PERU
Ministry of Economy and Finance
SMV
Superintendency of the Market in Securities

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

Superintendency Resolution Assistant SMV

No. 013-2024-SMV/10

Lima, 22 March 2024

Summary: Fondos Sura SAF S.A.C. is sanctioned with a fine of 4 UIT, equivalent to S/ 16,800.00 (Sixteen thousand eight hundred and 00/100 soles), for having incurred in one (1) serious infraction typified in Annex I, numeral 2, subsection 2.25 of the Sanctions Regulation, since it failed to comply with the conduct rule set forth in article 3, literal f), of the Regulation of Investment Funds and their Management Companies, by informing a participant of the Fund and an investor (potential participant), through two emails, confusing and imprecise information about the risks thereof, which did not conform to what was shown in the documents prepared by the management company.

Administered : Fondos Sura SAF S.A.C.
Subject : Administrative sanctioning procedure File No. : 2023050675

The Assistant Superintendent of Prudential Supervision

VIEWS:

Administrative file No. 2023050675, and Report No. 019-2024-SMV/10.3, issued by the General Intendancy of Prudential Compliance; as well as the discharges and allegations presented by Fondos Sura SAF S.A.C.; and,

CONSIDERING:

1. In accordance with article 1 of Law No. 29782, Law of Strengthening of the Supervision of the Securities Market, the denomination of National Supervisory Commission of Companies and Securities (CONASEV) is replaced by that of Superintendency of the Securities Market (SMV), so that any reference to CONASEV in legal norms shall be understood as made to the SMV;

I. FACTS

PERU
Ministry of Economy and Finance
SMV
Superintendency of the Market in Securities

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

2. On 17 April 2023, Mr. [redacted] hereinafter, COMPLAINANT1) and Mr. [redacted] filed a complaint1 before the Superintendency of the Securities Market (hereinafter, SMV) against SURA SAF regarding the investment fund "Fondo de Inversión Sura Préstamos Latinoamericanos" (hereinafter, FUND);

3. By means of the document received on 6 July 2023, Messrs. [redacted] (hereinafter, COMPLAINANT2), MR. COMPLAINANT 1, [redacted] (hereinafter, COMPLAINANTS) filed a complaint before the SMV against SURA SAF;

4. With Official Letter No. 3110-2023-SMV/10.3, notified on 7 July 2023, the complaint filed by MR. COMPLAINANT1 and Mr. [redacted] was brought to the attention of SURA SAF so that it may submit the corresponding comments;

5. By means of the document received on 17 July 2023, MR. COMPLAINANT1 (who is part of the COMPLAINANTS) submitted a document with complementary information to the complaint against SURA SAF filed on 6 July 2023 in which he requests that what he states in file 2023029317 be taken into consideration. In said document he presented, among others, the following evidence:

a) Copy of an email dated 11 November 2019 at 10:12 hours, sent by [redacted] hereinafter PROMOTER1, who identifies herself as wealth advisor of SURA SAF, through which she offers him the FUND;

b) Presentation of SURA SAF on the FUND of September 2019 (hereinafter, PRESENTATION OF THE FUND);

6. On 18 July 2023, SURA SAF sent to the SMV its comments regarding the complaint filed by MR. COMPLAINANT1 and Mr. [redacted] on 17 April 2023, who are part of the COMPLAINANTS;

7. By means of the document received on 19 July 2023, COMPLAINANT2 submitted a document with complementary information to the complaint against Sura SAF filed on 6 July 2023. In said document he presented, among others, a copy of an email dated 30 January 2020, sent by [redacted] (hereinafter, PROMOTER2), who identifies herself as wealth advisor of Sura SAF, through which she provides him information about the Fund SURA Renta Dólares and the FUND, indicating that he could increase his position in the latter;

8. By document received on 27 July 2023, Mrs. [redacted] submitted a complementary document to the complaint against SURA SAF filed on 6 July 2023;

[1] File No. 2023029317.

PERU
Ministry of Economy and Finance
SMV
Superintendency of the Market in Securities

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

9. On 1 August 2023, SURA SAF submitted a document, through which it requested an extension of the term granted to present its comments and/or additional documentation it considers pertinent;

10. With Official Letter No. 3753-2023-SMV/10.3, notified on 11 August 2023, the extension of the term requested was granted to SURA SAF;

11. On 15 August 2023, SURA SAF sent to the SMV its comments regarding the complaint filed by the COMPLAINANTS;

12. On 4, 17, 24 and 31 August, as well as on 7, 11, 13 and 19 September 2023, COMPLAINANT2 submitted additional documents regarding the complaint filed;

13. With Official Letter No. 4472-2023-SMV/10.3, notified on 29 September 2023, the additional documents submitted by COMPLAINANT2, who is part of the COMPLAINANTS, were brought to the attention of SURA SAF so that it may submit its comments to each of them, as well as the additional information and/or documentation it considers pertinent;

14. On 16 October 2023, SURA SAF sent to the SMV its comments in response to Official Letter No. 4472-2023-SMV/10.3;

15. On 18 and 31 October 2023 and 20 November 2023, Mr. [illegible] submitted supplementary briefs to the complaint filed;

16. By Official Letter No. 5572-2022-SMV/10.3 notified on 6 December 2023 (hereinafter, OFFICIAL LETTER OF CHARGES), an administrative sanctioning procedure was initiated against SURA SAF, imputing charges for certain facts related to the complaint of the COMPLAINANTS;

17. On 14 December 2023, SURA SAF requested an extension for the submission of its defenses;

18. By Official Letter No. 5707-2023-SMV/10.3, notified on 15 December 2023, the requested extension was granted to SURA SAF; therefore, by brief submitted on 21 December 2023, SURA SAF submitted its defenses to the charges formulated through the OFFICIAL LETTER OF CHARGES;

19. The charges and defenses formulated have been subject to evaluation by the General Superintendence of Prudential Compliance in Report No. 019-2024-SMV/10.3, which has been submitted to the knowledge of this Deputy Superintendence;

20. In observance of the Principle of Due Process contemplated both in Article IV, paragraph 1, item 1.2 of the Preliminary Title, as well as in Article 248, paragraph 2, of the Single Ordered Text of Law No. 27444, General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO DE LA LPAG), by Official Letter No. 079-2024-SMV/10, the administrative file to which this resolution refers was made available to SURA SAF for its review;

21. On 11 January 2024, SURA SAF submitted additional written arguments;

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

22. On 19 March 2024, SURA SAF presented its oral report before this Deputy Superintendence.

II. ISSUES TO BE DETERMINED

23. In the present administrative procedure, in the opinion of this Deputy Superintendence, it corresponds to determine the following:

a. Whether SURA SAF incurred or not in an infraction set forth in Annex I, item 2, subitem 2.25 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), by breaching the conduct rule set forth in Article 3, literal f), of the Investment Funds and their Management Companies Regulation, approved by SMV Resolution No. 029-2014-SMV-01 and its amendments (hereinafter, REGULATION);

b. Whether or not it is appropriate to impose a sanction on SURA SAF;

III. ANALYSIS

3.1 Of the applicable regulations

ON THE CONDUCT RULE RELATING TO THE INFORMATION PROVIDED TO PARTICIPANTS AND INVESTORS

24. Article 4 of the Investment Funds and their Management Companies Law, approved by Legislative Decree No. 862 (hereinafter, LAW) provides:

"Article 4.- The operation and transactions of each Fund shall be subject to this law, to the regulations on the matter, to its participation regulation and to the contract signed with the participant.";

25. On the other hand, Article 3 of the REGULATION, in force at the time the facts occurred, states:

"Article 3 General Rules of Conduct
In the development of their activities, the Management Company, the shareholders, managers, directors, workers, promoters, representatives, members of the Investment Committee, External Managers, members of the Surveillance Committee, as well as any person providing services to the Management Company, in compliance with the fiduciary duty, must observe the following General Rules of Conduct:

(...)

f) Information to Participants and Investors: Inform, within the process of placement of quotas, about the attributes of profitability and risk that characterize the investments of the investment funds. Offer to the participants of the Funds under its charge all information that may be relevant for the adoption of their decisions of subscription, transfer or exercise of their right of separation, under equal conditions. All information to participants and investors must be clear, precise, truthful, sufficient and timely.

(...)

The Management Company will implement the necessary procedures and controls for its due observance.";

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

26. In this regard, Article 58 of the REGULATION provides that:

"Article 58 Placements of Quotas, Placement Agents and Promoters

The placement of quotas of a Fund may be made directly by the Management Company or through placement agents, understood as such those persons who, in accordance with the LMV, may act as intermediaries in the placement of securities by public offering. In the event that the placement is made through placement agents, they must have previously signed a contract with the Management Company.

Promoters are natural persons designated by the Management Company who participate in the placement process and must satisfy the following requirements:

(...)

The Management Company is jointly and severally liable for the improper acts of its promoters and those carried out by the placement agents.

The SMV may disqualify or suspend any natural person who participates or has participated in the placement process when they incur in faults in the exercise of their functions or perform these without due diligence.";

3.2. Of the charge formulated

REGARDING THE CONDUCT RULE RELATING TO THE INFORMATION PROVIDED TO PARTICIPANTS AND INVESTORS WHEN OFFERING THE FUND AS AN INVESTMENT ALTERNATIVE

27. According to the provisions of the regulations set forth, SURA SAF and its promoters must comply with the general rules of conduct in the development of their activities, for which they must implement the necessary procedures and controls for their due observance;

28. One of said rules of conduct establishes the obligation to inform, within the quota placement procedure, about the profitability and risk attributes that characterize the investments of the investment funds; as well as to offer the participants of the funds under its management all the information that could be relevant for the adoption of their subscription, transfer or exercise of separation right decisions. Likewise, it is provided that all information given to participants and investors must be clear, precise, truthful, sufficient and timely;

29. Additionally, article 58 of the REGULATION specifies that promoters are natural persons designated by the management company in order to participate in the placement process, and that management companies are jointly and severally liable for the improper acts of their promoters;

30. In that sense, during the placement of the quotas and the term of the FUND, the promoters of SURA SAF are obligated to provide the participants of the FUND and all investors (potential participants) with clear, precise, truthful, sufficient and timely information for the adoption of their decisions to subscribe or transfer quotas of the FUND, among others;

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

31. In this regard, from the review of the documentation in the file, it is observed that, by means of a document dated 17 July 2023, COMPLAINANT1, who is part of the COMPLAINANTS, reported that SURA SAF, by means of an email dated 11 November 2019 at 10:12 hours from one of its promoters, offered him that the FUND had, among others, collateral guarantees for the amount owed:

"Hello
This fund would be a good option in dollars for you Latin American Loans Fund.

• This fund has the structure of syndicated loans from 9 companies, fully diversified by sectors: Financial, Industrial, Retail, Mining, Energy, Services and by countries: Mexico, Colombia, Peru, Ecuador and Panama.
• Companies duly selected by 3 risk filters, which has an average local risk classification of A+
• It has collateral guarantees, for the amount owed.
• Its return and risk relationship is above public bonds affected by a general context of low rates.
  The loans are structured with two components; fixed rate (4.25%) and variable (3-month Libor). Today the yield would be at approximately 5.5% annual.
• The term of the fund is 5 years, with 3.5 years remaining until maturity.
• Payment of quarterly flows and the amortization of capital will be made starting in 2021.
• The fund has an administered amount of more than 30 million dollars at present
• Minimum investment amount USD 50,000
  Let me know if you are interested before you leave because it is a fund that closes on the 19th of this month Regards Wealth Advisor (…)”;

32. From the foregoing, it is appreciated that PROMOTER13 offered COMPLAINANT1 that the FUND, among others, "has collateral guarantees, for the amount owed". However, from the review of the FUND PRESENTATION,

[2] Although in the complaint document, COMPLAINANT1 states that the date of the email in question is 19 November 2019, the foregoing was due to a material error by the complainant, because upon verifying the evidence attached to his document it is observed that the email referred to in his complaint was received by COMPLAINANT1 on 11 November 2019.

[3] According to the information in the Public Registry of the Securities Market, PROMOTER1 served as a promoter of SURA SAF from 24 June 2014 to 31 December 2020.

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

attached by COMPLAINANT1, it is noted that not all of the debt instruments of eight (8) issuers, which were underlying assets of the FUND's investment portfolio, had collateral guarantees (we refer to Issuers 6 and 8: the first expressly states that it does not have them and the second does not specify it). It should be noted that, at the date of receipt of the referred email, COMPLAINANT1 was a potential participant, who made the decision to invest in the FUND and be a participant thereof on 14 November 2019,

33. Subsequently, by means of a document dated 19 July 2023, COMPLAINANT2, who is part of the COMPLAINANTS, reported that SURA SAF, by means of an email dated 30 January 2020 at 11:36 hours from one of its promoters, offered him that the FUND had, among others, collateral guarantees for the amount owed:

"Dear
I hope you are doing very well. According to what we discussed yesterday, we have reviewed the alternatives that we handle and that could match your return and low volatility expectations and I see that we have these two alternatives:

(...) SURA LATIN AMERICAN LOANS FUND:

Investment Fund that seeks to preserve the invested capital and obtain a return derived from the accrued interest of the debt representative instruments in which it invests. As of today it is made up of 8 investment grade companies diversified in three main countries: Mexico, Colombia and Peru that are in the following sectors: Financial, Industrial, Retail and Mining Services, which provide collateral, guarantees for what is owed.

(...) In this fund you are already investing but you could increase your position starting from USD 25,000 dollars. (...) Best regards,

Wealth advisor
(...)”;

34. From the email cited, it is observed that PROMOTORA2⁴ offered COMPLAINANT2 to increase its participation in the FUND –since it had already been a participant in the FUND since 25 March 2019– informing it that the eight (8) issuers that made up the FUND "grant collateral, guarantees for amounts owed". Notwithstanding, as has been indicated above, according to the FUND PRESENTATION, not all of the debt instruments of the eight (8) issuers, which were underlying the FUND's investment portfolio, had collateral guarantees. It should also be noted that on 30 April 2020⁵, SURA SAF submitted to the SMV the Statement of

[4] According to the information recorded in the Public Registry of the Securities Market, PROMOTORA2 has served as promoter of SURA SAF from 16 August 2013 to the date of this resolution.

[5] Through File No. 2020015037.

PERU
Ministry of Economy and Finance
SMV
Superintendency of the
Securities Market

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

Investments of the FUND as of 31 March 2020, in which it can be observed that the debt instruments of the issuers that did not have collateral guarantees remained in the FUND's investment portfolio;

35. In view of the foregoing, through the Letter, SURA SAF was required to submit its comments on the complaint filed by the COMPLAINANTS and on the other supplementary filings, among which are the filing dated 17 July 2023, filed by COMPLAINANT1, and the filing dated 19 July 2023, filed by COMPLAINANT2. However, the management company did not rule on this aspect of the complaints in its response filings;

36. In accordance with the foregoing, it is noted that SURA SAF would have breached the conduct rule set forth in Article 3, paragraph f), of the REGULATIONS, inasmuch as the management company, through PROMOTORA 1 and PROMOTORA 2, reported on two occasions by electronic mail, as part of the permanent information handled by the management company during the placement process of the FUND's units, that the debt instruments of the issuers, which were underlying the FUND's investment portfolio, had collateral guarantees, despite the fact that not all of the aforementioned debt instruments of the issuers had collateral guarantees, as shown in the FUND PRESENTATION and in the FUND's Statement of Investments as of 31 March 2020; that is, it provided a participant in the FUND and an investor (potential participant) with confusing and inaccurate information about its risks by electronic mail, which did not accord with what was shown in the documents prepared by SURA SAF, an inaccuracy that could have influenced the investment or divestment decisions of the recipients of the electronic mails;

37. Consequently, SURA SAF was charged with having committed one (1) serious infringement typified in Annex I, item 2, subsection 2.25 of the SANCTIONS REGULATIONS, according to which the following constitutes an infringement: "Not having, approving, implementing, or complying with or modifying the conduct rules, internal conduct rules, or code of conduct, in accordance with the regulations on the matter, or not communicating such modifications to the SMV within the corresponding time limit, or not approving a control procedure for said rules.";

3.3. On the defenses presented

38. In response to the charges made, in a filing submitted on 21 December 2023, regarding the contractual relationship with the COMPLAINANTS and their participation in the FUND, SURA SAF states that the Fund commenced operations on 12 April 2018, in the form of a private investment fund, under Article 2 of the LAW, with its participation units being placed through a private offering directed at institutional investors;

39. Subsequently, the management company states that through Participant Assemblies held on 30 April and 17 September 2019, the investors in the FUND agreed to register it in the Public Registry of the Securities Market (RPMV) under the Simplified Regime modality, under the LAW and the REGULATIONS, in order to achieve this registration;

40. In this regard, SURA SAF maintains that the amendments to the FUND's Participation Regulations, by virtue of the agreements of the aforementioned participant assemblies, do not establish any restriction on investing in

assets that do not have a guarantee or additional coverage, as can be seen in Article 4° of the Participation Regulations, which details the investment objective of the FUND and/or in Article 30° of the Participation Regulations, which details the investment policy of the FUND;

41. On the other hand, the management company specifies that COMPLAINANT1 and COMPLAINANT2, who are part of the COMPLAINANTS, have made investments in the FUND, acquiring Class A participation units of the FUND on 14 November and 25 March 2019, respectively; Likewise, SURA SAF highlights that COMPLAINANT2 subscribed for participation units of the FUND on 25 March 2019, when it was still under the private offering regime, acknowledging its risks, for which it signed an Institutional Investor Sworn Declaration and received the Participation Regulations, as well as being summoned to the two participant assemblies that agreed to the amendment of the FUND's Participation Regulations and its registration in the RPMV under the Simplified Regime modality. It adds that after said date it did not subscribe for additional units of the FUND;

42. Additionally, the fund management company states that COMPLAINANT1 acquired units of participation in the FUND when it was already registered in the RPMV, under the Simplified Regime modality pursuant to the REGULATION, for which purpose it signed a Unit Subscription Contract whose seventh clause states that the activities of the FUND are governed by the Participation Regulations, declaring that it accepts and understands the investment conditions and risks inherent to the FUND;

43. Regarding the electronic emails through which collateral guarantees were allegedly offered, SURA SAF states that according to the CHARGES MEMORANDUM, the SMV would have managed to identify that through electronic emails of 11 November 2019 and 30 January 2020, PROMOTORA 1 and PROMOTORA 2, in their capacity as promoters, offered COMPLAINANT1 and COMPLAINANT2, respectively, that the FUND had, among others, collateral guarantees for the amount owed, thereby breaching the conduct rule set forth in Article 3, paragraph f), of the REGULATION, since information would have been provided on two occasions through electronic emails, as part of the information that

[6] "Article 4.- PURPOSE OF THE FUND
The objective of the Fund is to generate value for the Participants through investment in instruments representing rights over obligations or debt instruments in Soles and/or US Dollars that have receivables as underlying assets, issued indistinctly in the local or international market, by companies and institutions incorporated in Peru or abroad, Investment Fund Units and Mutual Fund Units, the latter may be managed by the same fund management company, in accordance with the investment policy set forth in these Participation Regulations. (…). The Fund seeks to recover one hundred percent (100%) of the invested capital, holding the debt instruments to maturity, and to obtain an expected return derived from the interest and/or coupons accrued therefrom, as well as from the gains generated by the hedging derivative instruments. All investments of the Fund shall be made at the account and risk of the Participants. It is essential for investors to review the risk factors contained in the initial part of the Participation Regulations." Quoted by SURA SAF.

[7] Article 30.- INVESTMENT POLICY
(…)
The Fund may invest, within the established limits, in the following instruments:

1. Financial instruments representing rights over obligations or debt instruments that have receivables as underlying assets, issued or guaranteed by the Peruvian State or by companies domiciled in Peru or abroad. These instruments may be traded in Peru or abroad. (…). Quoted by SURA SAF.

PERU
Ministry of Economy and Finance
SMV
Superintendency of the
Securities Market

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

the fund management company was handling during the process of placing the FUND's units, that the issuers' debt instruments, which were underlying the FUND's investment portfolio, had collateral guarantees, despite the fact that not all of said issuers' debt instruments had collateral guarantees;

44. In this regard, SURA SAF indicates that the analysis carried out by the SMV has failed to properly assess the scope and context of the information provided in the electronic mails and the documents attached to them, which together constitute the direct information delivered to the investor as part of the placement of FUND units; In this sense, all texts and documents delivered must be read and assessed together, and it must not be assumed from the mere statement of a phrase without further context in an electronic mail that its promoters have provided insufficient or inaccurate information to the participants, which will be substantiated below;

45. Likewise, the management company acknowledges that some instruments in the FUND's investment portfolio did not have collateral guarantees; however, this situation does not represent a breach of the FUND's investment policy, inasmuch as the Participation Regulations registered with the RPMV and delivered at the time of the placement of participation units does not oblige the management company's Investment Committee to invest exclusively in companies with collateral guarantees;

46. Additionally, SURA SAF indicates that the main characteristics of the investments made by the FUND, in which debt instruments of issuers with and without collateral guarantees can be observed, are reported in the FUND's Statements of Investments sent on a quarterly basis;

47. Likewise, the management company reiterates that the instruments in the FUND's investment portfolio were selected within the framework of public offerings in international markets that had credit ratings issued by international risk agencies in public markets, a situation which was also reported in the FUND's Statements of Investments to each of the participants;

48. Regarding the electronic mail of 11 November 2019, sent to COMPLAINANT1, in which it is observed that at 10:12 hours PROMOTORA 1 would have offered him, in his capacity as a potential investor, that the FUND had, among others, collateral guarantees for the amount owed, SURA SAF maintains that the SMV has not properly assessed the content of the mail, nor the documents attached to it, which establish that the FUND can invest in instruments with or without collateral guarantees;

49. In this regard, the management company highlights in its written defenses and additional arguments that the mail of 11 November indicates that the FUND has syndicated credits from 9 companies, and that these would have collateral guarantees. However, it specifies that the mail and its wording sought to inform about the filters applied in the selection of investments, which are detailed in the same mail, such as: (i) risk classification, (ii) collateral guarantees, and (iii) the yield and risk relationship, but at no point does the promoter state that these three filters must be assessed by the Investment Committee jointly when selecting an instrument;

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

50. In this regard, SURA SAF cites the aforementioned mail highlighting the corresponding texts:

Hello [black rectangle]

This fund would be a good option in dollars for you

Latin American Loan Fund.

• This fund has the structure of syndicated credits from 9 companies, fully diversified by sectors: Financial, Industrial, Retail, Mining, Energy, Services and by countries: Mexico, Colombia, Peru, Ecuador and Panama.

• Companies duly selected by 3 risk filters, which has an average local risk rating of A+ (filter 1)

• It has collateral guarantees, for the amount owed. (filter 2)

• Its yield and risk relationship is above public bonds affected by a general context of low rates. (filter 3)

(...)". (Emphasis by SURA SAF);

51. The management company indicates that this information is complemented and confirmed in the document attached to the electronic mail sent, where, as the SMV itself acknowledges, it is clearly appreciated that 2 issuers did not have collateral guarantees. In this sense, it can be concluded that COMPLAINANT1, recipient of the electronic mail and the attached document, interpreted or assumed that all the instruments in which the FUND invested as of November had collateral guarantees. Likewise, in its additional written arguments the manager indicates that the mail does not specify that "all" investments have collateral guarantees, it only mentions that there are investments with collateral guarantees (some);

52. SURA SAF adds that the SMV assumes that the potential participant makes the investment decision because the FUND invests in debt with collateral guarantees, a situation that does not match reality, since (i) it ignores the meaning of the email itself, (ii) it does not comply with the FUND's investment policy established in the Participation Regulations received by COMPLAINANT1, which does not obligate the management company to invest exclusively in debt instruments with collateral guarantees, and (iii) it does not match what is expressly stated in the commercial material sent to COMPLAINANT1 attached to the same email, in which it is warned that not all debt instruments of eight (8) issuers, which were underlying the FUND's investment portfolio, had collateral guarantees, as well as that it is "senior secured and unsecured" debt, that is, investment in secured and unsecured debt instruments;

53. In its additional written allegations, the management company also points out that the information contained in the document sent with the same email should not be considered as complementary when it is an integral part of the communication sent and that is why it is attached; and that if there had been

PERU
Ministry of Economy and Finance
SMV
Superintendency of the
Securities Market

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

an omission by the investor in reviewing said documentation, said lack of diligence cannot be attributed to SURA SAF;

54. On the other hand, the management company points out that the FUND has complied with sending the FUND's Investment Statements quarterly to COMPLAINANT1, which specifically indicate the main characteristics of the investments made by the FUND. In this regard, it indicates that the SMV records having received the FUND's Investment Statement as of 31 March 2020, in which it can be observed that the debt instruments of the issuers that did not have collateral guarantees remained in the FUND's investment portfolio, a situation that demonstrates that it complied with informing in a prior and timely manner that there were instruments in which the FUND invested that did not contain collateral guarantees, in advance of the placement. Likewise, it refers that the Investment Statement of October 2019 can be reviewed, which also shows the same information on the investment portfolio;

55. Regarding the email sent to COMPLAINANT2 on 19 July 2023⁸ at 11:36 hours, in which it is observed that PROMOTER 2 would have offered him, in his capacity as a potential investor, that the FUND had, among others, collateral guarantees for the amount owed, SURA SAF specifies that the promoter, in seeking to enable the participant to increase his position in the FUND, describes to MR. [redacted] that the FUND seeks "to obtain a return derived from the interest accrued on the debt instruments in which it invests. Today it is made up of 8 companies with an Investment grade, diversified in three countries mainly: Mexico, Colombia and Peru, which are in the following sectors: Financial, Industrial, Retail and Mining Services, which grant collateral, guarantees for the amount owed" (Emphasis by SURA SAF);

56. In this regard, the management company points out that the text of the email of 19 July 2023 does not expressly state that all of the FUND's instruments grant collateral, but rather that there are 8 companies with an investment grade that do so. In this regard, it states that the same email also attaches the FUND's Fact Sheet, a document which states that the participant invests in unsecured debt and which indicates that they invest in different LATAM instruments, as shown below:

57. In that sense, SURA SAF specifies that the SMV has not evaluated the attached document sent in the email, nor other documents

[8] SURA SAF erroneously states in its defense that the email was sent on 19 July 2023, but in reality it was sent on 30 January 2020.

PERU
Ministry of Economy and Finance
SMV
Superintendency of the Market in Securities

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

attached thereto, which clarify that part of the FUND's instruments have collateral guarantees and another part does not. Likewise, it states that the SMV does not consider that the investor was already a participant of the FUND since March 2019, having been summoned to the two participants' meetings in which the amendment of the FUND's Participation Regulation and its registration in the RPMV under the Simplified Regime modality were agreed; and that therefore, he already knew the FUND's investment structure, that is, that the FUND invested in unsecured instruments as had been communicated to him in his Investment Statements;

58. Additionally, the management company maintains that the COMPLAINANT2, in his capacity as a participant of the FUND, has received the FUND's Investment Statements on a quarterly basis, which specifically state the main characteristics of the investments made by the FUND, in which it can be observed that the debt instruments of the issuers that did not have collateral guarantees were maintained in the FUND's investment portfolio, a situation that demonstrates that it complied with timely informing that there were instruments in which the FUND invested that did not contain collateral guarantees;

59. Similarly, the management company points out that as part of the attached documents, the participant is also warned of the FUND's risks, which are found in the notice published in the Diario Gestión, and which is mentioned to COMPLAINANT2 in the email. It should be noted that in its additional written arguments, the management company reiterates that if there had been an omission by COMPLAINANT2 in reviewing said documentation, said lack of diligence cannot be attributed to SURA SAF;

60. SURA SAF additionally specifies that this information never had any effect, nor generated any type of commercial or contractual relationship with COMPLAINANT2, given that after said email, he did not subscribe to participation quotas of the FUND, additional to those he acquired when the fund was of private offering, whose conditions he had accepted upon receipt of the Participation Regulation, and whose provisions were also enforceable against him;

61. Regarding a correct use of the SMV's sanctioning power, SURA SAF states that the FUND's Participation Regulation clearly establishes the limits of its responsibility as management company of an autonomous patrimony, it being necessary to consider that the obligations of a fund management company regarding the management of the FUND and the portfolio assets are of means and not of results, since the profitability of the participants is variable;

62. In this regard, SURA SAF points out that it must be considered that the deterioration of the financial condition of the investments that did not have secured debt does not justify per se the determination of a sanction against it, insofar as the investment decision made by the Investment Committee was in accordance with the credit risk classifications of these assets, as well as in accordance with what is expressly permitted in the objective and investment policy of the Participation Regulation;

63. Likewise, it reiterates that the FUND had indirect exposure to 13 different corporate debtors with positions ranging from US$ 1 to approximately 11.3 MM, that said positions were in 6 countries (Peru, Mexico, Panama, Colombia, Ecuador and El Salvador) and in 7 different industries (financial, commerce, tourism, public services, mining, transportation and services).

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

Additionally, it states that some of these exposures or investments did not have collateral, insofar as not every portfolio had guarantees according to the investment strategy, and as permitted by the FUND's Participation Regulation;

64. In that sense, SURA SAF concludes that attributing a fault to it by virtue of an alleged confusion caused by its promoters at the time of the FUND's commercialization, disregarding the documents attached to the email that complete said information, as well as the delivery of the investment statements made to participants who were in the FUND before its own registration in the RPMV, leads to disregarding the parameters established in the REGULATION, which establishes that the FUND's Participation Regulation clearly states each of the FUND's risks, including the credit risk of the instruments acquired by the FUND, and requires the delivery of said document at the time of sale to potential investors;

3.4. Analysis of the defenses

65. As a preliminary point to the evaluation of the arguments presented, it is necessary to specify that this administrative sanctioning procedure has been initiated in view of the alleged breach by SURA SAF regarding the conduct rule corresponding to the information that fund management companies must provide to participants and potential participants, which must be provided in a clear, precise, truthful, sufficient and timely manner. Therefore, the OFICIO DE CARGOS does not question compliance with the investment policy, the Reglamento de Participación or the decisions of the FONDO's Investment Committee or the general management of the FONDO or the assets in its portfolio or whether restrictions are established to invest in assets that do not have an additional guarantee or coverage, which would result in more serious infractions in relation to what is imputed in the present case; thus, for example, executing investment decisions differently from what was agreed or established in the regulations is considered a very serious infraction according to the REGLAMENTO DE SANCIONES;

66. As indicated in the OFICIO DE CARGOS, during the placement of the quotas and the term of the FONDO, the promoters of SURA SAF are obliged to provide the participants of the FONDO and any investor (potential participant) with clear, precise, truthful, sufficient and timely information for the adoption of their decisions to subscribe or transfer quotas of the FONDO, among others, especially in the case of a management company that has been in the securities market for more than eighteen (18) years;

67. In this regard, it is appropriate to highlight that by means of Resolución CONASEV N° 007-2005-EF/94.10 of 2 February 2005, SURA SAF obtained authorization to operate from the SMV, acquiring the status of fund management company under the supervision and control of the SMV; and, consequently, upon attaining such status, SURA SAF also acquired the obligation to comply with the provisions established in the securities market regulations, as well as the others established by the SMV that are applicable to it, such as, among others, the general rules of conduct;

68. In that sense, the requirement of mandatory observance by SURA SAF of the entire applicable regulatory framework is clear, among which is sending to its participants and potential participants

PERÚ
Ministerio de Economía y Finanzas
SMV
Superintendency of the Market de Valores

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

clear, precise, truthful, sufficient and timely information, as part of the general rule of conduct established in literal f) of article 3 of the REGLAMENTO;

69. With regard to the email sent by PROMOTORA1 to DENUNCIANTE1 (potential participant of the FONDO), SURA SAF maintains that said email and its wording sought to inform about the filters applied in the selection of investments, among which are collateral guarantees, but it is not indicated that the referred filters must be assessed by the Investment Committee when selecting an instrument. Likewise, it maintains that the information provided in the email is complemented and confirmed by the document attached to it (PRESENTACIÓN DEL FONDO), in which it can be seen that two issuers did not have collateral guarantees;

70. In this regard, it should be noted that from the review of the email sent to DENUNCIANTE1 it is observed that PROMOTORA 1 after indicating "(...) This fund would be a very good option in dollars for you", makes an enumeration of the characteristics of the FONDO, stating, among others, that it has nine (9) issuers from various sectors, selected by three risk filters, that they have collateral guarantees for the amount owed, and that quarterly flows and principal amortization will be paid;

71. Therefore, from the wording of the email that PROMOTORA 1 sent to DENUNCIANTE1, who at that time was only a potential client, the reading given by SURA SAF is not expressly appreciated, nor is it interpreted, referring to the fact that it only exposed the filters applied to the selection of investments or, as it states in its arguments, that it was indicated that only "some" investments had guarantees, since from the literal reading of the text of the email in question, the separation of paragraphs by means of hyphens shows, without any doubt, that PROMOTORA 1 detailed the characteristics of the FONDO precisely so that whoever receives it understands and comprehends the benefits of the product offered;

72. In that sense, it is unequivocally appreciated that PROMOTORA 1, when describing the characteristics of the FONDO, informed DENUNCIANTE1 that the debt instruments of the nine (9) issuers that make up the investment portfolio (as underlying assets) had collateral guarantees for the amount owed. However, from the review of the PRESENTACIÓN DEL FONDO attached to said email, it is observed that not all of the nine (9) issuers that made up the FONDO's portfolio had collateral guarantees;

73. Consequently, it is appropriate to specify that although a participant or potential participant must review all the information provided by the management companies during the quota placement process, the information as a whole must be coherent and precise, and must not contain inaccuracies as in the present case, upon verifying that PROMOTORA 1 states that the nine (9) issuers of the FONDO were guaranteed, but the attached document contradicts this statement by indicating that some of the issuers did not have guarantees, providing imprecise information to the potential investor;

74. By way of further elaboration, it should be noted that according to the FONDO's Statement of Investments as of 30 September 2019, submitted by SURA SAF to the SMV on 28 October 2019, the FONDO's investment portfolio had debt instruments from nine (9) issuers as underlying assets, of which it is observed that issuers No. 6, 8 and 9 did not have collateral, that is, the FONDO's investment portfolio had only six (6)

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issuers guaranteed as of the date of sending to DENUNCIANTE1 of the email under evaluation;

75. Additionally, the management company alleges that the SMV is assuming that the potential participant made its investment decision because the FONDO invests in debt with collateral guarantees. In this regard, it should be noted that the SMV does not assume that said investment decision was made solely based on the information sent in the aforementioned email, since what the SMV has observed in this administrative sanctioning proceeding is that all information given to investors (actual and potential), especially if provided during the placement of the units, affects the investment decision-making process, which is why such information is required to be provided in a clear, precise, truthful, sufficient and timely manner;

76. On the other hand, SURA SAF states that the FONDO has complied with sending the FONDO's Statements of Investments on a quarterly basis to DENUNCIANTE1, in which the main characteristics of the FONDO are specifically indicated. With regard to the foregoing, it should be specified that the information under evaluation in this non-compliance was provided prior to the subscription of units of the FONDO by DENUNCIANTE1; and, therefore, prior to the sending of the Statements of Investments indicated by SURA SAF, which should have been sent by the management company to DENUNCIANTE1, after the subscription of units, in consideration of its status as a participant in the FONDO;

77. Regarding the email sent by PROMOTORA 2 to DENUNCIANTE2, SURA SAF alleges that the text thereof does not expressly state that all of the FONDO's instruments provide collateral, but rather that there are eight (8) investment grade companies that do so. Likewise, it states that a Fact Sheet was attached to said email, in which it is specified that the FONDO invests in unsecured debt. Therefore, the management company concludes that the SMV would not have evaluated the attached document sent in the email, nor other documents attached thereto;

78. Likewise, the management company indicates that the SMV would not have considered that DENUNCIANTE2 was already a participant in the FONDO since March 2019, and therefore knew the FONDO's investment structure. Additionally, it highlights that SEÑOR [redacted] received the FONDO's Statements of Investments on a quarterly basis, in which it was specifically indicated which instruments in the FONDO's investment portfolio had guarantees. It adds that the information provided never had any effect nor generated any contractual link with SEÑOR [redacted] since he did not subscribe additional units of the FONDO;

79. In this regard, it is appropriate to quote the text of the email sent to SEÑOR [redacted]

"Dear [redacted]

(...)

FONDO SURA PRÉSTAMOS LATINOAMERICANOS:

Investment Fund that seeks to preserve the invested capital and obtain a return derived from the interest accrued on the debt-representative instruments in which it invests. As of today it is made up of 8 investment grade companies diversified across three countries "Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

mainly: Mexico, Colombia and Peru, which are in the following sectors: Financial, Industrial, Retail and Mining Services, which provide collateral, guarantees for the amount owed.

(…)" (Highlight added);

80. As can be seen in the cited email, PROMOTORA2 textually informed the participant that the product offered provided collateral and guarantees for the amount owed. That is, it did not state that part of the financial instruments issued by the companies in question did not provide guarantees, information that is not consistent with the annexes attached to said email, which reflects that the information provided was not correct;

81. It should be noted that although the Fact Sheet attached to the email under analysis indicated that the FONDO's investments were made in secured and unsecured debt instruments, from the review of the FONDO's Statement of Investments as of 31 March 2020 it is noted that of the ten (10) debt instruments of the issuers that made up the FONDO, three (3) of them did not have collateral (Issuers No. 6, 8 and 9)⁹; for which reason the FONDO was made up of seven (7) debt instruments that were secured, and not by eight (8) secured debt instruments as stated by PROMOTORA 2 to DENUNCIANTE2, according to what was alleged by SURA SAF;

82. Likewise, from the review of the FONDO's Statement of Investments as of 31 December 2019, submitted by SURA SAF to the SMV on 29 January 2020, the FONDO's investment portfolio had debt instruments from ten (10) issuers, as underlying assets, although the detail of the characteristics of the debt instruments of these issuers is not shown. For its part, in the FONDO's Statement of Investments as of 30 September 2019 and 31 March 2020, it is observed that it is Issuers No. 6, 8 and 9 that did not have collateral; therefore, as of 30 September 2019 there were six (6) issuers that had collateral out of a total of nine (9), and as of 31 March 2020 there were seven (7) issuers that had collateral out of a total of ten (10); therefore, it is inferred that Issuer No. 10 is the one that was added as an issuer that had collateral as of the FONDO's Statement of Investments as of 31 December 2019;

83. Likewise, it should be noted that SURA SAF has not submitted any evidentiary means proving that the FONDO as of 30 January 2020 had eight (8) guaranteed issuers;

84. In that regard, it is noted that the information provided by PROMOTORA 2 to MR. ██████ was not accurate, as it did not correspond to the situation of the FONDO's investment portfolio as of 30 January 2020, regarding the number of issuers whose debt instruments had guarantees;

85. Likewise, it should be noted that, although COMPLAINANT2 was a participant in the FONDO when he received the email under evaluation; and, consequently, was aware of the structure of the FONDO's investments, this does not exempt SURA SAF from its obligation to provide accurate information to said participant. Likewise, it should be emphasized that, regardless of whether COMPLAINANT2 has not subscribed additional units of the FONDO, SURA SAF is obliged to provide the participant with clear, accurate, truthful and timely information, in

[9] Although the STATEMENT OF CHARGES refers to Issuers No. 6 and 8 as the unguaranteed issuers, it has been clarified that they are Issuers No. 6, 8 and 9.

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compliance with the conduct rule set forth in article 3, literal f), of the REGULATION;

86. In this regard, it should be noted that a participant may not only subscribe additional units of the investment fund, but may also decide to divest from the investment fund by transferring his units to another participant of the fund or potential investor. Therefore, the information provided by the management company may also affect its decision to remain as a participant of the fund;

87. On the other hand, it is appropriate to note that, in accordance with the provisions of article 3 of the REGULATION, management companies must implement the necessary procedures and controls for the proper observance of the general rules of conduct; therefore, SURA SAF should have trained its personnel in charge of the placement of units of the funds it manages, in order to provide clear, accurate, sufficient and timely information to potential subscribers of units, especially if, in accordance with article 59 of the REGULATION, management companies are jointly and severally liable for the improper acts of the promoters participating in the placement process;

88. Based on the foregoing, it is observed that SURA SAF breached the conduct rule set forth in article 3, literal f), of the REGULATION because, through PROMOTORA 1 and PROMOTORA 2, it provided a participant of the FONDO and an investor (potential participant) with imprecise information regarding the debt instruments of the issuers, underlying the FONDO's investment portfolio, that had collateral guarantees, since from the evaluation of the wording of the emails and their attached documents it appears that the information provided does not match the situation of the FONDO's investment portfolio as of November 2019 and January 2020, in accordance with what was reported by the same management company in documents submitted to the SMV regarding the FONDO;

89. In its additional written arguments, Sura SAF states that in this administrative sanctioning procedure no eventual continuous infringement extending over time is imputed, but rather two single doubtful, specific and isolated events, as set out in the imputation of charges and in the report of the instructing body;

90. In this regard, it has been established that SURA SAF committed a continuous infringement, since both the aforementioned emails of 11 November 2019 and that of 30 January 2020 evidence a plurality of homogeneous acts by said management company, through which, through different promoters, it provided information that was not clear, nor accurate, nor truthful, nor sufficient to a participant and potential participant of the FONDO regarding its characteristics, in order for them to subscribe units thereof; breaching the conduct rule set forth in literal f) of article 3 of the REGULATION;

91. In view of the foregoing, it is concluded that SURA SAF did not rebut the imputed charge; and, consequently, it is noted that it has incurred one (1) infringement classified as serious, in accordance with Annex I, numeral 2, subsection 2.25 of the SANCTIONS REGULATION, according to which the following constitutes an infringement: "Not having, approving, implementing, nor complying with or amending them without notifying the SMV, within the corresponding term, the conduct rules, the internal conduct rules, or

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

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code of conduct, in accordance with the regulations on the matter, or failure to approve a control procedure for said regulations.”;

IV. EVALUATION OF THE SANCTION

92. In accordance with article 344 of the Single Ordered Text of the Securities Market Law, approved by Supreme Decree No. 020-2023-EF (hereinafter, TUO LMV) and article 25 of the SANCTIONS REGULATION, in accordance with article 248, numeral 3¹⁰, of the TUO OF THE LPAG, the administrative sanctions imposed must take into account the criteria set forth by the LMV, the SANCTIONS REGULATION and the TUO OF THE LPAG;

93. Within this framework, the evaluation of the sanction must consider: a) the offender's background; b) recidivism¹¹; c) the circumstances of the commission of the infraction; d) the harm caused and the repercussion on the market; e) the illicit benefit resulting from the commission of the infraction; f) probability of detection of the infraction; g) severity of the damage to the public interest and/or protected legal interest; h) the existence or not of intent in the offender's conduct;

94. In this sense, in order to reconcile the criteria established in the TUO LMV with those indicated in the SANCTIONS REGULATION and the TUO OF THE LPAG; as well as for said criteria to be adequately considered so that their assessment observes the principle of reasonableness and the sanction to be imposed is appropriate to them, the following criteria are analyzed;

95. Regarding the background, in accordance with the provisions of article 25, literal a) of the SANCTIONS REGULATION, final sanctions imposed by the SMV within four (4) years prior to the commission of the infraction to be sanctioned constitute background. The aforementioned article specifies that the commission of the same infraction in the year prior to the infraction to be sanctioned is not considered background;

96. In this sense, from the review carried out in said period, it has been verified that SURA SAF records the following final sanctions:

No.	Resolution	Resolved	Finality
i	Superintendency Resolution	SURA SAF is sanctioned with six (06) warnings and a fine of 24.54 UIT, equivalent to S/ 90,798.00 (Ninety thousand seven hundred ninety-eight and 00/100 Soles), for having incurred nineteen infractions	17/08/2017

[10] “Article 248.- Principles of administrative sanctioning power (...) 3. Reasonableness.- Authorities must foresee that the commission of the sanctionable conduct is not more advantageous for the offender than complying with the infringed norms or assuming the sanction. However, the sanctions to be applied must be proportional to the non-compliance qualified as an infraction, observing the following criteria indicated for their graduation:
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 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 intent in the offender's conduct”.

[11] The sanction criteria referring to Recidivism and the Probability of detection of the infraction were introduced by article 2 of Legislative Decree No. 1272 which modified, among others, article 230, numeral 3 of the LPAG.

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No.	Resolution	Resolved	Finality
	SMV Attachment No. 027-2016-SMV/10¹²	of a minor nature typified in Annex I, numeral 3, subsection 3.1 of the Sanctions Regulation, approved by CONASEV Resolution No. 055-2001-EF/94.10 (hereinafter, FORMER SANCTIONS REGULATION) for having submitted eventual information referring to material facts outside the period established by the regulations
ii	Deputy Superintendency Resolution SMV No. 018-2017-SMV/10¹³	SURA SAF is sanctioned with a fine of 5.884 UIT equivalent to S/ 22,204.70 (Twenty-two thousand two hundred four and 70/100 soles) and three (03) warnings for having incurred six (06) infractions of a minor nature typified in Annex I, numeral 3, subsection 3.1 of the FORMER SANCTIONS REGULATION for having submitted eventual information outside the period established by the applicable regulations.	09/08/2017
iii	Deputy Superintendency Resolution SMV No. 111-2017-SMV/10¹⁴	SURA SAF is sanctioned with a fine of one (01) UIT, amounting to S/ 3,850.00 (Three thousand eight hundred fifty and 00/100 Soles) for having incurred one (01) infraction of a serious nature typified in Annex XIX, numeral 2, subsection 2.12 of the FORMER SANCTIONS REGULATION, for not having complied with the provisions of the Norms for the Prevention of Money Laundering and Financing of Terrorism, regarding the submission within the established period of the Annual Independent Compliance Report.	24/07/2018
iv	Deputy Superintendency Resolution SMV No. 004-2019-SMV/10¹⁵	SURA SAF is sanctioned with a fine of 3 UIT equivalent to S/ 11,850.00 (Eleven thousand eight hundred fifty and 00/100 Soles) for having incurred one (1) infraction of a serious nature typified in Annex VII numeral 2, subsection 2.13 of the SANCTIONS REGULATION and one (1) infraction of a minor nature typified in Annex VII numeral 3, subsection 3.6 of the SANCTIONS REGULATION for not sending the account statements to the participant and for not communicating to the participant within the period provided in the regulations an excess of participation.	05/03/2019

97. With regard to recidivism for the commission of the same infraction, 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. Within this framework, it must be stated that SURA SAF does not present sanctions within the aforementioned period, for the commission of the same infraction under analysis, in the present administrative sanctioning procedure, and therefore recidivism is not configured;

98. With regard to the circumstances of the commission of the infraction, it should be mentioned that SURA SAF, in its capacity as a company supervised by the SMV, knows the rules that regulate the securities market and, in that sense, the general rules of conduct that it must comply with in the development of its activities, among which is included the duty to provide information in a clear, precise, truthful, sufficient and timely manner to participants and potential participants. However, the management company did not comply with the aforementioned rule of conduct, as it was observed that in the process of placing quotas of the FUND through its promoters, it provided imprecise information regarding the debt instruments of the issuers that had collateral guarantees in the investment portfolio of the FUND, through emails of November 2019 and January 2020;

[12] Notified on 8 July 2016.

[13] Notified on 28 March 2017.

[14] Notified on 17 November 2017.

[15] Notified on 8 February 2019.

PERU
Ministry of Economy and Finance
SMV
Superintendency of the Market in Securities

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99. With regard to DENUNCIANTE1, it should be noted that this investor received the email on 11 November 2019 and subscribed quotas of the FUND on 14 November 2019, becoming a participant thereof; therefore, the information in the email that contained the main characteristics of the FUND, the details of which were supplemented by the Fact Sheet, could have influenced his investment decision;

100. With regard to DENUNCIANTE2, SURA SAF argues that he had been a participant of the FUND since March 2019, and therefore knew the investment structure of the FUND. Additionally, it highlights that DENUNCIANTE2 received the Investment Statements of the FUND on a quarterly basis, in which it was specifically stated which instruments of the investment portfolio of the FUND had guarantees. It adds that the information provided never had any effect nor generated any contractual link with DENUNCIANTE2, since he did not subscribe additional quotas of the FUND. In this regard, it should be noted that a participant may not only subscribe additional quotas of the investment fund, but may also decide to divest from the investment fund by transferring his quotas to another participant of the fund or potential investor. Therefore, the information provided by the management company may also influence his decision to remain as a participant of the fund;

101. It should be taken into account that, although a participant must review all the information and documentation provided by the management company in order to make an investment decision, in some cases it could be observed that participants, guided by trust in the management company and by the dynamism of investment decisions, make their decisions based on the main characteristics of the investment fund; therefore, it is essential that the management company provides clear and precise information both in emails, meetings, telephone calls, among others, which must be consistent with the information contained in the documents it delivers to the potential investor or participant, avoiding the delivery of incomplete, contradictory or misleading information;

102. It should be noted that the securities market is a highly specialized market, and therefore, for a fund management company to participate in it, it must be authorized by the regulator; and consequently, among other things, it must have duly trained personnel, which allows it to fully comply with the general rules of conduct during the development of its activities, whose fundamental objective is the protection of the investor and the integrity of the market; otherwise, it would imply affecting those legal interests that are intrinsically necessary for the proper functioning and development of the securities market;

103. As regards the economic harm caused and the impact on the market, in the present case, it has not been evidenced that the infraction incurred by SURA SAF has produced a concrete quantifiable harm in the market; that is, it has not been determined that one or more investors have been concretely affected or caused economic damage, and therefore it has also not been evidenced that there has been an impact on the market;

104. With respect to the illicit benefit resulting from the commission of the infraction, it has not been proven in the present administrative sanctioning procedure that SURA SAF has obtained any illicit benefit as a result of having incurred in the infraction under analysis;

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105. Regarding the probability of detection of the infraction, it should be indicated that the facts constituting the infraction committed by SURA SAF were evidenced when verifying compliance with the regulations applicable to the development of its functions, based on the facts set forth by DENUNCIANTE1 and DENUNCIANTE2, in the complaint filed by the DENUNCIANTES against the management company, and therefore the probability of detection of the infraction was low;

106. As regards the severity of the harm to the public interest and/or the protected legal interest, in the present case, it has not been possible to establish that SURA SAF's conduct in committing the infringement under analysis in this sanctioning proceeding has caused harm to the determinable public interest;

107. Nevertheless, it should be noted that, in accordance with the applicable regulations, management companies must comply, during the conduct of their activities, with the general conduct rules set out in article 3 of the REGLAMENTO; likewise, the management company must have personnel duly trained in compliance with the aforementioned conduct rules, so that, in the present case, they provide clear, accurate, truthful, sufficient and timely information to participants and potential participants regarding the funds under their management. Consequently, the breach of said regulations affects the legal interest relating to their protection, insofar as the fact that a fund management company fails to comply with the general conduct rules in the exercise of its activities affects the confidence that participants, potential participants and the market in general may place in the securities market, which in turn affects its development and its impact as an alternative source of investment;

108. Regarding the existence or absence of intent in the offender's conduct, it must be specified that no intent has been verified in SURA SAF's conduct with respect to the infringement under analysis;

109. In addition to the foregoing, it is appropriate to analyze the exemptions and mitigating circumstances of liability established in article 257 of the TUO DE LA LPAG as well as the mitigating and exempting conditions of liability established in articles 26 and 27 of the REGLAMENTO DE SANCIONES;

110. In this regard, in accordance with the provisions of article 257, numeral 1 of the TUO DE LA LPAG and articles 26 and 27 of the REGLAMENTO DE SANCIONES, it is not observed that any of the grounds constituting exempting or mitigating conditions of liability has been established in the present case;

111. With regard to the voluntary declaration of the commission of the infringement, it should be noted that SURA SAF did not acknowledge its liability for the infringement incurred expressly and in writing;

112. As regards the offender's contribution to its clarification and the remediation carried out after its requirement, it should be noted that SURA SAF has not provided further evidence or arguments that would allow the facts constituting the infringement to be elucidated, referring to the information provided by its promoters through the emails evaluated, and limited itself to submitting its defenses in order to rebut the commission of the infringement;

113. Based on the foregoing, it is concluded that SURA SAF has incurred the commission of one (1) infringement classified as serious as set out in Annex I, numeral 2, subparagraph 2.25 of the REGLAMENTO DE SANCIONES, according to which constitutes

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

infringement: "Not having, approving, implementing, or complying with or amending, without communicating it to the SMV, within the corresponding period, the conduct rules, the internal conduct rules, or code of conduct, in accordance with the regulations on the matter, or not approving a control procedure for said rules", and therefore a sanction should be imposed in accordance with the provisions of article 34 of the REGLAMENTO DE SANCIONES, which establishes that the serious infringement is punishable by a fine of not less than twenty-five (25) and up to fifty (50) Tax Units – UIT or suspension of the authorization to operate for up to twenty (20) days;

114. However, taking into account the sanctioning criteria analyzed, and in application of the Principle of Reasonableness set out in article 248, numeral 3 of the TUO DE LA LPAG, which states that the sanctions to be applied must be proportional to the non-compliance classified as an infringement, it must be considered that, with respect to the infringement under charge, it has not been evidenced that it has produced a specific quantifiable detriment in the market, and therefore no impact on the market has been evidenced either. Likewise, it has not been established that the management company obtained an unlawful benefit directly related to the commission of the infringement, nor that it acted with intent in its actions in this regard. Similarly, it has been verified that SURA SAF is not a repeat offender with respect to the infringement;

115. In that sense, a fine applicable to minor infringements should be imposed on SURA SAF, in accordance with the provisions of article 39 of the REGLAMENTO DE SANCIONES, for the infringement under evaluation in this administrative sanctioning proceeding;

116. In accordance with the provisions of article 32, numeral 16, of the Regulations on Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF and its amendments;

RESOLVES:

Article 1.- Declare that Fondos Sura SAF S.A.C. has incurred one (1) infringement classified as serious as set out in Annex I, numeral 2, subparagraph 2.25 of the Regulations on Sanctions, approved by SMV Resolution No. 035-2018-SMV/01, since it failed to comply with the conduct rule set out in article 3, literal f), of the REGLAMENTO, by informing a participant of the FUND and an investor (potential participant) through two emails with confusing and imprecise information about its risks, which did not conform to what was shown in the documents prepared by the same management company.

Article 2.- Sanction Fondos Sura SAF S.A.C. with a fine of 4 UIT, equivalent to S/ 16,800.00 (Sixteen thousand eight hundred and 00/100 soles) for the commission of the infraction referred to in article 1 of this resolution.

Article 3.- This resolution does not exhaust the administrative remedy, unless it is consented to, and may be challenged before the Deputy Superintendency of Prudential Supervision by filing a motion for reconsideration or appeal before the same, within a period of fifteen (15) business days counted from the day following its notification.

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

PERU
Ministry of Economy and Finance
SMV
Superintendency of the Market in Securities

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

Article 4.- In the event that this resolution is not challenged by motion for reconsideration or appeal within fifteen (15) business days of notification and becomes final, it must be published on the SMV Institutional Page on the Single Digital Platform of the Peruvian State, in observance of the provisions of numeral 1, 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 amendment, and by the provisions of article 14 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01.

Article 5.- Transcribe this resolution to Fondos Sura SAF S.A.C.

Register, communicate and publish.

Signed by: GUTIERREZ OCHOA Omar Darío
Reason:
Omar Gutiérrez Ochoa
Deputy Superintendent
Deputy Superintendency of Prudential Supervision