Superintendence Resolution No. 012-2025-SMV/10

PERU Ministry of Economy and Finance

SMV
Superintendence of the Securities Market
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship Superintendence Resolution Adjunct SMV No. 012-2025-SMV/10 Lima, February 28, 2025 Subject: HMC Asset Management S.A. Investment Fund Management Company is sanctioned with one (1) UIT, for having committed one (1) very serious infringement typified in Annex I, numeral 1, item 1.16 of the Sanctions Regulation, for failing to increase its social capital corresponding to the 2021 fiscal year and for failing to register it in the Public Registries, within the deadline established in the applicable regulations. Administered by: HMC Asset Management S.A. Investment Fund Management Company Subject: Administrative sanctioning procedure File No.: 2024042658 The Adjunct Superintendent of Prudential Supervision SEEING:
The administrative file No. 2024042658, and Report No. 1521-2024-SMV/10.3, issued by the General Superintendent of Prudential Compliance, as well as the defenses presented by HMC Asset Management S.A. Investment Fund Management Company; and; CONSIDERING:

1. In accordance with Article 1 of Law No. 29782, Law for the Strengthening of the Supervision of the Securities Market, the name of the National Commission for the Supervision of Companies and Securities (CONASEV) is replaced by that of the Superintendence of the Securities Market (SMV), so that any reference to CONASEV in legal norms shall be understood as referring to the SMV;
   I. FACTS
2. By Circular No. 003-2021-SMV/10.2 (hereinafter, CIRCULAR) notified to HMC Asset Management S.A. Investment Fund Management Company (hereinafter, HMC SAFI) on January 6, 2021, the General Superintendent of Entity Supervision (hereinafter, IGSE) communicated, among other points, the update of the minimum capital that investment fund management companies were required to maintain for the 2021 fiscal year, amounting to S/ 1,521,356.00 (one million five hundred twenty-one thousand three hundred fifty-six and 00/100 soles);
3. On March 31, 2021, HMC SAFI communicated as a significant event 1 that by Universal Shareholders' Meeting of the company, the social capital was approved to be increased by the amount of S/ 1,934,044.00 (one million nine hundred thirty-four thousand forty-four and 00/100 soles); that is, to increase the social capital from the amount of S/ 1,500,000.00 (one million five hundred thousand and 00/100 soles) to the amount of S/ 3,434,044.00 (three million four hundred thirty-four thousand forty-four and 00/100 soles), for the concept of capitalization of credits;
4. By significant event of April 30, 2021 2, HMC SAFI informed that by Universal Shareholders' Meeting of the same date, it was agreed to nullify and revoke in all its aspects the agreements on capital increase by capitalization of credits adopted by General Shareholders' Meeting of March 31, 2021;
5. By Letter No. 2037-2021-SMV/10.2 (hereinafter, LETTER 2037) notified to HMC SAFI on May 24, 2021, HMC SAFI was required to adopt the necessary measures in order to comply with the minimum social capital required for 2021, because the deadlines to send the copy of the public deed of social capital increase and the copy of the certificate of its registration in the Public Registries expired on January 31 and March 2, 2021, respectively; according to what is established in article 130 of the REGULATIONS;
6. On May 28, 2021, HMC SAFI sent a response letter 3 indicating difficulties in carrying out a capital increase or capitalization due to the delay in the issuance of its audited financial statements corresponding to 2020. Additionally, they stated that they were in the process of formalizing the corporate agreements and the corresponding public deed for the capitalization of S/ 21,356.00 (twenty-one thousand three hundred fifty-six and 00/100 soles), to be subsequently sent to this Superintendence;
7. On August 2, 2021, HMC SAFI sent its interim financial information corresponding to the second quarter of 2021 4, where it was verified that the social capital amounted to S/ 1,500,000.00 (one million five hundred thousand and 00/100 soles), an amount lower than the minimum capital required for 2021;
8. On August 31, 2021, HMC SAFI informed as a significant event 5 that by Universal Shareholders' Meeting, it was unanimously agreed to increase the social capital by the amount of S/ 21,356.00 (twenty-one thousand three hundred fifty-six and 00/100 soles), for the concept of new contributions. However, they did not send the copy of the public deed of social capital increase and the copy of the certificate of its registration in the Public Registries;
9. Regarding this, by Letter No. 3983-2021-SMV/10.2 (hereinafter, LETTER 3983) notified on October 6, 2021, HMC SAFI was requested to send to the Securities Market Public Registry (hereinafter, RPMV) the copy of the public deed for the capital increase and the respective certificate of registration in the Public Registries;
10. On October 7, 2021 6, HMC SAFI sent its response letter attaching the copy of the public deed for the capital increase by the amount of S/ 21,356.00 (twenty-one thousand three hundred fifty-six and 00/100 soles). However, they did not send the copy of the certificate of its registration in the Public Registries;
11. On October 29, 2021 7, HMC SAFI sent the copy of the certificate of registration in the Public Registries for the social capital increase by the amount of S/ 21,356.00 (twenty-one thousand three hundred fifty-six and 00/100 soles);
12. With Letter No. 4605-2024-SMV/10.3, notified on October 15, 2024 (hereinafter, LETTER OF CHARGES), an administrative sanctioning procedure was initiated against HMC SAFI, upon verifying that it had not increased the minimum social capital required for 2021; likewise, it had not timely communicated to the RPMV that it had covered the capital deficit by presenting the copy of the public deed of capital increase and the corresponding certificate of registration in the Public Registries;
13. With a document presented on October 23, 2024, HMC SAFI presented a document recognizing the infringement imputed by the LETTER OF CHARGES; as well as considerations to grade the sanction;
14. The charges formulated against HMC SAFI have been evaluated by the General Superintendent of Prudential Compliance in Report No. 1521-2024-SMV/10.3, which has been submitted to the knowledge of this Adjunct Superintendence;
15. In observance of the Principle of Due Process contemplated both in Article IV, item 1, numeral 1.2 of the Preliminary Title, as well as in Article 248°, numeral 2, of the Single Text of the General Administrative Procedure Law, Law No. 27444, approved by Supreme Decree No. 004-2019-JUS, published on January 25, 2019 (hereinafter, TUO OF THE LPAG), by Letter No. 5171-2024-SMV/10, the administrative file to which this resolution refers was made available to HMC SAFI for its review;
    II. MATTERS TO BE DETERMINED
16. In the present administrative procedure, in the opinion of this Adjunct Superintendence, it corresponds to determine the following:
    a. Whether HMC SAFI incurred or did not incur the infringement established in Annex I, numeral I, item 1.16 of the Sanctions Regulation, approved by Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), for failing to increase its social capital corresponding to the 2021 fiscal year and for failing to register it in the Public Registries, within the deadline established in the applicable regulations;

1 File No. 2021012980.
2 Which was regularized by significant event presented on May 20, 2021 through file 2021020236.
3 Through file No. 2021020312.
4 File No. 2021029815.
5 File No. 2021033439.

PERU Ministry of Economy and Finance

SMV
Superintendence of the Securities Market
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship b. Whether it corresponds or does not correspond to impose sanctions on HMC SAFI;
III. ANALYSIS
3.1. On the Applicable Normative
17. With regard to the minimum social capital to which investment fund management companies are subject, Article 13 of the Law of Investment Funds and their Management Companies, approved by Legislative Decree No. 862 and its amendments (hereinafter, LAW), provides that:
"Article 13.- The subscribed and paid capital of management companies is seven hundred fifty thousand soles (S/ 750,000.00). The net equity of the management company shall not be lower than the sum of the equities of the mutual funds and investment funds under its administration, in the percentages determined by the SMV through a general norm. In no case shall the percentages determined by the SMV be greater than 0.75%, and differentiated percentages may be established according to the nature and structure of the funds 8. (...).";
18. Likewise, Article 130 of the Regulation of Investment Funds and their Management Companies, approved by SMV Resolution No. 029-2014-SMV/01 and its amendments (hereinafter, REGULATIONS) establishes that:
"Article 130 Capital and Equity of the Administrator The equity of the investment funds referred to in Article 13 of the Law is the sum of the net equity, at the close of the previous fiscal year, of the investment funds that are under the management of the Management Company and whose shares have been placed through public or private offering and of its Mutual Funds, if applicable. In no case shall the net equity of the Management Company be lower than the subscribed and paid capital established in Article 13 of the Law. In case of incurring a capital or net equity deficit, it must be covered within thirty (30) calendar days following the occurrence of the following situations, whichever occurs first:
a) The beginning of the fiscal year due to the update of requirements b) The date of submission of the financial statements showing this situation, or; c) The date on which the SMV notifies the Management Company of its finding. For this purpose, the Management Company must send to the Registry within the deadline established in the previous paragraph, a copy of the public deed of capital increase and must present the corresponding certificate of registration in the Public Registries within sixty (60) calendar days following counted from the beginning of the deadline referred to in the previous paragraph. (...)" (Underline added).";
3.2. On the Charge Formulated
19. As a result of the supervision of the obligation of Investment Fund Management Companies to comply with the minimum capital required 9 according to the applicable regulations, it was verified that HMC SAFI did not comply with the minimum social capital required for 2021, in accordance with what is established in Article 13 of the LAW, and that it did not present to the RPMV, the public deed and the certificate of registration in the Public Registries, documents by which the regularization of the capital deficit is accredited as established in Article 130 of the REGULATIONS;
20. It should be noted that through the CIRCULAR, HMC SAFI was informed that the minimum capital it had to maintain for the 2021 fiscal year amounted to S/ 1,521,356.00 (one million five hundred twenty-one thousand three hundred fifty-six and 00/100 soles). However, HMC SAFI, through the presentation of its interim financial information corresponding to the first quarter of 2021, informed that its social capital amounted to S/ 1,500,000.00 (one million five hundred thousand and 00/100 soles), an amount lower than the minimum capital required for 2021; a situation that at the close of the second quarter remained according to the administrator's financial information;
21. In this sense, through LETTER 2037 and LETTER 3983, the management company was requested to adopt the necessary measures in order to comply with the minimum social capital required for 2021, so it had to send to the RPMV the copy of the public deed for the capital increase and the respective certificate of registration in the Public Registries, in order to prove that the capital deficit was regularized;
22. Thus, on October 7, 2021, HMC SAFI in response to the aforementioned letters, sent the copy of the public deed for capital increase by the amount of S/ 21,356.00 (twenty-one thousand three hundred fifty-six and 00/100 soles). Likewise, on October 29, 2021, the management company sent a copy of the certificate of registration in the Public Registries for the social capital increase in the amount of S/ 21,356.00 (twenty-one thousand three hundred fifty-six and 00/100 soles), thereby covering the capital deficit;
23. It should be specified that according to Article 130 of the REGULATIONS, in case of incurring a capital deficit, it must be covered within thirty (30) calendar days following the beginning of the fiscal year due to the update of requirements. For this, the management company must send to the RPMV within the aforementioned deadline, the copy of the public deed of capital increase and must also present the corresponding certificate of registration in the Public Registries within sixty (60) calendar days following counted from the beginning of the fiscal year due to the update of requirements;
24. In the present case, these deadlines expired on January 31, 2021 (for the presentation of the public deed) and March 2, 2021 (for the presentation of the certificate of registration in the Public Registries). However, they were presented by HMC SAFI on October 7 and 29, 2021, as indicated in the previous paragraph; that is, with a delay of 249 and 241 calendar days, respectively;
25. Consequently, HMC SAFI would have failed to comply with Article 13 of the LAW, because it would not have had the minimum social capital required for 2021, as well as Article 130 of the REGULATIONS, in that it did not have the minimum social capital required for 2021, so it did not communicate to the RPMV that it had covered the capital deficit and did not prove the presentation of the copy of the public deed of capital increase and the corresponding certificate of registration in the Public Registries, within the legal deadline. That is, it did not increase its social capital and did not register it in the Public Registries, in a timely manner;
26. Therefore, it was imputed to HMC SAFI that it had committed the infringement classified as very serious typified in Annex I, numeral 1, item 1.16 of the SANCTIONS REGULATION, which establishes as a very serious infringement: "Not having the minimum social capital, the operational capital for the operational risk component required, or the minimum net equity established in the regulations of the matter, or not increasing them or not registering the social capital in the Registry of Legal Persons, in a timely manner";
3.3. On the Defenses
27. In attention to the LETTER OF CHARGES, HMC SAFI indicates that it is imputed not having timely regularized the capital deficit incurred from the update of the minimum capital requirement (informed through the CIRCULAR) referred to in Article 13 of the LAW, in the form and deadlines established in Article 130 of the REGULATIONS; which it recognizes expressly, precisely, concisely, clearly and unconditionally having committed the infringement imputed by the LETTER OF CHARGES, in the terms established in Article 26 of the SANCTIONS REGULATION;
28. Likewise, it states that without prejudice to the recognition of the infringement imputed through the LETTER OF CHARGES, it requests that the application of the following sanctioning criteria be taken into account in accordance with Article 25 of the SANCTIONS REGULATION, as well as the mitigating circumstances of responsibility established in Article 26 of the SANCTIONS REGULATION, for the purposes of determining the corresponding sanction, as follows;
29. HMC SAFI indicates that according to item 1.4 of Article IV of the preliminary title of the TUO OF THE LPAG, under the principle of reasonableness, administrative decisions that qualify infringements and impose sanctions must (i) be within the limits of the legally attributed power and (ii) be proportional between the means to be employed and the public ends to be protected, in order to respond to what is strictly necessary;
30. HMC SAFI states that, in the same way, item 3 of Article 248 of the TUO OF THE LPAG, when describing the principle of reasonableness, details that the sanctions applied by the authority must be proportional to the non-compliance, observing the grading criteria;
31. HMC SAFI mentions that from the articles detailed, it is clear that, to comply with this proportionality of the sanction required of the authority based on the principle of reasonableness, the grading criteria must be observed. The management company highlights that this requirement implies not only the obligation to detail, but they must serve as the basis for the analysis of the grading of the sanction, through the use of a methodology that qualifies and quantifies them;

PERU Ministry of Economy and Finance

SMV
Superintendence of the Securities Market
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship
32. HMC SAFI indicates that regarding this, according to Gómez Apac, Susan Isla and Gianfranco Mejía (2010) 10 the use of the methodology allows not only to "generate predictability regarding the performance of the administrative authority, but also obliges it to justify with greater rigor and detail the type and amount of the sanction to be imposed, avoiding absolutely discretionary decisions";
33. HMC SAFI mentions that for the aforementioned reason, it is of utmost importance that the sanctioning criteria established in Article 25 11 of the SANCTIONS REGULATION be observed with the greatest care and rigor. Likewise, the management company indicates that in its evaluation there must be maximum observance of the principle of reasonableness. In this sense, HMC SAFI proceeds to detail its analysis on said criteria;
34. The administrator states that it has no antecedents, nor is it a repeat offender in the commission of the imputed infringement; that it did not obtain any illicit benefit as a consequence of the capital deficit, and that the probability of detection of the imputed infringement has been high, due to the publicity of HMC SAFI's financial information;
35. Regarding the circumstances, HMC SAFI indicates that it be taken into account that, at the date of presentation of its defenses, HMC SAFI, has a subscribed and paid capital for the amount of S/ 2,113,259.00 (Two million one hundred thirteen thousand two hundred fifty-nine and 00/100 US dollars), with which the management company mentions that it complies with the minimum capital required by Article 13 of the LAW and Article 130 of REGULATIONS, which they state that updated for the 2024 period, amounts to S/1,829,994.00 (one million eight hundred twenty-nine thousand nine hundred ninety-four and 00/100 US dollars);
36. Regarding economic harm and repercussion in the market, HMC SAFI states that the imputed infringement has not caused any economic harm, nor repercussion in the market, as they mention that they have not harmed the interests or economic expectations of the participants and/or potential investors of the investment funds administered by HMC SAFI. Likewise, the management company states that no harm has been generated to the investment fund market as a consequence of the commission of the imputed infringement. Therefore, the management company requests that the absence of economic harm and repercussion in the market be taken into account, in accordance with what is indicated in letter d) of Article 25 of the SANCTIONS REGULATION;
37. Regarding the gravity of the damage to the public interest and/or protected legal good. With regard to this criterion, the management company mentions

8 The Second Final Provision of the LAW establishes the following:
Second.- The amounts indicated in this law are of constant value and are updated annually, at the close of each fiscal year based on the Wholesale Price Index for Metropolitan Lima that is periodically published by INEI. The number obtained for the month of January 1996 is considered as the base of said index

PERU Ministry of Economy and Finance

SMV
Superintendence of the Securities Market
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship 9 As provided in Article 13 of the LAW, the minimum subscribed and paid capital of management companies is S/ 750,000.00 (seven hundred fifty thousand and 00/100 soles). It should be specified that according to the second final provision of the LAW, said amount is of constant value and is updated annually, at the close of each fiscal year based on the Wholesale Price Index for Metropolitan Lima that is periodically published by INEI.

10 Gómez Apac, Susan Isla and Gianfranco Mejía (2010) 11 Article 25 of the SANCTIONS REGULATION

10 Gómez H, et al. “Notes on the Graduation of Sanctions for Infractions of Consumer Protection Standards”. Journal No. 34, Civil Association Law and Society. 2010, page 141. (footnote added by HMC SAFI).

11 Sanctions Regulation

Article 25.- Sanction Criteria

The administrative sanctions imposed must take into account the following criteria: a) Antecedents, for firm sanctions imposed by the SMV within the period of four (4) years prior to the commission of the infraction to be sanctioned. The commission of the same infraction in the year prior to the infraction to be sanctioned is not considered an antecedent. b) Recidivism, for the commission of the same infraction, that firm 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. c) Circumstances of the commission of the infraction. d) Economic harm caused and its repercussion in the market. e) Illicit benefit resulting from the commission of the infraction. f) Probability of detection of the infraction. g) Severity of the damage to the public interest and/or protected legal interest. h) Existence or not of intent in the conduct of the offender. (footnote added by HMC SAFI).

PERÚ 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 the authorship

has not occurred a damage to public interest, as well as to the security of the market and the protection of investors as protected legal interests;

38. Additionally, HMC SAFI indicates that it complied with
    regularizing the capital deficit, adding that any minimal damage that could have been caused to the market or to investors was duly remedied. Therefore, they request that the absence of damage to the public interest and to goods be taken into account protected legal interests, as indicated in letter g) of article 25 of the SANCTIONS REGULATION;

39. Regarding the existence or not of intent, with
    regard to this criterion, HMC SAFI mentions that it did not incur intentionally in the imputed infraction. They add that this is evidenced by the actions directed to regularize the capital deficit, after having been required to do so through the OFFICE 2037 and OFFICE 3983, by sending the public deed of capital increase and its corresponding registration certificate in the registry entry of HMC SAFI, with dates October 7 and 29, 2021, respectively. In this sense, the managing society indicates that the remediation of the imputed infraction demonstrates its intention to act diligently. Therefore, they request that the absence of intent in the commission of the imputed infraction be taken into account in accordance with what is indicated in letter h) of article 25 of the SANCTIONS REGULATION;

40. In that sense, HMC SAFI indicates that as for
    the sanction criteria developed above reflect (i) the low impact of the imputed infraction, (ii) the lack of aggravating factors on the part of HMC SAFI, and (iii) the existence of mitigating factors that imply a reduction of the possible sanction to impose, as expressed by the managing society;

41. Regarding the mitigating factors of responsibility, in first
    place, HMC SAFI indicates that it should be considered that it has expressly recognized, precise, concise, clear and unconditional having incurred in the imputed infraction through the OFFICE OF CHARGES, in accordance with the conditions established in letter a) of article 26 of the SANCTIONS REGULATION;

42. In the second place, HMC SAFI mentions that
    they request that it be considered that, based on all the information presented to the SMV and on what was developed in their writing, the contribution of HMC SAFI to the clarification of the imputed infraction by means of the OFFICE OF CHARGES, in accordance with what is stated in letter b) of article 26 of the SANCTIONS REGULATION;

43. Finally, the managing society requests that it be
    considered that, on dates October 7 and 29, 2021, respectively, they have sent: (i) a copy of the public deed of capital increase dated October 07, 2021; and, (ii) a copy of the registration certificate of said capital increase in the registry entry of HMC SAFI, as a response to the requirements formulated through the OFFICE 2037 and OFFICE 3983;

3.4 Evaluation of the defenses

44. The present analysis must begin by stating
    that HMC SAFI has expressly recognized its responsibility in the commission of the imputed infraction in the OFFICE OF CHARGES, stating that said recognition is made in a precise, concise, clear, express and unconditional manner. Additionally, it

PERÚ 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 the authorship

is committed to contributing to the clarification of the facts that gave rise to the initiation of the present administrative sanctioning procedure;

45. Regarding this, it must be indicated that the recognition
effected by the managing society will be considered when determining the sanction to be imposed;

46. Without prejudice to the above, it is important
to indicate that HMC SAFI is a company supervised by the SMV, with authorization of operation granted by Resolution CONASEV No. 110-2019-EF/94.01.1 of September 19, 2019, and has knowledge of the regulations under which they operate mutual investment funds in securities, therefore it has the obligation to act diligently as a fund managing company; however, what is stated is not observed in the present administrative sanctioning procedure, which led to the commission of the infraction subject of charge;

47. Additionally, HMC SAFI alleges that, after being
warned of this fact through OFFICE 2037 and OFFICE 3983, it initiated the corresponding procedures to regularize this situation. Regarding this, it should be noted that, in accordance with the documents in the file, as of September 30, 2021, the capital of the administrator had exceeded the minimum capital established for the year
2021. It should be noted that according to the capital increase deed, on September 30
2021, a total of
US$7,000.00 was paid into the BCP account of HMC SAFI;

48. On the other hand, with regard to the arguments
referred to the sanction criteria and the mitigating factors of administrative responsibility, it must be specified that these will be considered in the evaluation of the sanction to impose. As stated, it is concluded that HMC SAFI has not disproven the charge imputed;

49. Consequently, HMC SAFI failed to comply with what
is established in article 13 of the LAW, because it did not have the minimum capital required for 2021, as well as article 130 of the REGULATION, by reason of not communicating in a timely manner to the RPMV that it covered the capital deficit with the presentation of the copy of the public deed of capital increase and the corresponding registration certificate in the Public Registries, therefore, HMC SAFI has incurred one (1) infraction classified as very serious typified in Annex I, number 1, paragraph 1.16 of the SANCTIONS REGULATION;

IV. EVALUATION OF THE SANCTION

50. In accordance with what is established in the regulations, the
    determination of the sanction will be carried out in accordance with article 344 of the Single Text of the Securities Market Law, Legislative Decree No. 861, approved by Supreme Decree No. 020-2023-EF (hereinafter, TUO OF THE LMV) and article 25 of the SANCTIONS REGULATION, in concordance with article 248, number 3 12 of the TUO

12
“Article 248.- Principles of the administrative sanctioning power The sanctioning power of all entities is additionally governed by the following special principles:
(...)
3. Reasonableness.- The authorities must foresee that the commission of the sanctionable conduct does not result in more advantageous
for the offender than complying with the infringed rules or assuming the sanction. However, the sanctions to be applied must be proportional to the non-compliance classified as an infraction, observing the following criteria that are indicated for the purposes of their graduation:

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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 the authorship

OF THE LPAG, and the mitigating and exempting factors of responsibility regulated in articles 26 and 27 of the SANCTIONS REGULATION, in concordance with what is established in
article 257 13 of the TUO OF THE LPAG;

51. Within this framework, the evaluation of the sanction
    must consider: a) antecedents of the offender; b) recidivism; c) the circumstances of the commission of the infraction; d) the harm caused and the repercussion in the market; e) the illicit benefit resulting from the commission of the infraction; f) probability of detection of the infraction; g) severity of the damage to the public interest and/or protected legal interest; h) the existence or not of intent in the conduct of the offender; i) Voluntary declaration of the commission of the infraction and the contribution of the offender to its clarification;

52. In that sense, for the purpose of concordance of the criteria
    of the TUO OF THE LPAG and the SANCTIONS REGULATION, and that these criteria are considered adequately so that their valuation observes the principle of reasonableness, it proceeds to evaluate each of the sanction criteria;

53. With regard to sanction antecedents, it
    must be stated that in accordance with article 25, letter a) of the SANCTIONS REGULATION, antecedents constitute firm sanctions imposed by the SMV within the period of four (4) years prior to the commission of the infractions to be sanctioned, and the commission of the same infraction in the year prior to the infraction to be sanctioned is not considered;

54. In such sense, from the review carried out in said
    period, with regard to the charge subject of evaluation, it has been verified that HMC SAFI does not register sanction antecedents;

55. With regard to recidivism for the commission of the
    same infraction, that firm 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. Within this framework, it must be stated that HMC SAFI does not present sanctions within the period indicated above, for the commission of the same infraction subject of analysis, in the

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 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”.

13
“Article 257°.- Exempting and mitigating conditions of responsibility for infractions 1.- The following constitute exempting conditions of responsibility for infractions:
a) Force majeure or fortuitous event duly proven. b) Acting in compliance with a legal duty or the legitimate exercise of the right of defense. c) Mental incapacity duly proven by the competent authority, provided that this affects the aptitude to understand the infraction. d) Mandatory order of a competent authority, issued in the exercise of its functions. e) Error induced by the Administration or by confusing or illegal administrative provision. f) Voluntary remediation by the possible sanctioned party of the act or omission imputed as constitutive of administrative infraction, prior to the notification of the charge imputation referred to in paragraph 3) of
article 255.
2.- The following constitute mitigating conditions of responsibility for infractions:
a) If an administrative sanctioning procedure has begun, the offender recognizes his responsibility in an express and written manner.
In cases where the applicable sanction is a fine, it is reduced to an amount no less than half of its amount. b) Others that are established by special regulation”.

PERÚ 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 the authorship

present administrative sanctioning procedure, therefore recidivism is not configured;

56. As for the circumstances of the commission of the
    infraction, it must be mentioned that HMC SAFI obtained the authorization of operation on September 19, 2019, therefore, as of January 1, 2021, when the minimum capital was updated for the 2021 exercise, it had 1 year and 3 months of operations; then, in its capacity as a company supervised by the SMV, it knows the regulations that regulate the securities market, and, in that sense, the provisions contained in the REGULATION and in the LAW, as well as their mandatory compliance, such as that which obliges it to have a minimum required social capital, as well as to communicate in a timely manner that it covered the capital deficit by presenting to the RPMV the copy of the public deed of increase of social capital, and the corresponding registration certificate in the Public Registries, subject of the present sanctioning procedure;

57. However, HMC SAFI did not act with diligence in
    compliance with its obligations as a managing society of investment funds in accordance with the regulations applicable to it, since it presented the public deed of capital increase with 249 days of delay and the registration certificate in the Public Registries with 241 days of delay from the deadline for presentation. It should be specified that, through OFFICE 2037, notified to HMC SAFI on May 24 2021, it was required to adopt the necessary measures in order to comply with the minimum social capital required for 2021, due to the deadlines for sending the copy of the public deed of capital increase and the copy of the certificate of its registration in the Public Registries, expired on January 31 and March 2, 2021, respectively, in accordance with what is established in article 130 of the REGULATION. In response, HMC SAFI communicated that it presented difficulties to carry out an increase in capital or capitalization due to the delay in the issuance of its audited financial statements corresponding to 2020. Additionally, they indicated that they were in the process of formalizing the corporate agreements and the public deed corresponding to a capital increase;

58. Said capital increase was only agreed upon at the
    General Meeting of Shareholders on August 31, 2021 and the payment of the increase in bank account of the administrator was made on September 30, 2021, subsequently, after the requirement made through OFFICE 3983, on October 7 2021 it presented the copy of the public deed and on October 29, 2021, the copy of the registration certificate in the Public Registries;

59. It should be added that, HMC SAFI in its writing of October 23
    2024, pointed out among others, the fact referred to that, in the year 2024, HMC SAFI has S/2,113,259.00 of social capital, notwithstanding this is a fact subsequent to the commission of the infraction.

60. With regard to the harm caused and the repercussion
    in the market. In the present case, it has not been evidenced that the infraction in which it has incurred HMC SAFI has produced a concrete quantifiable harm in the market, that is, it has not been determined that it has affected in a concrete manner or caused an economic damage to one or more investors, therefore it has not been evidenced that there has been repercussion in the market;

61. In what concerns the illicit benefit resulting from
    the commission of the infractions. Regarding this, it must be stated that it has not been reached prove that HMC SAFI has obtained a benefit that is directly related to the infraction subject of analysis in the present administrative sanctioning procedure;

62. With regard to the probability of detection of the
    infraction, it must be indicated that in the present case the infraction in which it has incurred HMC SAFI was evidenced as a result of the supervision and control activities that the SMV carries out regarding the compliance with the minimum requirement of social capital, which can be verified through the financial statements that HMC SAFI presents periodically, in accordance with what is established in the applicable regulations; therefore, the probability of detection was high;

63. Regarding the severity of the damage to the public interest
    and/or protected legal interest, it must be stated that the conduct of HMC SAFI in the commission of the infraction analyzed in the present sanctioning procedure has generated an impact on the public interest that seeks to be protected by the regulatory framework that establishes the prudential parameter of minimum social capital;

64. In this way, every managing society of investment funds, for the
    exercise of its operations in the securities market, it is precise that it maintains minimum conditions of social capital and equity in accordance with what is established in the regulations in order to mitigate the risks derived from its operations and strengthen the compliance with the obligations and responsibilities assumed towards the participants of the funds it manages;

65. It should be added that, the obligation to have a
    minimum social capital by the managing societies of investment funds, as well as regularize its situation in case it finds itself in a situation of capital deficit, is an obligation that seeks to protect investors; given that demonstrates a prudentially solid financial position that backs up the management of the funds administered, which provides confidence to the participants and contributes to the efficiency of the securities market; however, in the present case this situation has been affected to the extent that HMC SAFI did not comply with increasing its social capital and presenting the registration in the Public Registries, in a timely manner; notwithstanding, it has not been able to prove that HMC SAFI has caused a concrete affectation to the protected legal interest.

66. As for the existence or not of intent
    in the conduct of the offender, it has not been evidenced that HMC SAFI has acted with intent in the commission of the infraction subject of evaluation;

67. In addition to the above, it corresponds to analyze the
    exempting and mitigating factors of responsibility established in article 257 of the TUO OF THE LPAG, as well as the mitigating and exempting conditions of responsibility established in articles 26 and 27 of the SANCTIONS REGULATION;

68. Regarding this, in accordance with what is determined in
    article 27°14 of the SANCTIONS REGULATION, in concordance with article 257,

14 “Article 27.- EXEMPTING CONDITIONS OF RESPONSIBILITY FOR INFRACTIONS” The following constitute exempting conditions of responsibility for infractions:
a) Fortuitous event, force majeure or another exceptional situation that, in the opinion of the SMV, would be comparable to fortuitous event or force majeure duly proven. 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 this affects the aptitude to understand the infraction.

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 numeral 1 of the TUO LPAG, it is not observed that in the present case any of the circumstances that constitute conditions exempting responsibility regarding the infractions analyzed have been configured;
69. With regard to the mitigating factors of responsibility,
HMC SAFI, through its writings of October 7 and 29, 2021 to the SMV, remedied the infraction analyzed in this Resolution, after the request made by the SMV, so what is established in article 26°, letter c) of the SANCTIONS REGULATION is applicable;
70. As for the voluntary declaration of the commission of the infraction (article 257, numeral 2 of the TUO OF THE LPAG) and the contribution of the offender to its clarification, established in article 26, letters a) and b) of the SANCTIONS REGULATION, it must be indicated that HMC SAFI has expressly recognized the commission of the infraction under evaluation, within the deadline granted for the presentation of defenses, in a precise, concise, clear, express and unconditional manner, without ambiguous or contradictory expressions; therefore, according to what is established in article 26 letter a), numeral 1 of the SANCTIONS REGULATION, it would correspond to reduce the amount of the applicable fine by fifty percent (50%). On the other hand, it is considered that HMC SAFI has contributed to the clarification of the facts;
71. Likewise, taking into account the analyzed sanctioning criteria, and in application of the Principle of Reasonableness contemplated in article 248, numeral 3 of the TUO OF THE LPAG which states that the sanctions to be applied must be proportional to the non-compliance classified as an infraction, it must be considered that it has not been evidenced that the analyzed infraction has had repercussions in the market or has caused a quantifiable economic harm, that the managing society has no sanctioning history nor is it a repeat offender in the commission of the infraction, nor has the obtaining of any illicit benefit by the commission of the infraction been accredited, likewise intent in the commission of the infraction has not been accredited, and it is taken into consideration that HMC SAFI has expressly recognized the commission of the infraction, has contributed to the clarification of the facts, as well as has remedied the infraction after the request made by the SMV;
72. From what has been stated, it is concluded that HMC SAFI has incurred the commission of one (1) infraction classified as very serious typified in Annex I, numeral 1, clause 1.16 of the SANCTIONS REGULATION, regarding which it corresponds to impose on HMC SAFI a sanction corresponding to infractions classified as very serious in accordance with article 33° of the SANCTIONS REGULATION, which establishes that very serious infractions are sanctioned with a fine of not less than fifty (50) and up to seven hundred (700) Tax Units or the suspension of the operating authorization for a period of not less than ten (10) days and up to forty-five (45) days or the revocation of the operating authorization. However, for the previously stated reasons this Superintendency
d) The mandatory order of the competent authority, issued in the exercise of its functions. e) The error induced by the Administration or by confusing or illegal administrative provision. f) The voluntary remediation by the possible sanctioned party of the act or omission imputed as constitutive of administrative infraction, prior to the notification of the charge imputation referred to in clause 3) of article 253 of the LPAG and provided that no communication demanding compliance with the obligation has been issued”

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 Adjunct considers that it is pertinent to impose a fine sanction, and considering that HMC SAFI has expressly recognized the commission of the infraction in application of
article 26, letter a) numeral 1 of the SANCTIONS REGULATION, the fine for said
infraction must fluctuate between 25 UIT and 350 UIT; that is, 50% of the range established for very serious infractions.
73. Notwithstanding, considering what is stated in the
sanctioning criteria analyzed, and in application of the Principle of Reasonableness contemplated in article 48, numeral 3 of the TUO OF THE LPAG, this Adjunct Superintendency considers that it is possible to impose on HMC SAFI a sanction corresponding to minor infractions in accordance with what is stated in the last paragraph of article 25 of the SANCTIONS REGULATION.
74. Being subject to what is provided by article 32°, numeral
16, of the Organization and Functions Regulation of the SMV, approved by Supreme Decree Nº 216-2011-EF and its modifications; RESOLVES:
Article 1º.- Declare that HMC Asset Management S.A.
Fund Management Company has incurred one (01) infraction of a very serious nature typified in Annex I, numeral 1, clause 1.16 of the Sanctions Regulation, approved by SMV Resolution N°035-2018-SMV/01, for failing to increase its social capital corresponding to the 2021 exercise and not having it registered in the Public Registries, within the deadline established in the applicable regulations.
Article 2º.- Sanction HMC Asset Management S.A.
Fund Management Company with a fine of one (01) UIT, equivalent to S/4,400.00 (Four thousand four hundred 00/100 soles), pursuant to
article 1 of this Resolution.
Article 3º.- This resolution does not exhaust the administrative
path, unless it is consented, it may be challenged before the Adjunct Superintendency of Prudential Supervision by filing the reconsideration or appeal resource, presented before the same, within the deadline of fifteen (15) business days counted from the day following its notification.
Article 4º.- In the event that this Resolution
is not subject to challenge through reconsideration or appeal resource in the deadline of fifteen (15) business days of being notified and remains consented, it must be published on the Institutional Website of the SMV in the Digital Unified Platform of the Peruvian State, in observance of what is provided by numeral 1, article 7º of the Policy on diffusion of normative projects, general character legal norms, early agenda and other administrative acts of the SMV, approved by SMV Resolution Nº 014-2014-SMV/01 and its modification, and by what is provided in article 14° of the Sanctions Regulation, approved by SMV Resolution N° 035-2018-SMV/01.

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
Article 5º.- Transcribe this resolution to HMC
Asset Management S.A. Fund Management Company.
Register, communicate and publish.
Omar Gutiérrez Ochoa
Adjunct Superintendent
Adjunct Superintendency of Prudential Supervision