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Superintendency Adjunct Resolution SMV No. 049-2024-SMV/11

Lima, 16 August 2024

Summary: To sanction EMPRESA AGROINDUSTRIAL TUMAN S.A.A. with a fine of 25 UIT, for having incurred in one (1) infringement of a very serious nature typified in subsection 1.1 of letter A) of Annex XIV of the Sanctions Regulations.

Administered: EMPRESA AGROINDUSTRIAL TUMAN S.A.A.
Asunto
:
Administrative Sanctioning Procedure with single instance administrativa Main Type: Subsection 1.1 of letter A) of Annex XIV of the Regulations on Sanciones INFRACCIÓN MUY GRAVE File No.: 2024002071

The Deputy Superintendent of Supervision of
Conductas de Mercados

VISTOS:

Administrative File No. 2024002071, containing the administrative sanctioning procedure initiated by the General Directorate of Compliance with Conducts of the Securities Market Superintendency – SMV (hereinafter, the IGCC), against Empresa Agroindustrial Tuman S.A.A. (hereinafter, the Issuer); as well as Report No. 802-2024-SMV/11.2 (hereinafter, the Report), issued by said IGCC;

CONSIDERANDO:

I. Function and Competence of the SASCM

1. That the IGCC —the investigating body of the administrative sanctioning procedures (hereinafter, the PAS) referred to in this case— has brought the PAS of Administrative File No. 2024002071 to the attention of the Deputy Superintendent of Supervision of Market Conducts of the SMV (hereinafter, SASCM), in order for it to issue a decision as the single-instance sanctioning body in said PAS. In this manner, the SASCM assumes competence in observance of the exercise of the supervision function and the power

sanctioning powers of the Superintendence of the Securities Market – SMV established by the Single Concorded Text of its Organic Law, Decreto Ley Nº 26126 (hereinafter, LOSMV), and the Single Ordered Text of the Securities Market Law, Decreto Legislativo N° 861, approved by Decreto Supremo N° 020-2023-EF-1 1 (hereinafter, TUO LMV); as well as by the provisions of the Sanctions Regulation, approved by Resolución SMV N° 035-2018-SMV/01 (hereinafter, Sanctions Regulation); and, in articles 42 and 43 of the Regulation of Organization and Functions of the Superintendence of the Securities Market – SMV, approved by Decreto Supremo 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 infractions whose compliance control corresponds to the aforementioned Deputy Superintendence. Likewise; the SASCM has the powers to issue corrective measures aimed at reversing the situation altered by the commission of the infraction;

II. Facts, charge and defenses of the Administered

2.1 Hechos

2. That, it was evaluated whether the Issuer, by not having a corporate website, had complied with disseminating on the “Institutional Page of the SMV on the Single Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)”2, the list of unclaimed shares and uncollected dividends corresponding to fiscal year 2022, which should have been carried out during the current fiscal year 2023, as provided by article 262-A of the General Corporations Law, approved by Ley N° 26887 (hereinafter, LGS);

2.2 Cargo

3. That, as a result of said evaluation, by means of Oficio N° 224-2024-SMV/11.2 of 19 January 2024 (hereinafter, Charge Letter), a charge was formulated against the Issuer for omitting the dissemination required by article 262-A of the LGS, of the list of unclaimed shares and uncollected dividends on the “Institutional Page of the SMV on the Single Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)”, corresponding to fiscal year 2022; despite having previously been granted a term for the issuance of the Charge Letter. This non-compliance is classified in numeral 1.1 of literal A) of Annex XIV of the Sanctions Regulation;

2.3 Descargos

4. That, the Issuer, despite being validly notified with the Charge Letter, has not submitted defenses in the present PAS;

5. That, the charge formulated and the criteria regarding the graduation of the sanction have been subject to evaluation in the Report, which has been

[1] By Decreto Supremo N° 020-2023-EF, published on 10 February 2023 in the Official Gazette El Peruano, the Single Ordered Text of the Securities Market Law, Decreto Legislativo N° 861, was approved.

[2] According to the Second Complementary Provision of Resolución SMV Nº 003-2023-SMV/01 of 07 February 2023, it was provided that any reference to the term “Portal del Mercado de Valores de la SMV (www.smv.gob.pe)” in the “Policy on dissemination of regulatory projects, general legal norms, early agenda and other administrative acts of the SMV”, approved by Resolución SMV Nº 014-2014-SMV/01 and its amendments, shall be understood, as of 13 March 2023, as “Institutional Page of the SMV on the Single Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)”.

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submitted to the knowledge of the SASCM;

6. That, by Supreme Decree No. 004-2019-JUS, the Single Ordered Text of the General Administrative Procedure Law – Law No. 27444 (hereinafter, the 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 right, (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;

7. That, in observance of the provisions of numeral 5 of article 255 of the TUO of the LPAG, by Official Letter No. 2854-2024-SMV/11 of 04 July 2024, the Report was sent to the Issuer, so that it may submit its arguments within the term of five (05) business days from notification of the referred official letter. In this regard, it is necessary to indicate that as of the date of issuance of this Resolution these have not been submitted;

III. Issues to be determined

8. That, in this administrative procedure it corresponds to determine the following:

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

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

IV. Analysis

4.1 Applicable Regulations

9. That, the obligation of publicly traded corporations to disseminate the list of unclaimed shares and uncollected dividends must be carried out both on their website and on the “SMV Institutional Page on the Single Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)”, in accordance with article 262-A of the LGS, which establishes the following:

«Article 262-A.- Procedure for the Protection of Minority Shareholders In order to effectively protect the rights of minority shareholders, the company must disseminate within a term that shall not exceed sixty (60) days from the holding of the Mandatory Annual Meeting or after the term referred to in article 114, whichever occurs first, the following:

1. The total number of unclaimed shares and the total value thereof, according to the current quotation in the securities market. In the event that there is no current quotation, the nominal value of the shares must be recorded;

2. The total amount of uncollected and payable dividends in accordance with the dividend declaration agreement;

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3. The place where the lists with detailed information are located, as well as the place and hours of service so that minority shareholders can claim their shares and/or collect their dividends;

4. The list of shareholders who have not claimed their shares and/or dividends.

Such dissemination must be made on the company's website if it has one and on the CONASEV Securities Market Portal. Additionally, other means of mass dissemination may be used.

For those companies that are in liquidation, insolvency situation or with negative equity, the obligation referred to in the first paragraph of this article shall be understood as fulfilled with the sole publication of a notice indicating the place where the previously required information is located and the hours of service.» (Underline added);

10. That, the non-compliance referred to omitting the dissemination ordered by article 262-A of the LGS, of the list of shares to be claimed and dividends uncollected, both on its website and on the “SMV Institutional Page on the Single Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)”, is classified in numeral 1.1 of literal A) of Annex XIV of the Sanctions Regulation, which constitutes a very serious infraction;

11. That, in accordance with article 41 of the Sanctions Regulation, the indicated infraction is punishable with a fine greater than twelve (12) UIT and up to twenty-five (25) UIT;

4.2 Evaluation of the case

12. That, in administrative file No. 2024002071, which contains the documentation of this administrative sanctioning procedure, it is observed that by Report No. 802-2024-SMV/11.2, the IGCC, an organ of the Superintendency of the Securities Market – SMV which has among its functions and powers, the supervision of compliance with, among others, article 262-A of the LGS, set forth the result of its evaluation, and specifically referred to this PAS;

13. That, in this way it is held that in the evaluation of the facts related to this PAS, another organ or administrative instance of the Superintendency of the Securities Market – SMV, functionally independent of this Office, has intervened and participated prior to the issuance of this resolution; which is the IGCC that in due course formulated the Charge Letter and after that, evaluated the indication of infraction through Report No. 802-2024-SMV/11.2; and at this point of the PAS it corresponds to the Office of the SASCM to issue a pronouncement containing its decision regarding the mentioned charge, it being precise to indicate that by its nature, as previously indicated, it will be a decision of sole administrative instance;

14. That, prior to the corresponding analysis, it must be noted that the formulation of the charge was based on the fact that the Issuer would have omitted the presentation of the dissemination of the list of unclaimed shares and uncollected dividends corresponding to fiscal year 2022, because it did not disseminate it on the Single Digital Platform of the Peruvian State for Citizen Guidance (www.gob.pe/smv)”, despite having been granted an extension prior to the issuance of the Letter of

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Charge;

15. That, considering the foregoing, the corresponding evaluation is carried out in order to determine whether the Issuer has breached article 262-A of the LGS and, therefore, whether it is liable to be sanctioned for the very serious infraction referred to in numeral 1.1 of letter A) of Annex XIV of the Sanctions Regulations;

16. That, in this administrative file it is noted that through Report No. 802-2024-SMV/11.2 (File No. 2024002071), the IGCC evaluated the non-compliance with article 262-A of the LGS by the Issuer, by having omitted the dissemination of the list of unclaimed shares and uncollected dividends corresponding to fiscal year 2022. In the Letter of Charge, it is stated that said non-compliance is classified as a very serious infraction in numeral 1.1 of letter A) of Annex XIV of the Sanctions Regulations;

17. That, after the actions conducted by the IGCC, it has submitted the Report referred to in numeral 5 of article 255 of the TUO of the LPAG. In administrative file No. 2024002071, the actions carried out in relation to this PAS can be verified;

18. That, after the evaluation carried out by the IGCC, it is appropriate to issue a pronouncement and, as a starting point, it must be stated that the Superintendency of the Securities Market – SMV, as the public regulatory body of the securities market, has the objective of ensuring transparency within it, as well as promoting the development of efficient markets and protecting the investor. In that sense, from the review of the control records regarding the presentation of information to the market according to the Report, it has been verified that the Issuer omitted the dissemination of the list of unclaimed shares and uncollected dividends referred to in article 262-A of the LGS, corresponding to fiscal year 2022;

19. That, on the other hand, despite having been notified with the Letter of Charge, the Issuer, to date, has not submitted its defenses according to what was evaluated in the Report;

20. That, it should be reiterated that the SMV through Letter No. 4513-2023-SMV/11.2 granted a period of no more than ten (10) business days to the Issuer to carry out the dissemination on the “Institutional Page of the SMV on the Single Digital Platform of the Peruvian State for Citizen Guidance (www.gob.pe/smv)”; therefore, it is considered that the omission of the dissemination of the provisions of article 262-A of the LGS, subject of the charge imputation, is duly accredited;

21. That, on the other hand, we must point out that, from the review of the “Institutional Page of the SMV on the Single Digital Platform of the Peruvian State for Citizen Guidance (www.gob.pe/smv)”, with regard to the publication and/or remission of the information associated with the fact subject of the charge, it can be stated that to date, the Issuer has not complied with carrying out the dissemination of the list of unclaimed shares and uncollected dividends corresponding to fiscal year 2022 on the Institutional Page of the SMV, whose obligation should have been fulfilled by no later than 30 May 2023. Therefore, the non-compliance by the Issuer is duly accredited;

22. That, in that sense, it is appropriate to indicate that the requirement contained in article 262-A of the LGS is important, because it is intended that minority shareholders be duly informed

regarding the economic results of the Issuer, as well as the total number of unclaimed shares and uncollected dividends, as it is of their legitimate interest in order to be able to make decisions in an informed manner;

23. That, in accordance with the foregoing, having verified that the conduct constituting the infraction by the Issuer has been established with respect to the non-dissemination of the list of unclaimed shares and uncollected dividends corresponding to fiscal year 2022, the applicable sanction will be determined;

24. That, likewise, it is verified from the review of this PAS that the Issuer has not submitted its arguments regarding the Report;

V. Determination of the Sanction

25. That, as indicated, the non-compliance by omitting the dissemination of article 262-A of the LGS constitutes a very serious infraction classified in numeral 1.1 of letter A) of Annex XIV of the Sanctions Regulations, which states the following: “1.1 Omit the dissemination provided for in article 262-A of the LGS, on the company's website, if it has one, or on the SMV's Securities Market Portal.”

26. That, in relation to article 41 of the Sanctions Regulation, it states that the commission of very serious infractions, within the framework of the protection of minority shareholders, are punishable with a fine greater than twelve (12) UIT and up to twenty-five (25) UIT, it is appropriate to specify that, in accordance with article 40 of the Sanctions Regulation, for the calculation of sanctions to publicly traded corporations related to the protection of minority shareholders, the applicable UIT is the one that was in force at the time of the commission of the infraction; that is, in the present case the UIT provided for 2023 is applicable 3 ;

27. That, having determined the commission of one (01) very serious infraction corresponding to the omission of the dissemination of the list of unclaimed shares and uncollected dividends corresponding to fiscal year 2022, it concerns to evaluate based on, what is established in article 344 of the TUO LMV, and article 25 of the Sanctions Regulation in accordance with numeral 3) of article 248 of the LPAG (hereinafter, Sanction Criteria);

SANCTION CRITERIA

28. That, in relation to the severity of the damage to the public interest and/or protected legal interest, it must be indicated that it is the obligation of publicly traded corporations with securities registered in the Public Registry of the Securities Market – RPMV to disseminate the total number of unclaimed shares and dividends pending delivery, among other obligations established by article 262-A of the LGS, which allows better access to information by its shareholders, and in that way ensures better transparency of the securities market. Consequently, although it has not been possible to determine or quantify the severity of the damage to the public interest, it must be considered that the non-compliance in not disseminating the information referred to in article 262-A of the LGS affects the transparency of the market and therefore a damage to the public interest does occur because the Issuer has violated the transparency of the market by not carrying out the dissemination regarding the rights corresponding to minority shareholders, which is related to the transparency of information which is a

[3] Value of the UIT (2023): S/ 4,950.00 (Supreme Decree No. 309-2022-EF)

protected legal interest that must be safeguarded by the Superintendency of the Securities Market – SMV as supervisor of the securities market;

29. That, regarding the sanction antecedents, it is established that the antecedents of the offender are the sanctions that have been imposed by the Superintendency of the Securities Market – SMV and that became final within the four (04) years prior to the moment of the commission of the infraction to be sanctioned, without prejudice to this, it is specified that the commission of the same infraction in the year prior to the infraction to be sanctioned is not considered as an antecedent. In application of said criterion, it has been verified that the Issuer has antecedents in accordance with literal a) of article 25 of the Sanctions Regulation, the same ones that have been detailed in the Report;

30. That, in relation to recidivism for the commission of the same infraction, literal b) of article 25 of the Sanctions Regulation establishes that it is taken into account as recidivism, that final sanction imposed by the SMV within the term of one (1) year prior to the commission of the infraction to be sanctioned. In this regard, it has been verified through the SMV Sanctions System, that through Deputy Superintendency Resolution No. 083-2022-SMV/11 of 22 August 2022, a fine of 25 UIT was imposed for having incurred in an infraction of a serious nature typified in subsection 1.1 of numeral 1 of literal A) of Annex XIV of the Sanctions Regulation, the Issuer was sanctioned for the commission of the same infraction in question; therefore, it has the status of recidivist, according to the evaluation of the Report;

31. That, in relation to the circumstances of the commission of the infraction, it must be pointed out that the omission of the dissemination by the Issuer in the “Institutional Page of the SMV in the Single Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)”, of the list of unclaimed shares and uncollected dividends despite the fact that, in addition to the term established in the LGS, the Superintendency of the Securities Market – SMV, through Official Letter No. 4513-2023-SMV/11.2, granted it a term of ten (10) business days; however, once the last term was fulfilled, it was verified that the Issuer had not complied with the dissemination of the list of unclaimed shares and uncollected dividends corresponding to the 2022 fiscal year;

32. That, as regards the existence of economic harm and repercussion in the market, it has not been evidenced that the non-compliance has produced a quantifiable harm, understood as an economic damage caused to one or several investors. Likewise, there is no knowledge of complaints filed by minority shareholders. In this regard, we must highlight that this does not exclude the configuration of a non-compliance in the dissemination of the list referred to by article 262-A of the LGS;

33. That, regarding the illegally obtained benefit 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 infraction under evaluation;

34. That, regarding the existence or not of intent in the conduct of the offender, it has not been evidenced that the Issuer has obtained an illicit benefit or has acted intentionally or with malice; however, a failure in the duty of diligence is evidenced, since it is aware; (i) that the publications of the total number of unclaimed shares and the total amount of uncollected dividends must be duly disseminated on its corporate website and on the "Institutional Page of the SMV on the Single Digital Platform of the

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Peruvian State for Citizen Guidance (www.gob.pe/smv)", and (ii) that the deadline for compliance with this obligation was until 30 May 2023;

35. That, regarding the criterion of probability of detection of the infraction, it must be noted that the verification of compliance with article 262-A of the LGS is carried out through the information submission applications implemented by the SMV, so it can be stated that this class of infraction is detected through the monitoring carried out by the IGCC once the deadline established to generate the dissemination has been met; therefore, the probability of detection is less complex;

36. That, according to the analysis of the Sanction Criteria set forth above and the evaluation carried out by this Deputy Superintendency, regarding the Issuer's omission in the dissemination of the list of unclaimed shares and uncollected dividends corresponding to fiscal year 2022, as provided by article 262-A of the LGS, this class of non-compliance constitutes a very serious infraction, which is punishable with a fine greater than twelve (12) UIT and up to twenty-five (25) UIT;

37. That, considering that the Issuer has a sanction record, this PAS not being the first non-compliance related to the protection of minority shareholders in which it incurs, it has been verified that it has not complied with carrying out the corresponding remediation as of the date of the infraction; that is, it has not complied with correcting the non-compliance subject to charge and no mitigating or aggravating circumstances have been presented, in this PAS and from the evaluation of the Sanction Criteria by this Deputy Superintendency, it corresponds to impose a fine sanction of twenty-five (25) UIT4 equivalent to S/123,750.00 (One Hundred Twenty-Three Thousand Seven Hundred Fifty with 00/100 Soles).

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

In accordance with the provisions of numerals 24 and 36 of article 43 of the Regulation of Organization and Functions of the Superintendency of the Securities Market – SMV approved by Supreme Decree No. 216-2011-EF and its amendments;

RESOLVES:

Article 1.- Declare that Empresa Agroindustrial Tuman S.A.A. has incurred in one (01) infraction of a very serious nature typified in numeral 1.1 of letter A) of Annex XIV of the Sanction Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for having omitted the dissemination established by article 262-A of the LGS, of the list of unclaimed shares and uncollected dividends corresponding to the 2022 fiscal year.

Article 2.- Sanction Empresa Agroindustrial Tuman S.A.A. with a fine of twenty-five (25) UIT equivalent to S/ 123,750.00 (One Hundred Twenty-Three Thousand Seven Hundred Fifty with 00/100 Soles), for the provisions of article 1 of this Resolution.

[4] Value of the UIT (2023): S/ 4,950.00 (Supreme Decree No. 309-2022-EF).

Article 3.- This Resolution does not exhaust the administrative route, and it may be challenged before this Deputy Superintendency of Market Conduct Supervision through the filing of a reconsideration appeal, an administrative appeal recognized in article 218 of the Single Ordered Text of Law No. 27444, General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS and its amendments, within a period of fifteen (15) business days, counted from the day following its notification, as it is a single-instance administrative procedure. If this Resolution is not challenged, it may avail itself of the corresponding sanction reduction regime.

Article 4.- If this Resolution is not subject to challenge, it must be published on the Securities Market Portal of the Superintendency of the Securities Market (www.smv.gob.pe), in observance of the provisions of numeral 1 of article 7 of the "Policy on 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 its amendments, and by the provisions of the last paragraph of article 14 of the Sanction Regulation, approved by SMV Resolution No. 035-2018-SMV/01.

Article 5.- Transcribe this Resolution to Empresa Agroindustrial Tuman S.A.A.

Carlos Rivero Zevallos
Deputy Superintendent
Deputy Superintendency of Market Conduct Supervision