decision of a sensible investor to buy, sell or hold a security; or,
3.2. The liquidity, price or quotation of the issued securities.
It also comprises information of the Issuer's economic group that the Issuer knows or should reasonably know, and that has the capacity to significantly influence the Issuer or its securities, as stated in this Regulation."
14. Likewise, Article 9, numeral 9.1 of the RHI provides as follows:
"Article 9.- Opportunity to inform material facts
9.1. The Issuer must inform its material fact as soon as such fact occurs or the Issuer takes knowledge of it, and in no case later than the day it occurred or was known. This information must be communicated to the SMV before any other person, entity or means of dissemination, and simultaneously when applicable to the Stock Exchange or the entity administering the respective centralized trading mechanism. This, regardless of whether the information was generated or not within the Issuer itself;
(...)" (Underline added);
15. Additionally, numeral 18.1 of Article 18 of the RHI establishes the following:
"Article 18.- Information Policy
18.1. The issuer, as well as its directors and officials, must observe and ensure that information qualifying as a material fact is informed to the SMV, and simultaneously when applicable, to the stock exchange or to the entity administering the respective centralized trading mechanism, and necessarily before any other natural or legal person, or media outlet.
(...)." (Underline added);
3.2. Of the charge formulated
16. On Tuesday, March 9, 2021, representatives of EL DORADO SAF declared to the Gestión Newspaper, regarding the "Van Eck El Dorado Peru ETF Fund" (hereinafter, ETF FUND), that: "A new exchange-traded fund (ETF) will be launched this Friday at the Lima Stock Exchange (BVL).", that is, through said journalistic note the management company indicated that the launch date of the ETF FUND would be on Friday, March 12, 2021;
17. In this context, it should be noted that the ETF FUND, as well as its participation units (hereinafter, participation shares), were registered in the Public Registry of the Securities Market (RPMV 5
); in this sense, the ETF FUND is an exchange-traded fund whose participation shares are placed through a public offer;

By General Superintendent Resolution No. 0189-2021-SMV/10.2, the registration of the Exchange-Traded Fund or ETF named "Van Eck El Dorado Peru ETF Fund", as well as its participation units, participation regulation, simplified prospectus and administration contract, was ordered in the corresponding section of the RPMV.

PERU Ministry of Economy and Finance

SMV
Securities Market Superintendency
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
18. Being so, the declaration regarding the launch date of the ETF FUND referred to the placement date of the participation shares of said exchange-traded fund, which, according to Article 66 of the REGULATION 6
, constitutes a material fact;
19. Although on March 10, 2021, EL DORADO SAF communicated to the SMV as a material fact that the start of the placement of the participation shares of the ETF FUND occurred on that date, on March 9, 2021 the management company had already informed the public through a media outlet, such as the Gestión Newspaper, the information referred to the placement of the ETF FUND units; therefore it already constituted a fact with the capacity to significantly influence the decision of the potential investor, since the potential investors of said values already had information of a date for the placement of the units without this having been communicated as a material fact before being disseminated through said media outlet;
20. Additionally, regardless of whether the placement was carried out on Wednesday, March 10, 2021, according to the material fact communicated to the market, with the information disseminated by the management company on March 9, 2021, potential investors could take various investment decisions regarding the acquisition of said participation shares;
21. For the above, EL DORADO SAF would have disseminated information regarding the placement date of the ETF FUND units through the information published in the "Gestión" newspaper on March 9, 2021; which constituted a material fact according to what is provided in Article 66 of the REGULATION ; however it omitted to communicate said information in due time;
22. Consequently, EL DORADO SAF would have failed to comply with what is established in Article 30 of the LMV, Article 131 of the REGULATION and Articles 3, 9 and 18, numeral 18.1 of the RHI;
23. Therefore, it was imputed to EL DORADO SAF that it would have committed one (1) infringement qualified as serious, according to Annex I, numeral 2, clause 2.17 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), according to which it constitutes an infringement "To disseminate information that constitutes a material fact without said information having been previously communicated to the SMV."
3.3. Of the defenses presented
24. EL DORADO SAF states as a first point that from the journalistic note published on March 9 in the Gestión newspaper, it does not follow that the statement: "A new exchange-traded fund (ETF) will be launched this Friday at the Lima Stock Exchange (BVL)", was part of the declaration of the representatives of EL DORADO SAF, but rather, in the opinion of the management company, said statement is authored by the journalist and the editor when drafting the note. Likewise, according to EL DORADO SAF, it is evident that in the third paragraph of the journalistic publication, reference is indeed made to the statements of Mr. Melvin

"Article 66 .- START OF PLACEMENT OF UNITS
(...)
The start of the placement of units must be communicated as a Material Fact.
(...)."

PERU Ministry of Economy and Finance

SMV
Securities Market Superintendency
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 Escudero, a situation that does not occur in the first paragraph of said publication, according to what is stated by the management company. Therefore, according to EL DORADO SAF, the advertiser and holder of the statement, regarding the launch of the ETF, is the journalist and their editor;
25. On the other hand, as a second point, EL DORADO SAF argues that in the event that the representative of the management company had made the questioned declaration, the word "launch" is not a synonym and does not have the same meaning as the legal/financial figure of "start of placement". In this sense, EL DORADO SAF maintains that the simile realized by the SMV when giving it equal meaning is not applicable;
26. Likewise, the management company states that the start of placement of units is a specific legal/financial figure in the REGULATION, specifically in Articles 66, 83 and 83-A, where reference is made that the placement of units is: "The activity that involves all or some of the processes of subscription, redemption, transfer and transfer of units";
27. Additionally, EL DORADO SAF specifies that nowhere in the REGULATION or in the TUO of the LMV is reference made to "launch or launch" as a regulated term equal or similar to the term of placement or start of placement. Moreover, according to the management company, said term (placement or start of placement) is a sophisticated concept with financial legal connotation; this, unlike the word launch or launch, which does not have a determined meaning by the Securities Market and does not have a financial legal connotation, but is a generic, indeterminate term of simple meaning;
28. Thus, EL DORADO SAF states that, according to the Royal Spanish Academy (RAE), the word "launch" means: "Throw, let go, set free" and other synonyms, among which, the word "placement" or "place" is not visualized, which has, -according to what is manifested by the management company- a different meaning and refers to "put someone in their place or something in its proper place" or "invest money" and in whose synonyms the word "Launch" is not verified;
29. Therefore, EL DORADO SAF argues that it is incorrect to indicate that the words "launch" and "place" have a similar meaning or are synonyms. Therefore, according to the management company, in the event that some representative of EL DORADO SAF had made the questioned statement, it should not be understood as the start of placement of the ETF FUND units;
30. For its part, as a third point, EL DORADO SAF states that in the event that the declaration had been made by representatives of the management company, and under the interpretation of the SMV that the concept "launch" is equal to "start of placement of units", from the statement made on March 9, 2021: "A new exchange-traded fund (ETF) will be launched this Friday at the Lima Stock Exchange (BVL)", according to the management company, it follows that the placement of units would be carried out on Friday, March 12, 2021 and not on March 9, 2021 and in this sense, it states that the date recorded is exact and unambiguous;

PERU Ministry of Economy and Finance

SMV
Securities Market Superintendency
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
31. Being so, EL DORADO SAF indicates that on March 10, 2021 it communicated via material fact the start of placement and start of activities of the ETF FUND, a date prior to March 12, 2021 referred to in the statement made. Therefore, according to EL DORADO SAF, said statement has no factual corroboration, since the start of the placement and its communication to the Securities Market was prior to the probable date indicated in the journalistic note, and therefore, according to EL DORADO SAF, it is not true that the fact was communicated before being communicated to the securities market;
32. Thus, in a fourth point, EL DORADO SAF mentions that within the argumentation made by the SMV, it is indicated that the fact that the communication via material fact about the start of placement of units was communicated on March 10, 2021 and not on March 9, 2021, had the effect, the significant influence on the decision of the potential investor and that these could take various investment decisions regarding the acquisition of said participation shares;
33. Nevertheless, EL DORADO SAF maintains that -in its opinion- there is no affectation in the investment decision of the potential investor or in their freedom to opt for other decisions, since, on the date of the declaration, the product was not yet traded and therefore, it was not susceptible to acquisition. In this sense, EL DORADO SAF mentions that if the investor had wanted to acquire the ETF, they would not have been able to do so and would have been free to opt for any other investment;
34. Additionally, EL DORADO SAF states that, between the day of the declaration and the communication of the material fact of start of placement, there is only a one-day difference, so it is not usual, according to the management company, that in one day one can influence the investment decision or its change;
35. In that line, as a fifth point, EL DORADO SAF refers that prior to the interview, the product was already registered in the Public Registry of the Securities Market and listed on the Lima Stock Exchange (BVL), therefore, according to what the management company states, it was public knowledge that it was going to start its placement soon. In this sense, EL DORADO SAF states that, on the date of publication of the journalistic note, there was no paper that was traded and therefore it was impossible that the information provided was exploited by institutional or retail investors;
36. In this way, EL DORADO SAF indicates that the published journalistic note was a general interview, making known the product and its conditions and that at no time was reference made to possible variables that were susceptible to influence the decision-making of investors, so no material damage to the market and to the decision-making of potential investors is evidenced;
37. Likewise, it states that, from an analysis of the main indices on the date of publication of the note, no greater volatility is observed in them, so, according to what is specified, there was also no affectation to the price formation. According to the following table attached:

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
38. Additionally, EL DORADO SAF develops the sanctioning criteria in accordance with Article 25 of the SANCTIONS REGULATION and in relation to the circumstances of the commission of the offense, stating that the alleged infringement committed occurred in the context of a journalistic interview, where, according to the managing company, it is not within its sphere of control what the journalist, editor, and editorial committee publish in their media. EL DORADO SAF adds that, when the interview was conducted, the representative of the managing company spoke in a generic and indeterminate manner about the product to be placed, without greater technical precision and without any intention of capturing or attracting future investors;
39. Likewise, EL DORADO SAF maintains that there is no harm caused and repercussion on the market, since, between the date of the declaration and the material fact of the start of placement, there is only a one-day difference, so it is not usual that in one day one can influence the investment decision of a potential investor or the formation of prices;
40. Likewise, EL DORADO SAF specifies that on March 9, 2021, the product was not yet traded, so it was not susceptible to acquisition and potential investors had the freedom to choose other options. Additionally, EL DORADO SAF specifies that at no time was there talk of quantitative data or referring to profitability, which, in its understanding, is the most important aspect in an investor's decision-making, so it could not be presumed that there was real or potential harm in the market or in the decision-making of any investor;
41. Additionally, the managing company refers that from an analysis of the main indices on the date of publication of the note, no greater volatility is observed in them, so there would also have been no affectation to the formation of prices;
42. In that line and in relation to the probability of detection of the infringement, EL DORADO SAF reiterates that it was not within its sphere of control what the journalist, editor, or editorial committee could affirm in their communication medium, since they are the ones who act as advertisers and the legal implications would be with them;
43. Also in relation to the gravity of the damage to public interest and/or the protected legal interest, EL DORADO SAF states that the published note refers to general characteristics and usual conditions within the Peruvian stock market and specifies that it did not make any statement regarding

PERÚ Ministerio de Economía y Finanzas

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 quantitative variables susceptible of influencing investors or the market, or that could be exploited by them;
44. In relation to the existence or non-existence of intent in the infringer's conduct, EL DORADO SAF states that the statement about the launch of the product was of authorship or interpretation by the interviewer and their editorial team; and that, at no time did the representatives of the managing company have the intention to make it understood, through the interview, that on that date the placement of the product began;
45. EL DORADO SAF adds that henceforth, any journalistic interview or note conducted with any of its representatives, regarding future products to be placed in the market or existing products, before publication will pass through the review and approval of the internal control official and the legal area of EL DORADO SAF;
3.4 Evaluation of the defenses
46. In relation to the first point of the defenses made by EL DORADO SAF, it must be specified in principle that, in the CHARGES OFFICE, no mention has been made that the information published in the journalistic note on March 9, 2021, referring to “A new Exchange Traded Fund (ETF) will be launched this Friday at the Lima Stock Exchange (BVL)” (hereinafter, INFORMATION ON THE ETF FUND), was made by the General Manager of the managing company, but by representatives of EL DORADO SAF, as is evident from the journalistic note and the response provided by EL DORADO SAF to the clarification request made by the BVL; in which, the managing company stated that “(…) the information stated in the mentioned article - in which representatives of El Dorado SAF are cited verbatim - refers to data of public knowledge (…). That is to say, with this response, the managing company not only did not deny that such a declaration was made by representatives of the managing company, but also stated that in said journalistic article, representatives of EL DORADO SAF were cited verbatim;
47. Additionally, it should be noted that in the arguments of the defenses, referring to the circumstances of the infringement, the managing company has stated that “(…). When the interview was conducted, our representative spoke in a generic and indeterminate manner about the product to be placed, (…)”. With this, the managing company itself confirms that the INFORMATION ON THE ETF FUND was provided by representatives of EL DORADO SAF;
48. Likewise, it must be taken into account that upon conducting a complete and integral review of the information derived from the aforementioned journalistic note, it is determined that both the INFORMATION ON THE ETF FUND and the note as a whole provide relevant information about the ETF FUND, as well as about the managing company in charge of introducing said product to the market, that is, EL DORADO SAF;
49. Therefore, the INFORMATION ON THE ETF FUND could not be attributed to a declaration or statement of authorship by the journalist or editor of the journalistic note, as the managing company states, especially when if the INFORMATION ON THE ETF FUND did not correspond to information stated by representatives of EL DORADO SAF, the managing company should have adopted the corresponding actions to verify that information not declared by its representatives was not published;
50. On the other hand, regarding the second point of the defense writing, it is necessary to point out that although EL DORADO SAF states that the term “launch” does not have a determined meaning by the securities market, and that it is not regulated in the SMV LAW, it has not managed to explain the meaning of the term “launch” that it used in the INFORMATION ON THE ETF FUND;
51. Likewise, as EL DORADO SAF correctly indicates, the term “launch” does not have a regulated meaning in the securities market regulations, so when referring to the “launch” of a product in the market like the ETF FUND on a specific date, it cannot have any other connotation than the figure of the placement of the ETF FUND securities, and not because they are grammatical synonyms, given that with this information the market was already being informed of the possibility of investment in the ETF FUND securities, which is in accordance with what is established in Article 83-A, cited by the managing company, that is, that the placement of securities implies the process of subscription of securities, inasmuch as a date was given that could be considered by the public, who took knowledge of said information, as the date on which the ETF FUND securities could be acquired;
52. It should be specified that the ETF FUND is a fund whose participation quotas were placed through a public offer, so in accordance with what is established in Article 48 of the SMV LAW, a public offer implies any act referred to the placement, acquisition, or disposal of securities, so taking into account that it was information about a new product provided by its managers, it could not have any other scope or connotation in the market than the placement of the ETF FUND securities, especially when the managing company has not specified what specific connotation the INFORMATION ON THE ETF FUND had, since it only limits itself to stating that it is a generic term;
53. In this sense, the managing company has not managed to disprove that the term “launch” used in the INFORMATION ON THE ETF FUND referred to the placement of the ETF FUND quotas;
54. Regarding the third point of the defense writing, it is necessary to point out that, although on March 10, 2021, EL DORADO SAF communicated to the SMV the start of the placement of the participation quotas of the ETF FUND as a material event, and that therefore, it was on a date prior to that initially informed by the managing company through the journalistic note published in the Gestión newspaper (March 12, 2021), on March 9, 2021, the managing company had already disseminated to the general public a date for the placement of the ETF FUND quotas, as stated above, which should have been communicated to the SMV

“Article 83–A.- PLACEMENT OF QUOTAS
The placement of quotas is the activity that involves all or some of the processes of subscription, redemption, transfer, and transfer of quotas.
(…)”.
8 Article 4.- Public Offer.- It is a public offer of securities the invitation, adequately disseminated, that one or more natural or legal persons direct 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.

PERÚ Ministerio de Economía y Finanzas

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 as a material event before it is published through any other communication medium as a journalistic note;
55. In that sense, EL DORADO SAF, by having informed on March 9, 2021, through said communication medium, that the placement of the ETF FUND quotas would be carried out on March 12, 2021, did disseminate said information through the journalistic note, before being communicated to the market as a material event;
56. Additionally, it should be noted that according to what is stated in the Regulation, the aforementioned information qualifies as a material event. Therefore, regardless that on March 10, 2021, the managing company communicated the start of placement of the ETF FUND quotas, EL DORADO SAF should have communicated, as a material event, the INFORMATION ON THE ETF FUND, on the date that said information was provided and before it is published through the journalistic note;
57. Now, regarding the fourth point of the defense writing, it must be pointed out that although the managing company communicated on March 10, 2021 -as a material event- the start of the placement of the ETF FUND quotas, on March 9, 2021, through the previously mentioned communication medium, EL DORADO SAF had already informed the general public that March 12, 2021 would be the date for the placement of the ETF FUND securities, and in that sense, it could generate investment expectations in potential investors; and therefore, the INFORMATION ON THE ETF FUND already constituted a fact with the capacity to influence investment decisions in the ETF FUND regarding persons who could have had access to the aforementioned journalistic note, regardless of whether they had the possibility of opting for other investment alternatives, as the managing company asserts;
58. As for the fifth point of the defense writing, it must be pointed out that it is the managing company itself that states that the ETF FUND, being registered in the RPMV and listed on the BVL, was already public knowledge that its placement stage would soon begin; so that, any declaration or dissemination of information to the public regarding the “launch” of the ETF FUND, could refer concretely to the start of the placement of the quotas of said ETF FUND;
59. Likewise, it is necessary to reiterate that in the CHARGES OFFICE it has not been argued that on the date of publication of the journalistic note, March 9, 2021, the ETF FUND quotas could already be acquired, since the dissemination of the information provided by the managing company itself does not refer to the fact that the “launch” of the ETF FUND or its placement, as stated above, would be carried out on that same day, -March 9, 2021-, but on March 12, 2021, potentially generating expectations about the investment decisions of potential participants;
60. It should be indicated that the evaluation of what is mentioned by EL DORADO SAF in relation to the sanctioning criteria will be considered when carrying out the evaluation of the sanction to be imposed;
61. In view of the above, it is concluded that EL DORADO SAF has not disproven the charges imputed in the analyzed aspects;

PERÚ Ministerio de Economía y Finanzas

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
62. Consequently, taking into account the considerations stated, it is observed that EL DORADO SAF has incurred in one (1) infringement classified as grave, typified in Annex I, numeral 2, item 2.17, of the SANCTIONS REGULATION;
IV. EVALUATION OF THE SANCTION
63. In accordance with what is established in the regulations, the determination of sanctions will be carried out in accordance with Article 344 of the SMV LAW and Article 25 of the SANCTIONS REGULATION, in concordance with Article 248, numeral 39, of the Single Text of the General Administrative Procedure Law No. 27444 (hereinafter, TUO LPAG), as well as the mitigating and exempting conditions 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 10;
64. Within this framework, the evaluation of the sanction must consider: a) antecedents of the infringer; b) recidivism; c) the circumstances of the commission of the infringement; d) the harm caused and the repercussion on the market; e) the illicit benefit resulting from the commission of the infringement; f) probability of detection of the infringement; g) gravity of the damage to public interest and/or protected legal interest; h) the existence or non-existence of intent in the infringer's conduct;
65. In relation to the sanctioning antecedents, it must be stated that in accordance with Article 25, literal a) of the SANCTIONS REGULATION, antecedents constitute the firm sanctions imposed by the SMV within the period of four (4) years prior to the commission of the infringements to be sanctioned;

“Article 248°.- Principles of the administrative sanctioning power (…)
3. Reasonableness.- The authorities must foresee that the commission of the sanctionable conduct does not result in more advantage for the infringer 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 infringement, observing the following criteria that are indicated for the purposes of their graduation:
a) The illicit benefit resulting from the commission of the infringement; b) The probability of detection of the infringement; c) The gravity of the damage to public interest and/or protected legal interest; d) The economic harm caused; e) Recidivism, for the commission of the same infringement within the period of one (1) year from when the resolution sanctioning the first infringement became firm. f) The circumstances of the commission of the infringement; and g) The existence or non-existence of intent in the infringer's conduct”. “Article 257°.- Exempting and mitigating conditions of responsibility for infringements 1.- The following constitute exempting conditions of responsibility for infringements:
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 aptitude to understand the infringement. d) Mandatory order of 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 constitutive of an administrative infringement, prior to the notification of the charges referred to in item 3) of Article 253. 2.- The following constitute mitigating conditions of responsibility for infringements:
a) If an administrative sanctioning procedure has begun, the infringer recognizes their responsibility expressly and in writing.
In cases where the applicable sanction is a fine, it is reduced to an amount no less than half of its amount. b) Others established by special regulation”.

PERÚ Ministerio de Economía y Finanzas

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
66. In this sense, from the review carried out in said period, it has been verified that EL DORADO SAF presents as a sanctioning antecedent the Superintendency Resolution Adjunct SMV No. 016-2020-SMV/10, notified on August 4, 2020, through which EL DORADO SAF is sanctioned with two (2) warnings for having incurred in one (1) infringement of a grave nature typified in Annex XIX, numeral 2, item 2.12 of the Sanctions Regulation and one (1) infringement of a grave nature typified in Annex XVI, numeral 2, item 2.10 of the SANCTIONS REGULATION, for not having complied with presenting the Annual Special Audit Plan of the years 2018 and 2019, respectively, in accordance with the period established in the Norms for the Prevention of Money Laundering and Financing of Terrorism. This Superintendency Resolution Adjunct was not subject to challenge. The period of fifteen (15) business days for the filing of the administrative appeal expired on August 26, 2020;
67. In relation to recidivism for the commission of the same infringement, that firm sanction imposed by the SMV within the period of one (1) year prior to the commission of the infringement to be sanctioned is taken into account. Within this framework, it must be stated that EL DORADO SAF does not present sanctions, within the aforementioned period, for the commission of the same infringement subject of analysis in the present sanctioning procedure, so recidivism is not configured;
68. As for the circumstances of the commission of the infringement, it must be mentioned that EL DORADO SAF, in its capacity as a company supervised by the SMV that participates in a specialized and regulated market and with authorization of operation since November 27, 2017 11, knows the regulations that govern the securities market and its mandatory compliance in relation to the case evaluated in the present administrative sanctioning procedure;
69. However, EL DORADO SAF did not act with diligence in the fulfillment of its obligations as a managing company in accordance with the regulations applicable to it, that is, with the observance of what is established in the SMV LAW, the REGULATION, and the RHI, since it communicated the information on the ETF FUND without previously communicating it as a material event;
70. In that context, and in relation to what is argued by EL DORADO SAF in its defenses, the managing company had the responsibility to act with diligence in the dissemination of information on the ETF FUND;
71. Regarding the economic harm caused and the repercussion on the market, in the present case, it has not been evidenced that the infringement in which EL DORADO SAF has incurred had produced a concrete quantifiable harm in the market; that is, it has not been determined that there has been concrete affectation or caused economic damage to one or more investors, so it has not been evidenced that there was repercussion on the market;
72. Regarding the illicit benefit resulting from the commission of the infringement, it must be stated that it has not been proven that EL DORADO SAF obtained a benefit that is directly related to the infringement subject of analysis, in the present administrative sanctioning procedure;

11 Superintendency Resolution No. 113-2017-SMV/02.

PERÚ Ministerio de Economía y Finanzas

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

Regarding the gravity of the damage to the public interest and/or the protected legal interest, in the present case, it has not been possible to prove that the conduct of EL DORADO SAF, regarding the non-communication to the SMV of INFORMATION ABOUT THE ETF FUND, as a material fact, had caused serious damage to the public interest. However, in the present case, EL DORADO SAF, by failing to comply with the provisions regarding communication to the SMV of information constituting material facts, has violated the legal interest related to the transparency of the securities market, by disseminating relevant information regarding the ETF FUND that, according to what is stated in the REGULATION, has the capacity to influence the process of investment decisions or evaluation by potential investors;
It should be noted that material facts are acts, decisions, agreements, negotiations, or information that can influence the decisions of investors or potential investors; they aim to ensure that investors and potential investors have access to adequate information about the securities being traded or to be traded. In this sense, they serve to protect investors, generate confidence in the market, foster predictability of the system, and help ensure that the market is [transparent/fair], objectives that are not met when infractions such as the one in the present administrative sanctioning procedure are committed;
Regarding the existence or non-existence of intent in the offender's conduct, it has not been evidenced that EL DORADO SAF acted with intent in the commission of the infraction under analysis;
Regarding the probability of detection of the infraction, it must be indicated that in the present case the infraction committed by EL DORADO SAF was evidenced as a result of the information request made by the Lima Stock Exchange and not by information contained in the SMV records or by self-initiated dissemination of information by the administrator, so the probability of detection was medium;
In addition to the above, it is necessary to analyze the exculpatory and mitigating conditions of liability established in Article 257 of the TUO of LPAG 12;
In this sense, regarding mitigating factors of liability, it must be indicated that EL DORADO SAF has not recognized, in a precise, concise, clear, express, and unconditional manner and in writing, its responsibility for the commission of the infraction subject to charges;

“Article 257.- Exculpatory and mitigating conditions of liability for infractions 1.- The following constitute exculpatory conditions of liability 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 potential sanctioned party of the act or omission imputed as constituting an administrative infraction, prior to the notification of the charge referred to in paragraph 3) of Article 235. 2.- The following constitute mitigating conditions of liability for infractions:
a) If, once an administrative sanctioning procedure has begun, the offender 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 established by special norm.”

PERU Ministry of Economy and Finance

It should be indicated that EL DORADO SAF has only mentioned that, henceforth, any interview or journalistic note conducted with any of the representatives of the managing company, regarding future products to be placed on the market or existing products, will pass through the review and approval of the internal control official and the legal area of EL DORADO SAF, before being published;
Regarding the offender's contribution to its clarification, it must be indicated that EL DORADO SAF has not obstructed the clarification of the facts charged, as stated;
In this sense, given the facts under analysis, and in accordance with what is determined in Article 257, paragraph 1 of the TUO LPAG, it is not observed that in the present case any of the circumstances constituting exculpatory or mitigating conditions of liability have been configured;
From the foregoing, it is concluded that EL DORADO SAF has committed one (1) infraction classified as serious;
It should be noted that, in accordance with what is established in Article 34 of the SANCTIONS REGULATION, serious nature infractions are punishable by a fine not less than twenty-five (25) and up to fifty (50) Tax Units (UIT) or with suspension of the operating authorization for up to twenty (20) days;
In this sense, according to the sanction criteria analyzed in application of the Principle of Reasonableness contemplated in Article 248°, paragraph 3 of the TUO LPAG, which states that sanctions must be proportional to the non-compliance classified as an infraction, it must be considered that regarding the infraction subject to charges, it has not been evidenced that it has caused damage to the public interest or economic prejudice to market participants; likewise, it must be taken into account that it has also not been verified that the managing company has obtained any illicit benefit from the commission of said infraction, nor that there was intent in its actions regarding this, that it has been verified that said company is not a repeat offender regarding the infraction subject of the present sanctioning procedure, and that it has contributed to the clarification of the infraction;
In this sense, this Adjunct Superintendence considers that it is possible to impose on EL DORADO SAF a sanction corresponding to a classification lower than that provided for serious infractions, according to what is stated in the last paragraph of Article 25 of the SANCTIONS REGULATION; therefore, a sanction applicable to minor infractions is imposed on EL DORADO SAF, according to what is established in Article 35 of the SANCTIONS REGULATION;
Being in accordance with what is provided by Article 32°, paragraph 16, of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF and its amendments;

RESOLVES:
Article 1º.- Declare that EL DORADO SAF has committed one (1) infraction of a serious nature typified in Annex I, paragraph 2, subsection 2.17 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01,

PERU Ministry of Economy and Finance

for disseminating information that constitutes a material fact, without said information having been previously communicated to the SMV.
Article 2º.- Sanction El Dorado Asset Management Sociedad Administradora de Fondos S.A. with a reprimand for what is provided in Article 1° of this resolution.
Article 3º.- This resolution does not exhaust the administrative route, unless it is consented to, and may be challenged before the Adjunct Superintendency of Prudential Supervision by filing a reconsideration or appeal, presented before the same, within the term of fifteen (15) business days counted from the day following its notification.
Article 4º.- In the event that this resolution is not subject to challenge via reconsideration or appeal within the term 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 by paragraph 1, Article 7° of the Policy on dissemination of normative projects, general legal norms, early agenda, and other administrative acts of the SMV, approved by SMV Resolution No. 014-2014-SMV/01 and its amendment, and by what is provided in Article 14° of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01.
Article 5º.- Transcribe this resolution to El Dorado Asset Management Sociedad Administradora de Fondos S.A.
Register, communicate, and publish.
Omar Gutiérrez Ochoa
Adjunct Superintendent
Adjunct Superintendency of Prudential Supervision

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