Adjunct Superintendent Resolution for Conduct Supervision No. 012-2026-SMV/11 — SMV — PE

PERU Ministry of Economy and Finance

That, the IGCC —the instructing body for the ASPs referred to in the present case—, has brought to the attention of the Adjunct Superintendency of Market Conduct Supervision of the SMV (hereinafter, SASCM), the ASP of administrative file N° 2025032000, in order for it to issue a decision as the sanctioning body of sole administrative instance, as corresponds to the type of infractions evaluated in said ASP. In this way, the SASCM assumes competence in observance of the exercise of the supervision function and the sanctioning power of the SMV established by means of the Consolidated Text of its Organic Law, Legislative Decree N° 26126 (hereinafter, LOSMV), and the Consolidated Text of the Securities Market Law, Legislative Decree N° 861, approved by Supreme Decree N° 020-2023-EF-11 (hereinafter, TUO LMV); as well as by what is provided in the Sanctions Regulation, approved by SMV Resolution N° 035-2018-SMV/01 (hereinafter, Sanctions Regulation); and, in articles 42 and 43 of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree N° 216-2011-EF (hereinafter, ROF-SMV), in the sense that it is a specific function of the SASCM, to impose sanctions in sole administrative instance, the compliance control of which corresponds to the aforementioned Adjunct Superintendency;

PERU Ministry of Economy and Finance

SMV
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2.3. Defenses
4. That, by means of a written submission presented on August 25, 2025, the Issuer presented its defenses, stating, among others, the following:
(i) Regarding the belated communication of the material event referring to the call made on February 6, 2024 (Charge N° 1), the Issuer maintained that it substantially and reasonably complied with the obligation to communicate the material event referring to the call for the GSM for February 7, 2024. It indicated that on February 6, 2024, it received Official Letter N° 0055-2024-DE-FONAFE, by which said body designated its representative for the Meeting, which generated the need to internally process the instruction, prepare the respective documentation, and follow the applicable internal procedures. In this context, the communication to the SMV was made on February 7, that is, on the same day of the celebration of said meeting, which —in its opinion— allowed for compliance with the essential purpose of the regulations: that the market has relevant information before the adoption of agreements. (ii) Regarding the belated communication of the material event referring to the call made on March 21, 2024 (Charge N° 2), the Issuer maintained that the communication linked to the call for the obligatory annual shareholders' meeting (OASM) of March 25, 2024, substantially complied with the purpose of the applicable regulations. It indicated that on March 21, 2024, it received Official Letter N° 0164-2024-DE-FONAFE, by which the representative of that body was designated to participate in the aforementioned meeting, which generated the need to activate internal coordination procedures, documentation preparation, and processing of the received mandate. In this context, the communication to the SMV was made on March 25, 2024, the same day of the celebration of the meeting, which —in the Issuer's opinion— guaranteed that the market had relevant information before the adoption of agreements. (iii) Regarding the belated and incomplete communication of the material event referring to the agreement for the integral modification of the company's social statute (Charge N° 3), the Issuer expressly stated: “San Gabán S.A. recognizes that the initial communication of March 25, 2024, did not include the full text of the statutory modification (Annex I), limiting itself to stating the approval of the integral modification of the social statute” (Underlining added). Likewise, it stated that the omission consisted of a formal and not substantial error, and that at no time was there an intention to conceal information, since the very reference to the annex evidenced its will to comply with the duty of transparency. Furthermore, the Issuer maintained that said omission did not generate real harm to the market nor affect transparency, considering that the company only lists and that its sole shareholder is the National Fund for the Financing of State Business Activity – FONAFE, so there would be no minority investors or third parties whose decision-making could have been affected. It indicated that, although the Regulation on Material Events requires that the disseminated
information be sufficient and complete, the company remedied the fault after being requested by the Lima Stock Exchange, submitting the full text of the statutory modification on June 6, 2024. Similarly, it maintained that it acted diligently and in good faith in attending to said requirements immediately, complying with its duty of collaboration. In this regard, it affirmed that administrative jurisprudence has considered the diligent remediation of omissions as a mitigating factor, even when it is not spontaneous, citing resolutions of the SMV and the Civil Service Tribunal that value the absence of recidivism and the timely correction of conduct.

PERU Ministry of Economy and Finance

SMV
Electronic document digitally signed under Law N° 27269, Law of Digital Signatures and 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 (iv) In relation to the criteria for the graduation of the administrative sanction, the Issuer maintained that its conduct did not generate any harm to public interest or the protected legal good, given that it only lists on the stock exchange, has FONAFE as its sole shareholder, and does not have securities in circulation or minority investors, so the omission or delay in communicating material events would not have impacted market transparency or investor confidence. Likewise, it stated that no economic harm occurred, as the incomplete or belated information did not affect stock market operations or cause patrimonial damage to third parties. The Issuer also indicated that the imputed infractions were easily detectable by the authority through objective verification of the dates of the submitted documents, which would evidence the absence of intent to conceal information or obtain an undue advantage. In this vein, it affirmed that there is no recidivism or history of similar infractions, a circumstance that, in its opinion, should be considered a relevant mitigating factor. Similarly, it maintained that it obtained no illicit benefit, due to the company's shareholding structure and the absence of minority investors. Regarding intentionality, the Issuer alleged that its conduct was negligent and not malicious, stemming from formal or procedural errors, without the aim of affecting market transparency. It added that it acted in good faith and diligently remedied the omissions once requested by the Lima Stock Exchange and the SMV, which would demonstrate its willingness to collaborate with the authority and comply with current regulations. Finally, it stated that it expressly recognized the omission incurred, which, together with the remediation carried out, constitutes a mitigating factor according to administrative practice. In this vein, the Issuer indicated that the sanctioning power must be exercised in accordance with the principles of reasonableness and proportionality provided in Article IV of the Preliminary Title of the Consolidated Text of the General Administrative Procedure Law (TUO de la LPAG), so the sanctions imposed must be suitable, necessary, and proportional to the non-compliance qualified as an infraction, considering criteria such as the existence of intentionality, the harm caused, and eventual recidivism, avoiding the application of excessive formalisms. Likewise, the Issuer stated that the Constitutional Tribunal has established that every administrative sanction must respond to a legitimate constitutionally valid purpose and that decisions that create obligations, qualify infractions, or impose sanctions must maintain an adequate relationship between the
means employed and the public purposes sought to be protected. It has also stated that it is contrary to the principle of reasonableness to sanction conduct that does not generate real harm or a relevant affectation. Finally, the Issuer affirmed that the principle of lawfulness implies that administrative entities must presume that administered parties have acted in accordance with their duties as long as there is no evidence to the contrary. In line with this, the Issuer mentions the jurisprudence of the Constitutional Tribunal and the INDECOPI Tribunal which has specified that every burdensome act must be duly justified, respond to a lawful purpose, and overcome the criteria of suitability, necessity, and proportionality. (v) Regarding the alleged excessive use of formalisms and the principle of informalism, the Issuer maintained that the Administration's sanctioning power must be exercised avoiding the abuse of formalisms that do not affect the effective protection of public interest or the validity of the administrative act. In this sense, it invoked the jurisprudence of the Constitutional Tribunal, which has indicated that administrative procedures must be oriented towards obtaining a decision within a reasonable period, without unnecessary formalities prevailing over the substance of the act or violating the right of defense or due process. Likewise, it indicated that the principle of informalism in favor of the administered party, enshrined in the General Administrative Procedure Law, requires that formal requirements be interpreted reasonably and not as obstacles to a just decision;

PERU Ministry of Economy and Finance

SMV
Electronic document digitally signed under Law N° 27269, Law of Digital Signatures and 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 (ii) Whether or not a sanction should be imposed on the Issuer;
IV. ANALYSIS
4.1. Applicable regulations
10. That, in relation to the communication of material events, article 30 of the TUO de la LMV, establishes the following: «Article 30.- Material Events.- The registration of a certain security or issuance program entails for its issuer the obligation to inform the SMV and, where applicable, the respective stock exchange or entity responsible for the operation of the centralized mechanism, of material events, including ongoing negotiations, about itself, the security, and the offer made thereof, as well as to disclose such events truthfully, sufficiently, and timely. The information must be provided to said institutions and disclosed as soon as the event occurs or the issuer becomes aware of it, as the case may be. The importance of an event is measured by the influence it may exert on a sensible investor to modify their decision to invest or not in the security.»;
11. That, in accordance with numerals 1 and 2 of Annex 1 of the Regulation on Material Events and Reserved Information, approved by SMV Resolution N° 005-2014-SMV/01 (hereinafter, Regulation on Material Events), the following is provided: «1. Call for shareholders' meetings, creditors' meetings, or bondholders' assemblies, indicating the respective agenda and the documentation available to shareholders, creditors, and bondholders, as the case may be, as well as the agreements adopted therein.(…)» «2. Adoption of agreements implying the modification of statutes (…)»;
12. That, likewise, numeral 7.3 of article 7 of the Regulation on Material Events, states the following: «The obligation to report a material event will only be understood as fulfilled if the Issuer has observed the requirements established in this Regulation and in the corresponding technical specifications established by the SMV»;
13. That, consequently, the Issuer would have failed to comply with numeral 9.1 of article 9 of the Regulation on Material Events, which establishes the following: «Article 9.- Timeliness for reporting material events 9.1. The Issuer must report its material event as soon as such event occurs or the Issuer becomes aware of it, and in no case beyond the day on which it occurred or became known (…)»;
14. That, for the purposes of determining the possible sanction, these infractions are typified in subsection 3.1 of numeral 3 of Annex I of the Sanctions Regulation, which states that the following constitutes a minor infraction: «Submitting, outside the established deadline, or doing so incompletely, or without observing the technical specifications approved by the SMV or without communicating the approval by the corresponding corporate body, to the SMV, to the Stock Exchange, to the entity in charge of the centralized trading mechanism or to any other entity or subject of the securities market, the individual or consolidated audited financial information, individual or consolidated interim financial statements, management report, special audit report, material events and, annual reports». (Underlining added);
15. That, in accordance with article 35 of the Sanctions Regulation, said infraction is punishable with a warning or a fine of not less than one (1) UIT and up to twenty-five (25) UIT;
4.2. Case evaluation
16. That, in administrative file N° 2025032000, which contains the documentation of the present ASP, it is observed that by means of Memorandum N° 2164-2024-SMV/11.1 of June 3, 2024 (File N° 2024023646) and Memorandum N° 4067-2024-SMV/11.1 of October 11, 2024 (File N°2024041397), the General Intendency of Conduct Supervision (hereinafter, IGSC) —an organ of the Superintendency of Securities Market – SMV that has among its functions and powers, the supervision of compliance with the rules applicable to issuing companies with securities registered in the RPMV, evaluating indications of possible infractions, and submitting, for its consideration, the respective reports of indications of infraction, to the IGCC—, submitted to the IGCC, the result of its evaluation, and specifically what refers to the present case;
17. That, it should be borne in mind that the procedures and legal forms with which the IGSC conducts its inspection and/or supervision activity and upon concluding it with a report of indications of infraction, determine that its pronouncement or opinion on a specific supervision issue —which i

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