Intendencia General de Supervisión de Entidades Resolution

No. 061-2024-SMV/10.2

Lima, 14 May 2024

The Intendente General de Supervisión de Entidades

WHEREAS:

File No. 2024008453 submitted by Diviso Fondos Sociedad Administradora de Fondos S.A., as well as Report No. 611-2024-SMV/10.2 dated 14 May 2024, prepared by the Intendencia General de Supervisión de Entidades of the Superintendencia del Mercado de Valores;

CONSIDERING:

That, by means of writings and documentation submitted up to 05 April 2024, Diviso Fondos Sociedad Administradora de Fondos S.A. requested the Superintendencia del Mercado de Valores to exclude the investment fund named “Diviso Inversión en Acreencias Fondo de Inversión” from the Registro Público del Mercado de Valores;

That, by means of Intendencia General de Supervisión de Entidades Resolution No. 037-2024-SMV/10.2 dated 12 April 2024, the Intendencia General de Supervisión de Entidades resolved to deny the request for exclusion of the investment fund named “Diviso Inversión en Acreencias Fondo de Inversión”;

That, in said resolution it was indicated that Diviso Fondos Sociedad Administradora de Fondos S.A. had not complied with submitting all the documentation required to proceed with the exclusion of the investment fund. This, considering that it had not submitted the sufficient and necessary powers of attorney of the representatives of the participants in the Asamblea General de Partícipes of 28 February 2024, in accordance with the provisions of articles 97 and 120, literal c), numeral 4, of the Reglamento de Fondos de Inversión y sus Sociedades Administradoras, approved by Resolución SMV No. 029-2014-SMV/01;

That, from the review of the information and documentation submitted, it was determined that said management company would not have had the sufficient and necessary powers of attorney of the representatives of the participants prior to the holding of the Asamblea General de Partícipes, but rather these would have been corrected subsequently in a relevant aspect such as the time of holding. Likewise, it was stated that, notwithstanding that the correct powers of attorney should have been available before the Asamblea de Partícipes, it was also not verified that the grantors had granted their authorization for the correction of the powers of attorney submitted;

That, by means of a writing dated 22 April 2024, Diviso Fondos Sociedad Administradora de Fondos S.A. filed a reconsideration appeal against Intendencia General de Supervisión de Entidades Resolution No. 037-2024-SMV/10.2;

That, in accordance with the provisions of article 219 of the Texto Único Ordenado de la Ley No. 27444, Ley del Procedimiento Administrativo General, approved by Decreto Supremo No. 004-2019-JUS, it is an indispensable requirement for the processing of the reconsideration appeal that it be based on new evidence;

That, Diviso Fondos Sociedad Administradora de Fondos S.A. submitted the following as new evidence:

a) Literal certificates of certain entries of the registry items of the participants of the investment fund “Diviso Inversión en Acreencias Fondo de Inversión”.

b) Certificate of validity of power of the representative of one of the participants, issued on 16 April 2024.

c) Letters sent by the participants of the investment fund, dated 27 February 2024, by means of which they authorize Diviso Fondos Sociedad Administradora de Fondos S.A. to make corrections to the powers of attorney letters sent on the occasion of the Asamblea General de Partícipes of 28 February 2024.

d) Letters sent by the participants of the investment fund, dated 17 April 2024, by means of which they ratify the resolutions adopted in the Asamblea General de Partícipes of 28 February 2024.

That, Diviso Fondos Sociedad Administradora de Fondos S.A. submitted the following arguments in order to support the reconsideration appeal filed:

i) It stated that the faculties provided in the powers of attorney validity of the representatives of the participants of the investment fund “Diviso Inversión en Acreencias Fondo de Inversión” were sufficient to allow their attendance and voting in the Asamblea General de Partícipes of 28 February 2024.

ii) Likewise, it stated that the Gerente General of each participant enjoys representation faculties, in accordance with the provisions of article 188, inciso 2 of Ley No. 26887, Ley General de Sociedades.

iii) Likewise, it indicated that the rules on convening, installation, quorum and decision-making of the juntas generales de accionistas should be applied in a supplementary manner to the asambleas generales de partícipes, in accordance with the provisions of the Primera Disposición Final of Decreto Legislativo No. 862, Ley de Fondos de Inversión y sus Sociedades Administradoras.

iv) It stated that the powers of attorney letters sent to the SMV on 05 April 2024, in response to Oficio No. 1347-2024-SMV/10.2, had been corrected with prior authorization of the participants of the investment fund “Diviso Inversión en Acreencias Fondo de Inversión”, as indicated in the letters detailed in literal d) of the preceding recital.

v) Additionally, it stated that on 17 April 2024, the participants of the investment fund sent it letters, by virtue of which they ratified the accreditation of their representatives in the Asamblea General de Partícipes of 28 February 2024, as well as the resolutions adopted in said assembly, invoking for such purpose article 162 of the Código Civil.

That, with respect to argument i), from the review of the new evidence indicated in literals a) and b) of the seventh recital, it has been verified that said documents do not contemplate representation faculties in asambleas generales de partícipes, but rather before other types of organs, authorities and entities;

That, regarding argument ii), it should be noted that article 188, numeral 2, of Law No. 26887, General Corporations Law, establishes that the General Manager, unless otherwise provided in the bylaws or by agreement of the general meeting or the board of directors, is empowered to represent the company, with the general and special powers provided in the Civil Procedure Code and the Arbitration Law; no mention being made of representation in assemblies of participants;

That, regarding argument iii), it should be noted that the General Corporations Law shall apply supplementarily when there is a regulatory gap in the regulation on investment funds. However, in the present proceeding, referring to the exclusion of investment funds and representation of participants in the general assemblies of participants, there are regulatory provisions that regulate such factual situations: articles 97 and 120 of the Regulation of Investment Funds and their Management Companies;

That, regarding argument iv), from the review of the new evidence indicated in literal c) of the seventh recital; and in application of the principle of presumption of presumption of veracity provided in article IV, numeral 1.7. of the Single Ordered Text of the General Administrative Procedure Law, it has been determined that the new powers of attorney sent by Diviso Fondos Sociedad Administradora de Fondos S.A. to the SMV on 05 April 2024, would have been corrected with prior authorization of the participants granted by letters of 27 February 2024 which would have been received by the management company on the same date, that is, prior to the holding of the General Assembly of Participants of 28 February 2024. Therefore, with this new evidence, Diviso Fondos Sociedad Administradora de Fondos S.A. has complied with proving that the representatives of the participants had the necessary powers of representation before the holding of the General Assembly of Participants;

That, regarding argument v), from the review of the new evidence indicated in literal d) of the seventh recital, it has been determined that, on 17 April 2024, the participants of the investment fund ratified the agreements adopted in the General Assembly of Participants of 28 February 2024. It should be noted that this ratification would be subsequent to the holding of the Assembly of Participants and to the issuance of the Resolution of the General Intendancy of Supervision of Entities No. 037-2024- SMV/10.2 of 12 April 2024;

That, considering the powers of attorney sent by Diviso Fondos Sociedad Administradora de Fondos S.A. to the SMV on 05 April 2024, would have been corrected with prior authorization of the participants granted by letters of 27 February 2024 which would have been received by the management company on the same date, would have complied with the missing requirement necessary for the exclusion of the investment fund named “Diviso Inversión en Acreencias Fondo de Inversión” from the Public Registry of the Securities Market;

That, in accordance with the provisions of article 219 of the Single Ordered Text of Law No. 27444, General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS; and article 38, numeral 30, of the Regulation of Organization and Functions of the Superintendency of the Securities Market, approved by Supreme Decree No. 216-2011-EF, as well as Report No. 611-2024-SMV/10.2 of 14 May 2024;

RESOLVES:

Article 1°.- Declare founded the reconsideration appeal filed by Diviso Fondos Sociedad Administradora de Fondos S.A. against the Resolution of the General Intendancy of Supervision of Entities No. 037-2024-SMV/10.2.

Article 2°.- Order the exclusion of the investment fund named “Diviso Inversión en Acreencias Fondo de Inversión”, as well as its participation quotas, from the Public Registry of the Securities Market.

Article 3°.- The corresponding modifications shall be made to the Participation Regulation of the investment fund referred to in the preceding article, in order to reflect the change to a private regime fund.

Article 4°.- Require Diviso Fondos Sociedad Administradora de Fondos S.A. to inform the participants of “Diviso Inversión en Acreencias Fondo de Inversión” of the provisions set forth in the preceding articles of this Resolution.

Article 5°.- The exclusion of the investment fund named “Diviso Inversión en Acreencias Fondo de Inversión” and its participation quotas from the Public Registry of the Securities Market does not exempt Diviso Fondos Sociedad Administradora de Fondos S.A. from the responsibilities derived from its administration.

Article 6°.- Order the dissemination of this resolution on the Securities Market Portal of the Superintendency of the Securities Market (www.gob.pe/smv).

Article 7°.- Transcribe this resolution to Diviso Fondos Sociedad Administradora de Fondos S.A. and to Diviso Bolsa Sociedad Agente de Bolsa S.A., in its capacity as custodian.

Register, communicate and publish.

Signed by: MANCO MANCO Armando FAU Reason:

Armando Manco Manco
General Intendant
General Intendancy of Supervision of Entities