Superintendencia Adjunta SMV Resolution No. 027-2024-SMV/11

Lima, 12 April 2024

WHEREAS:

Administrative File No. 2024011575, the briefs submitted by Niagara Energy S.A.C. in the context of this file, and Report No. 462-2024-SMV/11.1, issued by the General Superintendency of Conduct Supervision (hereinafter, IGSC) of the Deputy Superintendency of Market Conduct Supervision (hereinafter, SASCM);

CONSIDERING:

That, within the framework of the provisions of Article 12 of the Regulation on Public Offerings for Acquisition and Purchase of Securities for Exclusion, approved by CONASEV Resolution No. 009-2006-EF/94.10 and its amendments (hereinafter, the OPA Regulation), by brief submitted on 20 March 2024, Niagara Energy S.A.C. notified the Superintendency of the Securities Market – SMV and the Lima Stock Exchange S.A. of its decision to initiate a Prior Public Offering for Acquisition – Prior OPA to acquire a minimum number of 2,725,876,861 common shares representing the share capital of Enel Generación Perú S.A.A. (approximately 86.95% of the total number of common shares) and up to a maximum number of 3,134,886,677 common shares of said issuer (100% of the common shares); attaching various information and/or documentation;

That, by Official Letter No. 1162-2024-SMV/11.1 dated 21 March 2024, the General Superintendency of Conduct Supervision – IGSC made observations to Niagara Energy S.A.C. related to admissibility requirements, granting it a period of two (2) business days for correction;

That, by brief submitted on 25 March 2024, Niagara Energy S.A.C. submitted information intended to correct the observations indicated in Official Letter No. 1162-2024-SMV/11.1; stating that if the IGSC considers that in order to maintain the continuity of the Prior OPA it is necessary to approve an exception regarding the requirements related to the consolidated financial information of the companies that make up the economic group, it be elevated to the SMV Board of Directors for its corresponding evaluation, so that said body may rule on it; therefore the IGSC proceeded to channel the brief submitted by Niagara Energy S.A.C. so that the SMV Board of Directors may issue the respective pronouncement;

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That, without prejudice to the aforementioned channeling, by briefs submitted on 27 March 2024, Niagara Energy S.A.C. requested that exceptions be granted to requirements set forth in the OPA Regulation, within the framework of the Prior OPA;

That, by Superintendencia Adjunta SMV Resolution No. 022-2024-SMV/11 dated 27 March 2024 (hereinafter, Suspension Resolution), the suspension of the Prior OPA formulated by Niagara Energy S.A.C. was ordered, until the SMV rules on the exception request submitted by the offeror regarding compliance with certain requirements set forth in the OPA Regulation and it is determined that there are no grounds that justify the suspension of said offering, as provided by Article 17 of the aforementioned regulation, further indicating in said resolution that it was also appropriate to evaluate the feasibility of formulating requirements related to the veracity and sufficiency of the information subject to the informative documents of the Prior OPA, as well as to verify that, within the framework of said offering, no practices or activities that could affect market transparency or the interest of investors are present;

That, by Official Letter No. 1257-2024-SMV/11.1 dated 27 March 2024, the IGSC made various observations to Niagara Energy S.A.C. related to the documentation and information submitted within the framework of the Prior OPA file, under the provisions of Articles 16 and 17 of the OPA Regulation, whose response was submitted by Niagara Energy S.A.C. on 02 April 2024;

That, in session of 05 April 2024, the SMV Board of Directors approved the granting of the three (3) exceptions requested by Niagara Energy S.A.C., referring to the structure of its economic group and consolidated financial information, two (2) of them conditioned upon the submission of certain information;

That, by Official Letter No. 1390-2024-SMV/11.1 dated 08 April 2024, for the purposes of resuming the Prior OPA, the IGSC required Niagara Energy S.A.C. to submit information necessary for the recipients of the offering;

That, by briefs submitted on 10 and 11 April 2024, Niagara Energy S.A.C. responded to the requirements made by Official Letter No. 1390-2024-SMV/11.1, submitting information to be incorporated into the informative documents of the offering;

That, from the information in the file of reference, the following is observed: (i) the Suspension Resolution ordered compliance with two (02) conditions for the lifting of the suspension of the Prior Tender Offer over the common shares of Enel Generación Perú S.A.A.; (ii) with respect to the first of the conditions, the Board of Directors of the SMV granted Niagara Energy S.A.C. the three (03) exceptions requested, conditioning two (02) of them to the submission of certain information; (iii) in relation to the second of the conditions, the IGSC required Niagara Energy S.A.C. to provide information to be incorporated into the offer's informative documents, and; (iv) by means of writings dated 2, 10 and 11 April 2024, Niagara Energy S.A.C. has responded to the requirements made by the IGSC through Official Letters Nos. 1257 and 1390-2024-SMV/11.1, relating to the two (02) aforementioned conditions;

That, taking into account the submission of the aforementioned information by Niagara Energy S.A.C. by means of writings dated 2, 10 and 11 April 2024, it is considered that the suspension of the Prior Tender Offer formulated by Niagara Energy S.A.C. over the common shares of Enel Generación Perú S.A.A. must be lifted and, therefore, said offer must be resumed, leaving without effect the provisions set forth by the Suspension Resolution;

That, notwithstanding the foregoing, it must be borne in mind that in compliance with the obligations of information disclosure within the framework of a public offering of securities, it is the responsibility of the offeror that such information be truthful, sufficient and timely, in accordance with the provisions of Article 10 of the Single Ordered Text of the Securities Market Law, Legislative Decree No. 861, approved by Supreme Decree No. 020-2023-EF, and that, likewise, it is also responsible, jointly with its principal administrative officer, for the truthfulness, clarity, sufficiency and timeliness of the entire content of the Informative Prospectus of said public offering, in accordance with the last paragraph of Annex II of the Tender Offer Regulations; and,

In accordance with the provisions of Article 43, numeral 26, of the Regulations on Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF.

RESOLVES:

Article 1.- To leave without effect the suspension of the Prior Public Tender Offer formulated by Niagara Energy S.A.C. for the acquisition of a minimum number of 2,725,876,861 common shares representing the share capital of Enel Generación Perú S.A.A. (approximately 86.95% of the total number of common shares) and up to a maximum number of 3,134,886,677 common shares of said issuer (100% of the common shares), ordered by Deputy Superintendency Resolution SMV No. 022-2024-SMV/11 of 27 March 2024, for the reasons set forth in the recitals of this resolution.

Article 2.- Niagara Energy S.A.C. is responsible for ensuring that the information disclosed within the framework of the aforementioned public tender offer is truthful, sufficient and timely, in accordance with the provisions of Article 10 of the Single Ordered Text of the Securities Market Law, Legislative Decree No. 861, approved by Supreme Decree No. 020-2023-EF, and is also responsible, jointly with its principal administrative officer, for the truthfulness, clarity, sufficiency and timeliness of the entire content of the Informative Prospectus of said public offering, in accordance with the last paragraph of Annex II of the Regulations on Public Tender Offer and Purchase of Securities by Exclusion, approved by CONASEV Resolution No. 009-2006-EF/94.10 and its amendments.

Article 3.- To communicate this resolution to the Lima Stock Exchange S.A. for its immediate dissemination to the market, as well as to publish it on the «SMV Institutional Page on the Single Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)».

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Article 4.- To transcribe this Resolution to Niagara Energy S.A.C., in its capacity as offeror; to Enel Generación Perú S.A.A., in its capacity as issuer; to BBVA Bolsa Sociedad Agente de Bolsa S.A., in its capacity as brokerage agent; and to the Lima Stock Exchange S.A.

Register, communicate and disseminate.

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

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