Adjunct Superintendent Resolution No. 024-2025-SMV/11

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 modifications. The integrity of the document and authorship Adjunct Superintendent Resolution SMV No. 024-2025-SMV/11 Lima, March 21, 2025 Subject: To sanction COMPAÑÍA MINERA PODEROSA S.A. with a total fine of 6.30 UIT for having committed three (3) minor infractions, classified in subsection 3.1 numeral 3 of Annex I of the Sanctions Regulation. Administered Entity: COMPAÑIA MINERA PODEROSA S.A. Subject: Administrative Sanctioning Procedure of single administrative instance Main Type: Subsection 3.1 of numeral 3 of Annex I of the Sanctions Regulation MINOR INFRACTIONS File No.: 2024027991 The Adjunct Superintendent of Market Conduct Supervision SEEN:
The administrative file No. 2024027991, containing the administrative sanctioning procedure (hereinafter, PAS) initiated by the General Intendancy of Conduct Compliance of the Securities Market Superintendence – SMV (hereinafter, the IGCC), against COMPAÑÍA MINERA PODEROSA S.A. (hereinafter, the Issuer); as well as Report No. 1556-2024-SMV/11.2 (hereinafter, the Report) issued by the IGCC; CONSIDERING:
I. FUNCTION AND COMPETENCE OF THE SASCM

1. That, the IGCC – the instructing body of the PAS referred to in this case – has brought to the attention of the Adjunct Superintendency of Market Conduct Supervision of the SMV (hereinafter, SASCM), the PAS of administrative file No. 2024027991 with the aim that it issues a decision as the sanctioning body of single administrative instance for the case of infractions regarding timeliness in the presentation of periodic and eventual information. In this way, the SASCM assumes competence in observance of the exercise of the supervisory function and the sanctioning faculty of the Securities Market Superintendence – SMV, established through the Unified Concordant Text of its Organic Law, Law Decree No. 26126 (hereinafter, LOSMV) and the Unified Ordered Text of the Securities Market Law, Legislative Decree No. 861, approved by Supreme Decree No. 020-2023-EF1 (hereinafter, TUO 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 Regulation of Organization and Functions of the Securities Market Superintendence – 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 single administrative instance for the commission of infractions whose compliance control corresponds to the aforementioned Adjunct Superintendency. Likewise, the SASCM has the faculties to issue corrective measures aimed at reversing the situation altered by the commission of the infractions;

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 modifications. The integrity of the document and authorship supervision and of the sanctioning faculty of the Securities Market Superintendence – SMV, established through the Unified Concordant Text of its Organic Law, Law Decree No. 26126 (hereinafter, LOSMV) and the Unified Ordered Text of the Securities Market Law, Legislative Decree No. 861, approved by Supreme Decree No. 020-2023-EF1 (hereinafter, TUO 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 Regulation of Organization and Functions of the Securities Market Superintendence – 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 single administrative instance for the commission of infractions whose compliance control corresponds to the aforementioned Adjunct Superintendency. Likewise, the SASCM has the faculties to issue corrective measures aimed at reversing the situation altered by the commission of the infractions;
II. FACTS, CHARGES, DEFENSES AND ALLEGATIONS
2.1 Facts
2. That, it was evaluated whether the Issuer complied or not with disclosing to the securities market periodic and eventual information;
2.2 Charges
3. That, as a result of said evaluation, through Office No. 4063-2024-SMV/11.2 of October 16, 2024 (hereinafter, Office of Charges), the following charges were formulated against the Issuer:
Important facts

1. Late communication of the important fact regarding the illegal blockade of roads and access routes that affected the activities of the Pataz mining unit, which occurred on June 20, 2023, an event that should have been informed on the same day of its occurrence; nevertheless, it was communicated on August 04, 2023. (File No. 2023034294).
2. Late communication of the important fact regarding the unblocking of the roads and access routes that affected the activities of the Pataz mining unit, which occurred on August 06, 2023, an event that should have been informed on the same day of its occurrence; nevertheless, it was communicated on August 07, 2023. (File No. 2023034489).
   Financial information
3. Late presentation of the consolidated interim financial statements as of December 31, 2022, which should have been presented by March 01, 2023 (Deadline); nevertheless, they were presented on March 15, 2023. (File No. 2023011300).
   2.3 Defenses and Allegations
   1 Approved by Supreme Decree No. 020-2023-EF, published on February 10, 2023 in the Official Journal El Peruano, is the Unified Ordered Text of the Securities Market Law, Legislative Decree No. 861.

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 modifications. The integrity of the document and authorship
4. That, through a document presented on October 30, 2024, the Issuer presented its defenses regarding the imputation formulated against it, as detailed below:
(i) Regarding the late communication of the important facts in reference, the Issuer indicates that “(…) after the evaluation we carried out, the blockade did not have a significant incidence in economic or financial terms, although production dropped during the month of July, it recovered partially from the month of August until the end of the 2023 fiscal year (…), for this reason, we conclude that there was no significant effect for PODEROSA. In fact, this situation was informed by our part through the information request that the General Intendancy of Conduct Supervision made to us through Office No. 4855-2023-SMV/11.1 dated October 25, 2023, which we attended through a document with File No. 2023042935 dated November 02, 2023, specifying that the blockade did not have significant incidence in economic or financial terms”. Therefore, the Issuer concludes that “(...) the communication of both important facts had the intention of bringing to the knowledge of the market, the constant criminal actions perpetrated by illegal mining criminal organizations and bands of criminals called “parqueros” against us (…). However, this blockade action, in concrete, did not have a significant impact on our activities, even previously we have suffered isolated attacks against company infrastructure (…) which due to the company's quick response have allowed our production not to suffer significant negative impacts regarding our annual program, which would require communication to the market, for which reason, the qualification as an important fact would not be configured (…)”. (ii) On the other hand, regarding the late presentation of the financial information in reference, the Issuer states that “(…) it was not due to an involuntary error or intent (…), but to the exceptional situation generated by the resignation of our general accountant, Mr. Iván Asmat Salazar, which occurred on February 20, 2023 (…). This unexpected situation forced us to search for and hire a professional to cover the vacant position of general accountant, who was hired on March 01, 2023 (…) and it is only from that moment that we could initiate procedures with the company BMTECH PERÚ S.A.C. for the issuance and activation of the digital certificate of our general accountant, whose credential is necessary for the approval and sending, through the MVNET system, for which reason it was March 15, 2023 (sic) the date on which the consolidated financial statements as of December 31, 2022 were presented”. In this sense, the Issuer cites article 3 of the Regime of Gradual Sanctions for Late Presentation of Financial Information, Annual Report and Important Facts, approved by SMV Resolution No. 007-2023-SMV/01 (hereinafter, Regime of Gradual Sanctions) and subsection a) of article 27 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, Sanctions Regulation) and indicates that it is in a situation of force majeure as it was unable to present the consolidated
interim financial statements as of December 31, 2022 within the deadline;

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 modifications. The integrity of the document and authorship
5. That, through Supreme Decree No. 004-2019-JUS, the Unified Ordered Text of the General Administrative Procedure Law – Law No. 27444 (hereinafter, TUO of the LPAG) was approved, which contains common rules 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, indicates 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 gravity of the damage to the public interest and/or protected legal good, (d) The economic harm caused, (e) Recidivism, for the commission of the same infraction within a period 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 offender;
6. That, the charges formulated, the defenses 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;
7. That, in observance of what is provided by numeral 5 of article 255 of the TUO of the LPAG, through Office No. 5348-2024-SMV/11 of November 25, 2024, the Report was sent to the Issuer so that it formulates its allegations within a period of five (5) business days;
8. That, in attention to said office, through a document of December 03, 2024, the Issuer presented its allegations to the Report, reiterating the defense arguments developed in the document of defenses. Below is a summary transcription:
“Regarding the blockade of roads (…) after the evaluation we carried out, the blockade did not have a significant incidence in economic or financial terms, although production dropped during the month of July, it recovered partially from the month of August until the end of the 2023 fiscal year, which, added to the increase in the international price of gold, allowed maintaining the line with the company's plans, for this reason, we conclude that there was no significant effect for PODEROSA. In fact, this situation was informed by our part through the information request of the General Intendancy of Conduct Supervision (…) (…) PODEROSA carried out the corresponding evaluation, based on the development of our operations and the different circumstances that allowed us to define that THERE WAS NO SIGNIFICANT EFFECT. (…) regarding the late presentation (…) we reaffirm that said late presentation was not due to an involuntary error or intent on the part of PODEROSA to fail its obligation as an issuer, but to the exceptional, unforeseeable and irresistible situation generated by the resignation of our general accountant (…) This situation, in all respects qualifies as a force majeure fact (…) (…) it corresponds that your office declares as an exemption of responsibility for PODEROSA, the force majeure situation described above, which made it impossible to comply with the obligation to present the Consolidated Financial Statements as of December 31, 2022 within the deadline,

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 modifications. The integrity of the document and authorship that is, March 01, 2023, and generated the late compliance (…)
III. ISSUES TO DETERMINE
9. That, in the present PAS it corresponds to determine the following:
(i) Whether the Issuer incurred or not in the infractions indicated in the Office of Charges and Report.
(ii) Whether it corresponds or not to impose a sanction on the Issuer;
IV. ANALYSIS
4.1 Applicable Normativity
10. That, regarding the communication of important facts, article 30 of the TUO of the LMV establishes that: “The registration of a certain value or issuance program entails for its issuer the obligation to inform the SMV and, if applicable, to the respective stock exchange or entity responsible for the conduct of the centralized mechanism, of the important facts, including negotiations in progress, about itself, the value and the offer made of it, as well as to disclose such facts in a truthful, sufficient and timely manner. The information must be provided to said institutions and disclosed as soon as the fact occurs or the issuer takes knowledge of it, as the case may be.”;
11. That, numeral 5.1 of article 5 of the Regulation of Important Facts states that: “In the Annex that forms part of this Regulation, an enumerative list of facts, acts, agreements and decisions is included, which aims to facilitate the Issuer's identification, qualification and classification of the information that could qualify as an important fact”;
12. That, it should be specified that, numeral 31 of Annex 1 of the Regulation of Important Facts states that the following may qualify as an important fact: “Strikes, interruptions or unexpected cessations of productive activity that may have a significant effect.”;
13. That, in the same way, numeral 9.1 of article 9 of the Regulation of Important Facts states: “The Issuer must inform its important fact as soon as such fact occurs or the Issuer takes knowledge of it, and in no case later than the day on which it has occurred or has been known. (…)”;
14. That, on the other hand, the obligation to present financial information is provided for in article 31 of the TUO of the LMV which states: “What is provided in the previous article does not relieve the issuer of the timely delivery to the SMV and, if applicable, to the respective stock exchange or entity responsible for the conduct of the centralized mechanism, of the information that one or the other requires of it and, necessarily, that indicated below:
a) Its financial statements and indicators, with the minimum information generally indicated by SMV, with a periodicity not greater than quarterly; and, (…)” (Underline added);
15. That, in this sense, the Issuer would have failed to comply with articles 4 and 5 of the Standards on Preparation and Presentation of Financial Statements and Annual Report by Entities Supervised by the SMV approved by SMV Resolution No. 016-2015-SMV/01 2 (hereinafter, Standards on Preparation and Presentation of FS), in force at the time of the commission of the infractions, which establish that issuing companies with values registered in the Public Registry of the Securities Market - RPMV are obliged to present their consolidated interim financial statements, on the day they were approved by the corresponding social body, being the deadline for approval and respective presentation, in the case of consolidated interim financial statements corresponding to the fourth quarter, March 01 of each year;
16. That, it should be noted that on December 10, 2023, the Standards on Preparation, Presentation and Dissemination of Financial Statements and Annual Report and Management Report applicable to entities supervised by the SMV were published, approved by article 1 of SMV Resolution No. 013-2023-SMV/01 and in force from December 11, 2023 (hereinafter, new Standards on Preparation, Presentation and Dissemination of FS);
17. That, in such sense, according to articles 16 3 and 17 4 of the Standards on Preparation, Presentation and Dissemination of FS, in force from December 11, 2023, the obligations to present consolidated interim financial statements, as well as the applicable deadlines, remain;
18. That, for the purpose of determining the possible sanction, these infractions are classified in subsection 3.1 of numeral 3 of Annex I of the Sanctions Regulation, which states that it constitutes a minor infraction: “Present outside the established deadline, or do 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, the individual or consolidated interim financial statements, management report, special audit report, important facts and, annual reports.” (Underline added);
19. That, according to article 35 of the Sanctions Regulation, such infractions are sanctionable with admonition or a fine not less than one (1) UIT and up to twenty-five (25) UIT;
4.2 Evaluation of the case
20. That, file No. 2024027991 which contains the documentation of the present PAS, it is appreciated that through Memorandum No. 1905-2023-SMV/11.1 of May 23, 2023 (File No. 2023021413) and Memorandum No. 4438-2023-SMV/11.1 of October 19, 2023 (File No. 2023043911), the General Intendancy of Conduct Supervision (hereinafter, IGSC) – the body of the SMV that has within its functions and faculties, the supervision of compliance with the norms applicable to issuers with values registered in the RPMV – sent to the IGCC, the result of its evaluation, and specifically what refers to the present case;
21. That, it must be kept 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 infractions, determine that its pronouncement or opinion on a specific topic of supervision – which may even contain a decision, such as the adoption of corrective measures – is an opinion on the merits of the matter; it must be specified that said opinion and the report of indications of infractions of the IGSC is not binding for the IGCC, as established in the second paragraph of article 9 of the Sanctions Regulation 56 ;

respectively. The financial statements must be digitally signed by a public accountant licensed to practice the profession and by the legal representative of the obligated subject.
5 In article 245 of the TUO of the LPAG it is indicated as forms or modes in which the inspection activity could conclude the following: 1) Certificate of conformity of the activity developed by the administered entity; 2) Recommendation of improvements or corrections of the activity developed by the administered entity; 3) The warning of the existence of non-compliance not susceptible of meriting the determination of administrative responsibilities; 4) The recommendation to start a procedure in order to determine the administrative responsibilities that correspond; 5) The adoption of corrective measures and 6) Other forms as established by special laws. 6 Article 9.- PRELIMINARY INQUIRIES AS A CONSEQUENCE OF SUPERVISION ACTIONS

PERU Ministry of Economy and Finance

SMV
Securities Market Superintendence

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

22. That, in this way, it is established that in the evaluation of the facts related to the present Administrative Procedure (PAS), two (2) other bodies of the SMV, functionally independent from each other and from this Office, had intervened and participated previously to the issuance of this resolution; first the IGSC which at the time reported the indications of infractions through the aforementioned memorandum and then the IGCC which, as a result of its evaluation, formulated the Notice of Charges and the Report; and at this point in the PAS it corresponds to the Office of the SASCM to issue a pronouncement containing its decision regarding the mentioned charge, it being precise to indicate that by its nature, it will be a decision of a single administrative instance;

23. That, previously, it must be noted that through a written submission dated October 30, 2024, the Issuer presented its defenses regarding the imputations made against it in the present file. Likewise, through a written submission dated December 03, 2024, the Issuer presented its arguments, reiterating the defense arguments contained in the defense submission;

24. That, regarding the failures in the timely communication of the significant events in reference, the Issuer indicates that the illegal blockade and unblocking of roads and access routes that affected the activities of the Pataz mining unit did not have a significant impact on its activities. Thus, it points out that "(...) the communication of both significant events had the intention of bringing to the knowledge of the market, the constant criminal actions perpetrated by the criminal organizations of illegal mining and the bands of criminals known as 'parkers' against us (...)";

25. That, in attention to this argument, the significant events subject of analysis have been verified, observing the following:

• The content of both significant events begins with the following wording: "In accordance with what is provided in the Regulation of Significant Events and Reserved Information, approved by SMV Resolution No. 005-2014-SMV/01 and its modifying norms, we comply with communicating to the Market, as a Significant Event, the following: (...)". (Underline added).
• The Issuer communicated, in the third paragraph of the significant event of August 04, 2023, that: "(...) this organized crime has been executing the illegal blockade of the roads and access routes to our mining unit since June 20 until the date, which has significantly affected the regular development of our mining activities during a period of 46 days. Unfortunately,

(...) When these bodies conclude that there are sufficient indications of possible administrative infractions, they refer the corresponding reports to the General Inspectorates of Compliance, which determine whether or not to initiate an administrative sanctioning procedure. If so, the General Inspectorates of Compliance may carry out additional inspections or investigations of the reported indications. In the case of possible infractions in the scope of the Regulation of the Participatory Financial Financing Activity and its Managing Societies, the preliminary inquiries are carried out by the General Inspectorate of Investigation and Innovation, a dependency that, if there are sufficient indications of possible administrative infractions, will determine whether or not to initiate an administrative sanctioning procedure. (...).

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 this situation, added to the constant power outages caused by the blasting of high-voltage towers, has forced us to intermittently paralyze our Marañón and Santa María I processing plants, from June 20 to July 28, and totally for almost 3 days (from July 29 to 31). As a direct result of these circumstances, our production in the month of July has experienced a 60% decrease in gold ounces with respect to the production program of the month." (Underline added).

• The Issuer communicated, in the third paragraph of the significant event of August 07, 2023, that: "(...) the unblocking of the routes and the reopening of the access routes allow us to return to our activities, for which we expect to resume the production levels of our operation". (Underline added);

26. That, in accordance with the foregoing and according to numeral 31 of Annex 1 of the Regulation of Significant Events, it is observed that the events that occurred in the Pataz mining unit refer to facts that caused interruptions in mining production, it even states that the Issuer has experienced a 60% decrease in its monthly gold production; therefore, it can be concluded that the referred facts did have a significant impact on the Issuer's activities, for which they had to be communicated on the day they occurred;

27. That, in addition, it is worth mentioning that article 3 of the Regulation of Significant Events defines that a significant event is one that has the capacity to significantly influence the issuer or its securities, and, according to article 4 of the same regulation, it is specified that to evaluate the capacity for significant influence, the issuer must take into account the transcendence of the fact in its activity, assets, results, financial situation or business or commercial position; therefore, it can be affirmed that the Issuer communicated the illegal blockade and unblocking of the roads and access routes of the Pataz mining unit after this evaluation and opted to qualify them as significant events;

28. That, in that sense, although the Issuer alleges that the significant events in reference did not have a significant impact on its activities, it is considered that what is argued by the Issuer in its defenses is not sufficient to refute the charges formulated in this regard;

29. That, on the other hand, regarding the failure in the timely presentation of the financial information in reference, the Issuer affirms, both in its defense submission and in its arguments, that it is in a situation of force majeure having been unable to present the consolidated interim financial statements as of December 31, 2022, within the deadline due to the resignation of its Comptroller General, Mr. Iván Asmat Salazar, which occurred on February 20, 2023. Additionally, it adds that on March 01, 2023, it hired a new Comptroller General and was able to initiate the procedures for the issuance and activation of the digital certificate, so that only on March 15, 2023, it complied with the presentation of the financial information in question;

30. That, with the purpose of demonstrating the narrated facts, the Issuer attached to its defense submission the following means of proof: (i) the resignation letter of February 20, 2023 in which Mr. Iván Asmat Salazar; (ii) the certificate of deregistration of Mr. Iván Tomas Asmat Salazar from the T-Registro system of the National Superintendence of Tax Administration – SUNAT dated February 20, 2023; and, (iii) the employment contract of Mr. Iben Reyes Bendezu with a start date of March 01, 2023;

PERU Ministry of Economy and Finance

SMV
Securities Market
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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. That, in that sense, it corresponds to analyze if clause a) of article 27 of the Sanctions Regulation is applicable, which states that it constitutes an exemption from responsibility: "The fortuitous event, force majeure or another exceptional situation that, in the opinion of the SMV, was equivalent to a fortuitous event or force majeure duly proven", a norm concordant with article 257 numeral 1) letter a) of the TUO of the LPAG;

32. That, it is worth noting that, although the administrative regulation does not provide us with a definition on force majeure as an exemption from responsibility, it is considered that recourse must be had to the sources of the procedure, such as laws and provisions of equivalent hierarchy (Article V numeral 2.3. of the TUO of the LPAG), the same which is developed in article 1315 of the Civil Code, which establishes the following: "Fortuitous event or force majeure is a cause not imputable, consisting of an extraordinary, unforeseeable and irresistible event, which prevents the execution of the obligation or determines its partial, late or defective compliance". Likewise, doctrine holds that "it must be distinguished, between the impossibility of compliance and the difficulty in compliance, since there will be no fortuitous event or force majeure when the obstacle, without preventing compliance, makes it more difficult or onerous than initially provided";

33. That, in accordance with the foregoing, it must be considered that there will only be an absence of responsibility for force majeure when an extraordinary event is configured that obeys strictly to a fact carried out by a third party; that said fact has the character of irresistible, and; whose occurrence is impossible to prevent through acts of foresight;

34. That, in the concrete case, although the resignation of Mr. Iván Asmat Salazar in the position of Comptroller General may meet the requirements of extraordinary and unforeseeable fact, it does not qualify as an irresistible fact due to the following:

• From the resignation letter of February 20, 2023 attached by the Issuer in its submission, it can be observed that Mr. Iván Asmat Salazar requested the exemption from the thirty (30) days of advance notice provided for in article 18 of the Single Ordered Text of Legislative Decree No. 728, approved by Supreme Decree Nº 003-97-TR (hereinafter TUO of DL 728).
• Regarding this matter, the aforementioned article provides: "In case of resignation or voluntary withdrawal, the worker must give written notice 30 days in advance. The employer may exempt this term on its own initiative or at the worker's request; in the latter case, the request will be understood as accepted if it is not rejected in writing within the third day". (Underline added);

35. That, notwithstanding having the possibility of rejecting the exemption from the resignation notice period, taking into account that the presentation of the consolidated interim financial statements as of December 31, 2022, would be in nine (9) calendar days, on February 20, 2023, the Issuer gave

7 DEL RISCO, Luis, "El Caso Fortuito y la Fuerza Mayor en las Obligaciones Pecuniarias y Genéricas": Revista de Análisis Especializado de Jurisprudencia, Tomo 40, 2011, pág. 41- 45.

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 notice to Mr. Iván Asmat Salazar from the T-Registro system of SUNAT, tacitly accepting what was requested;

36. That, in attention to what has been exposed, the Issuer has not been able to prove that it is in a situation of exemption from responsibility, since it is observed from the facts described above, that it has had a lack of diligence, due to the fact that despite having the possibility of rejecting the exemption from the resignation notice period, it did not do so;

37. That, consequently, having accredited the conduct constitutive of infractions and determined the administrative responsibility of the Issuer, it will proceed to determine the sanction that would be applicable, for which effect, the principle of reasonableness and the sanctioning criteria, contained in article 344 of the TUO of the LMV, in article 25 of the Sanctions Regulation and what is provided by numeral 3 of article 248 of the TUO of the LPAG will be taken into consideration, attending that the Issuer has corrected the infractions subsequently to the notice of charges; which will be evaluated in the section of determination of the sanction;

V. DETERMINATION OF THE SANCTION

38. That, having determined the existence of administrative responsibility on the part of the Issuer, for the commission of three (3) infractions typified in clause 3.1 of numeral 3 of Annex I of the Sanctions Regulation, which states that they constitute minor infractions:
    "To present outside the established deadline, or to present it 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 negotiation mechanism or to any other entity or subject of the securities market, the individual or consolidated audited financial information, the individual or consolidated interim financial statements, management report, special audit report, significant events, and annual reports." (Underline added);

39. That, according to article 35 of the Sanctions Regulation, these infractions are sanctionable with a reprimand or a fine not less than one (1) UIT and up to twenty-five (25) UIT;

40. That, for the purpose of analyzing the corresponding sanction for this class of non-compliance, the Criteria applicable to the administrative sanctioning procedure for non-compliance with the norms that regulate the sending of periodic or eventual information, approved by SMV Resolution Nº 006-2012-SMV/01, in force at the time of the commission of the infractions (hereinafter, Special Sanctioning Criteria), must be taken into account;

41. That, however, it is worth indicating that through article 1 of Resolution N° 007-2023-SMV/01 of September 04, 2023, the Gradual Sanctioning Regime for late presentation of financial information, annual report and significant events was approved (hereinafter, New Gradual Sanctioning Regime), whose article 4 disposed its validity from January 01, 2024; and in article 2 of the aforementioned Resolution, the Special Sanctioning Criteria are repealed;

42. That, in attention to the foregoing and considering that the regulation has been modified during the processing of the present PAS, it corresponds

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 to analyze if in the present case the provisions of the New Gradual Sanctioning Regime should be applied by virtue of the Principle of Favorable Retroactivity, established in numeral 5) of article 248 of the TUO of the LPAG, which states that: "(...) the sanctioning provisions in force at the time the administrator incurs in the conduct to be sanctioned are applicable, unless the subsequent ones are more favorable to him";

Sanctioning Criteria

43. That, regarding the gravity of the damage to the public interest and/or protected legal good, the timely presentation of periodic information (financial information) or eventual information (significant events) has the purpose of allowing investors to adopt adequately informed investment decisions. 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;

44. That, regarding sanctioning antecedents, article 25 of the Sanctions Regulation establishes that the antecedents of the infringer are the sanctions imposed on him by the SMV that became final within the four (4) years prior to the moment of the commission of the infraction to be sanctioned. Likewise, the commission of the same infraction in the year prior to the infraction to be sanctioned is not considered an antecedent, since this commission would be qualified as recidivism. In application of this criterion, it has been verified that the Issuer has sanctioning antecedents, according to what is detailed in the Report;

45. That, regarding the recidivism of the infringer, clause b) of article 25 of the Sanctions Regulation establishes that the final sanction imposed by the SMV within the period of one (1) year prior to the commission of the infraction to be sanctioned is taken into account. Regarding this, it has been verified that there is no recidivism on the part of the Issuer with respect to the infractions referred to the late disclosure of significant events;

46. That, regarding the circumstances of the commission of the infraction, it has been verified that the Issuer communicated the significant events referred to the illegal blockade and unblocking of the roads and access routes of the Pataz mining unit with forty-five (45) and one (1) calendar day of delay, respectively. Likewise, the Issuer presented the consolidated interim financial statements as of December 31, 2022, with fourteen (14) calendar days of delay;

47. That, regarding the economic prejudice and its repercussion in the market, it has not been evidenced that the non-compliances have produced a quantifiable prejudice, understood as an economic damage caused to one or several investors;

48. That, regarding the benefit illegally obtained, it must be noted that in the present case, there are not sufficient elements to indicate that the Issuer obtained an illegal benefit as a consequence of the commission of the infractions under evaluation;

49. That, regarding the probability of detection of the infraction, we must indicate that the verification on the timely presentation of eventual or periodic information by the issuers is carried out through the internal control systems of the SMV; therefore, there is a high probability of

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 detection;

50. That, regarding the existence or non-existence of intent in the conduct of the infringer, it is considered that the action of the Issuer was not intentional, but rather negligent, for not having acted with due diligence in the fulfillment of its obligation to present its significant events in a timely manner. It is worth indicating that if it had been proven that the action of the Issuer was intentional, we would have to point out that in the procedure aggravating factors were accredited, which would allow increasing the fine up to the maximum allowed by the corresponding law. As it is not the case, it will not be increased to said amount;

51. That, regarding the application of the Reprimand sanction, it is observed that section (ii) of numeral 4.2 of the Special Sanctioning Criteria, describes as a guideline for the application of the reprimand sanction, the concurrence of the following situations: "(i) the impact on market transparency is minimal; ii) the infraction committed has not caused a concrete prejudice to investors or associates; (iii) the infringing subject does not have antecedents or having them, they are infractions typified as minor faults imposed in the four (4) years prior to the commission of the infraction being evaluated; (iv) the infringing subject has not obtained a benefit for its illegal conduct; and (v) it has not been proven that the infringer acted with intent in the commission of the infraction.";

52. That, it is worth specifying that these guidelines for the application of the reprimand sanction are also included in clause 6.1 of article 6 of the New Gradual Sanctioning Regime under the same terms, except for what refers to the antecedents and recidivism of the infringer collected in the new norm in the following way: "a. When the impact on market transparency is minimal. This statement is linked to the criterion of the gravity of the damage to the public interest and/or protected legal good; b. The infraction committed has not caused a concrete prejudice to investors or associates; c. The infringing subject does not have antecedents or having them, they are sanctions corresponding to minor infractions imposed by the SMV that had become final in the four (4) years prior to the commission of the infraction being evaluated; d. The infringing subject is not a recidivist; e. The infringer has not obtained benefits for his administrative infraction; and, f. It has not been proven that the infringer acted with intent in the commission of the infraction.";

53. That, considering the foregoing and taking into account the regulation in force during the processing of the present PAS, in accordance with the Principle of Favorable Retroactivity, and as mentioned above, it corresponds to apply the sanctioning provisions in force at the moment when the administrator incurred in the conduct subject to sanction as long as the subsequent provisions do not result more favorable;

54. That, consequently, in the present case it is observed that the Issuer has infraction antecedents, having been sanctioned through Resolution of the Deputy Superintendent SMV N° 110-2019-SMV/11 of September 30, 2019 for having incurred in an infraction of a serious nature typified in clause 2.11 of numeral 2 of Annex I of the Sanctions Regulation; therefore, it does not correspond to apply the reprimand sanction in the present case, since the Issuer does not meet the requirement of not having only antecedents of infractions typified as minor faults imposed in the four (4) years prior to

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 the commission of the infractions being evaluated;
55. That, regarding the evaluation of the Principle of Favorable Retroactivity and Proposal of Sanction, it is noted that paragraph 5 of article 248 of the TUO of the LPAG, by which it is possible to apply subsequent sanctioning norms to the commission of the offense as long as they benefit the administrative party, the corresponding sanction will be graded taking into account the Special Sanctioning Criteria and also the New Gradual Sanctioning Regime. Once the fines are calculated, it will be determined which is more beneficial to the administrative party, and the most beneficial fine will be proposed;
56. That, from the comparison of what is established in paragraph (iv) of clause 4.2 of the Special Sanctioning Criteria and paragraph 6.2 of article 6 of the New Gradual Regime (which determine the fine by quantifying the base in UIT and for each day of delay), it is observed that a lower amount to be sanctioned is obtained with the application of the Special Sanctioning Criteria in the infractions incurred by the Issuer;
57. That, likewise, with respect to the antecedents, the Old Sanctioning Criteria establish that it "will increase by two percent (2%) if it is determined that the offending subject has sanctioning antecedents and by three (3%) if it has antecedents of the same conduct that is intended to be sanctioned.", likewise, the New Gradual Regime states that "The resulting amount from the application of the guidelines contemplated in paragraph 6.2 may be increased up to five percent (5%) if it is accredited that the offending subject has sanctioning antecedents", without making distinction as to whether they correspond to a different or the same type of infraction. Therefore, in order to determine which rule is more beneficial, it is considered that the application of the new regulation will increase one percent (1%) for each sanction resolution that constitutes the antecedent up to a maximum of five percent (5%);
58. That, in the present PAS, since three (3) sanctioning antecedents have been identified with respect to charge 3 and two (2) sanctioning antecedents linked to charges 1 and 2, three percent (3%) and two percent (2%) will be applied, as the case may be, in the calculation of the fine under the New Gradual Sanctioning Regime;
59. That, with respect to recidivism, the Special Sanctioning Criteria did not regulate this criterion for its quantification and the New Gradual Regime states that "The resulting amount from the application of the guidelines contemplated in paragraph 6.2 may be increased (...) up to ten percent (10%) if it is verified that the offending subject is a recidivist"; in this sense, the SASCM considers that it will increase by five percent (5%) when the Issuer has one (1) sanction resolution that grants recidivism or ten percent (10%) when it has two (2) or more

8 Article 248.- Principles of the administrative sanctioning power

The sanctioning power of all entities is additionally governed by the following special principles:
(…)
5. Non-retroactivity.- The sanctioning provisions in force at the time the administrative party incurs the conduct to be sanctioned are applicable, unless subsequent ones are more favorable. (…).

PERÚ 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 sanction resolutions that grant recidivism. Regarding this, in the present case it is observed that the Issuer is not a recidivist;
60. That, in such sense, from the review of the Old Sanctioning Criteria and the New Gradual Sanctioning Regime, it is observed that for the infractions subject to charges, the graduation of the Old Sanctioning Criteria, in force at the time of the commission of the infractions, is more favorable, as detailed in the Report, so it corresponds to impose as a sanction a total fine of 6.30 UIT 9 equivalent to S/ 31,185.00 (Thirty-One Thousand One Hundred Eighty-Five and 00/100 Soles), according to the following detail:
(i) Fine of 3.15 UIT equivalent to S/ 15,592.50 (Fifteen Thousand Five Hundred Ninety-Two and 50/100 Soles) for the late communication of the material event referred to the illegal blocking of roads and access routes that affected the activities of the Pataz mining unit.
(ii) Fine of 0.32 UIT equivalent to S/ 1,559.25 (One Thousand Five Hundred Fifty-Nine and 25/100 Soles) for the late communication of the material event referred to the unblocking of roads and access routes that affected the activities of the Pataz mining unit.
(iii) Fine of 2.84 UIT equivalent to S/ 14,033.25 (Fourteen Thousand Thirty-Three and 25/100 Soles) for the late submission of the consolidated interim financial statements as of December 31, 2022, and; Being in accordance with the provisions of paragraphs 13 and 36 of article 43 of the Regulation of Organization and Functions of the Superintendence of the Securities Market – SMV, approved by Supreme Decree N° 216-2011-EF; RESOLVES:
Article 1º.- Declare that COMPAÑÍA MINERA PODEROSA S.A. has incurred three (3) minor infractions, typified in clause 3.1 of paragraph 3 of Annex I of the Sanctions Regulation, approved by SMV Resolution N° 035-2018-SMV/01, for: communicating late the material event referred to the illegal blocking of roads and access routes that affected the activities of the Pataz mining unit (Charge 1); communicating late the material event referred to the unblocking of roads and access routes that affected the activities of the Pataz mining unit (Charge 2); and, presenting late the consolidated interim financial statements as of December 31, 2022 (Charge 3).
Article 2º.- Sanction COMPAÑÍA MINERA PODEROSA S.A. with a total fine of 6.30 UIT equivalent to S/ 31,185.00 (Thirty-One Thousand One Hundred Eighty-Five and 00/100 Soles), pursuant to article 1° of this Resolution.
Article 3º.- This Resolution does not exhaust the administrative route, this being able to be challenged before this Adjunct Superintendence of Market Conduct Supervision by filing the reconsideration appeal, administrative appeal recognized in article 218 of the Single Consolidated Text of the General Administrative Procedure Law – Law N° 27444, approved

9 Value of the UIT (2023): S/ 4,950 (Supreme Decree N° 309-2022-EF).

PERÚ 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 by Supreme Decree N° 004-2019-JUS, within the term of fifteen (15) business days, counted from the day following its notification since it is a procedure of a single administrative instance. In case this Resolution is not challenged, it may avail itself of the regime for reduction of the corresponding sanction.
Article 4º.- In case this Resolution is not subject to challenge, it must be published on the "Institutional Page of the SMV on the Unique Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)", in observance of the provisions of paragraph 1 of article 7 of the "Policy on dissemination of normative projects, general character legal norms, early agenda and other administrative acts of the SMV", approved by SMV Resolution N° 014-2014-SMV/01, and by the provisions of the last paragraph of article 14 of the Sanctions Regulation, approved by SMV Resolution N° 035-2018-SMV/01.
Article 5º.- Transcribe this Resolution to COMPAÑÍA MINERA PODEROSA S.A.
Register, communicate and publish.
Carlos Rivero Zevallos
Adjunct Superintendent
Adjunct Superintendence of Market Conduct Supervision