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"

Superintendencia Adjunta SMV Resolution No. 022-2024-SMV/11

Lima, 27 March 2024

WHEREAS:

Administrative File No. 2024011575, the briefs submitted by Niagara Energy S.A.C. in the context of this file and Report No. 397-2024-SMV/11.1, issued by the General Superintendence of Conduct Supervision (hereinafter, IGSC) of the Deputy Superintendence of Market Conduct Supervision (hereinafter, SASCM);

CONSIDERING:

That, within the framework of the provisions of article 12 of the Regulation on Public Offerings for the Acquisition and Purchase of Securities by Exclusion, approved by CONASEV Resolution No. 009-2006-EF/94.10 and its amendments (hereinafter, the OPA Regulation), by means of a brief submitted on 20 March 2024, Niagara Energy S.A.C. notified the Superintendencia del Mercado de Valores – SMV and the Bolsa de Valores de Lima 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, in accordance with article 136, numeral 136.6, of the Single Ordered Text of the General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO de la LPAG), by means of Official Letter No. 1162-2024-SMV/11.1 of 21 March 2024, the IGSC made observations to Niagara Energy S.A.C. related to the admissibility requirements, granting it a period of two (2) business days for the respective correction;

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

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.firmaperu.gob.pe/web/validador.xhtml

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.firmaperu.gob.pe/web/validador.xhtml

That, taking into account that article 9, numeral 6, of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF, and article 10, penultimate paragraph, of the OPA Regulation, provide that it corresponds to the Board of Directors of the SMV to rule on requests for exception to compliance with requirements established in the regulations on the matter; the IGSC has channeled the brief submitted by Niagara Energy S.A.C. on 25 March 2024, as recorded in File No. 2024012425;

That, in accordance with the provisions of article 56 of the Single Ordered Text of the Securities Market Law, Legislative Decree No. 861, approved by Supreme Decree No. 020-2023-EF, when there is any circumstance that, in the opinion of the SMV, may affect the interest of investors, said entity may order the suspension of the public offering of a specific security, until said deficiency is remedied. In this line, article 17 of the OPA Regulation provides that the SMV, at its discretion, by means of a reasoned resolution may suspend or annul the validity of a public offering for acquisition at any time when it detects, among others, the existence of insufficient information or when practices or activities are carried out that affect market transparency or the interest of investors;

That, in the present case, with the purpose of privileging the principle of transparency, the orderly development of the market and the protection of investors, in accordance with the provisions of article 1 of the Single Concorded Text of the Organic Law of the SMV, approved by Legislative Decree No. 26126, this Deputy Superintendence considers that the Prior OPA formulated by Niagara Energy S.A.C. on the common shares of Enel Generación Perú S.A.A. must be suspended, since, until the requested exceptions are evaluated and the Board of Directors of the SMV rules on them, the offering does not comply with the information requirements demanded by the OPA Regulation in the terms of said regulatory norm;

That, the suspension of the public offering for acquisition shall remain in force until the Board of Directors of the SMV issues its ruling on the exception procedure of Niagara Energy S.A.C. During the suspension of the effectiveness of the Prior Takeover Bid, in accordance with the last paragraph of Article 17 of the Takeover Bid Regulation, and without prejudice to the fact that the exception request is related to admissibility, it is also appropriate to evaluate the feasibility of making requirements related to the truthfulness and sufficiency of the information that is the subject of the informative documents of the Prior Takeover Bid, as well as to verify that, within the framework of said offer, there are no practices or activities that could affect market transparency or the interest of investors, in application of the principles of ex officio impetus, celerity and material truth provided in Article IV, numerals 1.3, 1.9 and 1.11 of the Preliminary Title of the TUO of the LPAG, this with the purpose of avoiding resorting, again and subsequently to the pronouncement of the SMV Board of Directors, to measures or use of powers that, although legal and regulatory, are also burdensome and distressing for the administered;

In accordance with the provisions of Article 17 of the Takeover Bid Regulation and Article 43, numeral 26, of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF.

Electronic document digitally signed within the framework of Law No. 27269, Law of 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.firmaperu.gob.pe/web/validador.xhtml

RESOLVES:

Article 1.- Suspend the Prior Public Takeover Offer made 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), until the Superintendency of the Securities Market – SMV resolves the exception request submitted by the offeror regarding compliance with certain requirements provided in the Public Takeover Offer and Purchase of Securities by Exclusion Regulation, approved by CONASEV Resolution No. 009-2006-EF/94.10 and amendments, and it is determined that there are no assumptions that justify the suspension of said offer, as provided by Article 17 of the aforementioned regulation.

Article 2.- Communicate this Resolution to the Lima Stock Exchange S.A. for its immediate dissemination to the market, as well as publish it on the «Institutional Page of the SMV on the Single Digital Platform of the Peruvian State for Citizen Orientation (www.gob.pe/smv)».

Article 3.- 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 intermediation agent; and, to the Lima Stock Exchange S.A.

Register, communicate and disseminate.

Signed by: MENESES CAMARGO Carlos Enrique

Signed by: RIVERO ZEVALLOS Carlos

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