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Superintendency Resolution Adjunct SMV No. 030-2024-SMV/11

Lima, 22 de mayo de 2024

Summary: To sanction Agro Industrial Paramonga S.A.A. with a fine of 3.09 UIT for having incurred in one (1) minor infraction, typified in subsection 3.1 item 3 of Annex I of the Sanctions Regulations

Administrado
:
AGRO INDUSTRIAL PARAMONGA S.A.A.
Asunto
:
Single Administrative Sanctioning Procedure instancia administrativa Tipo principal :
Subsection 3.1 item 3 of Annex I of the
Sanciones
INFRACCIÓN LEVE
Expediente N° :
2024009786
The Deputy Superintendent (e) of Supervision of Conductas de Mercados

VISTOS:

Administrative file No. 2024009786, containing the administrative sanctioning procedure initiated by the General Directorate of Conduct Compliance of the Superintendency of the Securities Market – SMV (hereinafter, the IGCC), against Agro Industrial Paramonga S.A.A. (hereinafter, the Issuer); and Report No. 399-2024-SMV/11.2 (hereinafter, the Report), issued by the IGCC;

CONSIDERANDO:

I. FUNCIÓN Y COMPETENCIA DE LA SASCM

1. That the IGCC —the investigating body of the administrative sanctioning proceedings (hereinafter, the PAS) to which this case refers— has brought the PAS of administrative file N° 2024009786 to the attention of the Deputy Superintendency of Market Conduct Supervision of the SMV (hereinafter, SASCM), in order for it to issue a decision as the sole administrative instance sanctioning body in said PAS. In this way, the SASCM assumes jurisdiction in observance of the exercise of the supervisory function and the sanctioning authority of the Superintendency of the Market of

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Securities – SMV established by the Single Concordant Text of its Organic Law, Decree Law Nº 26126 (hereinafter, LOSMV), and in the Single Ordered Text of the Securities Market Law, Legislative Decree N° 861, approved by Supreme Decree N° 020-2023-EF-1 1 (hereinafter, TUO LMV); as well as by the provisions of the Sanctions Regulations, approved by SMV Resolution N° 035-2018-SMV/01 (hereinafter, Sanctions Regulations); and, in articles 42 and 43 of the Organization and Functions Regulations of the Superintendency of the Market of Securities – SMV, approved by Supreme Decree Nº 216-2011-EF (hereinafter, ROF-SMV), in the sense that it is a specific function of the SASCM to impose sanctions at the sole administrative instance whose compliance control corresponds to said Deputy Superintendency. Likewise, the SASCM has the powers to issue corrective measures aimed at reversing the situation altered by the commission of the infringement;

II. HECHOS, CARGOS, DESCARGOS Y ALEGATOS

2.1 Hechos

2. That it was evaluated whether the Issuer complied with submitting a material fact in a timely manner;

2.2 Cargos

3. That, as a result of said evaluation, by means of Letter N° 964-2024-SMV/11.2 of 8 March 2024 (hereinafter, Charge Letter), a charge was formulated against the Issuer for not completely communicating the material fact of 3 March 2023, referring to the call to the Mandatory Annual Shareholders' Meeting for 31 March 2023 at 10:00 a.m., which was completed by regularization through the material fact of 28 March 20232.

The material event of convening the mandatory annual shareholders' meeting details the following agenda items to be addressed:

Election or Removal of Directors;
Approval of Corporate Management (Financial Statements and Annual Report);
Política de Dividendos;
Distribution or Application of Profits;
Setting of Board of Directors' fees for the 2023 period;
Appointment of External Auditors for fiscal year 2023; and,
Approval of the General Shareholders' Meeting Regulations.

However, in the aforementioned material event, the Issuer stated that: “The audited financial information and the annual report are still in the process of being finalized, and therefore could not be submitted. As soon as we have it, it will be submitted immediately. At the system's request, we have uploaded two files corresponding to previous years, in order to proceed with the convening process.”

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

[2] File No. 2023009747.

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In this regard, by regularizing the material event on 28 March 2023, the Issuer stated: “(…) we are regularizing the submission of the information corresponding to the Audited Financial Statements and Annual Report of Agro Industrial Paramonga SAA for the year 2022. Likewise, a new version of the Corporate Governance Report for fiscal year 2022 is submitted, which forms part of the annual report for fiscal year 2022, in which information has been clarified in questions I.5, I.8, I.9, III.10 and III.17 in response to the observations made by your represented entity. It should be noted that this information remained pending submission as indicated in the observations of the convening made on 3 March of the current year.”;

4. That, in that sense, the Issuer was charged with the commission of one (1) minor infraction classified in subsection 3.1 of numeral 3 of Annex I of the Sanctions Regulation;

2.3 Discharges

5. That, by means of a document submitted on 22 March 2024, the Issuer submitted its discharge, stating "(...) with respect to this involuntary delay in the timely submission of the audited financial information, we wish to inform you that it occurred due to the request of the external auditing firm Tanaka, Valdivia & Asociados SCRL (EY), regarding additional information requested, and certain reviews and clarifications, with the sole purpose of clearly and reliably determining the reasonableness of our financial statements, and which were finally published, submitted and approved at the convened General Shareholders' Meeting";

6. That, the Single Ordered Text of the General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO of the LPAG) contains common rules for the actions of the administrative function of the State and regulates all administrative procedures developed in the entities, including special procedures. Likewise, numeral 3) of article 248 of the TUO of the LPAG indicates the criteria regarding the graduation of the sanction: (a) The illicit benefit resulting from the commission of the infraction, (b) The probability of detection of the infraction, (c) The severity of the damage to the public interest and/or protected legal interest, (d) The economic harm caused, (e) Recidivism, for the commission of the same infraction within the term of one (1) year from when the resolution that sanctioned the first infraction became final, (f) The circumstances of the commission of the infraction; and, (g) The existence or not of intentionality in the conduct of the offender;

7. That, the charges formulated, the discharges submitted, and the criteria regarding the graduation of the sanction have been subject to evaluation in the Report, which has been brought to the attention of the SASCM;

8. That, in observance of the provisions of numeral 5 of article 255 of the TUO of the LPAG, by means of Official Letter No. 1386-2024-SMV/11 of 8 April 2024, the Report was sent to the Issuer so that it could submit its arguments within the term of five (5) business days from notification, which have not been presented to date;

III. ISSUES TO BE DETERMINED

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

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(i) Whether or not the Issuer incurred in 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

10. That, article 30 of the TUO of the LMV states: "The registration of a certain security or issuance program entails for its issuer the obligation to inform (...) the material facts, (...), as well as to disclose such facts in a truthful, sufficient and timely manner. The information must be provided (...) and disclosed as soon as the fact occurs or the issuer becomes aware of it, as the case may be. The materiality of a fact is measured by the influence it may exert on a sensible investor to modify their decision to invest or not in the security." (Underline added);

11. That, in that same sense, article 3 of the Regulation of Material Facts and Reserved Information, approved by SMV Resolution No. 005-2014-SMV/01 (hereinafter, Regulation of Material Facts) defines as a material fact: "(...) any act, decision, agreement, fact, ongoing negotiation or information referred to the Issuer, its securities or its businesses that have the capacity to significantly influence: 3.1. The decision of a sensible investor to buy, sell or hold a security; or, 3.2. The liquidity, price or quotation of the issued securities.";

12. That, numeral 1 of Annex 1 of the Regulation of Material Facts mentions in subsection a) the following: "1. Call to shareholders' meetings (...). In the case of a call to the mandatory annual meeting or equivalent body, the Issuer must attach a copy of the audited annual financial information and the annual report that will be submitted for approval. (...)";

13. That, subsection 6.1 of article 6 of the Regulation of Material Facts establishes that the Issuer is responsible for: "6.1 Ensuring that the information it communicates has the capacity to significantly influence, as defined in articles 3 and 4, and that it is truthful, clear, sufficient and timely, as well as that it is not disseminated to a specific group of investors or other groups with an interest in it before it is available to the entire public, through the means established in this Regulation";

14. That, numeral 7.3 of the Regulation of Material Facts indicates that: "7.3. The obligation to inform a material fact shall only be understood as fulfilled if the Issuer has observed the requirements established in this Regulation and in the corresponding technical specifications established by the SMV.";

15. That, the breaches in the complete presentation of material facts are typified in subsection 3.1 of numeral 3 of Annex I of the Sanctions Regulation, which states that it constitutes a minor infraction: “Presenting outside the established term, or doing so incompletely, or, without observing the technical specifications approved by the SMV or without communicating the approval by the corresponding corporate body, to the SMV, to the Exchange, to the entity in charge of the centralized negotiation mechanism or to any other entity or subject of the securities market, the audited individual or consolidated financial information, the individual or consolidated interim financial statements,

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management report, special audit report, material facts and annual reports.”;

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

4.2 Evaluation of the case

17. That, in file No. 2024009786, which contains the documentation of the present administrative sanctioning procedure, it is observed that through Memorandum No. 1899-2023-SMV/11.1 (File No. 2023021394), the General Superintendence of Conduct Supervision (hereinafter, IGSC) —an organ of the Superintendence of the Securities Market that has among its functions and powers, the supervision of compliance with the rules applicable to companies with securities registered in the Public Registry of the Securities Market (hereinafter, RPMV), evaluating the indications of possible infractions, and remits, for its consideration, the respective reports of indications of infraction, to the IGCC—, remitted to the IGCC, the result of its evaluation, and specifically what refers to the present case;

18. That, it must be kept in mind that the procedures and legal forms with which the IGSC conducts its inspection and/or supervision activity, and upon concluding it with a report of indications of infraction, determine that its pronouncement or opinion on a specific supervision topic —which may even contain a decision, such as, for example, the adoption of corrective measures—, is an opinion on the merits of the matter; it being necessary to specify that said opinion and the report of indications of infraction of the IGSC is not binding for the IGCC, as established in the second paragraph of article 9 of the Sanctions Regulation34 ;

19. That, in this way it is held that in the evaluation of the facts related to the present PAS, two (2) other administrative organs of the Superintendence of the Securities Market – SMV, functionally independent from each other and from this Office, have intervened and participated prior to the issuance of the present resolution; first the IGSC which in its opportunity

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

[4] «Article 9.- PRELIMINARY INQUIRIES AS A CONSEQUENCE OF SUPERVISION ACTIONS (…) When said organs conclude that there are sufficient indications of possible administrative infractions, they remit the corresponding reports to the General Intendancies of Compliance, which determine whether or not to initiate an administrative sanctioning procedure. If applicable, the General Intendancies of Compliance may conduct additional inspections or investigations of the reported indications. In the case of possible infractions in the scope of the Regulation of the Activity of Participatory Financial Financing and its Managing Companies, the preliminary inquiries are conducted by the General Intendancy of Investigation and Innovation, a dependency that, if there are sufficient indications of possible administrative infractions, will determine whether or not to initiate an administrative sanctioning procedure.” (…)»

reported the indications of infraction through Memorandum No. 1899-2023-SMV/11.1, and then the IGCC which, as a result of its evaluation, formulated the Statement of Charges and the Report; and at this point of the PAS it corresponds to the Office of the SASCM, to issue a pronouncement containing its decision regarding the mentioned charge, it being necessary to indicate that by the nature of the same, as previously stated, it will be a decision of sole administrative instance;

20. That, prior to the corresponding analysis, it must be noted that the formulation of the charges was based on the fact that the Issuer would not have complied with communicating completely a material fact;

21. That, in this regard, it must be indicated that in the present case the Issuer filed on 3 March 2023 the communication of the Material Event referring to the call to the Mandatory Annual Shareholders' Meeting for 31 March 2023; therefore, pursuant to numeral 1 of Annex 1 of the Regulation on Material Events, mentioned above, it should have attached a copy of the audited annual financial information and the annual report that would be submitted for approval, that is, the one corresponding to fiscal year 2022;

22. That, notwithstanding the foregoing, in the aforementioned communication of the material event the Issuer attached a copy of the Audited Individual Annual Financial Statements corresponding to fiscal year 2020 and the Annual Report corresponding to fiscal year 2021; thereby failing to comply with the provisions of numeral 1 of Annex 1 of the Regulation on Material Events;

23. That, in accordance with the regulations set forth above, the communication of the material event of 3 March 2023 referring to the call to the Mandatory Annual Shareholders' Meeting for 31 March 2023 must be understood as fulfilled only when the requirements set forth in the Regulation on Material Events and in the corresponding technical specifications had been observed. In this regard, the Technical Specifications of the Registration and Supervision Information System, approved by Superintendency Resolution No. 003-2022-SMV/02 and its amendments (hereinafter, Technical Specifications), establish in Title II, numeral 2, subparagraph 2.1, the following:

"2. CALLS AND RESOLUTIONS

2.1. Registration of Call to Shareholders' Meeting / Bondholders' Meeting / Participants' Meeting / Trustors' Meeting

The OBLIGATED PARTIES  Issuers  shall send the information regarding the calls to Shareholders' Meetings, Bondholders' Meetings, Participants' Meetings or Trustors' Meetings, as the case may be, for which they must indicate the respective agenda.

In the case of Shareholders' Meetings, the following items may be selected from a predefined agenda: (1) variation of share capital, equity and/or investment shares account, (2) amendment of the bylaws due to other changes, (3) merger or spin-off process, (4) distribution or application of profits, (5) election or removal of directors, (6) approval of the social management and (7) dividend policy.

(…)

If "Approval of the Social Management" is chosen as an agenda item, the following files must be attached:

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1	Audited Financial Information	Free-format file. It shall contain the audited individual annual financial information of the company.	Unstructured file
2	Annual Report	Free-format file. It shall contain the annual report of the company.	Unstructured file
3	Principles of Good Governance - Sections A and D	Free-format file. It shall contain sections A and D of the Principles of Good Governance of the company.	Unstructured file
4	Principles of Good Corporate Governance - Sections B and C	Structured-format file. It shall contain sections B and C of the Principles of Good Governance of the company.	Structured file
5	Corporate Sustainability Report	Structured-format file. It shall contain the Corporate Sustainability Report, defined in Superintendency Resolution No. 018-2020-SMV/02.	Structured file

24. That from the foregoing, it is apparent that in order to consider a material event referring to the Call to the Mandatory Annual Shareholders' Meeting as filed, compliance with the provisions of the Regulation on Material Events and the aforementioned Technical Specifications must be met, which includes attaching to the call the audited financial information and the annual report that would be subject to approval. In the specific case, the Issuer, by having filed in the communication of the material event of 3 March 2023 audited financial information and an annual report that did not correspond, failed to comply with the requirement under comment, which resulted in its obligation to timely communicate the material event under analysis not being deemed fulfilled;

25. That, subsequently, on 28 March 2023 (File 2023009747), the Issuer belatedly regularized the situation noted above, by filing a copy of the Audited Individual Annual Financial Statements and Annual Report for fiscal year 2022, the same that would be subject to approval at the Mandatory Annual Shareholders' Meeting called for 31 March 2023. Additionally, on the same date, 28 March 2023, the Issuer submitted a new version of the Corporate Governance Report corresponding to fiscal year 2022;

26. That only with the correct filing of the copy of the Audited Individual Annual Financial Statements and Annual Report for fiscal year 2022, in accordance with the Technical Specifications, and the regularization of the Corporate Governance Report corresponding to fiscal year 2022, is the material event under analysis considered filed;

27. That, in that sense, it is concluded that the material event referring to the call to the Mandatory Annual Shareholders' Meeting for 31 March 2023, approved by the Board of Directors on 3 March 2023, should have been filed on the same date, however it was filed via regularization on 28 March 2023, belatedly;

28. On the other hand, although the IGCC in the Statement of Charges and in the Report classified the conduct as an incomplete filing of the material event of

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importance of 3 March 2023, whose submission was only completed on 28 March of the same year; it must be established that that qualification refers to a factual appreciation of the facts, whose legal subsumption qualifies as an untimely submission of the fact of importance, in accordance with the foregoing. Additionally, this Superintendencia Adjunta establishes that the foregoing has not violated any right of the Issuer, as it has exercised its right of defense regarding the same facts subject to analysis;

29. That, in accordance with all of the foregoing, having verified that the Issuer has incurred in one (1) conduct constituting an infringement, the applicable sanction shall be determined, for which purpose the principle of reasonableness and the sanctioning criteria contained in article 344 of the TUO of the LMV, in article 25 of the Sanctions Regulations, and the provisions of item 3 of article 248 of the TUO of the LPAG shall be taken into consideration, which will be developed in the following section;

V. DETERMINATION OF THE SANCTION

30. That, for the purpose of analyzing the corresponding sanction for this type of non-compliance, the Criteria applicable to the administrative sanctioning procedure for non-compliance with the rules governing the submission of periodic or occasional information, approved by Resolution SMV No. 006-2012-SMV/01, in force at the time of the commission of the infringements (hereinafter, Special Sanction Criteria), must be taken into account, in accordance with article 25 of the Sanctions Regulations and the criteria for the graduation of the sanction established in item 3) of article 248 of the TUO of the LPAG and article 344 of the TUO LMV;

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

32. That, in view of the foregoing and considering that the regulations have been amended during the processing of this PAS, it is necessary to analyze whether in the present case the provisions of the New Regime of Graduality of Sanctions should be applied by virtue of the Principle of Favorable Retroactivity, established in item 5 of article 230 of the TUO of the LPAG, which states that: "(...) the sanctioning provisions in force at the time the administered party commits the conduct to be sanctioned are applicable, unless the subsequent ones are more favorable to them";

33. That, in that sense, for the purposes of the sanction, the aforementioned rules are consistent with the provisions of item 3) of article 248 of the TUO of the LPAG and article 344 of the TUO of the LMV, which develop the criteria for the graduation of the sanction: (i) the sanctioning history of the issuer, (ii) recidivism, (iii) the circumstances of the commission of the infringement, (iv) the economic damage caused and its impact on the market, (v) the illicit benefit resulting from the commission of the infringement, (vi) the probability of detection of the infringement, (vii) the seriousness of the damage to the public interest and/or the protected legal asset and (viii) the existence or not of intentionality in the conduct of the infringer;

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34. That, in relation to the severity of the damage to the public interest and/or the protected legal asset, it is relevant to highlight that the timely communication of material facts by issuers of securities registered in the RPMV is a fundamental obligation to guarantee the transparency of the securities market. This transparency allows market participants to make investment decisions in an informed and appropriate manner. Furthermore, it should be noted that through an informative complaint filed on 27 March 2023 by the Association of Minority Shareholders of Agroindustrial Paramonga S.A.A. against the Issuer, the damage to the public interest became evident. In said complaint, it was indicated that, despite having requested in advance the documentation related to the agenda of the General Shareholders' Meeting scheduled for 31 March 2023, it had not been provided as of the date of filing of the complaint. This breach significantly affects the public interest and market transparency, which are the protected legal interests;

35. That, with respect to the offender's record, it is established that the offender's record consists of the sanctions imposed on it by the SMV that became final within the four (4) years prior to the time of the commission of the infringement to be sanctioned. In application of said criterion, it has been verified that the Issuer has one (1) sanction record, having been sanctioned for the same type of infringement, by means of Superintendency Resolution Adjunct SMV No. 106-2020-SMV/11, final since 30 October 2020, with a fine of 0.90 UIT for having incurred in two (2) minor infringements typified in subsection 3.1, item 3 of Annex I of the Sanctions Regulations, in accordance with the assessment in the Report;

36. That, in relation to recidivism for the commission of the same infraction, literal b) of article 25 of the Sanctions Regulation establishes that the final sanction imposed by the SMV within one (1) year prior to the commission of the infraction to be sanctioned is taken into account. In this regard, from the verification carried out in the SMV Sanctions System, it has been noted that the Issuer does not have the status of recidivist;

37. That, in relation to the circumstances of the commission of the infraction, it has been verified that the Issuer communicated extemporaneously the material fact of 3 March 2023, related to the call for the Annual Mandatory Shareholders' Meeting scheduled for 31 March 2023, since on the date of its submission (3 March 2023) it did not attach the copy of the audited financial information and the annual report that would be subject to approval by the General Shareholders' Meeting, which it regularized only on 28 March 2023, with twenty-five (25) calendar days of delay;

38. That, with respect to the economic damage caused and the impact on the market, it is considered that although by their nature, both criteria cannot be reliably measured; it can be recognized that the non-compliance incurred by the Issuer has a negative impact on the market, since the aforementioned material fact was communicated extemporaneously, thus affecting the transparency of the securities market;

39. That, in relation to the illegally obtained benefit, it can be stated that 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;

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40. That, regarding the criterion of probability of detection of the infraction, it should be noted that the lack of timely presentation of periodic or occasional information is verified through internal control systems, so it is considered that for this type of non-compliance, the probability of detection is high;

41. That, in relation to the existence or not of intentionality in the conduct of the offender, it can be stated that the Issuer's choice to communicate the call without having the additional information indicated in the Regulation of Material Facts, suggests intentionality in the commission of the infringing conduct. In deciding to omit part of the additional information to the call, the Issuer shows a lack of willingness to comply with the established regulations, which suggests a deliberate conduct in the infraction committed. Although there may be no direct indications of intentionality, the Issuer's conscious choice not to comply with the requirements established in the Regulation of Material Facts and Technical Specifications for this type of material facts implies a clear lack of diligence and responsibility. This negligent behavior reveals a deliberate attitude of evading the established obligations, which strengthens the argument that there was intentionality in its conduct when communicating the call in this manner;

42. That, in addition to the foregoing, it should be noted that in this PAS no exempting or mitigating circumstances of responsibility established in article 257 of the TUO of the LPAG5, in accordance with articles 266 and 277 of the Sanctions Regulation, have been presented;

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

[6] "Article 26.- MITIGATIONS OF RESPONSIBILITY FOR INFRACTIONS The following constitute mitigating conditions of responsibility for infractions: a) Acknowledgment of responsibility by the offender expressly and in writing, once the administrative sanctioning procedure has been initiated. When the applicable sanction is a fine, it is reduced, taking into account the following: (…) 3. If the acknowledgment is presented after the expiration of the term granted to formulate allegations to the instruction report and up to before the issuance of the sanction resolution, the reduction amount shall be ten percent (10%)."

[7] "Article 27.- EXEMPTIONS OF RESPONSIBILITY FOR INFRACTIONS The following constitute exempting conditions of responsibility for infractions:

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

44. That, in accordance with the Special Sanction Criteria, as well as the evaluation carried out by this Deputy Superintendency for the determination of the sanction; it is noted that in the present case the impact on market transparency was not minimal since the regularization of the material fact was carried out twenty-five (25) calendar days late, therefore the condition in subsection (i) of paragraph (ii) of numeral 4.2 of the Special Sanction Criteria is not met; thus, the sanction of a warning could not be applied, and a fine is appropriate;

Principle of Favorable Retroactivity

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

46. That, in this regard, from the comparison of the provisions in numeral (iv) of the Sanction Criteria and numeral 6.2 of the New Gradualness Regime (which determine the fine by quantifying the base in UIT and per each day of delay), it is observed that a lower amount to be sanctioned is obtained with the application of the Sanction Criteria for the infraction incurred by the Issuer, as detailed in the Annex of the Report;

47. That, likewise, in relation to the prior records, the Sanction Criteria8 establish that “(…) it will increase by two percent (2%) if

a) The fortuitous event, force majeure or another exceptional situation that, in the opinion of the SMV, is comparable to a duly proven fortuitous event or force majeure.

b) Acting in compliance with a legal duty or the legitimate exercise of a right of defense.

c) Mental incapacity duly proven by the competent authority, provided that it affects the ability to understand the infraction.

d) The mandatory order of a competent authority, issued in the exercise of its functions.

e) The error induced by the Administration or by a confusing or illegal administrative provision.

f) The voluntary correction by the possible sanctioned party of the act or omission imputed as constituting an administrative infraction, prior to the notification of the imputation of charges referred to in subsection 3) of article 253 of the LPAG and provided that no communication demanding compliance with the obligation has been sent”.

[8] “4.2. Guidelines for the application of the criteria (…) (iv) In the event that a warning sanction is not applicable, the competent bodies of the SMV must observe the following guidelines regarding the circumstances of the commission of the infraction: (…)

determines that the offending subject has a prior sanction record and by three percent (3%) if they have a record of the same conduct that is intended to be sanctioned.”;

48. That, likewise, the New Gradualness Regime establishes that "The amount resulting from the application of the guidelines contemplated in numeral 6.2 may be increased by up to five percent (5%) if it is proven that the offending subject has a prior sanction record", without making a distinction as to whether these correspond to different types of infractions or the same type. Therefore, in order to compare and determine which regulation is more favorable, in that sense, in application of the new regulation it will be increased by one percent (1%) for each sanction resolution that constitutes a prior record, up to a maximum of five percent (5%). In the present case, the Issuer, having one (1) sanction resolution for infractions of the same type, will be subject to an additional 1%, in accordance with the provisions of the New Gradualness Regime;

49. That, in that sense, it should be noted that from the review of the Sanction Criteria and the New Gradualness Regime in application of numeral 5 of article 230 of the TUO of the LPAG, it is observed that for the infraction subject to charge the Special Sanction Criteria, in force at the time of the commission of the infraction, are more favorable, as observed in the Annex of the Report;

50. That, in that sense, considering the circumstances of the facts already described, the analysis made in the Report and this Resolution regarding the charge formulated and the Special Sanction Criteria; and the evaluation carried out by this Deputy Superintendency, it is appropriate to sanction the Issuer with a total fine of 3.09 UIT9 equivalent to S/ 15,295.50 (Fifteen Thousand Two Hundred Ninety-Five and 50/100 Soles) for the late communication of the material fact of 3 March 2023, referring to the call for the Mandatory Annual Shareholders' Meeting;

51. That the Issuer is reminded that final sanction resolutions imposed by the competent authorities must be reported as a material event, within the framework of the provisions of article 5 of the Material Events Regulation, and;

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

RESOLVES:

Article 1.- Declare that Agro Industrial Paramonga S.A.A. has incurred in one (1) infraction of a minor nature, classified in subsection 3.1 of numeral 3 of Annex I of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for having submitted late the event of

In the case of non-compliances in the communication of eventual information, such as material events

For each calendar day of delay, thirty percent (30%) of one (1) UIT will be added up to a maximum of three (3) UIT.

(…)

(v) The amount resulting from the guidelines contemplated in the preceding numeral (iv) will be increased by two percent (2%) if it is determined that the offending subject has a history of sanction and by three (3%) if it has a history of the same conduct that is intended to be sanctioned.

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

material event of 3 March 2023 referring to the call to the Mandatory Annual Shareholders' Meeting;

Article 2.- Sanction Agro Industrial Paramonga S.A.A. with a fine of 3.09 UIT equivalent to S/ 15,295.50 (Fifteen Thousand Two Hundred Ninety-Five and 50/100 Soles), for the provisions of article 1 of this Resolution.

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

Article 4.- If this Resolution is not subject to challenge, it must be published on the SMV Institutional Page on the Single Digital Platform of the Peruvian State for Citizen Guidance (www.gob.pe/smv), in observance of the provisions of numeral 1 of article 7 of the "Policy on 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 Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01.

Article 5.- Transcribe this Resolution to Agro Industrial Paramonga S.A.A.

Signed by: RIVERO ZEVALLOS Carlos

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

Signed by: MENESES CAMARGO Carlos