Electronic document digitally signed within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml

Superintendency Adjunct Resolution SMV No. 011-2024-SMV/11

Lima, 01 de marzo de 2024

Summary: To sanction Empresa Agroindustrial Pomalca S.A.A. with a total fine of 17.047 UIT for having committed five (5) minor infractions typified in subsection 3.1, item 3 of Annex I of the Sanctions Regulations

Administered: EMPRESA AGROINDUSTRIAL POMALCA S.A.A.

Asunto
:
Two-instance Administrative Sanctioning Procedure administrativa

Main Type: Subsection 3.1 of item 3 of Annex I of the Sanciones INFRACCIONES LEVES

File No.: 2023024874

VISTOS:

The Deputy Superintendent (e) of Market Conduct Supervision

Administrative File No. 2023024874 of the administrative sanctioning procedure initiated by the General Directorate of Conduct Compliance of the Securities Market Superintendent – SMV (hereinafter, the IGCC), against Empresa Agroindustrial Pomalca S.A.A. (hereinafter, the Issuer); as well as Report No. 49-2024-SMV/11.2 (hereinafter, the Report), issued by said IGCC;

CONSIDERANDO:

I. Function and Competence of the SASCM

1. That the IGCC —the instructing body of the administrative sanctioning procedures (hereinafter, the PAS) referred to in this case— has brought the PAS of Administrative File No. 2023024874 to the attention of the Deputy Superintendent of Market Conduct Supervision of the SMV (hereinafter, SASCM) in order for it to issue a decision as a single-instance sanctioning body in the case of infringements regarding the timeliness of periodic and ad hoc information submissions. In this manner, the SASCM assumes jurisdiction in observance of the exercise of the supervision function and the sanctioning power of the Securities Market Superintendent – SMV established in the Consolidated Text of its Organic Law, Supreme Decree No. 26126 (hereinafter, LOSMV), and the Single Ordered Text of the Securities Market Law, Legislative Decree No. 861, approved by Supreme Decree No. 020-2023-EF-1 1 (hereinafter, TUO LMV); as well as by the provisions of the Sanctions Regulations, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, Sanctions Regulations); and, in articles 42 and 43 of the Organization and Functions Regulations of the Securities Market Superintendent – SMV, approved by Supreme Decree No. 216-2011-EF (hereinafter, ROF-SMV), in the sense that it is a specific function of the SASCM to impose sanctions in a single administrative instance for the commission of infringements whose compliance control corresponds to said Deputy Superintendent. Likewise, the SASCM has the powers to issue corrective measures aimed at reversing the situation altered by the commission of the infringement;

II. Facts, Charges and Defenses of the Regulated Entity

2.1 Hechos

2. That it was determined that the Issuer failed to timely submit a material event and its financial information, in accordance with the provisions of the current regulations of the Superintendency of the Securities Market – SMV;

2.2 Cargos

3. That, as a result of said evaluation, by means of Official Letter No. 2510-2023-SMV/11.2 dated 08 August 2023 (hereinafter, Letter of Charges), a total of five (5) charges were filed against the Issuer for the following breaches:

Hechos de importancia

i) The untimely communication regarding the call to the Mandatory Annual Shareholders' Meeting made on 31 March 2021; which should have been communicated as a material event as soon as it occurred or the issuer became aware of it, and in no case beyond the day on which it occurred, that is, 31 March 2021; however, it was only communicated on 03 April 2021 in File No. 2021013053 (Charge No. 1).

Información Financiera

As well as, the untimely submission of the following periodic information:

ii) The Audited Annual Individual Financial Statements for fiscal year 2020, which should have been submitted no later than 31 March 2021; however,

[1] By means of Supreme Decree No. 020-2023-EF, published on 10 February 2023 in the Official Gazette El Peruano, the Single Ordered Text of the Securities Market Law, Legislative Decree No. 861, was approved.

Electronically signed document digitally signed within the framework of Law No. 27269, Law of Signatures and Digital Certificates, its Regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml

were submitted on 30 April 2021 in File No. 2021017142 (Charge No. 2).

iii) The Annual Report for fiscal year 2020, which should have been submitted no later than 31 March 2021; however, it was submitted on 30 April 2021 in File No. 2021017142 (Charge No. 3).

iv) The Audited Annual Individual Financial Statements for fiscal year 2021, which should have been submitted no later than 31 March 2022; however, they were submitted on 10 April 2022 in File No. 2022015353 (Charge No. 4).

v) The Annual Report for fiscal year 2021, which should have been submitted no later than 31 March 2022; however, it was submitted on 10 April 2022 in File No. 2022015353 (Charge No. 5).

4. That these breaches are classified in subsection 3.1 of numeral 3 of Annex I of the Sanctions Regulations, respectively;

2.3 Descargos

5. That, by letter dated 22 August 2023, the Issuer submitted its arguments regarding the charge filed against it;

6. That, in the arguments submitted, the Issuer states the following:

(i) The late submission of the Audited Annual Individual Financial Statements and Annual Report for fiscal year 2020, as well as the late communication of the material fact regarding the call to the Mandatory Annual Shareholders' Meeting made on 31 March 2021, "is due to the pandemic that affected previous periods, generating a delay in the company's accounting because the staff was affected by COVID 19, a situation that limited the normal development of work in that area"

(ii) The Audited Annual Individual Financial Statements and Annual Report for fiscal year 2021 were submitted on 12 March 2022, for which it attaches the receipt of information of File No. 2022010195 and adds that the "audited financial information and annual report were approved and submitted on 10 April 2022 without modifications";

7. That, by Supreme Decree No. 004-2019-JUS, the Single Ordered Text of the General Administrative Procedure Law – Law No. 27444 (hereinafter, TUO of the LPAG) was approved, which contains common rules for the actions of the administrative function of the State and regulates all administrative procedures developed in the entities, including special procedures. Likewise, numeral 3) of article 248 of the TUO of the LPAG indicates the criteria regarding the graduation of the sanction: (a) The illicit benefit resulting from the commission of the infraction, (b) The probability of detection of the infraction, (c) The 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;

Electronic document digitally signed within the framework of Law No. 27269, Law of Signatures and Digital Certificates, its Regulation and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml

8. That, the charges formulated 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;

9. That, in observance of the provisions of numeral 5 of article 255 of the TUO of the LPAG, by Official Letter No. 567-2024-SMV/11.2 dated 13 February 2024, the Report was sent to the Issuer, so that it may submit its arguments within five (05) business days of notification; however, despite being legally notified via the MVNet System in accordance with the Regulation of the Mvnet and SMV Virtual System, approved by Superintendent Resolution No. 092-2020-SMV/02, to date, it has not submitted them;

III. Issues to be determined

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

(i) Whether or not the Issuer incurred in the infractions 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

Material Fact

11. That, regarding the obligation to communicate material facts, article 30 of the TUO of the LMV states: "The registration of a certain security or issuance program entails for its issuer the obligation to inform the SMV and, where appropriate, the respective stock exchange or entity responsible for the conduct of the centralized mechanism, of the material facts, including ongoing negotiations, about itself, the security and the offer made of it, as well as to disclose such facts in a truthful, sufficient and timely manner. The information must be provided to said institutions and disclosed as soon as the fact occurs or the issuer becomes aware of it, as the case may be". (Underline added);

12. That, likewise, article 3 of the Regulation of Material Facts and Reserved Information, approved by SMV Resolution No. 005-2014-SMV/01 (hereinafter, Regulation of Material Facts), establishes that a material fact is any act, decision, agreement, fact, ongoing negotiation or information related to the issuer, its securities or its businesses that have the capacity to significantly influence both the decision of a prudent investor to buy, sell or hold a security, as well as the liquidity, price or quotation of the issued securities;

13. That, additionally, article 4 of the Regulation of Material Facts provides that to evaluate the capacity of significant influence of the information and its possible qualification as a material fact, the issuer must consider the significance of the act, agreement, fact, ongoing negotiation, decision or set of circumstances in its activity, assets, results, financial situation or business or commercial position in general; or in its securities or in the offer of these;

as well as in the price or negotiation of its securities;

14. That, it is appropriate to indicate that numeral 5.1 of article 5 of the Regulation of Material Facts states the following:

"5.1. In the Annex that forms part of this Regulation, an enunciative list of facts, acts, agreements and decisions is included, whose purpose is to facilitate the Issuer's identification, qualification and classification of information that could qualify as a material fact. (…) Any reference to Annex in this article shall be understood as referring to Annex 1.”

15. That, in accordance with numeral 1 of Annex 1 of the Regulation on Material Facts, the following may qualify as a material fact:

“1. Call to shareholders' meetings, creditors' meetings or bondholders' assembly, indicating the respective agenda and the documentation that is available (…)”

16. That, consequently, the breach was imputed to numeral 9.1 of article 9 of the Regulation on Material Facts, which states that “The Issuer must report its material fact as soon as such fact occurs or the Issuer becomes aware of it, and in no case beyond the day on which it has occurred or has been known (…)”

Financial Information

17. That, with respect to the obligation to submit financial information, articles 10 and 13 of the TUO of the LMV establish that all information that by provision of said law must be submitted to the SMV must be timely, sufficient and truthful, and likewise, that the issuer of securities registered in the RPMV is obliged to submit the information that said law and other general provisions establish, respectively;

18. That, on the matter, the Issuer would have breached the provisions of article 31 of the TUO of the LMV, which states: “The provisions of the preceding article do not relieve the issuer of the timely delivery to the SMV and, where applicable, to the respective stock exchange or entity responsible for the operation of the centralized mechanism, of the information that either of them may require, and necessarily, that which is indicated below:

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

b) Its annual report, with the minimum information generally established by the SMV (…)”.

19. That, in that sense, the Issuer was charged with the breach of the provisions of articles 2, 6 and 12 of the Rules on Preparation and Presentation of Financial Statements and Annual Report by Entities Supervised by the Superintendency of the Securities Market, approved by SMV Resolution No. 016-2015-SMV/01 (hereinafter, Rules on Preparation and

Electronic document digitally signed within the framework of Law No. 27269, Law on Signatures and Digital Certificates, its Regulation and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml

Presentation of FS)2 in force at the time the events occurred, which establish that issuers, among others, are obliged to prepare audited annual individual or separate financial statements and annual reports, and must submit said financial information on the day it has been approved by the corresponding body, and in no case beyond the day on which this has occurred, the deadline for its approval and respective presentation being until 31 March of each year;

4.2 Evaluation of the case

20. That, in relation to the Issuer's argument that the late submission of the Audited Annual Individual Financial Statements and Annual Report for fiscal year 2020, as well as the late communication of the material fact regarding the call to the Mandatory Annual Shareholders' Meeting made on 31 March 2021, “is due to the pandemic that affected the previous periods, generating a delay in the company's accounting because the personnel were affected by COVID 19, a situation that limited the normal development of work in said area”, it should be noted that the National State of Emergency declared by Supreme Decree No. 044-2020-PCM, which ordered mandatory social isolation (quarantine) due to the serious circumstances affecting the lives of the population as a result of the COVID – 19 outbreak; was extended until 30 September 20223;

21. That, in that sense, in relation to the submission of financial statements and annual report, the SMV extended the deadlines for the submission of the Audited Annual Individual Financial Information and Annual Report for fiscal year 2019 until 31 July 2020; the Interim Individual Financial Statements as of 31 March 2020 and their respective Management Report until 31 August 2020, due to the National State of Emergency approved by Superintendent Resolution No. 046-2020-SMV/02, and the SMV did not approve extensions to the legal deadline for the submission of the financial statements or annual report for the following fiscal years;

22. That, consequently, it is observed that the Issuer timely submitted to the SMV on 27 August 2020 the Interim Individual Financial Statements as of 31 March 2020 and their respective Management Report (File No. 2020030271), therefore if the Issuer was able to comply with the deadlines established for the submission of said information, then it should have acted with the same diligence so that it could also comply with the legal deadlines for the submission of the Audited Annual Individual Financial Statements and Annual Report, both for fiscal year 2020, Charge No. 2 and Charge No. 3 in this PAS;

23. That, on the other hand, it should be noted that although the National State of Emergency existed on the date the Issuer was obliged to timely communicate the material fact that is the subject of Charge No. 1, this situation should not have prevented the Issuer from complying with this obligation because the MVNet system was enabled for issuers to submit their

[2] As of 11 December 2023, the Rules on the Preparation, Presentation and Dissemination of Financial Statements and Annual Report and Management Report applicable to entities supervised by the SMV, approved by SMV Resolution No. 013-2023-SMV/01, are in force, which maintain similar obligations corresponding to the charges subject to this PAS.

[3] Supreme Decree No. 108-2022-PCM.

Electronic document digitally signed under the framework of Law No. 27269, Law on Signatures and Digital Certificates, its Regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml

eventual or periodic information. Furthermore, by Superintendency Resolution No. 033-2020-SMV/024, published on 21 March 2020 in the Official Gazette El Peruano, it was stated in the Recitals, the following:

(…) That, on the other hand, considering the operation of the stock exchange and the adequate formation of prices, Issuers must continue to report their material events through the MVNET System; (…)»

24. That, regarding the Issuer's argument that the Audited Annual Individual Financial Statements and Annual Report for the 2021 fiscal year were submitted on 12 March 2022 (Charge No. 4 and Charge No. 5), for which it attaches the information receipt, it is appropriate to note that through the referred material event of 12 March 2022 (File No. 2022010195), the Issuer only communicated the Call to the Mandatory Annual Shareholders' Meeting, with the first call being for 07 April 2022 and the second call for 10 April 2022. Likewise, it is observed that the Issuer attached the referred financial information and annual report in accordance with the requirements of numeral 1 of Annex 1 of the Material Events Regulation;

25. That, although the Issuer argues that it presented the financial information and report at the Shareholders' Meeting Call, it must be specified that Charges No. 4 and 5 do not refer to the timely communication of the Call to the Mandatory Annual Shareholders' Meeting that occurred on 12 March 2022, but to the timely presentation of the Audited Annual Individual Financial Statements and Annual Report, both for the 2021 fiscal year, approved by the referred Meeting on 10 April 2022, which were presented to the SMV on the same day of their approval; however, the Issuer presented the referred information after the established legal deadline; that is, they should have been approved and presented no later than 31 March 2022, so the non-compliance incurred by the Issuer is verified;

26. That, likewise, it must be remembered that it is the absolute responsibility of the Issuer to comply with its obligation to present periodic and eventual information in a timely manner according to the regulations on the matter; therefore, based on its duty of diligence, it should have adopted adequate measures for the timely communication of the material event, as well as the timely presentation of the financial and annual report information subject to charge;

27. That, in accordance with all that has been expressed, having verified that the Issuer has incurred in five (5) conducts constituting infractions, by not having presented in a timely manner the material event and the financial information subject to charges; the sanction that would be applicable will be determined, for which purpose the principle of reasonableness and the sanction criteria contained in article 344 of the TUO of the LMV, in article 25 of the Sanctions Regulation and the provisions of numeral 3 of article 248

[4] By Superintendency Resolution No. 033-2020-SMV/02, Establish provisions applicable to issuing companies with securities registered in the RPMV, legal entities registered in the RPMV and Collective Fund Management Companies, as well as the autonomous patrimonies they manage, and amend the Regulation of the Alternative Market of Values – MAV.

of the TUO of the LPAG, which will be developed in the following section;

V. Determination of the Sanction

28. That, on the particular matter, non-compliances in the timely presentation of material events and financial information are typified in numeral 3.1 of subsection 3 of Annex I of the Sanctions Regulation, which states that it constitutes a minor infraction: “Presenting outside the established deadline, or doing so incompletely, or, without observing the technical specifications approved by the SMV or without communicating the approval by the corresponding corporate body, to the SMV, to the Stock Exchange, to the entity in charge of the centralized negotiation mechanism or to any other entity or subject of the securities market, the audited individual or consolidated financial information, the individual or consolidated interim financial statements, management report, special audit report, material events and annual reports” (Underline added);

29. That, in relation to sanctions, according to article 35 of the Sanctions Regulation, the minor infraction is punishable with a warning or a fine of not less than one (1) UIT and up to twenty-five (25) UIT;

30. That, for the purposes of analyzing the corresponding sanction for this class of non-compliances, the Criteria applicable to the administrative sanctioning procedure for non-compliance with the rules governing 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 infractions subject of this PAS, must be taken into account;

31. That, however, it must be indicated that by article 1 of Resolution No. 007-2023-SMV/01 of 04 September 2023, the Graduality Regime of Sanctions for late submission of financial information, annual report and material events (hereinafter, New Graduality Regime of Sanctions) was approved, whose article 4 provided for its entry into force as of 01 January 2024; and in article 2 of the aforementioned Resolution the Special Sanction Criteria are repealed;

32. That, in view of the foregoing and considering that the regulations have been modified during the processing of this PAS, it is appropriate to analyze whether in the present case the provisions of the New Graduality Regime of Sanctions should be applied by virtue of the Principle of Favorable Retroactivity, established in numeral 5 of article 248 of the TUO of the LPAG, which states that: “(…) the sanctioning provisions in force at the time the administered party incurs the conduct to be sanctioned are applicable, unless subsequent ones are more favorable to it”;

5.1 Special Sanction Criteria

33. That, in that sense, for sanction purposes the aforementioned rules are in accordance with the provisions of numeral 3) of article 248 of the TUO of the LPAG and article 344 of the TUO of the LMV, which develop the criteria for grading the sanction: (i) the issuer's sanction record, (ii) recidivism, (iii) the circumstances of the commission of the infraction, (iv) the economic harm caused and its impact on the market, (v) the illicit benefit

Electronic document digitally signed within the framework of Law No. 27269, Law of Signatures and Digital Certificates, its Regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml

resulting from the commission of the infraction, (vi) the probability of detection of the infraction, (vii) the seriousness 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;

34. That, with respect to the sanction record, literal a) of article 25 of the Sanctions Regulations establishes that these are the final sanctions imposed by the Superintendency of the Securities Market – SMV within the period of four (4) years prior to the commission of the infraction to be sanctioned; and specifies that the commission of the same infraction in the year prior to the infraction to be sanctioned is not considered as a record. In application of said criterion, it has been verified that the Issuer has a sanction record, having been sanctioned for a different and the same type of infraction as indicated in the Report, by means of:

No.	Resolution	Date of finality	Sanction	Record
01	Resolution of the Deputy Superintendency SMV No. 030-2017-SMV/11	05/07/2017	With a fine of 9.35 UIT, for having incurred infractions of a minor nature typified in Annex I, numeral 3, subsection 3.1 of the Sanctions Regulations.	Charges 1 to 3
02	Resolution of the Deputy Superintendency SMV No. 46-2017-SMV/11	26/07/2017	With a fine of 12 UIT, for having incurred an infraction of a very serious nature typified in numeral 1.1 of literal B of Annex XV of the Sanctions Regulations.	Charges 1 to 3
03	Resolution of the Deputy Superintendency SMV No. 069-2017-SMV/11	04/10/2017	With a fine of 76 UIT, for having incurred two (02) infractions of a serious nature typified in subsection 2.14 of numeral 2 of Annex I of the Sanctions Regulations; four (04) infractions of a minor nature typified in subsection 3.1 of numeral 3 of Annex I of the Sanctions Regulations; and, one (01) infraction of a serious nature typified in subsection 2.11 of numeral 2 of Annex I of the Sanctions Regulations.	Charges 1 to 3
04	Resolution of the Deputy Superintendency SMV No. 104-2017-SMV/11	12/12/2017	With a fine of 15 UIT, for having incurred an infraction of a very serious nature typified in numeral 1.1 of literal B of Annex XV of the Sanctions Regulations.	Charges 1 to 3
05	Resolution of the Deputy Superintendency SMV No. 031-2018-SMV/11	29/03/2018	With six (06) warnings and a fine of 9.69 UIT, for having incurred infractions of a minor nature typified in numeral 3, subsection 3.1 of Annex I of the Sanctions Regulations.	Charges 1 to 3
06	Resolution of the Deputy Superintendency SMV No. 050-2018-SMV/11	03/05/2018	With a fine of 5 UIT, for having incurred an infraction of a minor nature typified in subsection 3.4, numeral 3 of Annex I of the Sanctions Regulations.	Charges 1 to 5

07	Resolution of the Deputy Superintendency SMV No. 176-2018-SMV/11	14/11/2018	With a fine of 15 UIT, for having incurred an infraction of a very serious nature typified in numeral 1.1 of literal B of Annex XV of the Sanctions Regulations.	Charges 1 to 5
08	Resolution of the Deputy Superintendency SMV No. 023-2019-SMV/11	04/03/2019	With one (01) warning, for having incurred an infraction of a minor nature typified in subsection 3.1, numeral 3 of Annex I of the Sanctions Regulations and a fine of 50 UIT for having incurred two (02) infractions of a serious nature typified in subsection 2.11 of numeral 2 of Annex I of the Sanctions Regulations.	Charges 1 to 5
09	Superintendencia Adjunta SMV Resolution No. 093-2019-SMV/11	04/09/2019	With a fine of 10 UIT, for having incurred a minor nature infraction typified in subsection 3.4, numeral 3 of Annex I of the Sanctions Regulation.	Charges 1 to 5
10	Superintendencia Adjunta SMV Resolution No. 100-2019-SMV/01	18/09/2019	With a fine of 9.98 UIT, for having incurred minor nature infractions typified in subsection 3.1, numeral 3 of Annex I of the Sanctions Regulation.	Charges 1 to 5
11	Superintendencia Adjunta SMV Resolution No. 135-2019-SMV/11	09/12/2019	With a fine of 10 UIT, for having incurred a serious nature infraction typified in Annex I, numeral 2, subsection 2.5 of the Sanctions Regulation	Charges 1 to 5
12	Superintendencia Adjunta SMV Resolution No. 150-2019-SMV/11	09/01/2020	With a fine of 25 UIT, for having incurred a very serious nature infraction typified in numeral 1.1 of literal A) of Annex XIV of the Sanctions Regulation.	Charges 1 to 5
13	Superintendencia Adjunta SMV Resolution No. 002-2020-SMV/11	11/02/2020	With a fine of 5.46 UIT, for having incurred minor nature infractions typified in subsection 3.1, numeral 3 of Annex I of the Sanctions Regulation.	Charges 1 to 5
14	Superintendencia Adjunta SMV Resolution No. 100-2020-SMV/11	16/10/2020	With a fine of 25 UIT, for having incurred one (01) minor nature infraction typified in subsection 3.4, numeral 3 of Annex I of the Sanctions Regulation.	Charges 1 to 5
15	Superintendencia Adjunta SMV Resolution No. 108-2020-SMV/11	06/11/2020	With a fine of 14.97 UIT, for having incurred four (04) minor nature infractions typified in subsection 3.1, numeral 3 of Annex I of the Sanctions Regulation and one (01) minor nature infraction typified in subsection 3.1, numeral 3 of Annex I of the Old Sanctions Regulation.	Charges 4 to 5

Electronic document digitally signed under Law No. 27269, Law of Signatures and Digital Certificates, its Regulation and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml

16	Superintendencia Adjunta SMV Resolution No. 040-2021-SMV/11	19/05/2021	With a fine of 10 UIT for having incurred one (01) serious nature infraction typified in subsection 2.22 of numeral 2 of Annex I of the Sanctions Regulation.	Charges 4 to 5
17	Superintendencia Adjunta SMV Resolution No. 095-2021-SMV/11	28/10/2021	With a fine of 25 UIT, for having incurred a very serious nature infraction typified in numeral 1.1 of literal A) of Annex XIV of the Sanctions Regulation.	Charges 4 to 5
18	Superintendencia Adjunta SMV Resolution No. 052-2021-SMV/11	06/07/2021	With a fine of 22.05 UIT for having incurred seven (07) minor nature infractions typified in numeral 3.1 of subsection 3 of Annex I of the Sanctions Regulation.	Charges 4 to 5

35. That, in relation to recidivism for the commission of the same infraction, literal b) of article 25 of the Sanctions Regulation establishes that the final sanction imposed by the Superintendencia del Mercado de Valores – SMV within a period of one (01) year prior to the commission of the infraction to be sanctioned is taken into account.

36. In this regard, it must be specified that the Special Sanction Criteria (regulation in force at the time of the commission of the facts), unlike what the New Graduality Regime currently establishes, did not consider recidivism as an aggravating factor to the amount of sanction to be imposed for cases of late submission of periodic and occasional information; consequently, in the present case the recidivist status of the Issuer would not modify the amount of the sanction to be imposed.

Without prejudice to what is described in the previous paragraph, it is recorded that from the verification carried out in the SMV Sanctions System, it is noted that the Issuer has the status of recidivist in the following infractions to be sanctioned:

No.	Resolution	Date of finality	Sanction	Recidivism
01	Superintendency Resolution Adjunta SMV No. 108-2020-SMV/11	06/11/2020	With a fine of 14.97 UIT, for having incurred in four (04) infractions of a minor nature classified in subsection 3.1, numeral 3 of Annex I of the Sanctions Regulation and one (01) infraction of a minor nature classified in subsection 3.1, numeral 3 of Annex I of the Former Sanctions Regulation, by belatedly presenting material facts, annual audited individual financial information and annual report.	Charges 1 to 3

37. That, in relation to the circumstances of the infraction, it should be noted that it has been verified that the Issuer has communicated and presented material facts, financial information and annual report as follows:

Electronic document digitally signed under Law No. 27269, Law on Digital Signatures and Certificates, its Regulation and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml

The communication regarding the call to the Mandatory Annual Shareholders' Meeting made on 31 March 2021; was communicated on 03 April 2021, that is, with three (3) calendar days of delay.
The Annual Audited Individual Financial Statements and Annual Report, both for fiscal year 2020, which should have been presented no later than 31 March 2021; however, they were presented on 30 April 2021, that is, with thirty (30) calendar days of delay.
The Annual Audited Individual Financial Statements and Annual Report, both for fiscal year 2021, which should have been presented no later than 31 March 2022; however, they were presented on 10 April 2022, that is, with ten (10) calendar days of delay.

38. That, regarding the existence of harm caused and impact on the market, we must point out that there is indeed harm that affects the market because the failure to disseminate relevant information such as financial information and material facts in a timely manner produces an impairment to the transparency of the securities market, which is considered a protected legal interest.

39. That, with respect to the illicit benefit resulting from the commission of the infraction, in the present case, there are not sufficient elements to indicate that the Issuer obtained an illegal benefit as a consequence of the commission of the aforementioned infractions;

40. That, regarding the criterion of probability of detection of the infraction, with respect to the probability of detection of the infraction, it should be noted that the failure to timely present periodic or occasional information is verified through internal control systems, so the probability of detection is high;

41. That, in relation to the severity of the harm to the public interest and/or protected legal interest, it should be indicated that the timely presentation of periodic or occasional information by issuers of securities registered in the RPMV constitutes a fundamental obligation in the transparency of the securities market, since it seeks to guarantee that market participants make their investment decisions regarding such or such security adequately informed. Consequently, although a severity of harm to the public interest is not evidenced, the infractions incurred by the Issuer affect the transparency of the securities market, which is a protected legal interest;

42. That, regarding the existence or not of intentionality in the conduct of the offender, it should be noted that there are not sufficient elements to indicate that the Issuer acted with intent in the commission of the infractions, so this criterion is not met. However, it is necessary to indicate, despite there being no indications of the Issuer's conduct regarding its intentionality, it is affirmed that the Issuer's conduct was negligent, it did not act with the required diligence in the face of previously known obligations;

43. That, in addition to the foregoing, it should be indicated that in the present PAS it has been verified that no exempting circumstances have been presented

nor mitigating circumstances of responsibility established in article 257 of the TUO of the LPAG5, in accordance with articles 266 and 277 of the Sanctions Regulation;

44. That, consequently, in the present PAS although the Issuer has a sanction record and has the status of recidivist, it is not observed that it has incurred in the aggravating factors referring to the accreditation of a quantifiable harm, a serious impact on the market, the obtaining of an illegal benefit or intent in the commission of the infraction;

45. That, subsection (ii) of numeral 4.2 of the Special Sanction Criteria provides that the sanction of warning may be applied when the following is concurrently met: (i) the impairment to market transparency is minimal; (ii) the infraction committed has not caused a concrete harm to investors or associates; (iii) the offender has no record or, 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 offender has not obtained a benefit from its illegal conduct; and (v) no

[5] “Article 257.- Exemptions and mitigating circumstances of liability for infractions 1.- The following constitute conditions exempting liability for infractions: a) Fortuitous event or duly proven 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 ability 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 mitigating conditions of liability for infractions: a) If, once an administrative sanctioning procedure has been initiated, the offender expressly and in writing acknowledges their 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.”

[6] “Article 26.- MITIGATING CIRCUMSTANCES OF LIABILITY FOR INFRACTIONS The following constitute mitigating conditions of liability for infractions: a) Acknowledgment of responsibility by the offender expressly and in writing, 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 submit allegations to the instruction report and up to before the issuance of the sanction resolution, the reduction amount shall be ten percent (10%)”.

[7] “Article 27.- EXEMPTIONS FROM LIABILITY FOR INFRACTIONS The following constitute conditions exempting 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 ability 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”.

Electronic document digitally signed within the framework of Law No. 27269, Law on Signatures and Digital Certificates, its Regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml

has accredited that the offender acted with intent in the commission of the infraction;

46. That, taking into account the Special Sanction Criteria, as well as the evaluation carried out by this Deputy Superintendency for the determination of the sanction; it is noted that the Issuer has a prior record for a serious infraction, for which reason subsection (iii) of section (ii) of numeral 4.2 of the Special Sanction Criteria is not complied with; therefore, the sanction of admonition could not be applied, and the application of a fine is appropriate;

5.2. Evaluation of the Principle of Favorable Retroactivity

47. That, as indicated above, since the New Regime of Gradualness of Sanctions entered into force on 1 January 2024 and the PAS is in process (sanctioning phase); it is appropriate to analyze whether this new regulation is more beneficial or not for the determination of the sanction to be imposed, by virtue of the Principle of Favorable Retroactivity, established in numeral 5 of article 248 of the TUO of the LPAG;

48. That, in this regard, from the comparison of what is established in numeral (iv) of the Special Sanction Criteria and numeral 6.2 of the New Gradualness Regime (which determine the fine by quantifying the base in UIT and for each day of delay), it is observed that a lower amount to be sanctioned is obtained with the application of the Special Sanction Criteria in all the infractions in which the Issuer has incurred;

49. That, likewise, in relation to prior records, the Special Sanction Criteria8 establish that it “will increase by two percent (2%) if it is determined that the offending subject has prior sanction records and by three (3%) if they have prior records of the same conduct that is intended to be sanctioned”. In the present case, the Issuer has prior records of the same conduct in all the infractions to be sanctioned, so it will be appropriate to apply the additional 3%, in accordance with the provisions of the Special Sanction Criteria.

50. That, finally, in relation to recidivism, the Special Sanction Criteria did not regulate this criterion for its quantification, so, in the present case, the provisions of the Special Sanction Criteria will apply and the amount of the sanction to be imposed will not be modified;

51. That, in that sense, it should be noted that from the review of the Special Sanction Criteria and the New Gradualness Regime in application of numeral 5 of article 248 of the TUO of the LPAG, it is observed that in all

[8] “4.2. Guidelines for the application of the criteria (…) (iv) In the event that a warning sanction is not applicable, the competent bodies of the SMV must observe the following guidelines regarding the circumstances of the commission of the infraction: (…) In the case of non-compliance in the communication of eventual information, such as material facts, for each calendar day of delay, thirty percent (30%) of one (1) UIT will be added, up to a maximum of three (3) UIT. (…)” (v) The amount resulting from the guidelines set forth in the preceding numeral (iv) will be increased by two percent (2%) if it is determined that the offending party has a history of sanctions and by three percent (3%) if it has a history of the same conduct that is intended to be sanctioned.”

the infractions subject to charges, the Special Sanction Criteria in force at the time of the commission of the infractions are more favorable, as observed in the Annex of Report9. Consequently, in accordance with the Special Sanction Criteria analyzed in this Resolution and the Report and the evaluation carried out by this Deputy Superintendency, the Issuer must be imposed as a sanction a total fine of 17.407 UIT1011 equivalent to S/.77,929.80 (Seventy-Seven Thousand Nine Hundred Twenty-Nine and 80/100 Soles), corresponding to the following:

(i) The infraction referring to the non-compliance for communicating late the material fact regarding the call to the Mandatory Annual Shareholders' Meeting held on 31 March 2021 (Charge No. 1), a sanction of 0.927 UIT would correspond to be applied.

(ii) The infraction referring to the non-compliance for the late submission of the Audited Annual Individual Financial Statements for the 2020 fiscal year (Charge No. 2), a sanction of 6.180 UIT would correspond to be applied.

(iii) The infraction referring to the non-compliance for communicating late the Annual Report for the 2020 fiscal year (Charge No. 3), a sanction of 3.605 UIT would correspond to be applied.

(iv) The infraction referring to the non-compliance for the late submission of the Audited Annual Individual Financial Statements for the 2021 fiscal year (Charge No. 4), a sanction of 4.120 UIT would correspond to be applied.

(v) The infraction referring to the non-compliance for communicating late the Annual Report for the 2021 fiscal year (Charge No. 5), a fine sanction of 2.575 UIT would correspond to be applied.

52. That, the Issuer is reminded that final resolutions of sanctions imposed by competent authorities must be reported as material facts, within the framework of 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, approved by Supreme Decree No. 216-2011-EF;

RESOLVES:

Article 1.- Declare that Empresa Agroindustrial Pomalca S.A.A. has incurred in one (1) infraction of a minor nature typified in subsection 3.1 of numeral 3 of Annex I of the Sanctions Regulation, for the late communication of the material fact regarding the call to the Mandatory Annual Shareholders' Meeting held on 31 March 2021.

[9] This Office agrees with the calculation of the sanction proposed by the Report, except for the part that recommends increasing the calculation of the sanction by 5% under the assumption that the Issuer has a history of different and the same type of infraction subject to sanction. In this regard, this office considers that it is only appropriate to increase the calculation of the sanction by 3%, in application of the provisions of section 4.2, numeral (v) of the Special Sanction Criteria, previously referred to.

[10] Supreme Decree No. 392-2020-EF set the UIT for the 2021 fiscal year at S/ 4,400.00.

[11] Supreme Decree No. 398-2021-EF set the UIT for the 2022 fiscal year at S/ 4,600.00.

Article 2.- Sanction Empresa Agroindustrial Pomalca S.A.A. with a fine of 0.927 UIT equivalent to S/ 4,078.00 (Four Thousand Seventy-Eight and 00/100 Soles), for the provisions of article 1 of this Resolution.

Article 3.- Declare that Empresa Agroindustrial Pomalca S.A.A. has incurred in one (1) infraction of a minor nature typified in subsection 3.1 of numeral 3 of Annex I of the Sanctions Regulation, for the late submission of the Audited Annual Individual Financial Statements for the 2020 fiscal year.

Article 4.- Sanction Empresa Agroindustrial Pomalca S.A.A. with a fine of 6.180 UIT equivalent to S/ 27,192.00 (Twenty-Seven Thousand One Hundred Ninety-Two and 00/100 Soles), for the provisions of article 3 of this Resolution.

Article 5.- Declare that Empresa Agroindustrial Pomalca S.A.A. has incurred in one (1) infraction of a minor nature typified in subsection 3.1 of numeral 3 of Annex I of the Sanctions Regulation, for the late submission of the Annual Report for the 2020 fiscal year.

Article 6.- Sanction Empresa Agroindustrial Pomalca S.A.A. with a fine of 3.605 UIT equivalent to S/ 15,862.00 (Fifteen Thousand Eight Hundred Sixty-Two and 00/100 Soles), for the provisions of article 5 of this Resolution.

Article 7.- Declare that Empresa Agroindustrial Pomalca S.A.A. has incurred one (1) minor infraction classified in subsection 3.1 of numeral 3 of Annex I of the Sanctions Regulation, for the late submission of the Audited Annual Individual Financial Statements for fiscal year 2021.

Article 8.- Sanction Empresa Agroindustrial Pomalca S.A.A. with a fine of 4.120 UIT equivalent to S/ 18,952.00 (Eighteen Thousand Nine Hundred Fifty-Two and 00/100 Soles), pursuant to the provisions of Article 7 of this Resolution.

Article 9.- Declare that Empresa Agroindustrial Pomalca S.A.A. has incurred one (1) minor infraction classified in subsection 3.1 of numeral 3 of Annex I of the Sanctions Regulation, for the late submission of the Annual Report for fiscal year 2021.

Article 10.- Sanction Empresa Agroindustrial Pomalca S.A.A. with a fine of 2.575 UIT equivalent to S/ 11,845.00 (Eleven Thousand Eight Hundred Forty-Five and 00/100 Soles), pursuant to the provisions of Article 9 of this Resolution.

Article 11.- This Resolution does not exhaust the administrative remedy, and it may be challenged before this Deputy Superintendency of Market Conduct Supervision 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. In the event that this

Electronically signed document within the framework of Law No. 27269, Law on Signatures and Digital Certificates, its Regulation and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml

Resolution is not challenged, it may avail itself of the corresponding sanction reduction regime.

Article 12.- In the event that this Resolution is not subject to challenge, 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 observance of 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 13.- Transcribe this Resolution to Empresa Agroindustrial Pomalca S.A.A.

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

Superintendency Adjunct Resolution SMV No. 011-2024-SMV/11

Superintendency Adjunct Resolution SMV No. 011-2024-SMV/11

VISTOS:

CONSIDERANDO:

I. Function and Competence of the SASCM

II. Facts, Charges and Defenses of the Regulated Entity

2.1 Hechos

2.2 Cargos

Hechos de importancia

Información Financiera

2.3 Descargos

III. Issues to be determined

IV. ANALYSIS

4.1 Applicable Regulations

Material Fact

Financial Information

4.2 Evaluation of the case

V. Determination of the Sanction

5.1 Special Sanction Criteria

5.2. Evaluation of the Principle of Favorable Retroactivity

RESOLVES:

Lineage

Similar documents from other regulators