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Superintendency Adjunct Resolution SMV No. 020-2024-SMV/11

Lima, 21 de marzo de 2024

Summary: To sanction Agroindustrias San Jacinto S.A.A. with one (1) reprimand for having committed one (1) minor infringement, classified in subsection 3.1 of item 3 of Annex I of the Sanctions Regulations

Administered: AGROINDUSTRIAS SAN JACINTO S.A.A.

Asunto
: Single-Instance Administrative Sanctioning Procedure Administrativa

Main Type: Subsection 3.1 of item 3 of Annex I of the Sanctions Regulations INFRACCIÓN LEVE

Expediente N° : 2023031589

The Deputy Superintendent (e) of Supervision of Conductas de Mercados

VISTOS:

Administrative file N° 2023031589, containing the administrative sanctioning procedure initiated by the General Directorate of Compliance with Conducts of the Securities Market Superintendent – SMV (hereinafter, the IGCC), against Agroindustrias San Jacinto S.A.A. (hereinafter, the Issuer); as well as Report N° 232-2024-SMV/11.2 (hereinafter, the Report), issued by the IGCC;

CONSIDERANDO:

I. FUNCIÓN Y COMPETENCIA DE LA SASCM

1. That the IGCC —the investigating body of the administrative sanctioning procedures (hereinafter, the PAS) referred to in this case— has brought to the attention of the Deputy Superintendent of Market Conduct Supervision of the SMV (hereinafter, SASCM) the PAS of administrative file N° 2023031589 in order for it to issue a decision as the single-instance sanctioning body in said PAS. In this way, the SASCM assumes jurisdiction in observance of the exercise of the supervision function and the sanctioning power of the Securities Market Superintendent - SMV established by the Single Consolidated Text of its Organic Law, Supreme Decree N°

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26126 (hereinafter, the Organic Law of the SMV), and in the Single Ordered Text of the Securities Market Law, Legislative Decree No. 861, approved by Supreme Decree No. 020-2023-EF (hereinafter, the TUO of the LMV); as well as by the provisions of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, the Sanctions Regulation) and in articles 42 and 43 of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF (hereinafter, the ROF of the SMV), in the sense that it is a specific function of the SASCM to impose sanctions in a single administrative instance for the commission of infractions whose compliance control according to its competencies corresponds to said Deputy Superintendence. Likewise, the SASCM has the powers to issue corrective measures aimed at reversing the situation altered by the commission of the infraction;

II. HECHOS, CARGO, DESCARGOS Y ALEGATOS

2.1 Hecho

2. That, it was evaluated whether the Issuer complied with timely submitting its financial information;

2.2 Cargo

3. That, as a result of said evaluation, through Official Letter of Charges No. 4925-2023-SMV/11.2 of 7 November 2023 (hereinafter, the Official Letter of Charges), a charge was formulated against the Issuer for having submitted extemporaneously its Audited Consolidated Annual Financial Statements for the 2020 fiscal year, which should have been submitted no later than 30 April 2021; however, they were submitted on 10 May 2021 (File No. 2021018756);

4. That, the commission of the infraction typified in subsection 3.1 of numeral 3 of Annex I of the Sanctions Regulation was imputed;

2.3 Descargos y alegatos

5. That, through a brief submitted on 21 November 2023, the Issuer presented its defenses, stating that the Covid-19 pandemic constituted a force majeure event, in accordance with the provisions of subsection a), numeral 1 of article 257 of the Single Ordered Text of the General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS (hereinafter, the TUO of the LPAG), given that it interfered with the timely submission of the financial information in question, without there having been any intention or benefit on the part of the Issuer in committing the imputed conduct;

6. That, the Issuer also added that due to Covid-19, the accounting personnel in charge of submitting the information obligations to the SMV were on medical rest, which generated the non-compliance with the submission of its Audited Consolidated Annual Financial Statements corresponding to the 2020 fiscal year;

7. That, on the other hand, the Issuer argues that in application of literal f) of numeral 1 of article 257 of the TUO of the LPAG, the act constituting the administrative infraction was voluntarily remedied, since the remediation was carried out prior to the notification of the imputation of charges referred to in numeral 3 of article 255 of the TUO of the LPAG;

8. That, the TUO of the LPAG contains common rules

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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 severity of the damage to the public interest and/or protected legal interest, (d) The economic harm caused, (e) Recidivism, for the commission of the same infraction within the term of one (1) year from when the resolution that sanctioned the first infraction became final, (f) The circumstances of the commission of the infraction; and, (g) The existence or not of intentionality in the conduct of the offender;

9. That, the charge formulated, the defenses presented, and the criteria regarding the graduation of the sanction have been subject to evaluation in the Report, which has been brought to the attention of the SASCM;

10. That, in observance of the provisions of numeral 5 of article 255 of the TUO of the LPAG, by means of Oficio N° 822-2024-SMV/11 of 28 February 2024, the Report was sent to the Issuer, so that it may submit its arguments within the term of five (5) business days from notification, which were presented reiterating what was indicated in its defenses, and summarily adding the following:

(i) It disagrees with the recommendation of a warning, since the conduct was an involuntary event derived from the pandemic that affected the health of the personnel in charge of the preparation and presentation of the information, in addition to the absence of intent and the fact that there is no record of recidivism or any other element that legitimizes a warning.

(ii) It explains the elements of the alleged exemption from liability due to fortuitous event or force majeure:

"(…)

o Extraordinary event: Thus we have that COVID – 19 and the National State of Emergency qualify as cases of fortuitous event and force majeure, since both are atypical events, not customary".

o Unforeseeable: COVID – 19 constitutes a fortuitous event since it is an unexpected event, which cannot be known in advance.

o Irresistible: Both COVID – 19 and the National State of Emergency are cases of fortuitous event and force majeure, since they qualify as unavoidable events despite having adopted the normal attention, protocols, norms, care and diligence of the activity carried out; for this, the circumstances of place, time and person would have to be evaluated.

o External event: This characteristic is reflected in the National State of Emergency as a case of force majeure, since it derived from the decision of an authority with state powers.

(…)".

(iii) Finally, it indicates that in order to restore the legality breached by the commission of the infraction, it proceeded to send the omitted information to the SMV, correcting the damage caused; therefore, the imposition of a corrective measure by the administration is unnecessary, since the sanction is an instrument to enforce the norms, given that it would have been corrected

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previously through compliance with the obligation;

III. ISSUES TO BE DETERMINED

11. That, in the present PAS it corresponds to determine the following:

(i) Whether or not the Issuer incurred the infraction indicated in the Charge Letter and Report.

(ii) Whether or not it corresponds to impose a sanction on the Issuer.

IV. ANALYSIS

4.1 Applicable regulations

12. That, article 31 of the TUO of the LMV states: "The provisions of the previous article do not relieve the issuer of the timely delivery to the SMV and, where appropriate, to the respective stock exchange or entity responsible for the conduct of the centralized mechanism, of the information that one or the other may require and, necessarily, that which is indicated below:

a) Its financial statements and indicators, with the minimum information generally indicated by the SMV, with a frequency no greater than quarterly;

b) Its annual report, with the minimum information generally established by the SMV (…)" (Underline added);

13. That, in relation to the term for the approval and presentation of audited annual consolidated financial statements, article 8 of the Norms on Preparation and Presentation of Financial Statements and Annual Report by Entities Supervised by the Superintendency of the Securities Market, approved by SMV Resolution N° 016-2015-SMV/01 (Norms on Preparation and Presentation of FS), in force at the date of the commission of the facts subject of the present PAS, establishes that issuers with securities registered in the Public Registry of the Securities Market (RPMV) are obliged to present to the SMV their audited annual consolidated financial statements, the deadline for these purposes being 30 April of each year;

14. That, by way of reference, it is worth noting that on 10 December 2023, the Norms 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 Superintendency Resolution N° 013-2023-SMV/01 and in force as of 11 December 2023 (hereinafter, New Norms on Preparation, Presentation and Dissemination of FS);

15. That, in this regard, it is precise to indicate that according to article 3 of the New Norms on Preparation, Presentation and Dissemination of FS, the validity of the Norms on Preparation and Presentation of FS is maintained, exclusively for issuers regulated by the Superintendency of Banking, Insurance and AFP;

16. That, in accordance with articles 161 and 172 of the New Rules on Preparation, Presentation and Dissemination of Financial Statements, the obligations and deadlines regarding the presentation of the Consolidated Annual Audited Financial Statements are maintained, an obligation that is evaluated in this PAS;

17. That, the failure to timely present financial information is typified in subsection 3.1 of numeral 3 of Annex I of the Sanctions Regulation, which states that it constitutes a minor infraction: “To present outside the established deadline, or to 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 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, material events and annual reports.” (Highlight added);

18. That, in accordance with article 35 of the Sanctions Regulation, said infractions are punishable with a warning or a fine of no less than one (1) UIT and up to twenty-five (25) UIT;

4.2 Evaluation of the case

19. That, in file No. 2023031589 containing the documentation of this PAS, it is observed that through Memorandum No. 1379-2022-SMV/11.1 of 8 April 2022 (File No. 2022014941), the IGSC —an organ of the Superintendency of the Securities Market – SMV which has among its functions and powers the supervision of compliance with the rules applicable to issuers with securities registered in the RPMV—, forwarded to the IGCC the result of its evaluation, and specifically what refers to the present case;

[1] “Article 16.- Consolidated financial statements 16.1 The obligated subjects, when they are controllers of different companies or entities (subsidiaries), according to IFRS, must present their consolidated financial statements without prejudice to the obligation to present their separate financial statements. 16.2 The audited consolidated annual financial statements have as closing date 31 December. 16.3 The consolidated interim financial statements must refer to the following closing dates: As of 31 March, 30 June, 30 September and 31 December of each year. 16.4 The provisions of articles 11 and 12 of the Rules are also applicable to the consolidated financial statements, in relation to the audit firm and the issuance of the corresponding audit report”.

[2] “Article 17.- Approval and deadline for presentation 17.1 The annual or interim consolidated financial statements must be approved by the competent organ. 17.2 In the case of issuers, the annual or interim consolidated financial statements must be presented and disseminated before the SMV on the date of their approval. 17.3 30 April is the expiration date of the deadline for the presentation of the audited consolidated annual financial statements. In the case of collective fund management companies, the expiration date of the deadline is 15 May and in the case of Intermediation Agents, 31 March of each year. 17.4 15 May, 15 August, 15 November and 1 March of the following year are the expiration dates of the deadlines established for the presentation of the consolidated interim financial statements of the first, second, third and fourth quarter, respectively. The financial statements must be digitally signed by a public accountant authorized to practice the profession and by the legal representative of the obligated subject”.

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20. 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 infraction, determine that its pronouncement or opinion on a specific supervision matter —which may even contain a decision, such as, for example, the adoption of corrective measures—, is an opinion on the merits of the matter; it being necessary to specify that said opinion and the report of indications of infraction of the IGSC is not binding for the IGCC, as established in the second paragraph of article 9 of the Sanctions Regulation3 4;

21. That, in this way it is held that in the evaluation of the facts related to this PAS, two (2) other organs of the Superintendency of the Securities Market – SMV, functionally independent from each other and from this Office, have intervened and participated prior to the issuance of this resolution; first the IGSC which in due course reported the indications of infraction through the aforementioned memorandum and then the IGCC which, as a result of its evaluation, formulated the Charge Letter and the Report; and at this point of the PAS it corresponds to the Office of the SASCM to issue a pronouncement containing its decision regarding the mentioned charge, it being necessary to indicate that by the nature of the same, it will be a decision of sole administrative instance;

22. That, prior to the corresponding analysis, it must be noted that the formulation of the charge was based on the fact that the Issuer did not communicate the financial information detailed in the Charge Letter, within the deadline established by the regulations;

23. That, compliance with the obligation regarding the timely submission of periodic and occasional information by issuers of securities registered in the RPMV is necessary for the transparency and proper functioning of the securities market, and in that sense the transparency of information is a protected legal asset, it being necessary to point out that non-compliance with said obligation harms or affects it;

24. That, in relation to the defenses and arguments presented by the Issuer, it is appropriate to point out the following:

(i) The Issuer's first argument focuses on pointing out that Covid-19 constituted a

[3] Article 245 of the TUO of the LPAG states as forms or modes in which the inspection activity could be concluded the following: 1) Record of conformity of the activity carried out by the administered; 2) Recommendation of improvements or corrections of the activity carried out by the administered; 3) The warning of the existence of non-compliances not susceptible to warrant the determination of administrative responsibilities; 4) The recommendation of the initiation of a procedure in order to determine the corresponding administrative responsibilities; 5) The adoption of corrective measures and 6) Other forms as established by special laws.

[4] Article 9.- PRELIMINARY INQUIRIES AS A CONSEQUENCE OF SUPERVISION ACTIONS (…) When said bodies conclude that there are sufficient indications of possible administrative infractions, they refer the corresponding reports to the General Compliance Intendancies, which determine whether or not to initiate an administrative sanctioning procedure. If applicable, the General Compliance Intendancies 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 Financial Participatory Financing Activity and its Managing Companies, the preliminary inquiries are carried out by the General Intendancy of Research 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. (…).

event of force majeure, which this Deputy Superintendency does not deny, however considers that it was for a determined period. However, it is necessary to remember that the date on which the Issuer incurred in the non-compliance regarding the submission of its Consolidated Annual Audited Financial Statements for the 2020 fiscal year, was the 2021 period; that is, it was an obligation that had to be fulfilled when a year had already passed since the beginning of the pandemic.

In this regard, it is appropriate to point out that numeral 3.1 of the Criteria Applicable to the Administrative Sanctioning Procedure for Non-Compliance with the Rules that Regulate the Submission of Periodic or Occasional Information, approved by SMV Resolution No. 006-2012-SMV/01 (hereinafter, Special Sanction Criteria), in force at the time of the commission of the infraction5, established the following:

“3.1. Assumptions of non-sanction If the sanctioning body considers that a fortuitous event, force majeure, or another exceptional situation is evidenced that, in its opinion, justifies the non-imposition of a sanction, it may refrain from sanctioning by ordering the definitive archiving of the file through a reasoned decision. (…)” (Highlight added);

For its part, article 1315 of the Civil Code states that: “Fortuitous event or force majeure is the non-imputable cause, consisting of an extraordinary, unforeseeable and irresistible event, which prevents the execution of the obligation or determines its partial, late or defective fulfillment.”

Taking this into account, we must remember that in 2020, the year in which the pandemic had the greatest impact on economic activities, the SMV had up to two modifications in the deadlines for submitting financial information and annual report, through Superintendency Resolutions Nos. 033 and 046-2020-SMV/02 of March 21 and May 27, 2020, respectively. In this way, new deadlines were established for the submission of financial information and annual report for the 2019 fiscal year, the interim information as of March 31, 2020, the interim information as of June 30, 2020 and the information on economic group, as well as for the appointment of auditors for the 2020 fiscal year, not being among the referred extensions, that of submission of the consolidated audited financial statements corresponding to the 2020 fiscal year.

According to the above, although on the date on which the infraction occurred, the National State of Emergency was in force (May 3, 2021)6, this Deputy Superintendency is of the opinion that within the framework of diligent action, the Issuer had prudent time to condition its

[5] It should be noted that article 3 of the new Regime of Graduality of Sanctions for late submission of financial information, annual report and material events, approved by SMV Resolution No. 007-2023-SMV/01 and published on September 8, 2023, still contemplates force majeure as an exempting condition.

[6] Through Supreme Decree No. 130-2022-PCM, published in the Official Gazette El Peruano on October 27, 2022, Supreme Decree No. 016-2022-PCM was repealed, ending the National State of Emergency.

internal procedures to guarantee compliance with the information submission obligations during fiscal year 2021.

However, this Deputy Superintendency is also aware that not all issuers found themselves in the same circumstances, nor did they have the same technology, IT, and trained personnel facilities. In this regard, this circumstance will be taken into account in the section on Determination of the Sanction, where each criterion for the imposition of the respective sanction is detailed. The same will be done with the argument by which the Issuer states that there was no intention or benefit in committing the imputed charge.

(ii) On the other hand, the Issuer argues that, in application of literal f) of subsection 1 of article 257 of the TUO of the LPAG, the act constituting the administrative infraction was voluntarily remedied, since the non-compliance was remedied prior to the notification of the imputation of charges referred to in subsection 3 of article 255 of the TUO of the LPAG.

In this regard, it is necessary to recall that although literal f) of subsection 1 of article 257 of the TUO of the LPAG, as well as literal f) of article 27 of the SMV Sanctions Regulation, contemplate voluntary remediation as a condition exempting liability for infractions, this exempting condition must be applied together with article 28, literal c) of the SMV Sanctions Regulation, which expressly states that the late submission of financial information is not subject to remediation. Consequently, it is not possible to admit the possibility that the non-compliance has been remedied;

25. With regard to the arguments, this Deputy Superintendency reaffirms what was stated in the preceding paragraphs and, additionally, adds the following:

(iv) With regard to the Issuer's disagreement with the warning recommended by the IGCC, since there was no willful misconduct, recidivism, or any other element that would legitimize the warning; this Deputy Superintendency must state that the elements indicated by the Issuer constitute criteria for the graduation of the sanction, in accordance with article 25 of the Sanctions Regulation and the Special Sanction Criteria in force at the date of the commission of the facts; so that this does not limit the issuer's liability for its non-compliance, but rather constitutes parameters of reasonableness and proportionality for the graduation of the sanction to be imposed.

(v) With regard to the fact that it corrected the damage caused by the commission of the infraction through compliance with the obligation and that therefore the imposition of a corrective measure is unnecessary, since the sanction is an instrument to enforce the rules; this Office must state that, as previously maintained, infractions regarding the timeliness of the submission of financial information are not remediable, since the timely submission of information cannot be remedied with a late submission. Furthermore, with regard to the Issuer's statement that the sanction "is an instrument to enforce the rules", it must be indicated that this Deputy Superintendency does not share said definition, since the sanction is

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a measure with an afflictive purpose whose main purpose is to punish conduct7, which in this case consisted of the late submission of financial information. Note that the Issuer acknowledges that it incurred an infraction by stating that it sent the omitted information to the SMV with the "purpose of restoring the legality breached by the commission of the infraction";

26. That, in the present case, it has been verified that the Issuer submitted late the Audited Consolidated Annual Financial Statements for fiscal year 2020, which should have been submitted no later than 30 April 2021; however, they were submitted on 10 May 2021, as acknowledged by the Issuer;

27. That, in this way, having proven the conduct constituting the aforementioned infraction and determined the administrative liability of the Issuer, it is appropriate to calculate the sanction in accordance with the provisions of the principle of reasonableness;

V. DETERMINATION OF THE SANCTION

28. That, having determined the commission of one (1) infraction in the timely communication of financial information, it is appropriate to determine the sanction by evaluating the Special Sanction Criteria in force at the date of the commission of the facts; in accordance with the criteria for the graduation of the sanction established in article 25 of the Sanctions Regulation, numeral 3) of article 248 of the TUO of the LPAG and article 344 of the TUO LMV;

29. That, in accordance with the provisions of numeral 4.1 of the Special Sanction Criteria, the following is analyzed: (i) the Issuer's sanction history; (ii) recidivism, for the commission of the same infraction within a period of one (1) year from the date on which the resolution sanctioning the first infraction became final; (iii) the circumstances of the commission of the infraction; (iv) the economic damage caused and its impact on the market; (v) the illicit benefit resulting from the commission of the infraction; (vi) the probability of detection of the infraction; (vii) the severity of the damage to the public interest and/or protected legal interest; and, (viii) the existence or not of intentionality in the conduct of the offender;

30. That, in relation to the severity of the harm to the public interest and/or protected legal right, it must be indicated that the timely submission of financial information aims to enable investors to make investment decisions in an adequately informed manner. In this way, investors are protected and the asymmetry in access to information is reduced; therefore, the protected legal right is the transparency of the securities market, which, when transgressed, affects the public interest. In this sense, the infraction incurred by the Issuer affects the transparency of the securities market;

31. That, regarding the sanction history, Article 25 of the Sanctions Regulation establishes that the offender's antecedents are the sanctions imposed by the SMV that became final within the four (4) years prior to the commission of the infraction to be sanctioned. Likewise, the commission of the same infraction in the year

[7] Suay Rincón, J. 1989. Sanciones Administrativas, Bologna, p. 167 et seq., cited by Baca Oneto, V.S. 2018. The principle of culpability in administrative sanctioning law, with a special look at the Peruvian case. Digital Journal of Administrative Law. 21 (Nov. 2018), p. 317. DOI:https://doi.org/10.18601/21452946.n21.13.

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prior to the infraction to be sanctioned, since this commission would be classified as recidivism;

32. That, in application of said criterion, it has been verified that the Issuer has a sanction history, according to the following detail:

(i) By means of Deputy Superintendent Resolution SMV No. 070-2017-SMV/11 of 08 September 20178, the Issuer was sanctioned for having incurred a minor infraction typified in subsection 3.1, numeral 3 of Annex I of the Sanctions Regulation, for not timely submitting the Consolidated Interim Financial Information as of 30 September 2016. This resolution became final on 2 October 2017.

(ii) By means of Deputy Superintendent Resolution SMV No. 039-2018-SMV/11 of 26 March 20189, the Issuer was sanctioned for having incurred minor infractions typified in subsection 3.1, numeral 3 of Annex I of the Sanctions Regulation, for not timely submitting the approval of its Individual Interim Financial Statements as of 31 December 2016, its Individual Interim Financial Statements as of 31 December 2016, and its Management Report corresponding to the Individual Interim Financial Statements as of 31 December 2016. This resolution became final on 23 April 2018;

33. That, regarding the recidivism of the offender, literal b) of Article 25 of the Sanctions Regulation establishes that the final sanction imposed by the SMV within one (1) year prior to the commission of the infraction to be sanctioned is taken into account. In this regard, it has been verified that there is no recidivism on the part of the Issuer in relation to the infraction referred to the late submission of the Consolidated Annual Audited Financial Statements for fiscal year 2020;

34. That, in relation to the circumstances of the commission of the infraction, it has been verified that the Issuer submitted its Consolidated Annual Audited Financial Statements for fiscal year 2020 with ten (10) calendar days of delay. On the other hand, it has been taken into account that the period in which the obligation to submit the Issuer's financial information was due was the first half of fiscal year 2021, in which the pandemic was still affecting economic activities;

35. That, regarding the economic harm and its impact on the market, it is considered that although by their nature both criteria cannot be reliably measured, it can be recognized that the non-compliance committed by the Issuer has a negative impact on the market, since the material fact analyzed has not been timely disseminated. However, it must be mentioned that to date, there has been no claim or complaint from any shareholder and/or investor against the Issuer, so it can be stated that it has not been evidenced that the non-compliances have produced a quantifiable harm, understood as an economic damage caused to one or several investors;

36. That, in relation to the illicit benefit resulting from the commission of the infraction, it can be stated that there are not sufficient elements to indicate that the Issuer obtained an illegal benefit as a consequence of

[8] File 2017014004. Notified on 08 September 2017.

[9] File 2017036911. Notified on 27 March 2018. The days 29 and 30 of March and 1, 13 and 14 of April were holidays.

the commission of the infraction under evaluation in this PAS;

37. That, regarding the probability of detection of the infraction committed, it must be noted that the probability is high, because this class of non-compliances are corroborated by the SMV itself through periodic control actions;

38. That, in relation to the existence or not of intentionality in the offender's conduct, it is considered that the Issuer's actions were not intentional; however, a lack of due diligence is evident, since it knows the deadlines for the timely communication of material facts in its capacity as an issuer with securities registered in the RPMV;

39. That, in addition to the foregoing, it is appropriate to indicate that in this PAS it has been verified that no exemptions or mitigating circumstances of liability established in article 257 of the TUO of the LPAG10 have been presented, in accordance with articles 2611 and 2712 of the Sanctions Regulation;

40. That, in order to determine the fine to be imposed on

[10] "Article 257.- Exemptions and mitigating circumstances of liability for infractions 1.- The following constitute conditions exempting from liability for infractions: a) Duly proven fortuitous event or force majeure. b) Acting in compliance with a legal duty or the legitimate exercise of the right of defense. c) Mental incapacity duly proven by the competent authority, provided that it affects the aptitude to understand the infraction. d) The mandatory order of a competent authority, issued in the exercise of its functions. e) The error induced by the Administration or by a confusing or illegal administrative provision. f) The voluntary correction by the possible sanctioned party of the act or omission imputed as constituting an administrative infraction, prior to the notification of the imputation of charges referred to in subsection 3) of article 235. 2.- The following constitute conditions mitigating liability for infractions: a) If, once an administrative sanctioning procedure has been initiated, the offender expressly and in writing acknowledges his responsibility. In cases where the applicable sanction is a fine, it is reduced to an amount not less than half of its amount. b) Others established by special rule."

[11] "Article 26.- MITIGATING CIRCUMSTANCES OF LIABILITY FOR INFRACTIONS The following constitute conditions mitigating liability for infractions: a) Express and written acknowledgment of responsibility by the offender, once the administrative sanctioning procedure has been initiated. When the applicable sanction is a fine, it is reduced, taking into account the following: (…) 3. If the acknowledgment is submitted after the expiration of the period granted to formulate allegations to the instruction report and up to before the issuance of the sanction resolution, the reduction amount shall be ten percent (10%)."

[12] "Article 27.- EXEMPTIONS FROM LIABILITY FOR INFRACTIONS The following constitute conditions exempting from liability for infractions: a) Fortuitous event, force majeure or another exceptional situation that, in the opinion of the SMV, is comparable to duly proven fortuitous event or force majeure. b) Acting in compliance with a legal duty or the legitimate exercise of a right of defense. c) Mental incapacity duly proven by the competent authority, provided that it affects the aptitude to understand the infraction. d) The mandatory order of a competent authority, issued in the exercise of its functions. e) The error induced by the Administration or by a confusing or illegal administrative provision. f) The voluntary correction by the possible sanctioned party of the act or omission imputed as constituting an administrative infraction, prior to the notification of the imputation of charges referred to in subsection 3) of article 253 of the LPAG and provided that no communication demanding compliance with the obligation has been sent."

Issuer, it should be noted, that at the time of the commission of the infraction the Special Sanction Criteria were in force;

41. That, however, on 8 September 2023, the new Regime of Graduality of Sanctions for late submission of financial information, annual report and material events, approved by SMV Resolution No. 007-2023-SMV/01 (hereinafter, New Regime of Graduality of Sanctions), was published, whose article 2 repealed the Special Sanction Criteria;

Evaluation of the Principle of Favorable Retroactivity

42. That, in view of this situation and in application of the principle of benign retroactivity, indicated in numeral 5 of article 230 of the TUO of the LPAG13, by which it is possible to apply sanctioning norms subsequent to the commission of the illicit act provided that they benefit the administered party, the corresponding sanction shall be graduated, taking into account the Special Sanction Criteria and also the New Regime of Graduality of Sanctions;

On the application of the sanction of Warning

43. That, taking into account the criteria detailed in this section and considering that the Issuer's non-compliance occurred in a situation of national state of emergency, we proceed to evaluate the considerations for the application of the sanction of warning taking into account subsections (i) and (ii)14 of numeral 4.2 of the Special Sanction Criteria and numeral 6.115 of article 6 of the New Regime of Graduality of Sanctions;

44. That, from the contrast of both norms, we can state that for the specific case, since there is no presence of aggravating circumstances, the

[13] Article 230.- 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 administered party incurs the conduct to be sanctioned are applicable, unless subsequent ones are more favorable to him. (…)

[14] 4.2. GUIDELINES FOR THE APPLICATION OF THE CRITERIA (i) The application of the following guidelines assumes the non-existence of the aggravating factors developed in point V of this section. (ii) The sanction of a warning may be applied when the following is concurrently met: (i) the impact on market transparency is minimal; ii) the infraction committed has not caused a concrete harm to investors or associates; (iii) the offending subject does not have a record or, if having one, it involves infractions classified as minor offenses imposed in the four (4) years prior to the commission of the infraction being evaluated; (iv) the offending subject has not obtained a benefit from its illegal conduct; and (v) it has not been proven that the offender acted with intent in the commission of the infraction.

[15] Article 6.- GUIDELINES FOR THE APPLICATION OF THE GRADUALITY REGIME 6.1 CONSIDERATIONS FOR THE APPLICATION OF THE SANCTION OF A WARNING The sanction of a warning may be applied when the following assumptions are concurrently met: a. When the impact on market transparency is minimal. This statement is linked to the criterion of the severity of the damage to the public interest and/or protected legal interest; b. The infraction committed has not caused a concrete harm to investors or associates; c. The offending subject does not have a record or, if having one, it involves sanctions corresponding to minor infractions imposed by the SMV that have become final in the four (4) years prior to the commission of the infraction being evaluated; d. The offending subject is not a repeat offender; e. The offender has not obtained benefits from its administrative infraction; and, f. It has not been proven that the offender acted with intentionality in the commission of the infraction.

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requirements established by the Special Sanction Criteria are lower than the requirements indicated by the New Regime of Graduality of Sanctions. However, it is noted that the additional requirement indicated in the New Regime of Graduality of Sanctions, that the offending subject is not a repeat offender, is also met by the Issuer in this case;

45. That, in accordance with the foregoing, the New Regime of Graduality of Sanctions is not more beneficial for the Issuer in the specific case, whereby the rules in force at the date of the commission of the facts will be applied, that is, the Special Sanction Criteria;

46. That, in this sense, subsection ii) of numeral 4.2 of the Special Sanction Criteria states that the sanction of a warning may be applied when the following is concurrently met: (i) The impact on market transparency is minimal; (ii) The infraction committed has not caused a concrete harm to investors or associates; (iii) The offending subject does not have a record or, if having one, it involves infractions classified as minor offenses imposed in the four (4) years prior to the commission of the infraction being evaluated; (iv) The offending subject has not obtained a benefit from its illegal conduct; and, (v) It has not been proven that the offender acted with intent in the commission of the infraction;

47. That, as detailed in the evaluation of the Special Sanction Criteria, this Deputy Superintendency may state that: (i) In this case, the impact on market transparency was minimal; (ii) The infraction committed has not caused a concrete harm to investors or associates, since no type of complaint or receipt of evidence has been recorded in this regard; (iii) Although the Issuer has a record of infractions, these records involve two infractions classified as minor offenses; (iv) The offending subject has not obtained a benefit from its illegal conduct; and, (v) It has not been proven that the offender acted with intent in the commission of the infraction;

48. That, therefore, having concurrently met the provisions in subsection (ii) of numeral 4.2 of the Special Sanction Criteria, in force at the date of the commission of the infraction, this Deputy Superintendency considers that the Issuer must be imposed with one (1) warning for the non-compliance in the late submission of its Audited Annual Consolidated Financial Statements for the 2020 fiscal year;

49. That, the Issuer is reminded that final resolutions of sanctions imposed by competent authorities must be reported as a material fact, under the provisions of article 5 of the Regulation of Material Facts, and;

In accordance with the provisions of numerals 14 and 36 of article 43 of the Regulation of Organization and Functions of the Superintendency of the Securities Market – SMV, approved by Supreme Decree No. 216-2011-EF;

RESOLVES:

Article 1.- Declare that Agroindustrias San Jacinto S.A.A. has incurred in one (1) infraction of a minor nature, classified in subsection 3.1 of numeral 3 of Annex I of the Sanction Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for having submitted late its Audited Annual Consolidated Financial Statements for the 2020 fiscal year.

Article 2.- Sanction Agroindustrias San Jacinto S.A.A. with one (1) warning, as provided in article 1 of this Resolution.

Article 3.- This Resolution does not exhaust the administrative remedy, and it may be challenged before this Deputy Superintendency for Supervision of Market Conduct by filing a motion for reconsideration, an administrative remedy recognized in Article 218 of the Single Ordered Text of the General Administrative Procedure Law – Law No. 27444, approved by Supreme Decree No. 004-2019-JUS, within a period of fifteen (15) business days, counted from the day following its notification.

Article 4.- If this Resolution is not challenged, it must be published on the "SMV Institutional Page on the Single Digital Platform of the Peruvian State for Citizen Guidance (www.gob.pe/smv)", in compliance with the provisions of numeral 1 of Article 7 of the "Policy on the dissemination of regulatory projects, general legal norms, early agenda and other administrative acts of the SMV", approved by SMV Resolution No. 014-2014-SMV/01, and by the provisions of the last paragraph of Article 14 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01.

Article 5.- Transcribe this Resolution to Agroindustrias San Jacinto S.A.A.

Carlos Rivero Zevallos
Deputy Superintendent (e)
Deputy Superintendency for Supervision of Market Conduct

Resolution No. 020-2024 sanctioning Agroindustrias San Jacinto S.A.A. with a reprimand for late submission of audited consolidated annual financial statements