Adjunct Superintendent Resolution No. 019-2025-SMV/11 — SMV — PE

PERU Ministry of Economy and Finance
SMV
Securities Market Superintendence
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/11 Lima, March 10, 2025 Subject: To sanction EMPRESA REGIONAL DE SERVICIO PUBLICO DE ELECTRICIDAD DE PUNO S.A.A. - ELECTROPUNO with a total fine of 20 UIT for having committed two (02) serious infractions typified in subsection 2.19 numeral 2 of Annex I of the Sanctions Regulation. Administered: EMPRESA REGIONAL DE SERVICIO PUBLICO DE ELECTRICIDAD DE PUNO S.A.A. - ELECTROPUNO Subject: Administrative Sanctioning Procedure of double administrative instance Main Type: Subsections 2.19 of numeral 2 of Annex I of the Sanctions Regulation SERIOUS INFRACTIONS File No.: 2024032930 The Adjunct Superintendent of Market Conduct Supervision SEEN:
The administrative file No. 2024032930 containing the administrative sanctioning procedure (hereinafter, PAS) initiated by the General Superintendent of Conduct Compliance of the Securities Market Superintendence – SMV (hereinafter, IGCC), against EMPRESA REGIONAL DE SERVICIO PUBLICO DE ELECTRICIDAD DE PUNO S.A.A. - ELECTROPUNO (hereinafter, the Issuer), Report No. 1770-2024-SMV/11.2 of September 27, 2024 (hereinafter, the Report), issued by said General Superintendent; as well, hearing the use of the word carried out by the representatives of the Issuer on January 23, 2025; CONSIDERING:
I. FUNCTION AND COMPETENCE OF THE SASCM

That, the IGCC —instructor body of the PAS referred to in the present case—, has brought to the knowledge of the Adjunct Superintendence of Market Conduct Supervision of the SMV (hereinafter, SASCM), the PAS of administrative file No. 2024032930 with the aim that it issues a decision as first instance sanctioning body in said PAS. In this way, the SASCM assumes competence in observance of the exercise of the supervision function and the sanctioning faculty of the SMV established through the Concorded Single Text of its Organic Law, Decree Law No. 26126 (hereinafter, LOSMV), and the Ordered Single Text of the Securities Market Law, Legislative Decree No. 861, approved by Supreme Decree No. 020-2023-EF-1 (hereinafter, TUO of the LMV); as well as by what is provided in the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, Sanctions Regulation); and, in articles 42 and 43 of the Organization and Functions Regulation of the SMV, approved by Supreme Decree No. 216-2011-EF (hereinafter, ROF SMV), in the sense that it is a specific function of the SASCM, to impose sanctions in first administrative instance for the commission of infractions whose compliance control corresponds to said Adjunct Superintendence. Likewise, the SASCM has the faculties to issue corrective measures aimed at reversing the situation altered by the commission of the infractions;
That, to the two (2) charges subject of the present PAS, correspond two (2) administrative instances in accordance with article 15 of the Sanctions Regulation, and to what is established in numeral 26 of article 12 of the ROF SMV, which establish that the Superintendent of the Securities Market resolves appeals against resolutions issued in first instance by the Adjunct Superintendent of the SASCM, with the exception of single-instance procedures;
II. FACTS, CHARGES AND DEFENSES OF THE ADMINISTERED
2.1 Facts
That, it was evaluated whether the Issuer complied or not with the deadlines established by the Regulation on Cut-Off Date, Registration and Delivery, approved by CONASEV Resolution No. 069-2006-EF/94.10 (hereinafter, Regulation of Dates) for the communication of: (i) important event of May 4, 2023 referred to the registration dates set for May 17 and 18, 2023 and (ii) important event of April 11, 2024 referred to the registration dates set for April 26 and 29, 2024;
2.2 Charges
That, as a result of said evaluation, through Letter No. 4685-2024-SMV/11.2 of October 29, 2024 (hereinafter, the Charge Letter), the charges detailed below were formulated against the Issuer:
CHARGE No. 01
Through an important event of April 18, 2023, the Issuer communicated that the Mandatory Annual Shareholders' Meeting agreed, among other points, the distribution of dividends corresponding to the 2022 exercise, as well as delegate to the Board of Directors of the society to determine and inform the registration and delivery dates 2. Subsequently, through an important event of May 4, 2023, the Issuer communicated that in a board session the registration and delivery dates were set for May 17 and 18, 2023, respectively 3. In this sense, it is observed that the Issuer would not have complied with what is established in article 7 of the Regulation of Dates, since the registration date was not informed at least twelve (12) business days, taking into account that the calculation of days is made without including the day of communication as an important event, nor the day established as the registration date. Being so, the registration date should have been established, in the present case, from May 23, 2023. CHARGE No. 02 Through the important event of April 1, 2024, the Issuer communicated that the Mandatory Annual Shareholders' Meeting agreed, among other points, the distribution of profits corresponding to the 2023 exercise, as well as delegate to the Board of Directors of the society to determine and inform the registration and delivery dates 4. Subsequently, through an important event of April 11, 2024, the Issuer communicated that the registration and delivery dates were set for April 26 and 29, 2024, respectively 5. In this sense, it is observed that the Issuer would not have complied with what is established in article 7 of the Regulation of Dates, since the registration date was not informed at least twelve (12) business days, taking into account that the calculation of days is made without including the day of communication as an important event, nor the day established as the registration date. Being so, the registration date should have been established, in the present case, from April 30, 2024.
2.3 Defenses, allegations and use of the word
That, through a writing of November 13, 2024, the Issuer presented its defenses regarding the imputations formulated against it, for not communicating important events;
That, below, the defenses presented by the Issuer regarding the charges imputed are transcribed in a summarized manner:
“3.1. ELECTRO PUNO S.A.A., is a Public Law company that operates with economic, financial and administrative autonomy, is governed by its Statute, by the Law of State Business Activity and subsidiarily by the General Law of Societies and is attached to FONAFE — National Fund for Financing of State Business Activity, being mandatory compliance with the norms dictated by FONAFE. (...)
3.3. The Securities Market is a good option for investors and an excellent financing alternative for Companies; but in the present case, ELECTRO PUNO S.A.A. does not issue bonds, shares or short-term instruments, in search of private or third-party financing, SINCE THE INFORMATION THAT IS REGISTERED IN THE SECURITIES MARKET SUPERINTENDENCE IS ONLY INFORMATIVE AND DOES NOT HAVE DECISIVE CHARACTER IN THIRD PARTIES.
3.4. ELECTRO PUNO S.A.A. is a State company that lists on the Lima Stock Exchange, but does not trade and currently FONAFE is its majority shareholder with a participation of 99.65%, the rest are 3,360 minority shareholders with a participation of 0.35% with an average capital per shareholder of S/ 150. Therefore, it does not register trading and/or quotation of shares, because its shares are not for sale, being a State Company that does not require third-party financing.
RESPECTING THE SPECIFIC REGULATORY FRAMEWORK OF ELECTRO PUNO
3.5. Legislative Decree No. 1031 — Legislative Decree that promotes the efficiency of State business activity, indicates that:
"Article 3.- Scope of State Business Activity
State Business Activity develops in a subsidiary manner, authorized by Law of the Congress of the Republic and sustained by reason of public interest or manifest national convenience, in any economic sector, without this implying an exclusive reserve in favor of the State or preventing access to private investment. State Companies are governed by the norms of State Business and of the State Administrative Systems, insofar as they are applicable, and subsidiarily by the norms that govern private business activity, mainly by the General Law of Societies and the Civil Code". Therefore, ELECTRO PUNO S.A.A. is governed by the norms of State Business Activity that are issued by the FONAFE Corporation — National Fund for Financing of State Business Activity.
3.6. Likewise, ELECTRO PUNO S.A.A., being a Company attached to the FONAFE Corporation, must comply with the Dividend Policy, approved through Board Agreement No. 006-2011/006-FONAFE and amendments, which establishes that:
"DIVIDEND POLICY
COMPANIES UNDER THE SCOPE OF FONAFE
The Society has as general policy to distribute as dividends 100% of the distributable profits of each exercise among its shareholders.
The delivery of dividends to the shareholders of the society will be carried out within the term of thirty (30) calendar days following the date of holding the Mandatory Annual General Shareholders' Meeting that approves their distribution, being the responsibility of the Board to carry out the necessary actions to make said delivery viable". DEFENSES TO CHARGE No. 01
3.7. ELECTRO PUNO S.A.A., being an Open Joint Stock Company, under the framework of the General Law of Societies, the anticipation of the publication of the Notice of Convocation to Shareholders' Meeting is twenty-five (25) days, reason why it delegates to the Board of Directors of ELECTRO PUNO S.A.A. the approval of the registration and delivery dates of Dividends.
3.8. Likewise, for ELECTRO PUNO S.A.A. it is mandatory compliance with the Dividend Policy, approved through Board Agreement No. 006-2011/006-FONAFE and amendments, (...)
3.10. Consequently, the timeline followed by ELECTRO PUNO S.A.A., in order to comply with the specific framework of FONAFE, has been the following:
Source: Defense writing of November 13, 2024
3.11. (...) Regarding this, we consider that article 7° of the Regulation on Cut-Off Date, Registration and Delivery approved with CONASEV Resolution No. 69-2006-EF-94.10 has not been infringed, because, between the communication date and registration date THERE IS AN INTERVAL OF 12 DAYS PREVIOUS, (...)
In this regard, we must indicate that article 7° of the cited Regulation does not expressly state the term "business days" at any time, however, your Office in an arbitrary manner has added said term to the detriment of ELECTRO PUNO S.A.A., forcing a presumed non-compliance. Therefore, ELECTRO PUNO S.A.A. has complied with putting in knowledge in advance of twelve (12) days, the registration and delivery date of Dividends, which in the majority correspond to FONAFE who is the majority shareholder, having also made the corresponding transfers effective. Being, necessary to indicate that the date suggested by the Securities Market Superintendence (23-05-2023), would be out of time and contrary to what is established in the deadlines of the FONAFE Dividend Policy which is mandatory compliance for ELECTRO PUNO S.A.A, being that only my represented, had as maximum deadline thirty (30) calendar days to make effective the delivery of Dividends.
3.12. Likewise, traditionally doctrine has established a series of mechanisms to try to resolve situations of antinomies (understanding by these the normative contradictions that occur when, under the same factual conditions, legal consequences that cannot be observed simultaneously are imputed), which function as criteria to decide which of the conflicting norms is finally applied to resolve a specific case.
The most usual have been the Hierarchy Criterion (norm of higher rank prevails over lower rank), specialty (special norm prevails over general norm) and temporality (later norm prevails over earlier norm).
(...)
In this context, it is important to remember that ELECTRO PUNO S.A.A, being a State Enterprise in the electrical sector, is subject to a series of special sector norms (FONAFE, MINEM and others), the same that cannot be modified by norms of a general character and in the specific case, the deadlines for Dividend delivery are regulated by the Dividend Policy, approved through Board Agreement NO 006-2011/006-FONAFE and amendments.” DEFENSES TO CHARGE No. 02
3.17. (...) Regarding this, we consider that article 7° of the Regulation on Cut-Off Date, Registration and Delivery approved with RESOLUTION CONASEV No. 069-2006-EF-94.10 has not been infringed, because, between the communication date and registration date THERE IS AN INTERVAL OF 14 DAYS PREVIOUS, as shown in the following graph:
Source: Defense writing of November 13, 2024
In this regard, we must indicate that article 7° of the cited Regulation does not expressly state the term "business days" at any time, however, your Office in an arbitrary manner has added said term to the detriment of ELECTRO PUNO S.A.A., forcing a presumed non-compliance. Therefore, ELECTRO PUNO S.A.A. has complied with putting in knowledge in advance of 12 days (in the present case 14 days), the registration and delivery date of Dividends, which in the majority correspond to FONAFE who is the majority shareholder, having also made the corresponding transfers effective. Being, necessary to indicate that the date suggested by the Securities Market Superintendence (30-04-2024), would be out of time and contrary to what is established in the deadlines of the FONAFE Dividend Policy which is mandatory compliance for ELECTRO PUNO S.A.A., being that only my represented, had as maximum deadline of thirty (30) calendar days to make effective the delivery Dividends. (...) RESPECTING THE TYPIFICATION OF INFRACTIONS
3.19. (...) In the present case, ELECTRO PUNO S.A.A. has complied with informing the registration and delivery dates of Dividends, observing first, the deadlines granted by FONAFE (as the governing body to which ELECTRO PUNO S.A.A. is attached); and secondly, if the term business days is not considered which is not in the norm and that was added by your Office, it would have been communicated with an anticipation of twelve (12) days, as established by the Regulation on Cut-Off Date, Registration and Delivery approved with RESOLUTION CONASEV No. 069-2006-EF-94.10.
3.20. (...) Regarding this, the exemption from responsibility for infractions provided for in literal b) of article 27° of the cited Regulation is also applicable, because (...) the deadlines for Dividend delivery are regulated by the FONAFE Dividend Policy, approved through Board Agreement No. 006-2011/006-FONAFE and amendments. Having ELECTRO PUNO S.A.A. complied with the legal duty required in the special norms of the sector applicable to it.
3.21. It is necessary, also consider the PRINCIPLE OF REASONABLENESS, established as one of the Principles of Administrative Sanctioning Power established in article 2480 of the TUO of the General Administrative Procedure Law - TUO LPAG and the CRITERION OF SPECIALTY, which establishes that the special norm prevails over the general norm.
And, adhering to this principle, we request that our conduct be evaluated in time, and as evidenced, the Company Electro Puno S.A.A. has informed in the established deadlines the registration and delivery dates of Dividends, causing no economic harm whatsoever, especially to our majority shareholder (FONAFE), and on the contrary, the registration and payment of Dividends have been made within the deadlines established in the FONAFE Policy, which was even recalled to ELECTRO PUNO S.AA., through Corporate emails, sent by the competent Official of FONAFE (...)
That, through Supreme Decree No. 004-2019-JUS, the Ordered Single Text of the General Administrative Procedure Law, Law No. 27444 (hereinafter, TUO of the LPAG), was approved, which contains common norms for the actions of the administrative function of the State and regulates all administrative procedures developed in the entities, including special procedures. Likewise, numeral 3) of article 248 of the TUO of the LPAG, points out the criteria regarding the graduation of the sanction: (a) The illicit benefit resulting from the commission of the infraction, (b) The probability of detection of the infraction, (c) The severity of the damage to the public interest and/or protected legal good, (d) The economic damage caused, (e) Recidivism for the commission of the same infraction within the term of one (1) year from when the resolution sanctioning the first infraction became final, (f) The circumstances of the commission of the infraction, and (g) The existence or not of intent in the conduct of the infractor;
That, the charges formulated and the criteria regarding the graduation of the sanction have been the subject of evaluation in the Report, which has been brought to the knowledge of the SASCM;
That, in observance of what is provided by numeral 5 of article 255 of the TUO of the LPAG, through Letter No. 004-2025-SMV/11 of January 02, 2025, the Report was sent to the Issuer, so that it formulates its allegations within the term of five (5) business days;
That, in attention to said letter, through a writing of January 10, 2025, the Issuer presented its allegations to the report, and requested to make use of the word to expose its arguments:
That, below, the allegations presented by the Issuer regarding the Report are transcribed in a summarized manner:
“3.2. (...) we reaffirm what was expressed in Writing No. 01 of defense, presented.
3.3. Being necessary to emphasize that ELECTRO PUNO S.A.A. being a Company attached to the FONAFE Corporation, must comply with the Dividend Policy, approved through Board Agreement No. 006-2011/006-FONAFE and amendments (...)
3.4. ELECTRO PUNO S.A.A. considers that, if there are two conflicting norms that generate a situation of antinomy that could be defined based on the criterion of specialty, because ELECTRO PUNO S.A.A., being a state company in the electrical sector would be subject to a series of special norms (DIVIDEND POLICY OF COMPANIES UNDER THE SCOPE OF FONAFE) that cannot be modified by norms of a general character (Regulation on Cut-Off Date, Registration and Delivery, approved by CONASEV Resolution No. 069-2006-EF/94.10). Because as established by the DIVIDEND POLICY OF COMPANIES UNDER THE SCOPE OF FONAFE, the delivery of dividends to the shareholders of the Society is carried out within the term of thirty (30) calendar days following the date of holding the Mandatory Annual General Shareholders' Meeting; time in which the Administration of the Company ELECTRO PUNO S.A.A. must prepare an administrative file so that the President of the Board convokes a Board Session through which the registration and delivery dates of dividends are approved and determined not exceeding the deadline indicated before, facts that have been communicated to the SMV, having acted under the principle of good faith and transparency, being also diligent in the deadlines, because the term in business days is less.
Likewise, the payment of dividends to the majority shareholder FONAFE has been complied with, so there was no harm or undue benefit

anyone, which is what is sought to be avoided when carrying out publicity in advance. (...)
3.5. ELECTRO PUNO S.A.A., considers that if a normative antinomy is configured regarding the deadlines, it being impossible to simultaneously observe the deadlines established by the SMV and the deadlines and conditions determined by FONAFE for State-Owned Enterprises.
We must emphasize that ELECTRO PUNO S.A.A. has complied with registering the material facts with the SMV, having also made the payment of dividends, within the deadlines required by the regulations of the Electrical Sector.”

That, attending the request by the Issuer
to use the floor with the purpose of exposing its arguments, through Office No. 326-2025-SMV/11 of January 16, 2025, the use of the floor by the representatives of the Issuer was scheduled for January 23, 2025;
That, through a written document dated January 20, 2025, the
Issuer appeared and designated its representatives to use the floor;
That, on January 23, 2025, at the institutional headquarters
of the SMV, the use of the floor by the representatives of the Issuer took place so that they could expose their arguments regarding the charge imputed, as recorded in the ACTA CONSTANCIA ON THE EXERCISE OF THE USE OF THE FLOOR IN ADMINISTRATIVE SANCTIONING PROCEDURE FILE No. 2024032930 which is in the PAS file before this Deputy Superintendency. The arguments presented by the Issuer reiterate the grounds contained in its statement of defense;
III. MATTERS TO BE DETERMINED
That, in the present PAS it corresponds to determine the following:
(i) Whether the Issuer incurred or did not incur the infractions indicated in the Office of Charges and Report; (ii) Whether it corresponds or does not correspond to impose a sanction on the Issuer;
IV. ANALYSIS
4.1 Applicable Normativity
That, regarding the communication of
material facts, article 13 of the TUO of the LMV establishes the following: “(...)
Legal entities registered in the Registry and issuers of securities registered are obliged to present the information that this law and other provisions of general character establish, being responsible for the truthfulness of said information”;
That, in accordance with letter f) of article 8 6
of the TUO of the LMV, the term days is defined as those useful or business days, for

6 Article 8.- Terms The terms indicated have the following scope in this law:
(...) f) Days: The useful ones;
(...)”.

7 File No. 2023031700.
8 File No. 2024023649.

“Article 9.- PRELIMINARY INQUIRIES AS A CONSEQUENCE OF SUPERVISION ACTIONS (...)
When said organs conclude that there are sufficient indications of possible infractions administrative they send the corresponding reports to the General Superintendencies of Compliance, which determine whether it corresponds to initiate or not an administrative sanctioning procedure. If the case, the General Superintendencies of Compliance may carry out inspections or additional investigations of the reported indications. In the case of possible infractions in the scope of the Regulation of the Participatory Financing Financial Activity and its Managing Companies, the preliminary inquiries are carried out by the General Superintendent of Investigation and Innovation, a dependency that if there are sufficient indications of possible infractions administrative will determine whether it corresponds to initiate or not an administrative sanctioning procedure.”

Image No. 01
Computation of the deadline carried out by the Issuer for Charge No. 01 Image No. 02 Computation of the deadline carried out by the Issuer for Charge No. 02 Source: Defenses presented on November 13, 2024 As observed in the graphs presented by the Issuer, the latter questions that the computation of the deadline for compliance with article 7 of the Dates Regulation is carried out in business days and not in calendar days. Regarding this point, and as has been previously indicated, letter f) of
article 8 of the TUO of the LMV states that for the application of the Law of the Market
Securities the term days must be understood as those useful or business days.
Thus, also, article 13 of the TUO of the LMV establishes that, in the framework of application of this law, the issuers of securities registered are obliged to present information that both this law and provisions of general character establish, such as, for example, the Dates Regulation, whose article 7 of the Dates Regulation, is observance by the Issuer, in its capacity as issuer of securities. It is so, that article 1 of the Dates Regulation itself states that the terms used in this regulation have the same scope defined in
article 8 of the TUO of the LMV.
In other words, in compliance with what is provided by letter f) of article 8 of the

Minimum disclosure deadline), as can be observed from the graphic content
of section VI. Graphical Illustrations of Communication of Registration and Delivery Dates Non-registrable Acts of the referenced Circular No. 099-2018-SMV/11.1.
Image No. 06
Maximum deadline for communicating registration date – Deadline 01 Image No. 07 Minimum deadline for disclosing registration date – Deadline 02 Source: Circular No. 099-2018-SMV/11.1 As appreciated from what is described in the previous paragraphs, when contrasting both provisions it is verified that they regulate distinct legal obligations, the Dividend Policy of FONAFE regulates the maximum deadline for delivery of dividends and the
article 7 of the Dates Regulation of the SMV the deadlines that every Issuer must
observe to communicate as a material fact the registration date; therefore, there would be no normative contradictions (antinomies), because we

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 the authorship find ourselves before two (02) provisions that regulate distinct legal situations, as detailed in the following table:
FONAFE SMV
Provision
FONAFE Dividend Policy
DIVIDEND POLICY
COMPANIES UNDER THE SCOPE
OF FONAFE
The Company has as policy general to distribute as dividends and/ 100% of the distributable profits of each exercise among its shareholders.
The delivery of dividends to the shareholders of the company will be carried out within the deadline of thirty (30) calendar days following the date of realization of the Annual Mandatory General Shareholders Meeting that approves the distribution of the same, being the responsibility of the Board to carry out the actions necessary to make said delivery viable. SMV Dates Regulation
Article 7°.-
The issuer must inform the date of registration within the deadline of fifteen days after the occurrence of the corporate agreement or, if applicable, after having carried out the corresponding registration in the Public Registries. Additionally, whether it is a registrable act or a non- registrable act, the registration date must be informed by at least twelve days before the day determined by the issuer as registration date. This deadline does not include the day of communication as a material fact nor the day established as the registration date. The delivery date that is not related to a registration date must be informed within the deadline of fifteen days following the corresponding registration in the Public Registries. The delivery date referred to in the preceding paragraph must be informed as a material fact by at least five days before the day determined by the issuer as the delivery date. This deadline does not include the day of communication as a material fact nor the day established as the delivery date. Scope of Application Companies under the scope of FONAFE All Issuers and market agents of securities Protected legal good Shareholders' right to receive dividends timely Transparency of information and protection of minority shareholders' rights Deadline Deadline for the delivery of Deadline for advance communication as a material fact the date dividends. of registration (which will be the day established to determine the holders of the dividends). Without prejudice to what is described above, it will be evaluated if, in a diligent and ordinary scenario, both legal obligations can be fulfilled simultaneously or if there is a factual or legal impossibility, for which the following graph is developed:
Image No. 08
Compatibility of compliance with FONAFE Dividend Policy and
article 7 of the SMV Dates Regulation
In other words, as observed clearly and specifically, observing a due diligence, simultaneously one can comply with the deadline for delivery of dividends approved by the Dividend Policy of FONAFE and with the deadlines for information and disclosure contained in article 7 of the Dates Regulation of the SMV; therefore, in the present case there is no antinomy as alleged by the Issuer, but rather it is a matter of two (02) special norms that regulate distinct situations and legal consequences, which if observed simultaneously by the Issuer, complying with its duty of diligence would have led it to carry out only with a few days of advance the Board Session that determined the registration date (the Board Session at least four days before for Charge No. 01 and at least two days before for Charge No. 02). Regarding the exemption of responsibility Regarding this, the Issuer in defense arguments indicates that it would be applicable exemption of responsibility for infractions, provided in letter b) of article 27 of the Sanctions Regulation, because the deadlines for Dividend Delivery are regulated by the Dividend Policy of FONAFE, approved through Board Agreement No. 006-2011/006-FONAFE and amendments. Having ELECTRO PUNO S.A.A. complied with the legal duty required in the special sector norms applicable to it. Regarding this particular matter, it must be precise that letter b) of article 27 of the Sanctions Regulation establishes that it constitutes an exemption of administrative responsibility acting in compliance with a legal duty or the legitimate exercise of a right of defense.

Furthermore, regarding this exemption, Morón Urbina 10 indicates that: “Acting in compliance with a legal duty implies that there is an action or omission established by the norm, or even compliance with sentences or the fulfillment of orders, which merits being fulfilled, so the recipient of said duty is under the obligation to comply with it.” Likewise, the administrative precedent contained in the Full Chamber Resolution No. 002-2021-SERVIR/TSC holds that:
“34. From the above, for the application of the exemption for the exercise of a legal duty, function, position, or commission entrusted, it corresponds that the civil servant proves the presence of a normative provision or judicial mandate of a binding nature, which obliges him to carry out a specific act (exercise of a legal duty).” In the present case, the FONAFE dividend policy approved by a board agreement is not a public order norm; therefore, it is not a normative provision susceptible of generating general legal duties, but its scope of application and compliance has a more restrictive scope, only as an internal provision for the organization and management of companies with majority state shareholding; therefore, this exemption cannot be applicable to this specific case. In the negative supposition that the FONAFE dividend policy is a norm susceptible of creating a legal duty, as analyzed previously, it is not opposable; because the Dates Regulation is a public order norm (mandatory compliance) and the legal obligations established by both the FONAFE dividend policy and the Dates Regulation could have been fulfilled simultaneously, if the Issuer had acted in compliance with its duty of due diligence. In other words, if the Issuer had communicated as a material fact the registration dates with only four (04) business days in advance (Charge No. 01) or two (02) business days in advance (Charge No. 02), it would have complied with the minimum disclosure deadline required by the Dates Regulation, a public order norm with binding character, and the FONAFE dividend policy applicable to the present case. Furthermore, considering that between the date of the Mandatory Annual Shareholders' Meeting that approved the distribution of dividends and the Board Session that determined the registration date, there was a considerable latency period of ten business days (Charge No. 01) and eight business days (Charge No. 02), therefore, the defense that there would be an exemption for compliance with a legal duty is not supportable.

Regarding the non-compliance with deadlines
In accordance with everything described above, it has been evidenced that the thirty (30) calendar days deadline established in the FONAFE Dividend Policy reduces and adjusts the deadlines for the information and disclosure of the registration date established in the SMV's Dates Regulation; therefore, the Issuer, having full knowledge of both Board Agreement No. 006-2011/006-FONAFE, which regulates the deadline for the delivery of dividends, as well as the Dates Regulation and the informative and illustrative content of Circular No. 099-2018-SMV/11.1 of February 26, 2018, which establishes the minimum disclosure deadline for the registration date, in compliance with the duty of diligence to take corporate agreements

10 MORON URBINA, Juan Carlos. Comments on the General Administrative Procedure Law. Lima:
Gaceta Jurídica, 2019, Fourteenth Edition, Volume II, p. 516-517.

Charge No. 01
Regarding the first charge, through a material fact of May 04, 2023, the Issuer communicated that in a board session, the registration and delivery dates were set for May 17 and 18, 2023, respectively (File No. 2023020840); in this sense, it is observed that what was established in Article 7 of the Dates Regulation would not have been complied with, because the registration date was not informed at least twelve (12) business days in advance, but only eight (08) business days in advance. Nevertheless, considering that the Issuer states that to comply with the FONAFE Dividend Policy it had to finalize the delivery of dividends by May 18, 2023 at the latest and therefore it was not possible for the registration date to be after May 17, 2023, then with full knowledge of its legal obligations, it should have adopted the corresponding measures to comply with the minimum disclosure deadline for the registration date, communicating as a material fact the registration date determined by the Issuer with four additional business days in advance and effecting the corporate agreement for such purpose on the same date, that is, April 28, 2023, instead of May 04, 2023.

Charge No. 02
Regarding the second charge, the Issuer through a material fact of April 11, 2024, its representative communicated that the registration and delivery dates were set for April 26 and 29, 2024, respectively; in this sense, it is observed that what was established in Article 7 of the Dates Regulation would not have been complied with, since the registration date was not informed at least twelve (12) business days in advance, but only ten business days in advance.

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
V. DETERMINATION OF THE SANCTION
28. That, the non-compliance referred to informing the registration date without observing the deadlines is typified in subsection 2.19 of numeral 2 of Annex I of the Sanctions Regulation, which states that it constitutes a serious infraction: “Informing the registration and delivery dates without observing the deadlines and other provisions established in the regulation of the matter”. (Underlining added);
29. That, regarding the sanctions, Article 34 of the Sanctions Regulation, this infraction is sanctionable with a fine not less than twenty-five (25) UIT and up to fifty (50) UIT, or suspension of the negotiation of securities for up to one (1) year;
30. That, having determined the commission of the imputed infractions; it corresponds to determine the sanction considering what is provided in Article 25 of the Sanctions Regulation, in concordance with what is provided by numeral 3) of Article 248 of the TUO of the LPAG and Article 344 of the TUO LMV. In this sense, it proceeds to analyze: (i) the sanction antecedents of the Issuer; (ii) recidivism, for the commission of the same infraction within the deadline of one (1) year from when the resolution sanctioning the first infraction became final; (iii) the circumstances of the commission of the infraction; (iv) the economic damage caused and its repercussion in the market; (v) the illicit benefit resulting from the commission of the infraction; (vi) the probability of detection of the infraction; (vii) the gravity of the damage to the public interest and/or protected legal good; and, (viii) the existence or non-existence of intent in the conduct of the offender (hereinafter, Sanction Criteria);
SANCTION CRITERIA
31. That, regarding the gravity of the damage to the public interest and/or protected legal good, it must be indicated that according to the statement of motives of the Dates Regulation, the obligations contained therein have an informative character, so in attention to the principle of information quality, this must be true, sufficient and timely. In this way, investors are protected and asymmetry in access to information is reduced, therefore, the protected legal good is the transparency of the securities market, which when transgressed affects the public interest. In this sense, it is required that participants of the securities market publish or remit information under the standards of truthfulness, sufficiency and timeliness;
32. That, regarding the sanction antecedents, Article 25 of the Sanctions Regulation establishes that the antecedents of the offender are the sanctions that have been imposed by the SMV and that became final within the four (4) years prior to the moment of the commission of the infraction to be sanctioned. In application of this criterion, it has been verified that the Issuer has sanction antecedents as detailed in the Report;
33. That, regarding recidivism for the commission of the same infraction, subsection b) of Article 25 of the Sanctions Regulation establishes that the final sanction imposed by the SMV within the deadline of one (01) year prior to the commission of the infraction to be sanctioned is taken into account. In application of this criterion, it has been verified that the Issuer does not have recidivism;
34. That, regarding the circumstances of the infraction, it has been verified that the Issuer, by establishing as registration dates May 18, 2023 (Charge No. 01) and April 26, 2024 (Charge No. 02), would not have complied with the second paragraph of Article 7 of the Dates Regulation, since between the day in which it communicated the registration date (May 04, 2023 - Charge No. 01 and April 21, 2024 - Charge No. 02) and the date established as the registration date (May 18, 2023 - Charge No. 01 and April 26, 2024 - Charge No. 02), only eight (08) and ten (10) business days passed respectively, when the Dates Regulation indicates an advance of at least twelve (12) business days. Likewise, it should be noted that according to the Annual Report corresponding to the 2023 exercise, published on the SMV Institutional Website, the Issuer had a shareholding structure in which FONAFE had a 99.65 % shareholding participation, as shown below:
Shareholding Structure
Source: 2023 Annual Report
Finally, from the review of the information published by the Lima Stock Exchange, it has been observed that on the dates of the commission of the facts under analysis, no operations were carried out in the stock exchange round and that since 2018 to date, no stock exchange round operations have been carried out;
35. That, regarding the economic damage caused and its repercussion in the market, it must be noted that it has not been evidenced that the non-compliances have produced a quantifiable damage, understood as an economic damage caused to one or several investors;
36. That, regarding the illicit benefit resulting from the commission of the infraction, it has not been proven that, as a consequence of the infraction committed, the Issuer has obtained or generated an illicit benefit;
37. That, on the other hand, regarding the probability of detection of the infraction, it must be noted that the probability of detection of the infraction committed is high, because this type of non-compliances are detected by the SMV itself through periodic control actions;
38. That, regarding the existence or non-existence of intent in the conduct of the offender, it must be taken into account that it can be noted that there are not sufficient elements to indicate that the Issuer acted with intent in the commission of the infraction, so this criterion would not have been configured. However, it is necessary to indicate that despite there being no indications to state that the Issuer acted with intent, it can be affirmed that the Issuer's conduct was negligent, by not acting with the diligence required before obligations already known by the Issuer;
39. That, consequently, although the Issuer has sanction antecedents, it must be taken into account that it does not have the quality of recidivist

11 Value of the UIT (2023): S/ 4 950 (Supreme Decree No. 309-2022-EF).
12 Value of the UIT (2024): S/ 5 150 (Supreme Decree No. 309-2023-EF).

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