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Superintendency Resolution Adjunct SMV No. 016-2024-SMV/11

Lima, 18 de marzo de 2024

Summary: The reconsideration appeal filed by NEXA RESOURCES PERU S.A.A. against Superintendency Resolution Adjunct SMV No. 107-2023-SMV/11 is declared unfounded

Administrado
:
Nexa Resources Peru S.A.A.
Asunto
:
Administrative Sanctioning Procedure
Expediente N° :
2023000566

The Acting Deputy Superintendent of
Conductas de Mercados

VISTOS:

Administrative file No. 2023000566, which contains, among others, the reconsideration brief dated 13 November 2023, filed by Nexa Resources Perú S.A.A. (hereinafter, the Issuer) against Superintendency Resolution Adjunct SMV No. 107-2023-SMV/11 dated 20 October 2023 (hereinafter, the Challenged Resolution) which resolved to sanction the Issuer with two (2) reprimands and a total fine of 8.298 UIT; and Report No. 1633-2023-SMV/11.2 (hereinafter, the Report), issued by the General Directorate of Conduct Compliance (hereinafter, the IGCC) of the Deputy Superintendency of Market Conduct Supervision (hereinafter, the SASCM), as well as, after hearing the statement made by the representatives of the Issuer on 18 January 2024;

CONSIDERANDO:

I. FUNCIÓN Y COMPETENCIA DE LA SASCM

1. That, administrative file No. 2023000566 contains the documentation and information relating to an administrative sanctioning procedure (hereinafter, PAS), which has been brought to the attention of the SASCM in observance of the exercise of the supervisory function and the sanctioning power of the Superintendency of the Securities Market – SMV, established in the Single Consolidated Text of its Organic Law, Decree-Law No. 26126 (hereinafter, LOSMV), and in the Single Ordered Text of the Securities Market Law, Legislative Decree No. 861, approved by Supreme Decree No. 020-2023-EF (hereinafter, TUO LMV)1; as well as

[1] By Supreme Decree N° 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 N° 861, was approved.

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by the provisions of the Regulations on Sanctions, approved by SMV Resolution N° 035-2018-SMV/01 (hereinafter, the Regulations on Sanctions), and in articles 42 and 43 of the Regulations on the Organization and Functions of the Superintendency of the Securities Market, approved by Supreme Decree Nº 216-2011-EF (hereinafter, ROF-SMV), in the sense that it is a specific function of the SASCM to resolve reconsideration appeals against the resolutions it issues;

II. HECHOS

2. That, by means of the Challenged Resolution, it was decided to sanction the Issuer with two (2) reprimands and a total fine of 8.298 UIT, for having incurred in nine (9) minor infractions, typified in numeral 3.1 of section 3 of Annex I of the Regulations on Sanctions, according to the following table:

N°	Detalle	Sanción
I	To communicate out of time the material fact referred to the monthly position in financial derivative instruments as of 31 January 2021.	Fine 1.53 UIT S/ 6,732.00
II	To communicate out of time the material fact referred to the monthly position in financial derivative instruments as of 28 February 2021.	Fine 1.53 UIT S/ 6,732.00
III	Communicate extemporaneously the material fact referring to the monthly position in derivative financial instruments as of 31 March 2021.	Fine 1.53 UIT S/ 6,732.00
IV	Communicate extemporaneously the material fact referring to the monthly position in derivative financial instruments as of 31 July 2021	Fine 0.4635 UIT S/ 2,039.40
V	Communicate extemporaneously the material fact referring to the final sanction imposed by Superintendent Resolution No. 027-2021-SMV/02	Warning (reconsidered point)
VI	Communicate extemporaneously the material fact referring to the final sanction imposed by Deputy Superintendent Resolution SMV No. 076-2021-SMV/11	Warning (reconsidered point)
VII	Communicate extemporaneously the material fact referring to the cessation of Mr. Tito Botelho Martins Junior from the position of Director.	Fine 1.545 UIT S/ 6,798.00

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VIII	Communicate extemporaneously the material fact referring to the appointment of Mr. Juan Rosado Gómez de la Torre to the position of Director.	Fine 1.545 UIT S/ 6,798.00
IX	Communicate extemporaneously the material fact referring to the final result of arbitration proceeding No. 0397-2019-CCL.	Fine 1.53 UIT S/ 6,732.00

3. That, by brief submitted on 13 November 2023, the Issuer filed a reconsideration appeal against sanctions (V) and (VI) detailed in the Challenged Resolution, in order for its administrative appeal to be declared founded;

4. That, by Memorandum No. 4810-2023-SMV/11 of 14 November 2023, the Office of the SASCM informed the IGCC of the reconsideration appeal filed against the Challenged Resolution;

5. That the arguments of the reconsideration appeal filed by the Issuer have been subject to evaluation in the Report by the IGCC; which has been submitted to the knowledge of the SASCM;

6. That, in observance of the provisions of article 18 of the Sanctions Regulation2, by means of Official Letter No. 5502-2023-SMV/11, notified on 4 December 2023, the Report was sent to the Issuer, so that it may submit its arguments regarding it, within a period of five (5) business days, which were submitted and will be evaluated in this resolution;

7. That, by means of Official Letters No. 5776-2023-SMV/11 and No. 084-2024-SMV/11 of 20 December 2023 and 8 January 2024, the SASCM scheduled for 18 January 2024, at the request of the Issuer, the exercise of the right to speak by its representatives before officials of the SASCM, an oral report that was held on that date, signing the corresponding minutes which are in the present file, in which the Issuer reiterated what was stated in its reconsideration appeal and its arguments;

III. ISSUES TO BE DETERMINED

8. That it corresponds to determine whether or not to reconsider what was resolved in the Challenged Resolution;

IV. ANALYSIS

4.1 Of the reconsideration appeal

[2] «Article 18.- Reconsideration and appeal The sanctioned party may file a reconsideration or appeal against the decision of the respective Deputy Superintendency, except in cases that are processed in a single instance, where only a reconsideration appeal may be filed. If a reconsideration appeal is filed, the Deputy Superintendent notifies the administered party of the report of the General Intendancy of Compliance that contains the opinion on the appeal filed, so that it may formulate its allegations within a period of no less than five (5) days, counted from the day following the mentioned notification. (…)» (Underlining and emphasis added).

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9. That, in the first place, it must be specified that the administrative sanctioning procedures related to the timeliness in the presentation of periodic and occasional information correspond to be processed in a single instance, that is, in charge of the SASCM, as indicated in article 43 of the ROF-SMV3;

10. That, in accordance with the provisions of article 2184 of the Single Ordered Text of Law No. 27444, General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO of the LPAG), the reconsideration appeal must be filed within the period of fifteen (15) peremptory days from the notification of the challenged administrative act, and must comply with the requirements provided in articles 1245, 2196, 2217 of the same Law;

11. That, in the present case it is appreciated that the Challenged Resolution was notified on 20 October 2023 to the Issuer, and the appeal was filed on 13 November 2023, that is, it was submitted within the established legal period;

12. That, it must be indicated that the other requirements for

[3] «Article 43.- The specific functions of the Deputy Superintendency of Supervision of Market Conducts are: (…) 14. Impose sanctions in a single administrative instance for the commission of infractions regarding the timeliness in the presentation of periodic and occasional information, whose compliance control corresponds to the Deputy Superintendency of Supervision of Market Conducts; (…)».

[4] «Article 218.- Administrative appeals 218.2 The term for the filing of appeals is fifteen (15) peremptory days and they must be resolved within thirty (30) days».

[5] «Article 124.- Requirements of writings Every writing presented before any entity must contain the following: 1. Full names and surnames, domicile and number of National Identity Document or foreigner's card of the administered party, and where applicable, the capacity of representative and of the person represented. 2. The concrete expression of what is requested, the factual grounds supporting it and, when possible, the legal grounds. 3. Place, date, signature or digital fingerprint, in case of not knowing how to sign or being impeded. 4. The indication of the organ, entity or authority to which it is addressed, understanding as such, as far as possible, the authority of the grade closest to the user, according to the hierarchy, with competence to know and resolve it. 5. The address of the place where notifications of the procedure are to be received, when different from the real domicile stated under numeral 1. This designation of domicile takes effect from its indication and is presumed subsistent, as long as its change is not expressly communicated. 6. The list of documents and annexes accompanying it, indicated in the TUPA. 7. The identification of the file of the matter, in the case of procedures already initiated.»

[6] «Article 219.- Reconsideration appeal The reconsideration appeal shall be filed before the same organ that issued the first act that is the subject of the challenge and must be supported by new evidence. In the cases of administrative acts issued by organs that constitute a single instance, new evidence is not required. This appeal is optional and its non-filing does not prevent the exercise of the appeal».

[7] «Article 221.- Requirements of the appeal The written appeal must state the act being appealed and comply with the other requirements provided in article 124».

the filing of the reconsideration appeal, established by article 2218 in accordance with article 1249 of the TUO of the LPAG, have been verified and fulfilled; therefore, the evaluation of this reconsideration appeal is appropriate;

13. That, the Issuer filed a reconsideration appeal against the Challenged Resolution regarding the part that resolved to sanction with two (2) warnings for the extemporaneous communication of the material facts related to the sanctions imposed by Superintendent Resolution No. 027-2021-SMV/02 (Infraction (V)) and Deputy Superintendent Resolution SMV No. 076-2021-SMV/11 (Infraction (VI));

A. INFRACTION (V).- COMMUNICATING IN AN EXTEMPORANEOUS MANNER THE MATERIAL FACT REFERRED TO THE FINAL SANCTION IMPOSED BY SUPERINTENDENT RESOLUTION No. 027-2021-SMV/02

On the alleged inadequate motivation of the Challenged Resolution

14. That, the Issuer maintains that “the [challenged] resolution has not adequately motivated its conclusion regarding Nexa's responsibility in relation to charge v)”, for communicating in an extemporaneous manner the material fact referred to the final sanction imposed by Superintendent Resolution No. 027-2021-SMV/02;

15. That, in this regard, the Issuer states the following:

“(27) As for legal and regulatory reasons, the Resolution is based on the fact that numeral 32 of the Annex establishes that final resolutions must be communicated as a material fact.

(28) In this regard, we must point out that the Resolution has ignored the provisions of numeral 5.1 of article 5 of the Regulation, which EXPRESSLY INDICATES that the assumptions contained in the Annex constitute AN ENUNCIATIVE AND REFERENTIAL LIST, and in no way exempt the issuer from carrying out a materiality analysis.

[8] «Article 221.- Requirements of the appeal The written appeal must state the act being appealed and must comply with the other requirements provided in article 124.»

[9] «Article 124.- Requirements of writings Every writing submitted to any entity must contain the following: 1. Full names and surnames, domicile and National Identity Document number or foreigner's card of the administered, and where applicable, the capacity of representative and of the person represented. 2. The concrete expression of what is requested, the factual grounds supporting it and, when possible, the legal grounds. 3. Place, date, signature or digital fingerprint, in case of not knowing how to sign or being impeded. 4. The indication of the body, entity or authority to which it is addressed, understood as such, as far as possible, the authority closest in rank to the user, according to the hierarchy, with competence to hear and resolve it. 5. The address of the place where notifications of the procedure are to be received, when different from the real domicile stated under numeral 1. This designation of domicile takes effect from its indication and is presumed to subsist, as long as its change is not expressly communicated. 6. The list of documents and annexes accompanying it, indicated in the TUPA. 7. The identification of the file of the matter, in the case of procedures already initiated.»

(29) It is not enough that numeral 32 of the Annex has this text since the same Regulation establishes that said annex is only referential and does not exempt from the process of carrying out a materiality examination.

(30) Likewise, it is not valid to argue that the subsequent request of the IGSC made under article 27 constitutes sufficient proof regarding materiality since said article refers to an attribution of the IGSC to require information that in its judgment qualifies as such, but in no way implies that issuers must know, beforehand, what said judgment will be, since, obviously, this is impossible.”

(31) Likewise, it is not possible to argue that the information qualified as a material fact only because Nexa later disseminated it, since it did so not because in its judgment it was, but to comply with an express request of the regulator.

(32) In any case, if the Resolution considered that the analysis carried out by IGSC is a key element to motivate its decision, it should have included it and notified it expressly, as indicated in numeral 6.2 of article 6 of the TUO of the LPAG10, which it has not done.”

16. That, in accordance with the foregoing, the Issuer states the following:

“(33) Therefore, the Resolution, in its analysis of charge v) has a defective motivation due to the following:

(a) It has not carried out a materiality analysis in accordance with the provisions of articles 3 and 4 nor has it at any time even indicated how the criteria established in these articles relate to the case, even though these are an essential part of the Regulation and the regulations applicable to material facts.

(b) As clearly follows from the Regulation, it is not enough to make a reference to a numeral of the Annex since the same Regulation establishes that this is an enunciative and referential list. It was up to the Resolution to carry out a materiality analysis in which it supports its conclusions, which it has not done.

(c) Nor is it enough to make a reference to the IGSC's request for the dissemination of Resolution 27 as a material fact, since: (i) this faculty does not imply that the prior action of the administered was unlawful and (ii) it has not included the IGSC's analysis in this file nor has it notified it as part of its decision.”

17. That, in a complementary manner, the Issuer indicates that it has indeed demonstrated that it conducted an analysis of significant influence of Superintendency Resolution No. 027-2021-SMV/02, in order to determine whether or not it complied with the requirements of articles 3, 4 and 5 of the Regulation on Material Facts and Reserved Information, approved by SMV Resolution No. 005-2014-SMV/01 (hereinafter, Regulation on Material Facts), and that it conducted said evaluation

[10] The text of the article in question is as follows: “6.2 It may be motivated by the declaration of conformity with the grounds and conclusions of previous opinions, decisions or reports in the file, provided that they are accurately identified, and that due to this situation they constitute an integral part of the respective act. The reports, opinions or similar documents that serve as the basis for the decision must be notified to the administered party together with the administrative act.”

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considering the impact that Superintendency Resolution No. 027-2021-SMV/02 had on the company: (i) the replacement of a fine of 700 UIT (S/ 2’765,000.00 as of the date of the resolution) with a 50 UIT (S/ 197,500.00 as of the date of the resolution) and (ii) leaving without effect the corrective measures previously imposed;

18. That, in this regard, the Issuer argues that the imposed fine of S/ 197,500.00 has no transcendence in its activities, patrimony, results, financial situation, business or commercial position in general, the securities or the offering thereof, the price or the negotiation of the securities, concluding that Superintendency Resolution No. 027-2021-SMV/02 did not have significant influence and, therefore, as it maintains, did not qualify as a material fact, in accordance with articles 3, 4 and 5 of the Regulation on Material Facts;

On the alleged violation of the rights of defense and due process and the disregard of the principle of lawfulness

19. Likewise, in its reconsideration, the Issuer maintains that “the [Challenged] Resolution VIOLATES OUR RIGHT OF DEFENSE AND RIGHT TO DUE PROCESS IN ADMINISTRATIVE PROCEEDINGS BY UNDULY REVERSING THE BURDEN OF PROOF, disregarding the Principle of Presumption of Lawfulness established in numeral 9 of article 248 of the TUO of the LPAG.”;

20. In this regard, the Issuer states the following:

“(j) (…) the Resolution states: ‘Although the Issuer considers that Deputy Superintendency Resolution No. 27-2021-SMV/02 did not generate a significant impact on the company, since it did not significantly affect the company's patrimony; it should be noted that the argument alleged by this Issuer is considered insufficient to rebut the charge formulated (…)’

(k) In this regard, the Resolution clearly adopts an illegal position by establishing a rule of culpability, expressly establishing a rule of culpability according to which it is NEXA who must rebut the charges imputed instead of the SMV having the burden of demonstrating that NEXA acted outside of what the regulations establish. It is not for NEXA to rebut the charges imputed to it, but rather it is for the administrative body to rebut the presumption that NEXA has acted outside the law, which necessarily implies DEMONSTRATING AND ADEQUATELY MOTIVATING the reasons on which its position is based, and the reasons why NEXA's arguments are not correct.”

(l) It should be noted that this rule of culpability is not restricted to an inadequate use of language in the Resolution, but extends to the entire legal reasoning on which the sanction decision adopted by the SASCM is based. Therefore, in order to safeguard due process in administrative proceedings, as well as NEXA's right of defense, the Resolution must be reformulated, with the administration being obliged to provide all the factual and legal reasons that rebut the presumption of lawfulness enjoyed by NEXA's actions.”

21. That, in its arguments the Issuer states the following regarding infraction (V):

“(a) IT IS NOT CORRECT TO AFFIRM THAT ALL THE CASES CONTAINED IN THE ANNEX HAVE PER SE TRANSCENDENCE AND/OR SIGNIFICANT INFLUENCE The Annex, as the Regulation expressly establishes, contains a list of

cases of an enunciative and referential nature

o Enunciative (as opposed to exhaustive), in the sense that it is not a closed list.

o Referential (as opposed to mandatory), in the sense that it is not a legal provision of obligatory compliance, but rather a guide so that the Issuer can conduct its analysis in accordance with the provisions of articles 3 and 4 of the Regulation (as expressly REQUIRED by numeral 5.2 of article 5 of the Regulation)

(…) As can be seen, there are cases in the Annex that will always qualify as a material fact, but there are also others that do not, which require additional analysis on the part of the Issuer in order to determine whether or not they comply with the criteria of articles 3 and 4 of the Regulation. And it should be reiterated that this is not the opinion of Nexa, this is what the Regulation expressly mandates [quote article 5, numeral 5.2 of the Regulation on Material Facts]”.

“(b) STATING THAT THE LIST IN ANNEX 1 IS AN ENUNCIATIVE AND REFERENTIAL LIST DOES NOT EMPTY THE MATERIAL FACTS OF CONTENT, IT IS COMPLYING WITH WHAT THE LAW PROVIDES (…)

[Cites article 5, numeral 5.1 of the Regulation of Material Events] Thus, both Nexa and the SMV are obliged to accept the classification of Annex 1 as an “enumerative and referential list”, since that is what the same Regulation determines, and said classification is the one that must be used in the application of said regulation in the present case”.

“(c) IT CORRESPONDS TO THE ISSUER TO DETERMINE WHICH INFORMATION QUALIFIES AS A MATERIAL EVENT WITHIN THE FRAMEWORK OF THE PROVISIONS OF THE REGULATION OF MATERIAL EVENTS. (…)

In this regard, it is worth noting that it does correspond to the issuer to carry out the assessment of which information qualifies or not as a material event, and this does not distort the purpose of the Regulation nor does it entail a permanent absence of information, but rather it corresponds to apply the procedure established in the Regulation for the qualification and communication of material events.

[Paraphrases articles 3, 4 and 6 of the Regulation of Material Events]

It should also be noted that the SMV has indicated this in previous cases. Thus, in Res. de Superintendencia Adjunta 019-2023-SMV/10 of 02 May 2023, recital 61, the Deputy Superintendency of Prudential Supervision has stated the following:

“It should be noted that although articles 3 and 4 of the RHI define what may be understood as a material event, and the Annex of the RHI contains a

list of facts, acts, agreements and decisions, whose purpose is to facilitate the identification, qualification and classification of the information that could qualify as a material event, it should be noted that said annex maintains its referential and enumerative character; therefore, the supervised entities – within their due diligence – may determine those situations that, although not listed in the aforementioned rules, could qualify as a material event, as established by article 5, numerals 5.2 and 5.3 of the RHI and as the securitization company itself determined with respect to the event described in letter c) of the Oficio de Cargos. (Emphasis ours).

As can be seen, the SMV itself has recognized that Annex 1 has an ENUMERATIVE AND REFERENTIAL character and that IT CORRESPONDS TO THE ISSUER, WITHIN ITS DUE DILIGENCE, TO DETERMINE THOSE SITUATIONS THAT QUALIFY AS A MATERIAL EVENT”.

“(d) THE POSITION ESTABLISHED IN THE REPORT DIRECTLY CONTRADICTS WHAT WAS ESTABLISHED BY THE SMV IN JOINT REPORT 153-2014-SMV/11/06/10/12. (…) [Cites Joint Report 153-2014-SMV/11/06/10/12 dated 14 March 2014 (File 2014004160), Section II “Analysis”, numeral 4] As can be seen from this text, during the public consultation process of the Regulation, CONFIEP and PROCAPITALES proposed that the list contained in the Annex be mandatory and not require additional evaluation, a position similar to the one included in the Report, where it is indicated, with respect to the list contained in the Annex, that there is no fact, act, agreement or negotiation that. However, the SMV rejects this proposal and expressly states the following:

o The list in the Annex is referential and enumerative.

o The inclusion of a case in the list is not a condition per se for said case to be a material event, but rather a subsequent evaluation is required.

o It corresponds to the issuer to evaluate and qualify whether certain information is a material event, applying the tools (enumerative list and evaluation parameters) established in the Regulation (articles 3 and 4)”.
“(e) ACCEPTING THE POSITION OF THE REPORT IMPLIES ADOPTING AN INTERPRETIVE POSITION CONTROVERSIAL WITH THE POSITION ADOPTED BY THE BOARD OF DIRECTORS OF THE SMV, GOING BEYOND THE APPLICATION OF THE REGULATION. As we have demonstrated, both the Regulation, the precedents of the SMV as well as the position of the bodies of the SMV that prepared the Regulation, a position that was later adopted as the official interpretation of the Board of Directors of the SMV, this being the only body of the SMV with the powers to officially interpret the rules it issues”.
“Subsequently the Report lists the facts that gave rise to the issuance of

Resolution 042-2019-SMV/11, which, the report states, are transcendental. (…)

This administrative procedure concerns whether Res. 027-2021-SMV/02, which reformed Res. 042-2019-SMV/11, qualifies or not as a material event. To determine this, it is not necessary to analyze the facts that gave rise to Res. 042, since these have already been evaluated and Nexa has already been sanctioned for said facts (…).

Affirming the contrary and bringing again the facts discussed in file 2018014707 (to which Resolutions 049 and 027 under comment refer) would imply that Nexa would be being sanctioned twice for the same facts and with the same rule”.

Likewise, it adds that “The argument used in the Report again suffers from a defect in its motivation in accordance with the provisions of the TUO of the LPAG.

(…) We must point out that what is indicated in the report, regarding the fact that not communicating Res. 027 as a material event affected “in some way” its business position, is precisely the best example of a vague formula that does not comply with the provisions of article 6 of the TUO of LPAG as motivation for an administrative act. (…)

It should be noted, as stated in our Appeal for Reconsideration, that Nexa did carry out an analysis based on the content of Res. 027 and determined, under a single objective criterion contained in the resolution, that this sanction did not have a significant influence. If the instructing body has a different position, it must duly justify it and indicate what criteria it uses to determine that Nexa's business position was substantially affected, defining what it understands by business or commercial position, something that is not in the Report

It adds that "the report confuses the disputed facts in the present case with those contained in file 2018014707. (...)

On this point we refer to what is indicated in the Report regarding complaints filed before the SMV. For such complaints to be valid in the present process, they must concern the non-disclosure of Res. 027 as a material fact, and be contained within the file to which this proceeding relates, because this is the discussion maintained in this proceeding.

Complaints about other facts, contained in another file and which do not appear in the referenced file nor have been notified to us with any of the actions carried out to date, could not be alleged or considered.

We note, Mr. Deputy Superintendent, that the fact that

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mention of complaints in the Report that have not been notified in any procedural act to date, not even in the Report, cannot be taken into account when deciding the present case, since, otherwise, it would mean a serious violation of our right of defense because they would be evidentiary elements that we have not seen and on which we have not been able to comment".

It adds that "the report establishes evaluation criteria not contained in the regulation, violating the provisions of the joint report and the TUO of the LPAG. (...) Note that the reputational aspect has not been considered by article 4 [of the Regulation on Material Facts], so it is not part of the current legal system
It states that "we disagree that, from the perspective of due process, we can only argue whether the non-compliance was due to force majeure, fortuitous event or another exceptional circumstance. Rather, we consider that a statement like this requires a clear legal basis that unfortunately does not appear in the Report".

B. INFRINGEMENT (VI).- COMMUNICATING IN AN UNTIMELY MANNER THE MATERIAL FACT REFERRING TO THE FIRM SANCTION IMPOSED BY DEPUTY SUPERINTENDENCY RESOLUTION SMV No. 076-2021-SMV/11

On the alleged violation of the principle of typicity

22. That, in its reconsideration, the Issuer maintains that "THE RESOLUTION VIOLATES THE PRINCIPLE OF TYPICITY ESTABLISHED IN NUMBER 4 OF ARTICLE 248 OF THE TUO OF THE LPAG, VIOLATING NEXA'S RIGHTS.";

23. In this regard, the Issuer states the following: "(r) (...) we can indicate that, by provision of the second paragraph of number 4 of article 248, the Principle of Typicity is not limited to the requirement that the sanction be typified, but that it must originate from a legal or regulatory norm that imposes obligations on a private party; it is a direct relationship between substantive and adjective norms, in which the substantive norm is the one that defines what type of information is a material fact (articles 3 and 4 of the Regulation) and the adjective or procedural norm is the typification of not communicating material facts as a sanction."

"(s) (...), when it is determined whether an issuer has fallen within the factual assumption of 'not communicating material facts', the administration must consider both that the conduct has been typified as a sanction (adjective norm) and that the facts contained in the conduct are within the limits established by the substantive norm that created the obligation, in this case, by the content that articles 3 and 4 have given to the concept 'material fact'. By virtue of the principle of Typicity, in both extremes, the administration is prohibited from making ANALOGICAL OR EXTENSIVE INTERPRETATIONS, since otherwise, it would be violating this principle and vitiating the entire sanctioning procedure."

"(u) In this regard, NEXA must point out that WHAT IS INDICATED IN THE RESOLUTION REGARDING THAT NEXA HAS ONLY CONSIDERED THE QUANTITATIVE ELEMENT IN ITS ANALYSIS IS NOT CORRECT; NEXA has considered the only effect of Resolution 76 (which is to make the fine final), because it is the fact that has occurred. And it has compared said effect WITH ALL THE CRITERIA ESTABLISHED IN ARTICLE 4 OF THE REGULATION, BY THE SMV, TO DETERMINE THE SIGNIFICANCE AND, THEREFORE, THE QUALIFICATION OF MATERIAL FACTS."

"(v) There is no doubt that there are other criteria, such as those indicated by the Resolution (relevance for minority shareholders, effects on operations and reputation) that could also be relevant for the qualification of a material fact. But if that is the intention of the SMV, it is appropriate to make an amendment to the Regulation to add new criteria, so that all administered parties can access them and take them into consideration in their analysis.

(w) What is not possible and directly collides with the Principle of Typicality is sanctioning NEXA for not having used criteria THAT ARE NOT CONTAINED IN THE NORMA. This is clearly an extensive interpretation of article 4 that the SASCM is carrying out and therefore IS PROSCRIBED BY ARTICLE 248, NUMERAL 4 OF THE TUO OF THE LPAG.”;

On the alleged inadequate motivation of the challenged resolution

24. That, in its reconsideration, the Issuer maintains that “THE RESOLUTION LACKS ADEQUATE MOTIVATION IN ACCORDANCE WITH ARTICLE 6 OF THE TUO OF THE LPAG.”;

25. That, the Issuer argues that the fine imposed of S/ 25,800.00 has no significance in its activities, patrimony, results, financial situation, business or commercial position in general, the securities or the offering of these, the price or the negotiation of the securities, concluding that the Resolution of the Deputy Superintendence SMV No. 076-2021-SMV/11 did not qualify as a material fact;

26. That, the Issuer points out: “(l) (…) the Resolution has chosen to disregard this evaluation, disqualifying it for allegedly referring only to a quantitative element and for not taking into account other criteria not established in the Regulation. As we will demonstrate below, the Resolution transgresses essential principles and requirements of every administrative act, which make its reformulation necessary.”;

27. That, likewise, the Issuer indicates the following:

“(aa) (…) the Resolution (…) NEITHER HAS PROVEN THE FACTS ON WHICH IT BASES ITS DECISION, BUT RATHER REFERS TO THEM AS POSSIBILITIES. Which obviously directly collides with the Principle of Due Motivation established in the TUO of the LPAG, since an administered party cannot be sanctioned on the basis of possibilities and presumptions, except when the law expressly reverses the burden of proof.

(bb) The foregoing relates to the fact that the Resolution has started from a pattern of culpability, which we already pointed out previously, starting from the idea that it is NEXA who must prove and demonstrate that it did not commit an infraction, when, obviously, it is the opposite, it corresponds to the SASCM to prove and demonstrate that Resolution 76 effectively affected the minority shareholders, the

operations and the reputation of NEXA. It should be noted that the principle of motivation expressly requires this type of foundation. It is not enough, according to him, to merely highlight that the information was not communicated. Especially when criteria are alleged that are not found in the applicable norms, which in turn collides with the Principle of Typicality, as we have already demonstrated.

(cc) Considering the foregoing, and by virtue of the provisions of numeral 6.3 of article 6 of the TUO of the LPAG, the vague type of motivation of the Resolution, which lacks proven facts that support its assertions, as well as clear and express legal and normative grounds, does not qualify as sufficient motivation.

(dd) The Resolution, furthermore, is also vague, since it mentions the rights of minority shareholders and their protection, however, it fails in the following:

It does not mention how the rights of said shareholders relate to material facts, when they have not been included either in the law, or in article 3, or in article 4.
It does not mention how the system of material facts, whose purpose is the dissemination of information for investment decision-making, is the suitable legal method to protect those rights, and not the specific norms established for that purpose. Especially if we consider that the Regulation does not mention even once the fact that its purpose is the protection of minority rights.
It does not mention that Resolution 76 was published on the SMV Portal, the same Portal where material facts are disseminated, so there was never a lack of information in this regard for the market.”;

28. That, in its arguments the Issuer points out regarding infraction (VI) the following:
It indicates that “the fact that a supposition is included in the Annex does not mean per se that it automatically becomes a material fact, but rather an additional evaluation is required, with the criteria of the Regulation, on the part of the issuer. And this, being an institutional position validated by the Board of Directors of the SMV, can by no means mean leaving the obligations to report material facts without essence”.
It adds that “it is clear that the facts alleged in the Report are the existence of more than 1329 shareholders, but the Report does not mention what is the legal basis on which it sustains that this ‘relevance’ qualifies as significant influence or significance in accordance with articles 3 and 4 of the Regulation”.
It adds that “it is not differentiated again whether the facts that gave rise to Resolution 076 are being questioned, which were already discussed in a different file and procedure, or whether the impact of Resolution 76 (the imposition of a sanction) is being evaluated, which is the object of discussion of this procedure”.

4.2 Evaluation of the reconsideration appeal and of the complementary arguments

A. INFRACTION (V).- COMMUNICATE IN AN UNTIMELY MANNER THE MATERIAL FACT REFERRED TO THE FIRM SANCTION IMPOSED THROUGH SUPERINTENDENT RESOLUTION No. 027-2021-SMV/02

On the alleged inadequate motivation of the Challenged Resolution

29. That, in relation to the argument presented by the Issuer, in the sense that the Challenged Resolution has not adequately motivated its conclusion regarding the administrative responsibility of the Issuer, for having communicated extemporaneously the material fact referring to the final sanction imposed by Superintendente Resolution No. 027-2021-SMV/02, it is necessary to state the following:

1. In principle, Superintendente Resolution No. 027-2021-SMV/02 resolves in the last administrative instance the sanction imposed by the SASCM through Deputy Superintendente Resolution SMV No. 042-2019-SMV/11. This sanction was due to the fact that the Issuer (formerly Compañía Minera Milpo S.A.A.):

(i) Did not comply with the provisions that regulate the quality of the information made available in the securities market, inasmuch as the so-called Publicly Disseminated Tender Offer Notice, in the section "Context of the present Offer", did not contain correct information that would have been relevant for the shareholders to whom the offer was addressed, so that they could make their investment decisions adequately, such as, for example, the information that was subsequently revealed at the end of the process when it decided not to continue with the tender offers for exclusion (OPCs) of its common and investment shares, and;

(ii) Had not communicated to the market as a material fact the content of the valuation report of the common and investment shares of the Issuer (formerly, Compañía Minera Milpo S.A.A.) prepared by Macroinvest S.A. (Macroinvest), which was communicated to it in its board meeting of 25 May 2017. The Issuer (formerly, Compañía Minera Milpo S.A.A.) should have communicated as a material fact the report prepared by Macroinvest, since, for the issuer itself, it was of utmost importance to determine or decide whether to continue with the OPCs that its board had agreed, even more so when the price determined by Macroinvest was relevant for this decision.

2. As provided by numeral 32 of Annex 1 of the Regulation of Material Facts, Superintendente Resolution No. 027-2021-SMV/02 had to be communicated as a material fact insofar as it is a final resolution and has exhausted the administrative route, with a significant influence.

3. In relation to what was stated by the Issuer in the sense that "the Resolution has ignored the provisions of numeral 5.1 of article 5 of the Regulation, which EXPRESSLY INDICATES that the assumptions contained in the Annex constitute AN ENUNCIATIVE AND REFERENTIAL LIST, and in no way exempt the issuer from carrying out a materiality analysis", the following must be specified:

(i) It is correct to affirm that in accordance with numeral 5.1 of article 5 of the Regulation of Material Facts, Annex 1 of the same regulation constitutes an enunciative list, and serves essentially as a reference so that issuers can immediately identify and communicate facts, acts, agreements and decisions that may be qualified as material facts. The referential nature of Annex 1 is confirmed in the

interpretation made of numeral 5.2 of article 5 of the Regulation of Material Facts, which states that the assumptions of said Annex must be communicated as material facts when they have the capacity to significantly influence.

Thus, the assumptions described in Annex 1 of the Regulation of Material Facts must be communicated when they have the capacity to significantly influence the decision of prudent investors. It is the task of each issuer to carry out a certain qualification of the facts and communicate them to the market as material facts, taking the aforementioned Annex as a reference.

(ii) In that sense, in the present case, the determination of whether the material fact referring to the final sanction imposed by Superintendente Resolution No. 027-2021-SMV/02 had the capacity to significantly influence the investment decision of prudent investors was the object of analysis.

(iii) It is appropriate to mention that in order to carry out the evaluation indicated in the previous paragraphs, it is not enough for Issuers to take into account quantitative criteria, but also qualitative ones, since the significant influence must be measured from the perspective of a prudent investor, whose investment decision is not completely determined by the technical or fundamental analysis that they could make of the company's securities (in the present case, the securities registered by the Issuer in the RPMV are shares), but also by other qualitative aspects11 that likewise influence the activities of the Issuer and, including the general business or commercial position of the Issuers (art. 4 of the Regulation of Material Facts).

For example, qualitative criteria would be mainly taken into account in the case of facts linked to knowledge of plans that imply a change in the control unit, changes in the control unit of the Issuer, appointment and termination of contract with its audit firm, relevant changes in results or in net equity, approval or modification of the dividend policy, among other facts that have significant influence. Unlike quantitative criteria, which are mainly taken into account in facts linked to the transfer of shares representing share capital that hold 10% or more of the issuer's capital, monthly position in derivative financial instruments, among others.

(iv) In accordance with the foregoing, taking as valid the argument that Annex 1 of the Regulation on Material Events constitutes only an illustrative and referential list, devoid of content, is absurd with respect to the regulation of the securities market and the supervision carried out by this Superintendency of the Securities Market, since said Annex 1 essentially reflects the situations that would reasonably qualify as material events, and that should be communicated as such, unless they are events that, due to their insignificance, do not fall within the definition described in Article 3 of the Regulation on Material Events.

[11] Investors in the securities market make decisions driven not only by rational motives, but also by emotional ones; as demonstrated by Cox, Hillman, Langevoort, Lipton and Sjostrom (2020), Securities Regulation, 9th edition, Wolter Kluwer, United States, p. 140.

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(v) In this regard, it is reiterated that the obligation to inform the securities market constitutes one of the pillars of market transparency, since it contributes to adequate price formation and to an investment decision based on the information that is published and accessible to investors.

In line with the foregoing and, in order to demonstrate the importance of communicating material events, specifically Superintendency Resolution No. 027-2021-SMV/02, which resolved in the final administrative instance the sanction imposed by the SASCM through Deputy Superintendency Resolution SMV No. 042-2019-SMV/11, was issued as a consequence of the following events:

1. By material event of 23 July 2015, the Issuer communicated to the market the resolution of the General Shareholders' Meeting held on that date, in which it agreed its decision to repurchase its own shares, delegating to the Board of Directors so that it determines the mechanisms to comply with the decision of the aforementioned Meeting.

In the following image, the conditions approved by the Meeting are verified:

2. By material event of 27 October 2016, the Issuer communicated that its Board of Directors in the session of that date approved the launch of a purchase offer of common shares of its own issuance, using the modality of "Purchase Order with Public Dissemination", within the stock exchange mechanism of the Lima Stock Exchange, attaching for this purpose the respective purchase notice shown below.

3. According to the "Purchase Offer Notice with Public Dissemination that was attached to the Material Event in question, it is noted that it has thirteen (13) Conditions that are made available to the investor so that they may consider, according to their economic expectations, whether or not to accept the referred offer. These are the following:

HI of 27.10.16
Buyer	Compañía Minera Milpo S.A.A.
Modality	The purchase operation (the "Offer") will be carried out under the modality of stock exchange operation within the centralized mechanism of the Stock Exchange of the Lima Stock Exchange.
Brokerage Agent	Credicorp Capital Sociedad Agente de Bolsa S.A. ("Credicorp Capital Bolsa"), with address at Av. El Derby N°055, Torre 4, Piso 8, district of Santiago de Surco, province and department of Lima, Peru.
Securities to be acquired	The Offer extends up to 242’859,690 outstanding shares (ticker MILPOC1) representing 18.54% of Milpo's share capital. The shares have a nominal value of S/ 1.00 each and are registered in the RPVM of the SMV and listed on the BVL. The effectiveness of the offer is not subject to the acquisition of a minimum number of shares.
Price	The price of the Offer is S/ 2.95 per share. Payment will be made in cash, immediately and in soles. The funds necessary for the payment of the Shares come exclusively from the own resources currently available to the Buyer.
Term of validity of the Offer	The term of the Offer is twenty (20) Stock Exchange days, counted from 9:00 hours on Friday 28 October 2016 and will conclude at 15:00 hours on Tuesday 29 November 2016.

Deadline for submission of proposals	The Brokerage Firms that have collected sell orders must enter the proposals in the Auction Book, with ticker MILPOC1.OPC, between 09:00 hours and 15:00 hours. Likewise, before Wednesday 30 November 2016, upon instruction of their clients, the Brokerage Firms must transfer the Shares to the parent account that Credicorp Capital Bolsa has specially designated for the Offer, where they will remain immobilized until the Settlement date of the Offer.
Settlement of the offer	The operation will be executed on the Stock Exchange day following the expiration of the term of validity of the Offer, that is, on Wednesday 30 November 2016. The price will be paid in cash within three (3) Stock Exchange days following the execution date, following the procedure for the settlement of cash operations in the Stock Exchange of the BVL.
Place and form of acceptance of the Offer	Within the term of validity of the Offer, holders of Shares who wish to accept this Offer must communicate their acceptance thereof by delivering the Acceptance Letter (whose format is published on the BVL website: www.bvl.com.pe) to Credicorp Capital Bolsa, at its office located at Av. El Derby N°055, Torre 4, Piso 8, district of Santiago de Surco, province and department of Lima, Peru. In the event that the Shares of the accepting shareholder are registered in the master account of any other duly authorized stock exchange company, the Acceptance Letter may also be submitted to it. Likewise, through the Acceptance Letter, the accepting shareholder shall instruct its Stock Exchange Company to transfer the Shares to the master account that Credicorp Capital Bolsa has specially designated for the Offer, or shall instruct Credicorp Capital Bolsa to request the aforementioned transfer from its Stock Exchange Company.
Context of this Offer	The Buyer's Board of Directors has convened its General Shareholders' Meeting to submit for its consideration the delegation to the Board of Directors of the evaluation, approval and implementation of the exclusion of the Shares and the investment shares issued by the Buyer from the RPMV and the BVL Securities Registry, as well as regarding certain consequences that may arise from this Offer and the eventual exclusion that may be approved.
Settlement System	The Buyer undertakes that in the event it makes an offer, under any modality, whose purpose is to acquire, directly or indirectly, the Shares subject to this Offer, including a process of exclusion of said Shares from the RPMV and the BVL Securities Registry, and provided that the acquisition of said Shares is completed within a period of one year calculated from the day the term of validity of this Offer begins, and in any case an offer is made to pay a price higher than the one offered in this Offer, by delivering to them the sum equivalent to the difference between the price to be paid per share in said acquisition and the one offered in this Offer, multiplied by the number of shares acquired from them by the Buyer in that latter transaction.
Pro rata mechanism	In the event that the total number of Shares comprised in the acceptance letters received exceeds the maximum number of Shares contemplated in the Offer, the allocation shall be made pro rata among all the holders of Shares who have submitted, in proportion to the number of securities comprised in all the acceptance letters, unless the Buyer announces, at the end of the term of the Offer, the acquisition of part or all of the over-demanded shares in

	chronological order (best-in-time criterion), with priority given to the oldest proposals, to the detriment of the last proposal submitted.
Offer expenses	The Buyer shall assume all costs, expenses and commissions that, in its capacity as buyer, arise as a consequence of the intervention of Credicorp Capital Bolsa as the intermediation agent of this Offer. The acceptors of the Offer shall individually assume and pay their own intermediation costs by way of commission to the stock exchange agent, contribution to the SMV, BVL, Guarantee Fund, CAVALI S.A. I.C.L.V. and other costs, expenses and taxes corresponding to the acceptors of the Offer as a consequence of the sale of their shares in the stock exchange trading session.
Tax treatment	The acceptors of the Offer must evaluate with their tax advisors the tax effects related to the sale of the Shares in accordance with the terms of this offer. As of the date of this Offer, the Shares meet the requirement of having stock exchange presence, so the capital gain generated by the sale is exempt from the payment of Income Tax, in accordance with the provisions of Law No. 30341 and its Regulations, approved by Supreme Decree No. 382-2015-EF. However, the Buyer cannot guarantee that once the Offer is completed, the stock exchange presence of the Shares will be maintained.

chronological order (best-in-time criterion), with priority given to the oldest proposals, to the detriment of the last proposal submitted.

Offer expenses

The Buyer shall assume all costs, expenses and commissions that, in its capacity as buyer, arise as a consequence of the intervention of Credicorp Capital Bolsa as the intermediation agent of this Offer. The acceptors of the Offer shall individually assume and pay their own intermediation costs by way of commission to the stock exchange agent, contribution to the SMV, BVL, Guarantee Fund, CAVALI S.A. I.C.L.V. and other costs, expenses and taxes corresponding to the acceptors of the Offer as a consequence of the sale of their shares in the stock exchange trading session.

Tax treatment

The acceptors of the Offer must evaluate with their tax advisors the tax effects related to the sale of the Shares in accordance with the terms of this offer. As of the date of this Offer, the Shares meet the requirement of having stock exchange presence, so the capital gain generated by the sale is exempt from the payment of Income Tax, in accordance with the provisions of Law No. 30341 and its Regulations, approved by Supreme Decree No. 382-2015-EF. However, the Buyer cannot guarantee that once the Offer is completed, the stock exchange presence of the Shares will be maintained.

4. Through a material fact dated 28 November 2016, the Issuer communicated that, in exercise of the powers delegated to its Board of Directors, it had agreed to extend the period for submitting acceptance letters for the offer of the Publicity Dissemination Purchase Order until 07 December 2016.

It should be noted that the period indicated in the aforementioned offer was Tuesday 29 November 2017. Additionally, and as a consequence of this extension of the period, clarifications were made to the following conditions: term of validity of the offer, period for submitting proposals, settlement of the offer, settlement system, pro rata mechanism, offer expenses and tax treatment, adding one further condition relating to the withdrawal of proposals.

5. It is important to mention that through a material fact dated 30 November 2016, the Issuer informs investors that on that date the General Shareholders' Meeting was held, agreeing on the following:

6. Through a material fact dated 1 December 2016, the Board of Directors informs the market of the decision to initiate the process for the exclusion of Milpo's common shares, indicating that said processes would include the carrying out of an OPC (Public Purchase Offer). The following shows this fact of importance.

7. As can be seen, the communication of such facts of importance was essential in order for the Issuer to be able to execute the agreements adopted at the General Shareholders' Meeting. It is for this reason that this Intendencia considers that the obligation to communicate as facts of importance final administrative resolutions, such as the Resolution of

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Superintendent No. 027-2021-SMV/02, have a qualitative and not necessarily quantitative content. In this regard, the Challenged Resolution states: “(…) it is not enough to only analyze quantitatively the sanction imposed on the Issuer, as the Issuer seeks to argue, but rather an individualized, case-by-case analysis is necessary with respect to the sanction imposed on the Issuer, which, in this case, was determined to be capable of influencing the investment decisions of current and potential investors.”

8. In this context, although the Issuer argues that the fine imposed by Superintendent Resolution No. 027-2021-SMV/02 does not significantly affect its activities, assets, results, financial situation, business or commercial position in general, the securities or the offer thereof, the price or the trading of the securities, and that therefore Superintendent Resolution No. 027-2021-SMV/02 did not have a significant influence, it is considered that there is an effect on the business or commercial position, in particular, on the reputational image in the securities market, in relation to the compliance with its obligations as an issuer of securities registered in the Public Registry of the Securities Market (RPMV).

Furthermore, it is considered that corporate reputation is understood as the set of perceptions held by the various stakeholder groups in the market that relate to the issuer in different ways, such as, for example, the shareholders themselves, internal or external stakeholders, and regulatory authorities, who obviously expect the issuer to behave appropriately in complying with the rules of the securities market.

(vi) In relation to the argument presented by the Issuer, to the effect that “it is not valid to argue that the subsequent request made by the IGSC under the protection of article 27 constitutes sufficient evidence regarding materiality, since said article refers to an attribution of the IGSC to request information that in its opinion qualifies as such, but in no way implies that issuers must know, in advance, what said opinion will be, since, obviously, this is impossible,” it is appropriate to state the following:

1. In principle, the Issuer should have communicated Resolution of Superintendent No. 027-2021-SMV/02 as a material fact without any request being made, in observance of article 5, numeral 5.2 and Annex 1, which mentions final resolutions that have exhausted the administrative route.

2. What the Issuer states to the effect that it is impossible to know in advance what the judgment of the General Superintendency for Conduct Supervision (hereinafter, IGSC) will be is an argument without substance, since the obligation to communicate a material fact arises from the very nature of the fact, which must be correctly evaluated by issuers for its dissemination in the market. Only upon non-compliance in the disclosure of material facts by issuers, through supervisory actions, does the administrative authority order the disclosure of a fact as a material fact, without this implying that the authority attributes such quality to it, since, as stated, the quality of material fact is attributed by the very nature of the fact.

30. That, in accordance with the foregoing, the Challenged Resolution is duly reasoned, expressly by means of a

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statement of the proven facts and the exposition of the legal and regulatory reasons that justify the act, in accordance with numeral 4 of article 3 and numeral 6.1 of article 6 of the TUO of the LPAG;

On the alleged violation of the rights of defense and due process and the disregard of the principle of lawfulness

31. That, prior to the analysis corresponding to this argument of the Issuer, it is important to state that this Deputy Superintendency does not share the expressions contained in the reconsideration appeal, when it states that “In this respect the Resolution clearly adopts an illegal position by establishing a rule of culpability” (Highlight added) and “It should be noted that this rule of culpability is not restricted to an inadequate use of language in the Resolution” (Highlight added), since this administrative sanctioning procedure has been conducted in accordance with the principles of administrative sanctioning power referred to in article 248 of the TUO of the LPAG. Therefore, the fact of raising legal arguments such as asserting that "clearly an illegal position" would be adopted and that there is "an inadequate use of language in the Resolution" affects the principle of procedural good faith, with which all parties must conduct themselves in the framework of administrative procedures, in accordance with subsection 1.8 of numeral 1 of Article IV of the Preliminary Title of the LPAG;

32. That, in relation to the argument presented by the Issuer, to the effect that the Challenged Resolution violates its rights of defense and due process and improperly reverses the burden of proof, disregarding the principle of lawfulness, it is appropriate to state the following:

1. The principle of lawfulness established in numeral 9 of Article 230 of the TUO of the LPAG establishes that administrative entities, such as the SMV, must presume that administered parties have acted in accordance with their duties as long as they do not have evidence to the contrary.

2. In that framework, once the defenses, arguments, and oral report have been presented and carried out, the Challenged Resolution in its numeral (ii) of recital 23 of (p. 11 – 14) presents its evaluation of the case in the part referring to charge v), concluding that the conduct constituting the infraction of presenting a material fact in an untimely manner is accredited and the administrative responsibility of the Issuer is determined, thus rebutting the presumption of lawfulness of the Issuer, in strict compliance with the other principles of administrative sanctioning power referred to in Article 248 of the TUO of the LPAG.

It should be noted that the argument referring to the fact that the challenged Resolution has reversed the burden of proof, shifting to the Issuer the obligation to prove its innocence, is an expression lacking all legal logic, since the imputed charge that was later sanctioned in the PAS was due to the untimely presentation of the material fact under analysis, which is accredited by verifying the deadline and the effective presentation of the fact. Additionally, from the perspective of due process, the administered party would have to argue whether this non-compliance occurred due to a fact or situation that made timely compliance impossible (force majeure, unforeseeable event, or another exceptional circumstance, just to cite some of the exemptions). This proof does not imply an affectation of the presumption of innocence of the administered party, since exemptions from liability must be proven by the administered party.

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In that sense, the Issuer's argument referring to the fact that by reversing the burden of proof the principle of culpability has been violated is rebutted, since this administrative authority has acted in accordance with its powers and obligations set forth in the TUO of the LPAG, LOSMV and the Sanctions Regulation.

33. That, according to what has been stated, the Challenged Resolution has not violated the Issuer's principle of lawfulness and, therefore, neither its rights of defense and due process in the framework of the present PAS;

34. That, in relation to the arguments presented by the Issuer, this Deputy Superintendency reiterates what was indicated in the preceding paragraphs and additionally states the following:

(i) It has become clear that the Regulation on Material Facts indicates through its Annex 1 an illustrative list of facts that should be communicated to the market when they have a significant influence on prudent investors. Pursuant to Articles 3 and 4 of the aforementioned regulation, when evaluating the materiality of information, Issuers should take into account not only quantitative but also qualitative criteria, which has been expressly stated in the Challenged Resolution. Thus, although the Issuer is right in stating that the list in Annex 1 is referential, as indicated by the Regulation on Material Facts (which can even be seen in Deputy Superintendency Resolution 019-2023-SMV/10 of the Deputy Superintendency of Prudential Supervision cited by the Issuer in its arguments), it should be highlighted that the Challenged Resolution expressly indicated that the sanction confirmed by Superintendent Resolution No. 027-2021-SMV/02 qualified as a material fact because it "had the capacity to significantly influence the investment decisions that a prudent investor could make, since the imposition of a sanction for having incurred infractions classified as very serious and serious reflects the Issuer's conduct in relation to compliance with obligations that seek to safeguard the transparency of information, as it is the legally protected interest" (page 14 of the Challenged Resolution). (ii) That is, it was expressly indicated that the status of material fact was given by the capacity for significant influence that the fact had on prudent investors.

Additionally, regarding the fact that the Report contradicts what is stated in Joint Report 153-2014-SMV/11/06/10/12, it should be noted that in the present appeal procedure the determination of whether the Report contradicts or not what is stated in the aforementioned Joint Report is not the object of analysis, but rather the determination of responsibility and the sanction imposed by the Challenged Resolution is the matter of analysis. Without prejudice to the foregoing, it should be noted that this Office agrees with what was set forth by the joint report insofar as it reflects the position adopted by Article 5, numeral 5.1 of the Regulation on Material Facts that served as the basis for the sanction imposed through the Challenged Resolution. It should be recalled that in the Challenged Resolution it was stated that the sanction confirmed by Superintendente Resolution No. 027-2021-SMV/02 qualified as a material fact because it had a significant influence on sensible investors.

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Likewise, the Issuer's claim that the Report establishes evaluation criteria not contained in the regulation, thereby violating the provisions of the Joint Report and the TUO of the LPAG, lacks basis, since the evaluation carried out in the Challenged Resolution took into consideration the provisions of article 4 of the Regulation on Material Facts and the definition of Material Fact contained in article 3 of the same regulation.

In this case, despite having the nature of a material fact, the Issuer did not communicate it as such until 18 August 2021, belatedly and at the request of the IGSC, which was the subject of a sanction.

(ii) The mention made in this Resolution of the facts that gave rise to the PAS and the sanction that was later confirmed by Superintendente Resolution No. 027-2021-SMV/02 does not imply that this administrative authority is violating the principle of non bis in idem, since the mention of such facts is made to demonstrate the relevance that Superintendente Resolution No. 027-2021-SMV/02 had for the market, which should have been communicated in a timely manner.

(iii) With regard to the Issuer's statement that the IGCC Report on this reconsideration appeal suffers from nullity defects because, “what is indicated in the report, regarding the fact that not communicating Res. 027 as a material fact affected ‘in some way’ its business position, is precisely the best example of a vague formula that does not comply with the provisions of article 6 of the TUO of LPAG as motivation for an administrative act”; it should be noted that, in principle, the referred report is not an administrative act according to the terms set forth in article 1 of the TUO of the LPAG, on which this deputy superintendence must carry out any analysis regarding the alleged “nullity defects”, since the referred report, in this appeal procedure, is rather an opinion12; so that what is indicated in this Resolution may or may not coincide with what is indicated in the referred Report, without this necessarily warranting the declaration of the reconsideration appeal as founded.

(iv) With regard to the fact that the Challenged Resolution mentioned administrative complaints, which, according to the Issuer, cannot be alleged or considered in this case as other facts contained in other files, and to which it requested access through the “Fourth Other Request” of its brief of arguments, it is important to mention that in Official Letter No. 5776-2023-SMV/11 of 20 December 2023, this Deputy Superintendence stated the following:

“Finally, with regard to the fourth other request of your brief, by which you request to include in this file and notify you of the complaints referred to in numeral 4, page 12, of the Report, supposedly

[12] « Article 182.- Presumption of the quality of reports (…) 182.2 The opinions and reports shall be presumed discretionary and non-binding, with the exceptions of law. (…)».

presented by investors affected by the non-disclosure of Superintendente Resolution No. 027-2021-SMV/02; it should be noted that the Report does not refer to new complaints presented by investors affected by the non-disclosure of the referred resolution (as your represented party has understood), but rather refers to the complaints that were presented before the SMV and that gave rise to the administrative sanctioning procedure (File No. 2018014707) that culminated in the issuance of Superintendente Resolution No. 027-2021-SMV/02. Therefore, as of today, there are no complaints whose incorporation into the file should be carried out and whose notification should be made to your represented party”.

(v) Finally, with regard to the fact that the Report indicates that “from the perspective of due procedure, we can only argue whether the non-compliance was due to force majeure, fortuitous event or another exceptional circumstance”, it should be noted that the opinion contained in the Report is not binding for this Office and it is not the object of this analysis to verify the validity or not of what is indicated in said Report. On the other hand, this Office respects the procedural guarantees and rights that assist the administered parties in every administrative sanctioning procedure followed in this administrative venue, which has been observed in the administrative sanctioning procedure that gave rise to the Challenged Resolution.

35. That, for the reasons set forth above, the reconsideration appeal must be declared unfounded in the part referring to Infraction V).- Belatedly communicating the material fact referring to the final sanction imposed by Superintendente Resolution No. 027-2021-SMV/02;

B. INFRACTION (VI).- BELATEDLY COMMUNICATING THE MATERIAL FACT REFERRING TO THE FINAL SANCTION IMPOSED BY DEPUTY SUPERINTENDENT RESOLUTION SMV No. 076-2021- SMV/02

On the alleged violation of the principle of typicity

36. That, in principle, the SMV does not make analogical or extensive interpretations when dealing with administrative sanctioning procedures. This is so because the regulatory system governing the securities market has rules at the level of law, implementing regulations and a sanctions regulation where the infractions that securities market participants may incur are duly defined;

37. That, in this regard, the omission or late submission of material facts is duly defined in numeral 3.1 of subsection 3 of Annex 1 of the Sanctions Regulation. On the other hand, the obligation to disclose as a material fact the final resolutions of sanctions imposed on the issuer that have the capacity to significantly influence investors' decisions is described in numeral 32 of Annex 1 of the Material Facts Regulation; therefore, there is no extensive or analogous interpretation as argued;

38. That, in that order of ideas, Superintendencia Adjunta SMV Resolution No. 076-2021-SMV/11, which had to be disclosed

in a timely manner as a material fact insofar as it is a final resolution that significantly influences investors' decisions, had the purpose of sanctioning the breach of a substantive rule, that is, article 262-A of the General Corporations Law approved by Law No. 26887;

39. That, on the other hand, the sanction imposed in Superintendencia Adjunta SMV Resolution No. 076-2021-SMV/11 and which was disclosed late as a material fact was relevant insofar as it revealed the Issuer's failure to comply with publishing the list of its shareholders who have not collected or claimed their shares or dividends, especially when it has 1,329 shareholders who own less than 1% of the shares;

40. That, consequently, the arguments presented by the Issuer cannot be upheld, since, as has been stated, the disclosure of the material fact of Superintendencia Adjunta SMV Resolution No. 076-2021-SMV/11 was relevant.

On the alleged inadequate reasoning of the challenged resolution

41. That, regarding the argument presented by the Issuer, to the effect that the Challenged Resolution lacks adequate reasoning in accordance with article 6 of the TUO of the LPAG, the following should be noted:

(i) In relation to the argument presented by the Issuer, regarding that the Challenged Resolution does not mention how the rights of minority shareholders relate to material facts when they have not been included in articles 3 or 4 of the Material Facts Regulation, it should be highlighted what is stated in the Challenged Resolution (p. 15): “(…) this disclosure as a material fact is relevant for shareholders, since it concerns the disclosure of a final sanction imposed as a result of an administrative sanctioning procedure initiated against it for breach of the framework for the protection of minority shareholders. On the other hand, it is important to note that according to the 2019 Annual Report, the Issuer has 1,329 shareholders who own less than 1% of the total shares with voting rights (common shares), representing 6.26% of the holding of said shares, and that 940 shareholders owned less than 1% of the total shares without voting rights (investment shares), representing 42.28% of the holding of said shares (…)” (Highlight added).

(ii) In relation to the argument presented by the Issuer, regarding that the Challenged Resolution does not mention how material facts can be the means to protect the interests of minority shareholders, it should be highlighted what is stated in the Challenged Resolution (p.18): “(…) this class of sanctions shows the level of compliance by the Issuer with the obligation to disclose as a material fact the list of unclaimed shares and uncollected dividends, which must be done both on its website and on the SMV Securities Market Portal, as provided in article 262-A of the LGS. Note that the fine sanction, which should have been published as a material fact, was due to the

omission in the dissemination, both on its website and on the SMV Securities Market Portal, of the list of unclaimed shares and uncollected dividends corresponding to the 2019 fiscal year.” (Highlight added)

In that sense, it is appropriate to specify that the importance of disseminating the assumptions determined as material facts lies not only in the protection of minority shareholders, but of all market participants insofar as they are fundamental to effectively safeguard transparency in the securities market, which is a protected legal interest.

According to what has been stated, it is evident that the Challenged Resolution does rule on the possibility of protecting the rights of minority shareholders, and other interest groups, through the dissemination as a material fact of Superintendencia Adjunta SMV Resolution No. 076-2021-SMV/11, lies in the publicity regarding the issuer's compliance with respect to compliance with its obligations.

(iii) In relation to the argument presented by the Issuer, that the Challenged Resolution was published on the SMV Portal, it must be noted that this did not exempt the Issuer from complying with the timely communication of the aforementioned material fact, which was not carried out and led to the imposition of the sanction.

42. That, in accordance with the foregoing, the Challenged Resolution is duly motivated, expressly through a list of the proven facts and the exposition of the legal and regulatory reasons that justify the act, pursuant to numeral 4 of article 3 and numeral 6.1 of article 6 of the TUO of the LPAG;

43. That, in relation to the allegations presented by the Issuer regarding infraction (VI), the foregoing paragraphs must be reiterated and, additionally, it must be added that, in relation to the legal basis that considers it relevant that the Issuer has 1329 shareholders in order to determine it as having "significant influence" for the purposes of communicating the material fact, it must be indicated that, as stated, the evaluation of a fact to qualify it as a material fact is carried out from the perspective of the reasonable investor, whose investment decision is based not only on quantitative aspects, but also qualitative ones. In this case, the sanction imposed by Adjunt Superintendent Resolution SMV No. 076-2021-SMV/11 was relevant to the market because it dealt with a very serious infraction for non-compliances with the regulation that protects the rights of minority shareholders; thus, the mention of the facts that motivated the sanction imposed by Adjunt Superintendent Resolution SMV No. 076-2021-SMV/11 are only mentioned to substantiate the relevance that said sanction had for the market and that it should have been communicated as a material fact in a timely manner.

44. That, for the foregoing reasons, the reconsideration appeal must be declared unfounded in the extreme referred to Charge VI).- Communicating extemporaneously the material fact referred to the final sanction imposed by Adjunt Superintendent Resolution SMV No. 076-2021-SMV/1;

45. That, from the evaluation in the preceding recitals, it is concluded that the arguments presented by the Issuer in its reconsideration appeal do not justify revoking or varying what was resolved in the Resolution, so its reconsideration appeal must be declared unfounded; and,

In accordance with the provisions of numerals 14, 22 and 36 of article 43 of the Regulation of Organization and Functions of the Superintendence of the Securities Market, approved by Supreme Decree No. 216-2011-EF;

RESOLVES:

Article 1.- Declare UNFOUNDED the reconsideration appeal filed by Nexa Resources Perú S.A.A. against Adjunt Superintendent Resolution SMV No. 107-2023-SMV/11, in the reconsidered extremes.

Article 2.- Confirm Adjunt Superintendent Resolution SMV No. 107-2023-SMV/11 which sanctions Nexa Resources Perú S.A.A. with two (2) warnings and a total fine of 8.298 UIT, in the reconsidered extremes, for having incurred nine (9) infractions of a minor nature typified in subsection 3.1, numeral 3 of Annex I of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for the non-compliances declared in the aforementioned Resolution.

Article 3.- Declare the administrative route exhausted.

Article 4.- Transcribe this Resolution to Nexa Resources Peru S.A.A.

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

Superintendency Resolution Adjunct SMV No. 016-2024-SMV/11

VISTOS:

CONSIDERANDO:

I. FUNCIÓN Y COMPETENCIA DE LA SASCM

II. HECHOS

III. ISSUES TO BE DETERMINED

IV. ANALYSIS

4.1 Of the reconsideration appeal

A. INFRACTION (V).- COMMUNICATING IN AN EXTEMPORANEOUS MANNER THE MATERIAL FACT REFERRED TO THE FINAL SANCTION IMPOSED BY SUPERINTENDENT RESOLUTION No. 027-2021-SMV/02

On the alleged inadequate motivation of the Challenged Resolution

On the alleged violation of the rights of defense and due process and the disregard of the principle of lawfulness

B. INFRINGEMENT (VI).- COMMUNICATING IN AN UNTIMELY MANNER THE MATERIAL FACT REFERRING TO THE FIRM SANCTION IMPOSED BY DEPUTY SUPERINTENDENCY RESOLUTION SMV No. 076-2021-SMV/11

On the alleged violation of the principle of typicity

On the alleged inadequate motivation of the challenged resolution

4.2 Evaluation of the reconsideration appeal and of the complementary arguments

A. INFRACTION (V).- COMMUNICATE IN AN UNTIMELY MANNER THE MATERIAL FACT REFERRED TO THE FIRM SANCTION IMPOSED THROUGH SUPERINTENDENT RESOLUTION No. 027-2021-SMV/02

On the alleged inadequate motivation of the Challenged Resolution

On the alleged violation of the rights of defense and due process and the disregard of the principle of lawfulness

B. INFRACTION (VI).- BELATEDLY COMMUNICATING THE MATERIAL FACT REFERRING TO THE FINAL SANCTION IMPOSED BY DEPUTY SUPERINTENDENT RESOLUTION SMV No. 076-2021- SMV/02

On the alleged violation of the principle of typicity

On the alleged inadequate reasoning of the challenged resolution

RESOLVES:

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