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"

Superintendent Resolution No. 014-2024-SMV/02

Lima, 5 February 2024

The Superintendent of the Securities Market

WHEREAS:

File No. 2022028181 and Report No. 26-2024-SMV/06 issued by the Legal Advisory Office;

CONSIDERING:

That, by Deputy Superintendent Resolution SMV No. 052-2023-SMV/11, hereinafter, RESOLUTION, the Deputy Superintendency of Market Conduct Supervision, hereinafter SASCM resolved:

(i) Declare that Agrícola Cayaltí S.A.A. (hereinafter, CAYALTÍ) incurred in one (01) minor infraction, classified in item 3.1 of subsection 3 of Annex I of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), for the late submission of the material fact of 05 February 2021 referring to the execution of the Dation in Payment, Purchase-Sale and Exchange with Reservation of Ownership Agreements with Viveros Génesis S.A.C., which occurred on 31 May 2019;

(ii) Declare that CAYALTÍ incurred in one (01) minor infraction classified in item 3.1 of subsection 3 of Annex I of the SANCTIONS REGULATION, for the incomplete submission of the material fact of 18 June 2021 referring to the execution of the Agreement with purchase-sale with Inka's Berries;

(iii) Declare that CAYALTÍ incurred in one (01) very serious infraction classified in subsection 1.41 of item 1 of Annex I of the SANCTIONS REGULATION, for the submission of inaccurate information in the material fact of 05 March 2021;

(iv) Sanction CAYALTÍ, with a fine of one hundred (100) UIT, equivalent to S/ 440,000.00 (Four Hundred Forty Thousand and 00/100 Soles);

That, by document submitted on 20 June 2023, CAYALTÍ filed an appeal against THE RESOLUTION questioning the commission

[1] SANCTIONS REGULATION ANNEX I Of General Infractions The following are common infractions for Participants and liquidators, as applicable: "1.- Very Serious (…) 1.4 Submit to the SMV, to the Exchange, to the entity in charge of the Centralized Mechanism, to the investor and, in general, to any other subject of the securities market, inaccurate or false information; or disclose such information in the market."

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of the very serious infraction indicated in point iii) of the preceding recital and requesting that, with respect to said point, the charge formulated against it be declared unfounded;

That, by Report No. 26-2024-SMV/06 of 9 January 2024, hereinafter, the REPORT, the Legal Advisory Office issued an opinion on the appeal filed by CAYALTÍ. Said report was brought to the attention of CAYALTÍ by Official Letter No. 114-2024-SMV/14 of 9 January 2024, so that, if it deemed appropriate, it could submit its arguments, and by Official Letter 218-2024-SMV/14 of 17 January 2024, at the request of CAYALTÍ, an extension was granted for said arguments, which have not been submitted;

I. ARGUMENTS OF THE APPEAL

That, below, the arguments contained in the appeal filed by CAYALTÍ are succinctly set forth;

A. CAYALTÍ states that it had no intention of providing inaccurate information to the market, since the transaction with Viveros Génesis was indeed reported within the "Financial Statements for the month of June 2019", proof of which is that in note 11 the decrease in assets due to the sale effect was recorded;

B. With regard to the Criteria for imposing the sanction, CAYALTÍ specifies that:

i) As developed in recital 38 of the RESOLUTION, the SASCM has not been able to determine sufficient elements to indicate that it obtained an illegal benefit as a consequence of the information disclosed on 5 March 2021;

ii) The information disclosed on 5 March 2021 has not produced any harm to the market or to investors;

iii) It has not been evidenced that the non-compliance has produced an economic detriment, understood as an economic harm caused to one or several investors. It also states that the last trading date of the CAYALTC1 security was 26 May 2017 and that on the day the events subject to imputation occurred and throughout fiscal year 2021 there was no trading of the securities;

iv) It is not a repeat offender in the commission of the same type of infraction;

C. According to CAYALTÍ, it is questionable that the RESOLUTION considers Grupo Obrainsa as related to CAYALTÍ, since as of 18 December 2020 CAYALTÍ ceased to be part of Grupo Obrainsa, a situation that has been reiterated on various occasions and even more so that said circumstance influences the determination of the sanction as indicated in recital 37 of the RESOLUTION;

II. ANALYSIS OF THE ADMISSIBILITY OF THE APPEAL

That, from the evaluation carried out, it has been verified that the appeal filed by CAYALTÍ complies with the requirements established in articles 124, 220 and 221 of the Single Ordered Text of Law No. 27444, General Administrative Procedure Law (hereinafter, TUO LPAG);

That, in this sense, in the case analyzed it is verified that the filing of the appeal by CAYALTÍ was made within the legal term, complying with the provisions of article 218 of the TUO LPAG;

III. EVALUATION OF THE ARGUMENTS PRESENTED BY CAYALTÍ

3.1. On the scope and definition of "Inaccurate information"

That, according to the Dictionary of the Royal Spanish Academy, the word "inaccurate" has the following meaning: "Lacking accuracy". Likewise, "accuracy" according to the aforementioned Dictionary is understood as: "quality of accurate" and one of the meanings of the term "accurate" is "Rigorously true or correct". Therefore, "inaccurate" can be understood as lacking accuracy, that is, not being rigorously true or correct;

That, it should be noted that the submission of inaccurate information causes the market to have untrue information; which affects the confidence of the different participants in the securities market. In that line of ideas, the submission of truthful, sufficient and timely information by the issuers of securities registered in the RPMV constitutes a fundamental obligation in the transparency of the securities market, since it seeks to guarantee that market participants make their investment decisions adequately informed;

That, on the other hand, it should be indicated that CAYALTÍ knows the securities market rules that are applicable to it, of mandatory compliance and particularly those that refer directly to information transparency, even more so considering the size of the corporation, the lines of business or companies of the economic group it controls and the number of its shareholders2 . Furthermore, it has the capacity to qualify what information is relevant for an investor;

3.2. On market transparency

That, market transparency is understood in doctrine as "the market's capacity to generate and disseminate information on prices and quantities. Adequate decision-making requires that the investor has all the necessary data to choose the investment that best satisfies their interests. It also seems evident that access to such information should be as fast as possible and under equal conditions for all participants. Therefore, a high level of transparency makes it easier for investors to know at all times what the market situation is and, more specifically, the situation of each asset admitted to trading (…) When determining the level of transparency of a market, we must consider issues such as the degree of access to market information; the immediacy of the information; the degree of aggregation of the information (…)"3 ;

That, in this sense, the importance of transparency and the timely dissemination of relevant facts should be highlighted so that investors are allowed to adopt adequate investment decisions;

[2] The minority shareholders in the Issuer are approximately 3,307 with an individual participation of less than 1.00% and with a joint participation of 49.10%, according to its Annual Report for fiscal year 2022. https://www.smv.gob.pe/ConsultasP8/temp/Memoria%20Anual%202022.pdf.

[3] PÉREZ CARBALLO, Alfonso. "Investor protection and transparency" In "The Single Financial Space in the European Union". Marcial Pons, Ediciones Jurídicas y Sociales S.A. Madrid. 2005 Pág. 657

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PERÚ Ministry of Economy and Finance
SMV
Superintendency of the Market of 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"

That, in that framework, the provision contained in article 10 of the Single Ordered Text of the Securities Market Law, Legislative Decree No. 861, approved by Supreme Decree No. 020-2023-EF (hereinafter TUO LMV), referring to the quality of information, highlights that the information disclosed in the market must be truthful, sufficient and timely, so that investors obtain similar information in the same time horizon.

3.3 On the review of the information submitted by CAYALTÍ

That, having mentioned the importance of delivering truthful information in the securities market, it is appropriate to review the information determined as inaccurate that gives rise to the imputation of charges in this administrative sanctioning procedure. In this sense, the following should be noted:

a) For a better understanding of the facts that occurred in this administrative sanctioning procedure, the following timeline is presented:

As shown in the Timeline, the Purchase-Sale, Dation in Payment and Exchange with Reservation of Ownership Contracts (hereinafter, THE CONTRACTS) were signed by CAYALTÍ on 31 May 2019 with Viveros Génesis S.A.C.

Likewise, by means of a material fact of 5 February 2021, CAYALTÍ reports that in its Board meeting held the same day, it agreed: (i) The ratification of the Dation in Payment Contract dated 31 May 2019 signed with Viveros Génesis S.A.C., for the sum of US$ 2,126,329.00; (ii) The ratification of the Purchase-Sale Contract dated 31 May 2019 signed with Viveros Génesis S.A.C., for the sum of US$ 1,800,000.00; (iii) The ratification

of the Exchange Agreement with Reservation of Ownership signed with Viveros Génesis S.A.C; and, (iv) The transfer of ownership in favor of Inka´s Berries of an area of 260.023 hectares registered in the parent land;

Subsequently, by means of Oficio N° 856-2021-SMV/11.1 of 2 March 2021 (Expediente N° 2021005509), the Intendencia General de Supervisión de Conductas required CAYALTÍ, among others, to communicate as a material fact the reasons why it did not report as a material fact the signing of THE CONTRACTS;

Therefore, CAYALTÍ by means of a material fact of 5 March 2021 (Expediente N° 2021008748), in response to Oficio N° 856-2021-SMV/11.1, stated, among others, that it did not communicate the signing of THE CONTRACTS due to an involuntary error, but that it was brought to knowledge by means of a material fact of 5 February 2021. Furthermore, it indicated that it had reported the transaction with Viveros Génesis in the “Financial Statements for the month of June 2019;

b) Regarding the argument maintained by CAYALTÍ in the sense that it did not intend to provide inaccurate information to the market, since it complied with reporting the transaction with Viveros Génesis by means of “the Financial Statements for the month of June 2019”, the following must be noted:

b.1 Prior to the evaluation of the aforementioned argument, it must be noted that the imputed breach was based on the fact that CAYALTÍ presented inaccurate information in the material fact of 5 March 2021, by indicating that: «it reported the transaction with Viveros Génesis in the Financial Statements for the month of June 2019». In view of this, it is relevant to review the content of the material fact of 5 March 2021:

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PERÚ Ministerio de Economía y Finanzas
SMV
Superintendencia del Mercado 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"

(…)

Now then, CAYALTÍ maintains in its appeal that the report of the aforementioned transaction in “the Financial Statements for the month of June 2019” (Interim Individual Financial Statements as of 30 June 2019), is evidenced in Note 11 which reflects the decrease in assets due to the sale, which records the following:

In this regard, it is noted that Note 11 corresponds to «Land, buildings, producing plants, machinery and equipment, net» from which it follows that during the first half of fiscal year 2019, the Land sub-item recorded a reduction in its value for a total of S/47’620,000, for the concept of «Withdrawals and/or disposals» (S/ 42’797,000) and «Sales» (S/ 4’823,000); However, according to the material fact of 5 February 2021 communicated by CAYALTÍ, the Purchase and Sale Agreement was for the sum of USD 1’800,000.00 and the Dation in Payment Agreement was for the amount of USD 2,126,329.00, which applying the SBS buying exchange rate of S/ 3.285 as of 30 June 2019, are equivalent to an estimated amount of S/ 5,913,000.00 and S/ 6,984,990.765, respectively; therefore, it is verified that the aforementioned contracts would not have been reported expressly so that an investor or the securities market could become aware of said transactions; In addition to this, the Interim Individual Financial Statements as of 30 June 2019, were submitted to the SMV on 31 July 2019 (Expediente N° 2019032141), date on which the material facts about the aforementioned contracts did not exist, because this information was only revealed in the material fact of 5 February 2021; Accordingly, it is concluded that in Note 11 and in the rest of the explanatory notes of the Interim Individual Financial Statements as of 30 June 2019 of CAYALTÍ, there is no information that allows taking knowledge, considering oneself informed or notified of said contracts; consequently, the material fact of 05 March 2021 is inaccurate, insofar as CAYALTÍ communicated said transactions; b.2 Additionally, it must be taken into account, in accordance with the provisions of articles 10 and 28 of the TUO LMV, that all information that must be submitted to the SMV, to the Exchange, to the entities responsible for the centralized mechanisms or to investors, must be truthful, sufficient and timely; and, the registration of a given security or issuance program entails for its issuer the obligation to inform the SMV and, where applicable, the respective exchange or responsible entity

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of the operation of the centralized mechanism, of material events, including ongoing negotiations, about itself, the security and the offer made thereof, as well as to disclose such events in a truthful, sufficient and timely manner.

Likewise, it must be mentioned that numeral 8.1 of article 8 and article 6, numeral 6.1 of the Regulation on Material Events and Reserved Information, approved by SMV Resolution No. 005-2014-SMV/01, hereinafter REGULATION ON MATERIAL EVENTS, establish that in the content of the communication of a material event, the issuer must be truthful, clear, sufficient and complete; and that the issuer is responsible for ensuring that the information it communicates 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 the aforementioned regulation;

In this regard, it is appropriate to consider that it is an essential function of the SMV to ensure the transparency of the securities market, through the regulation and supervision of the disclosure of information necessary for the proper functioning of said market. In this regard, the truthful, sufficient and timely submission of information by the issuers of securities registered in the Public Registry of the Securities Market (RPMV) constitutes a fundamental obligation, since it seeks to guarantee that investors make their investment decisions adequately informed;

b.3 On the other hand, it is verified that the argument analyzed was also presented by CAYALTÍ before the SASCM and was considered in the evaluation of the corresponding sanction as stated in recital 6 of the RESOLUTION, which is cited below:

"6. That, by means of a document submitted on 27 July 2022, the Issuer sent its defenses corresponding to the Statement of Charges, stating the following: (...) iii) With regard to the third charge, the Issuer ratifies what was stated in the material event of 05 March 2021 (File No. 2021008748), in which it expressly stated that "(...) it reported the transaction with Viveros Génesis in the Financial Statements for the month of June 2019, (...)."

Furthermore, the Issuer states that the aforementioned transaction was indeed reported in the Individual Interim Financial Statements for June 2019, proof of which is that Note 11 recorded the decrease in assets due to the sale, as follows:

(…)"

b.4 With regard to the application of the sanction criteria alleged by CAYALTÍ

in its appeal, it must be noted that said point is also repetitive, since they were presented at first instance; in the defenses and in the arguments, as can be seen in the following extracts:

Defenses of 26 July 2022 submitted by the Issuer to the General Superintendence of Conduct Compliance (Page 5)

Arguments of 31 January 2023 submitted by the Issuer to the SASCM (Page 2)

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

Regarding the assessment of the criteria alleged by CAYALTÍ, it is noted that in recitals 32 to 414 of the RESOLUTION, the SASCM carries out a

[4] 32.That, having determined the commission of two (02) minor infractions and one (01) very serious infraction, it is appropriate to determine the sanction for this type of non-compliance by evaluating the sanction criteria established in article 344 of the LMV, in accordance with numeral 3) of article 248 of the TUO of the LPAG and article 25 of the Sanctions Regulation in accordance with what is indicated in the Report, according to which the following criteria must be taken into consideration: (i) the sanction history of the administered; (ii) recidivism for the commission of the same infraction; (iii) the circumstances of the commission of the infraction; (iv) the economic harm caused; (v) the illicit benefit resulting from the commission of the infraction; (vi) the probability of detection of the infraction; (vii) the severity of the damage to the public interest and/or protected legal interest; and, (viii) the existence or not of intentionality in the conduct of the offender (hereinafter, the Sanction Criteria);

33. That, in relation to the severity of the damage to the public interest and/or protected legal interest, it should be indicated that the presentation of clear and sufficient information has the purpose of allowing investors to adopt adequately informed investment decisions. In this way, investors are protected and the asymmetry in access to information is reduced; therefore, the protected legal interest is the transparency of the securities market, which, when transgressed, affects the public interest. That said, this PAS is based on the inaccurate communication of the material fact of 05 March 2021, so such non-compliance affects market transparency, in the sense that all information submitted, within the terms of article 10 of the LMV, must have three qualities: truthful, sufficient and timely; which has been disregarded by the Issuer;

34.That, regarding the sanction history, literal a) of article 25 of the Sanctions Regulation establishes that these are the final sanctions imposed by the Superintendency of the Securities Market – SMV, within a period of four (4) years prior to the commission of the infraction to be sanctioned; notwithstanding this, it is specified that the commission of the same infraction in the year prior to the infraction to be sanctioned is not considered as a history. On this matter, it has been determined that the Issuer has a sanction history, as detailed in the Report;

35.That, regarding 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 Superintendency of the Securities Market – SMV, within a period of one (01) year prior to the commission of the infraction to be sanctioned, is taken into account. In this regard, it has been determined that the Issuer does not have the status of recidivist as indicated in the Report;

36. That, regarding the circumstances of the commission of the infraction, it should be noted that the Issuer communicated belatedly the material fact referring to the signing of the CONTRACTS, with six hundred sixteen (616) calendar days of delay, and the material fact of 18 June 2021 referring to the amount of the transaction of the purchase-sale contract signed with Inka’s Berries was completed with one hundred twenty-four (124) calendar days of delay; likewise, regarding the communication of inaccurate information of the material fact of 5 March 2021 referring to the fact that it had informed the market that "(...) reported the transaction with Viveros Génesis in the Financial Statements for the month of June 2019, (...).", it should be indicated that there is no information whatsoever about the CONTRACTS in the Individual Interim Financial Statements as of 30 June 2019; consequently, it constitutes inaccurate information;

37. That, as regards the circumstances of the commission of the infraction, in addition it is of utmost necessity and relevance to indicate that in the Report of indications, REPORT No. 1411-2021-SMV/11.1 issued by the IGSC (File No. 2021005509), it is stated that: «The facts and acts that the administration of Cayaltí has been carrying out, which have led to the indications previously indicated, have taken place in a context in which the political rights of the shares of which its main shareholder, Intipuquio S.A., is the holder, are suspended, and a sell order by public offering over said shares also weighs», which constitutes an objective situation that must be highlighted within the framework of this PAS, as well as the following facts: (...)

38. That, in relation to the economic harm and its repercussion on the market, it should be indicated that although by their nature, both criteria cannot be reliably measured; it can be recognized that the non-compliances described have a negative repercussion on the market, since material facts have not been disseminated in a timely and complete manner, and on the other hand inaccurate information has been disseminated;

39. That, in relation to obtaining an illicit benefit, it should be indicated that there are not sufficient elements to indicate that the Issuer obtained an illegal benefit as a consequence of the commission of the infractions under evaluation;

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evaluation of the sanction criteria of the SANCTIONS REGULATION, in accordance with 344 of the TUO LMV and article 25 of the SANCTIONS REGULATION, in accordance with article 248, numeral 35 of the TUO LPAG6 ;

b.5 Regarding what was stated by CAYALTÍ that it is questionable that in the RESOLUTION the Obrainsa Group is considered as related to the ISSUER, since as of 18 December 2020 CAYALTÍ ceased to be part of the Obrainsa Group, so it is incorrect to state that at the time of the commission of the infringement, that link existed and that said circumstance influences the determination of the sanction (considering 37 of the RESOLUTION), it must be indicated that since the referred considering is part of the evaluation of the sanction criterion “Circumstances of commission of the infringement”, and also supports the decision of the SASCM in the RESOLUTION to increase from sixty (60) to one hundred (100) UIT the fine to be imposed on CAYALTÍ, this aspect will be evaluated when a pronouncement is issued on the corresponding sanction;

IV. CRITERIA FOR IMPOSING SANCTIONS

That, in order to establish the corresponding sanction, it is appropriate to evaluate this non-compliance based on the sanction criteria, in accordance with article 344 of the TUO LMV and article 25 of the SANCTIONS REGULATION, in accordance with numeral 3 of article 248 of the TUO LPAG;

That, it must be noted that the instructing body indicated that CAYALTÍ has a record of sanctions, established the circumstances of the commission of the infringement and the severity of the damage to the public interest and/or protected legal interest, and specified that CAYALTÍ does not have the status of recidivist, it is not observed that an economic harm or repercussion in the market has been generated, it has not obtained an illegal benefit and there was negligence in the commission of the infringement, for which it recommended to the SASCM to apply to CAYALTÍ a fine of sixty (60) UIT, also indicating that in the framework of this administrative sanctioning procedure CAYALTÍ has been charged with the commission of two (02) minor infractions, for having communicated in an untimely and incomplete manner facts of importance and one (01) very

40. That, in relation to the probability of detection of the infringement, in relation to the probability of detection it is high, because the non-compliance is corroborated by the SMV itself through control actions;

41.That, in relation to the existence or not of intentionality in the conduct of the offender, it should be indicated that the actions of the Issuer are considered negligent, by not having acted with due diligence in complying with its obligations;”

[5] Article 230, numeral 3 of the LPAG.

[6] “Article 248.- Principles of the administrative sanctioning power The sanctioning power of all entities is additionally governed by the following special principles: (…) 3. Reasonableness.- The 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 infringement, observing the following criteria that are indicated for the purposes of their graduation: a) The illicit benefit resulting from the commission of the infringement; b) The probability of detection of the infringement; 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 infringement within the term of one (1) year from when the resolution that sanctioned the first infringement became final. f) The circumstances of the commission of the infringement; and g) The existence or not of intentionality in the conduct of the offender.”

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serious for presenting inaccurate information in the fact of importance of 5 March 2021; therefore, the application of the real concurso referred to in the second paragraph of article 29 of the SANCTIONS REGULATION corresponds, which establishes that “(…), when several conducts qualify as more than one infringement, the sanction corresponding to the most serious infringement is imposed”, subsuming the sanctions corresponding to the minor infractions, that is, it is sanctioned for the very serious infringement typified in subsection 1.4, numeral 1 of Annex I of the SANCTIONS REGULATION. It should be noted that for very serious infractions the fine to be imposed is greater than fifty (50) UIT and up to seven hundred (700) UIT or exclusion from the value of the RPMV;

That, the SASCM in recitals 46 and 47 of the RESOLUTION states:

“46.That, regarding the determined fine, although it shares the analysis carried out by the IGCC in the Report regarding that the sanction to be imposed on the ISSUER must be a fine, it does not do so regarding the amount of the proposed fine7;

47. That, consequently, and in accordance with the circumstances of the facts already described, the evaluation contained in the Report and the analysis of the Sanction Criteria and of this PAS by this Deputy Superintendency corresponds to impose on the ISSUER a fine corresponding to the scale of a sanction provided for a very serious infraction, that is, a total fine amounting to one hundred (100) UIT8 which is equivalent to S/ 440,000.00 (Four Hundred Forty Thousand and 00/100 Soles) for the late communication of the material fact of 31 May 2019, the incomplete communication of the material fact of 18 June 2021 and the submission of inaccurate information in the material fact of 05 March 2021, based on the actual concurrence established in article 29 of the Sanctions Regulation;

Additionally, it must be indicated that in recital 37 of the RESOLUTION, referring to “the circumstances of the commission of the infraction”, the following is expressly mentioned:

“37. That, regarding the circumstances of the commission of the infraction, in addition it is of utmost necessity and relevance to indicate that in the Report of indications, REPORT No. 1411-2021-SMV/11.1 issued by the IGSC (File No. 2021005509), it is stated that: «The facts and acts that the administration of Cayaltí has been carrying out, which have led to the indications previously indicated, have taken place in a context in which the political rights of the shares of which its main shareholder, Intipuquio S.A., is the holder, are suspended, and there is also a sale order by public offering on said shares», which constitutes an objective situation that must be highlighted in the framework of this PAS, as well as the following facts:

On 12 September 20199 (File No. 2019037446), by means of a material fact, Grupo OBRAINSA reported that it has received Notification No. 6278-2019-JR-PE, which contains Resolution No. 2 of File No. 0046-

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

[8] Value of the UIT (2021): S/ 4 400 (Supreme Decree No. 392-2020-EF).

[9] File No. 2019037446 https://www.smv.gob.pe/ConsultasP8/documento.aspx?vidDoc={B0C8276D-0000-CE1E- 9A43-63EEF8181DAB}

2017-93-5001-JR-PE-01, in which the First National Permanent Preparatory Investigation Court Specialized in Crimes of Corruption of Officials, has formally incorporated OBRAINSA, as well as other companies, into the process formulated by the Third Office of the Special Team of the Supraprovincial Corporate Prosecutor's Office Specialized in Crimes of Corruption of Officials.

By general communication of 18 December 202010, due to changes of control that occurred in the Economic Group «Tejeda Moscoso» whose responsible was Grupo OBRAINSA, communicated on 30 September 2020, the Issuer ceased to be part of said group.

On 30 September 202011, Grupo OBRAINSA reported that on that date it had become aware of a change in the shareholding structure of its shareholder OB Construction S.A.C., the new controlling shareholder of said company being Mr. Federico Alejandro Tejeda Moscoso, with a participation of 93.96% in the share capital and, therefore, OB Construction S.A.C. and OBRAINSA became part of a new economic group called TEJEDA MOSCOSO.

By general communication of 30 September 202012, Grupo OBRAINSA updated the information of its economic group report, noting, among others, changes with respect to the last report submitted to the SMV13 : (i) name of the group, from "Tejeda" to "Tejeda Moscoso", due to the change of control, (ii) the withdrawal of eleven (11) companies that were part of its economic group, among them the Issuer, INTIPUQUIO and Lis Argentis Corporation S.A.C.; and, (iii) identification of Mr. Federico Alejandro Tejeda Moscoso as the natural person who ultimately exercises control of the economic group, unlike the previous report where twelve (12) natural persons are identified.

By letter of 12 March 2021, in response to Official Letter No. 820-2021- SMV/11.1, Grupo OBRAINSA stated that, as they indicated in their material facts of 6 August 2019 (date on which its shareholders informed it of the transfer), on 31 July 2019 its indirect shareholder Lis Argentis Corporation S.A.C. transferred all the common shares of its property, issued by its direct shareholder OB Construcción S.A.C. in favor of a group of natural persons. Said transfer, it indicated, had as effects the change of ownership of said shares, transferring these and all rights derived from them in favor of the buyers. Furthermore, it specifies that, according to what has been informed to them, no further effects have been generated from said transfer;”

That, as can be seen from the foregoing, the SASCM based its decision to increase from sixty (60) to one hundred (100) UIT the fine to be imposed on CAYALTÍ, on the elements indicated in recital 37 of the RESOLUTION, which are not directly related to the charges imputed in this proceeding, especially since, furthermore, as follows from the facts set forth, CAYALTÍ has not been part of the Obrainsa group since December 2020, and therefore the information linked to said group should not be related to CAYALTÍ,

[10] File No. 2020045420 11 File No. 2020034954.

[12] File No. 2020034991 13 File No. 2018045117

a situation that is also noted by CAYALTÍ in its responses to the Letter of Imputed Charges, and in the appeal filed. Therefore, it is considered that there is insufficient motivation for the increase of the fine imposed to one hundred (100) UIT;

That, furthermore, it must be taken into account that the decisions of the administrative authority must respect the guarantees of due process, as well as the legal system in force, a situation that does not occur in this part of the RESOLUTION, since by increasing the fine without valid justification it becomes arbitrary and disproportionate, as follows from ground 3 of judgment 04103-2009-PA/TC14, which states: “The right to motivation of administrative resolutions is of special relevance. It consists of the right to certainty, which entails the guarantee of every administered party that judgments be motivated, that is, that there be an explicit legal reasoning between the facts and the laws that apply them (…). It constitutes a requirement or condition imposed for the effective validity of the principle of legality, an unavoidable presupposition of every rule of law. To this must be added the close link that exists between administrative activity and the rights of persons. It is indisputable that the requirement of sufficient motivation of its acts is a guarantee of reasonableness and non-arbitrariness of the administrative decision (…)”

That, for the reasons set forth, having determined that the increase of the fine imposed as a sanction on CAYALTÍ has not been sufficiently motivated, and taking into account that from the evaluation of the sanction criteria in the case analyzed it is verified that CAYALTÍ does not have the status of repeat offender, no economic harm or serious repercussion on the market has been generated, it has not obtained an illegal benefit and there was no intent in the commission of the infraction, it is appropriate in this part to declare founded the appeal filed by CAYALTÍ and to graduate the fine corresponding to CAYALTÍ, imposing on it a fine of sixty (60) UIT in accordance with what was duly supported and motivated by the instructing body; and,

In accordance with the provisions of numeral 26 of article 12 of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF;

RESOLVES:

Article 1.- To declare partially founded the appeal filed by Agrícola Cayaltí S.A.A., against Deputy Superintendence Resolution SMV No. 052-2023-SMV/11.

Article 2.- To graduate the amount of the fine imposed by article 4 of Deputy Superintendence Resolution SMV No. 052-2023-SMV/11 to sixty (60) UIT in force at the date of the commission of the infractions indicated in articles 1, 2 and 3 of said resolution, equivalent to S/ 264,000.00 (Two Hundred Sixty-Four Thousand and 00/100 Soles).

Article 3.- To consider the administrative route exhausted.

Article 4.- To transcribe this resolution to Agrícola Cayaltí S.A.A.

Article 5.- To order the dissemination of this resolution on the Institutional Page of the Superintendence of the Securities Market on the Single Digital Platform of the Peruvian State (www.gob.pe/smv).

[14] Judgment rendered in file 04103-2009-PA/TC of the amparo proceeding followed by Mrs. María Carmela Serquen Campos.

PERU Ministry of Economy and Finance
SMV
Superintendence of the Market of 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"

Lorena Masías Quiroga
Superintendent of the Securities Market