UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO/A
(Amendment No. 2)
Tender Offer Statement Under Section 14(d)(1) or
13(e)(1)
of the Securities Exchange Act of 1934
Aenza S.A.A.
(Name of Subject Company (issuer))
IG4 Capital Infrastructure Investments LP
IG4 Capital Private Equity Investments II-A LP
IG4 Capital Private Equity Investments II-B LP
IG4 Capital Private Equity Investments II-C LP
(Name of Filing Persons (Offerors))
Common Shares, par value S/ 1.00 per share
(Title of Class of Securities)
PEP736581005*
(CUSIP Number of Class of Securities)
*The Common Shares are listed on the Lima Stock Exchange and the
CINS Identifier is PEP736581005.
American Depositary Shares, each representing five Common
Shares
(Title of Class of Securities)
00776D 103**
(CUSIP Number of American Depositary Shares)
**CUSIP number of the
American Depositary Shares (“ADSs”) listed on the New
York Stock Exchange.
Andrew Cunningham
Director
IG4 Capital Infrastructure GP Limited
50 La Colomberie, St. Helier, Jersey, JE2 4QB
+44.1534.844234
(Name, Address and Telephone Number of Person
Authorized
to Receive Notices and Communications on Behalf of Filing
Persons)
With a copy to:
George Karafotias
Derrick Lott
Shearman & Sterling LLP
599 Lexington Avenue
New York, NY 10022-6069
+1.212.848.4000
Calculation of Filing Fee
|
Transaction Valuation(1) |
Amount of Filing Fee(2) |
|
$45,006,671 |
$4,910.23 |
|
(1) |
Estimated for purposes of calculating the amount of the filing
fee only, in accordance with Rule 0-11(d) under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”).
Calculated as follows: (a) the difference of (i) 871,917,855 common
shares par value S/ 1.00 per share (collectively, the “Common
Shares”), of Aenza S.A.A. (formerly Graña y Montero S.A.A.), a
publicly-held corporation (sociedad anónima abierta)
organized under the laws of Peru (the “Company”), including
Common Shares represented by American Depositary Shares (each of
which represents five (5) Common Shares) (collectively, the
“ADSs”) outstanding as of March 31, 2021 minus (ii)
204,830,579 Common Shares owned by GH Holding Group Corp., Bamas
International Investment Corp., Bethel Enterprises Inc., Hernando
Alejandro Constancio Graña Acuña, Mario Germán Óscar Alvarado
Pflucker, Francisco Javier Dulanto Swayne, Hugo Rangel Zavala,
Alfonso Galvez Rubio, Ruth Alvarado Pflucker, Elisa Alvarado
Pflucker, Gonzalo Alvarado Pflucker and Claudia Gutierrez Benavides
(collectively, the “Sellers”), being 667,087,276 Common
Shares, including Common Shares represented by ADSs, which can be
tendered in the tender offer launched in the United States (the
“U.S. Offer”) simultaneously with a tender offer launched in
Peru (the “Peru Offer” and together with the U.S. Offer, the
“Offers”); (b) the sum of (i) 667,087,276 Common Shares,
including Common Shares represented by ADSs, and (ii) 93,962,525
Common Shares to be tendered by the Sellers in the Peru Offer
pursuant to a tender offer support agreement between IG4 Capital
Infrastructure Investments LP (“Purchaser”) and the Sellers,
dated as of August 24, 2020, as amended on June 3, 2021, being
761,049,801 Common Shares, including Common Shares represented by
ADSs, that can be tendered across the Offers; (c) the quotient of
(i) 667,087,276 divided by (ii) 761,049,801, yielding a
proration factor of 0.87654; (d) the product of (i) 107,198,601,
being the Common Shares, including Common Shares represented by
ADSs, sought in the Offers and (ii) 0.87654, being 93,963,395 (the
maximum number of Common Shares, including Common Shares
represented by ADSs, which can be acquired by Purchaser in the U.S.
Offer (the “Subject Securities”); and (e) the product of (i)
the Subject Securities and (ii) the offer price of S/ 1.88 per
Common Share, being S/ 176,651,182, as converted into U.S. dollars
based on the average Peruvian Sol/U.S. dollar interbank exchange
rate (tipo de cambio interbancario promedio) for
transactions carried out between 9:00 a.m. and 1:30 p.m., Lima
time, as reported by the Central Reserve Bank of Peru on its
official website at https://www.bcrp.gob.pe/en at 2:00 p.m., Lima
time, on June 7, 2021, being U.S. $45,006,671 (the
“Transaction Valuation”). |
|
(2) |
The filing fee was calculated in accordance with Rule 0-11 of
the Exchange Act by multiplying the Transaction Valuation by
.0001091. |
|
x |
Check the box if any part of the fee is offset as provided by
Rule 0-11(a)(2) and identify the filing with which the offsetting
fee was previously paid. Identify the previous filing by
registration statement number, or the Form or Schedule and date of
its filing. |
| |
Amount Previously Paid:
$4,910.23 |
Filing Party: IG4 Capital
Infrastructure Investments LP |
| |
Form or Registration No.: Schedule
TO |
Date Filed: June 16, 2021 |
|
o |
Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer. |
Check
the appropriate boxes below to designate any transactions to which
the statement relates:
|
x |
third-party tender offer subject to Rule 14d-1. |
|
o |
issuer tender offer subject to Rule 13e-4. |
|
o |
going-private transaction subject to Rule 13e-3. |
|
o |
amendment to Schedule 13D under Rule 13d-2. |
Check the following box if the filing
is a final amendment reporting the results of the tender
offer: o
If
applicable, check the appropriate box(es) below to designate the
appropriate rule provision(s) relied upon:
|
o |
Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
|
x |
Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
|
________________________________________________ |
|
This Amendment No. 2 filed with the Securities and Exchange
Commission (the “SEC”) on July 7, 2021 (this
“Amendment”), amends and supplements the Tender Offer
Statement on Schedule TO filed with the SEC on June 16, 2021, as
amended on June 22, 2021 (together with any subsequent amendments
and supplements thereto, the “Schedule TO”) by IG4 Capital
Infrastructure Investments LP, a limited partnership organized
under the laws of Scotland (“Purchaser”), which is jointly
owned by IG4 Capital Private Equity Investments II-A LP, IG4
Capital Private Equity Investments II-B LP, IG4 Capital Private
Equity Investments II-C LP and IG4 Capital Infrastructure
Co-Investments A LP, each a limited partnership organized under the
laws of England and Wales (collectively, “IG4”). This
Schedule TO relates to the offer by Purchaser to purchase
107,198,601 common shares, par value S/ 1.00 per share (each, a
“Common Share,” and collectively, the “Common
Shares”), of Aenza S.A.A. (formerly Graña y Montero S.A.A.), a
publicly-held corporation (sociedad anónima abierta)
organized under the laws of Peru (the “Company”), including
Common Shares represented by American Depositary Shares (each of
which represents five (5) Common Shares) (each, an “ADS,”
and collectively, the “ADSs”), which represent in the
aggregate approximately 12.29% of the outstanding Common Shares,
including Common Shares represented by ADSs, through concurrent
tender offers in Peru and in the United States, for S/ 1.88 per
Common Share and S/ 9.40 per ADS, in each case, payable to the
seller in cash, without interest, less any withholding taxes that
may be applicable, upon the terms and subject to the conditions set
forth in the Offer to Purchase, dated June 16, 2021 (together with
any amendments or supplements thereto, the “Offer to
Purchase”) and in the accompanying American Depositary Share
Letter of Transmittal (together with any amendments or supplements
thereto, the “ADS Letter of Transmittal” and, together with
the Offer to Purchase and other related materials, as each may be
amended or supplemented from time to time, the “U.S.
Offer”).
This Amendment is being filed on behalf of Purchaser and IG4. All
capitalized terms used in this Amendment and not otherwise defined
have the respective meanings ascribed to them in the Schedule TO.
Except as otherwise set forth in this Amendment, the information
set forth in the Schedule TO remains unchanged and is incorporated
herein by reference to the extent relevant to the items in this
Amendment. This Amendment should be read together with the Schedule
TO.
This Amendment is being filed for the purpose of disclosing the
following matters:
(a) On June 25, 2021,
Purchaser became aware that the 10,077,855 Common Shares owned by
Mr. Alvarado Pflucker, representing approximately 1.16% of the
outstanding Common Shares, including Common Shares represented by
ADSs (the “MA Shares”), were subject to a precautionary
measure of seizure (embargo e inhibición) in the form of
registration on the Common Shares owned by Mr. Alvarado Pflucker by
the Peruvian Public Prosecutor (Fiscalía) and the Peruvian
Attorney General (Procuraduria) (the “MA Embargo”),
thereby preventing Mr. Alvarado Pflucker from being able to tender
the MA Shares into the Peru Offer.
As a consequence of the foregoing, on July 2, 2021:
|
(i) |
Purchaser and Mr. Alvarado Pflucker entered into a
Supplementary Agreement (as more fully described below), pursuant
to which Mr. Alvarado Pflucker agreed, among other things, that the
MA Shares will be transferred to the Trust, subject to the release
of the MA Shares from the MA Embargo and the registration of such
release in Cavali; |
|
(ii) |
Purchaser and Mr. Alvarado Pflucker entered into a Syndication
Agreement (as more fully described below), pursuant to which Mr.
Alvarado Pflucker agreed, among other things, to vote the MA Shares
during the term of the Syndication Agreement at each general
meeting of the shareholders of the Company in the same manner as
Purchaser; |
|
(iii) |
Purchaser and the Grantors entered into an amendment agreement
amending the Trust Agreement (as more fully described below),
pursuant to which Purchaser and the Grantors agreed, among other
things, that the 9,000,000 Common Shares transferred to the Trust
by Ms. Benavides (the spouse of Mr. Alvarado Pflucker) in
accordance with the Trust Agreement, will be returned to Ms.
Benavides, thereby terminating the Trust Agreement in relation to
Mr. Benavides; and |
|
(iv) |
Purchaser and the Sellers entered into a second amendment
agreement amending the Tender Offer Support Agreement (as more
fully described below), pursuant to which, among other things, Ms.
Benavides agreed to tender her 9,000,000 Common Shares,
representing approximately 1.03% of the outstanding Common Shares,
including Common Shares represented by ADSs, into the Peru
Offer. |
As a further consequence of the foregoing, the number of Common
Shares that the Sellers have agreed to tender into the Peru Offer
pursuant to the terms of the Tender Offer Support Agreement (as
amended by the second amendment agreement) is 92,884,670 Common
Shares, representing approximately 10.65% of the outstanding Common
Shares, including Common Shares represented by ADSs.
The number of Common Shares, including Common Shares represented by
ADSs, that Purchaser is seeking to purchase pursuant to the Offers
remains unchanged.
(b) On July 2, 2021,
Purchaser and the Sellers agreed to waive the condition to the
effectiveness of the voting arrangements made by Purchaser and the
Sellers pursuant to the GH Supplementary Agreement, the HG
Supplementary Agreement and the Trust Agreement and, as a
consequence of the foregoing:
|
(i) |
Purchaser and GH Holding Group entered into an amendment
agreement amending the GH Supplementary Agreement and an amendment
agreement amending the GH Syndication Agreement (each as more fully
described below); |
|
(ii) |
Purchaser and Mr. Graña Acuña entered into an amendment
agreement amending the HG Supplementary Agreement and an amendment
agreement amending the HG Syndication Agreement (each as more fully
described below); and |
|
(iii) |
Purchaser and the Grantors entered into an amendment agreement
amending the Trust Agreement (as more fully described below). |
As a result of the waiver of the condition to the effectiveness of
the voting arrangements made by Purchaser and the Sellers pursuant
to the Tender Offer Support Agreement, Purchaser, IG4 and their
controlling persons identified in Schedule 1 to the Offer to
Purchase may be deemed to beneficially own 111,945,909 Common
Shares in the aggregate, representing approximately 12.84% of the
outstanding Common Shares, including Common Shares represented by
ADSs, pursuant to Rule 13d-3 under the Securities Exchange Act of
1934, as amended.
(c) In connection with the
arrangements made by Purchaser with each of Mr. Alvarado Pflucker,
GH Holding Group and Mr. Graña Acuña relating to the transfer to
the Trust of Common Shares that are subject to a precautionary
measure of seizure (embargo e inhibición) or confiscation
(incautación) by the Peruvian Public Prosecutor
(Fiscalía) and the Peruvian Attorney General
(Procuraduria) following the release of such Common Shares
from seizure and the registration of such release in Cavali,
Purchaser has agreed to make such arrangements available to all
shareholders of the Company on the same terms and conditions and in
accordance with the applicable laws of Peru and the United
States.
The items of the Schedule TO set forth below are hereby amended and
supplemented as follows:
|
Item 1. |
Summary Term Sheet. |
Item 1 of the Schedule TO is hereby amended and supplemented by
amending and supplementing the information set forth in the Summary
Term Sheet of the Offer to Purchase as follows:
The
following paragraph replaces, in the Summary Term Sheet, the
definition of “Tender Offer Support Agreement” on page 3:
On August 24, 2020, Purchaser entered into a tender offer support
agreement with GH Holding Group Corp. (“GH Holding Group”),
Bamas International Investment Corp., Bethel Enterprises Inc.,
Hernando Alejandro Constancio Graña Acuña (“Mr. Graña
Acuña”), Mario Germán Óscar Alvarado Pflucker, Francisco Javier
Dulanto Swayne, Hugo Rangel Zavala, Alfonso Galvez Rubio, Ruth
Alvarado Pflucker, Elisa Alvarado Pflucker, Gonzalo Alvarado
Pflucker and Claudia Gutierrez Benavides (collectively, the
“Sellers”), as amended by Purchaser and the Sellers on June
3, 2021, and as further amended on July 2, 2021 (together, the
“Tender Offer Support Agreement”), pursuant to which the
Sellers have agreed to, among other things, tender into the Peru
Offer in the aggregate 92,884,670 Common Shares, representing
approximately 10.65% of the outstanding Common Shares, including
Common Shares represented by ADSs, on the terms and subject to the
conditions set forth in the Tender Offer Support Agreement (see
“The U.S. Offer—Tender Offer Support Agreement and Related
Agreements”).
The
following paragraph replaces, in the Summary Term Sheet, the third
paragraph of the answer to the question “If the number of Common
Shares and ADSs tendered exceeds the maximum number of Common
Shares and ADSs that Purchaser is offering to purchase, what
happens?” on page 6:
On August 24, 2020, Purchaser entered into the Tender Offer Support
Agreement with the Sellers (as amended on June 3, 2021 and as
further amended on July 2, 2021), pursuant to which the Sellers
have agreed to, among other things, tender into the Peru Offer in
the aggregate 92,884,670 Common Shares, representing approximately
10.65% of the outstanding Common Shares, including Common Shares
represented by ADSs, on the terms and subject to the conditions set
forth in the Tender Offer Support Agreement (see “The U.S.
Offer—Tender Offer Support Agreement and Related Agreements”).
The
following paragraph replaces, in the Summary Term Sheet, the third
paragraph of the answer to the question “If I decide not to tender,
how will the U.S. Offer affect my Common Shares or ADSs?” on page
8:
As a result of the Offers and the arrangements that we have made
pursuant to the Tender Offer Support Agreement, immediately
following consummation of the Offers, we expect to either own or
have the ability to direct the voting of 219,144,510 Common Shares
representing, in the aggregate, approximately 25.13% of the
outstanding Common Shares, including Common Shares represented by
ADSs (see “The U.S. Offer—Tender Offer Support Agreement and
Related Agreements”).
The
following paragraphs replace, in the Summary Term Sheet, the answer
to the question “Does the Tender Offer Support Agreement govern the
Offers in any way?” on page 14 in its entirety:
Yes. Subject to the terms and conditions of the Tender Offer
Support Agreement (as amended), Purchaser has agreed, among other
things:
|
· |
to make an offer to all holders of Common Shares to acquire not
less than 92,884,670 Common Shares and no more than 107,198,601
Common Shares, representing between approximately 10.65% and 12.29%
of the outstanding Common Shares, including Common Shares
represented by ADSs; |
|
· |
to acquire from the Sellers pursuant to the Peru Offer and
subject to proration, if applicable, 92,884,670 Common Shares in
the aggregate, representing approximately 10.65% of the outstanding
Common Shares, including Common Shares represented by ADSs; |
|
· |
following completion of the Offers, to acquire from GH Holding
Group directly, for the Common Share Offer Price per Common Share,
2,585,597 Common Shares, representing approximately 0.30% of the
outstanding Common Shares, including Common Shares represented by
ADSs, subject to the release of such Common Shares from seizure
(embargo e inhibición) by the Peruvian Public Prosecutor
(Fiscalía) and the Peruvian Attorney General
(Procuraduria) and the registration of such release in
Cavali, and to make the arrangements agreed upon with GH Holding
Group with respect to such shares available to all shareholders of
the Company on the same terms and conditions and in accordance with
the applicable laws of Peru and the United States; |
|
· |
following completion of the Offers, to acquire from Mr. Graña
Acuña, for the Common Share Offer Price, 7,765,604 Common Shares,
representing approximately 0.89% of the outstanding Common Shares,
including Common Shares represented by ADSs, subject to the release
of such Common Shares from seizure (embargo e inhibición)
and confiscation (incautación) by the Peruvian Public
Prosecutor (Fiscalía) and the Peruvian Attorney General
(Procuraduria) and the registration of such release in
Cavali, and to make the arrangements agreed upon with Mr. Graña
Acuña with respect to such shares available to all shareholders of
the Company on the same terms and conditions and in accordance with
the applicable laws of Peru and the United States; and |
|
· |
to enter into arrangements with certain of such Sellers in
respect of the voting of 111,945,909 Common Shares in the
aggregate, representing approximately 12.84% of the outstanding
Common Shares, including Common Shares represented by ADSs. |
See “The U.S. Offer—Tender Offer Support Agreement and Related
Agreements.”
|
Item 4. |
Terms of the Transaction |
Item 4 of the Schedule TO is hereby amended and supplemented by
amending and supplementing the information set forth in Section 1
(“Terms of the U.S. Offer”) of the Offer to Purchase as
follows:
The following paragraph replaces, in Section 1, the first
paragraph under the caption “Transaction Background” on page
20:
Purchaser is interested in acquiring a “participación
significativa” (as defined in Reglamento de Oferta Pública
de Adquisicion y de Compra de Valores por Exclusión approved by
CONASEV Resolution No. 009-2006-EF to mean a direct or indirect
ownership, or the ability to direct the voting, of 25% or more of
the shares of a Peruvian company listed on the LSE) of no less than
219,144,510 Common Shares, representing approximately 25.13% of the
outstanding Common Shares, including Common Shares represented by
ADSs.
The following paragraph replaces, in Section 1, the second
paragraph under the caption “Transaction Background” on page
20:
On August 24, 2020, Purchaser entered into the Tender Offer Support
Agreement with the Sellers (as amended on June 3, 2021 and as
further amended on July 2, 2021), pursuant to which, among other
things:
|
(i) |
the Sellers have agreed to tender 92,884,670 Common Shares in
the aggregate, representing approximately 10.65% of the outstanding
Common Shares, including Common Shares represented by ADSs, into
the Peru Offer; |
|
(ii) |
(A) GH Holding Group has agreed to sell 2,585,597 Common
Shares, representing approximately 0.30% of the outstanding Common
Shares, including Common Shares represented by ADSs, following
completion of the Offers directly to Purchaser for the Common Share
Offer Price per Common Share subject to the release of such Common
Shares from seizure (embargo e inhibición) by the Peruvian
Public Prosecutor (Fiscalía) and the Peruvian Attorney
General (Procuraduria) (the “GH Embargo”) and the
registration of such release in Cavali S.A. ICLV (“Cavali”),
and (B) Purchaser has agreed to make the arrangements agreed upon
with GH Holding Group with respect to such shares available to all
shareholders of the Company on the same terms and conditions and in
accordance with the applicable laws of Peru and the United
States; |
|
(iii) |
(A) Mr. Graña Acuña has agreed to sell 7,765,604 Common Shares,
representing approximately 0.89% of the outstanding Common Shares,
including Common Shares represented by ADSs, following completion
of the Offers directly to Purchaser for the Common Share Offer
Price per Common Share, subject to the release of such Common
Shares from seizure (embargo e inhibición) and confiscation
(incautación) by the Peruvian Public Prosecutor
(Fiscalía) and the Peruvian Attorney General
(Procuraduria) (the “HG Embargo”) and the
registration of such release in Cavali, and (B) Purchaser has
agreed to make the arrangements agreed upon with Mr. Graña Acuña
with respect to such shares available to all shareholders of the
Company on the same terms and conditions and in accordance with the
applicable laws of Peru and the United States; and |
|
(iv) |
certain Sellers have agreed to enter into arrangements with
Purchaser in respect of the voting of 111,945,909 Common Shares in
the aggregate, representing approximately 12.84% of the outstanding
Common Shares, including Common Shares represented by ADSs, |
in
each case, on the terms and subject to the conditions set forth in
the Tender Offer Support Agreement (see “The U.S. Offer—Tender
Offer Support Agreement and Related Agreements”).
The following paragraph replaces, in Section 1, the third
paragraph under the caption “Transaction Background” on page
20:
As a result of the Offers and the arrangements that we have made
pursuant to the Tender Offer Support Agreement, immediately
following consummation of the Offers, Purchaser expects to either
own or have the ability to direct the voting of 219,144,510 Common
Shares representing, in the aggregate, approximately 25.13% of the
outstanding Common Shares, including Common Shares represented by
ADSs.
|
Item 5. |
Past Contacts, Transactions, Negotiations and Agreements. |
Item 5 of the Schedule TO is hereby amended and supplemented by
amending and supplementing the information set forth in Section 10
(“Background of the Offers; Past Contacts or Negotiations with the
Company”) of the Offer to Purchase as follows:
The
following paragraph replaces, in Section 10, the last paragraph on
page 44:
On June 3, 2021, Purchaser and the Sellers entered into an
amendment agreement amending the Tender Offer Support Agreement
(the “First Amendment Agreement”), pursuant to which
Purchaser and the Sellers agreed, among other things, that their
termination rights under Section 7.1(b) of the Tender Offer Support
Agreement, which allows either Purchaser or the Sellers to
terminate the Tender Offer Support Agreement if the commencement
date of the Offers has not occurred within twelve (12) business
days of the later of (a) the date of the release of the Clear GH
Shares (as defined below) from the GH Embargo and the registration
of such release in Cavali, or (b) the date of receipt of the Jersey
Approval (as defined below) (the “Outside Date”), shall be
waived and that the Outside Date shall be fifteen (15) business
days of the later to occur of the abovementioned conditions.
The
following paragraphs are added at the end of Section 10:
By means of Official Letter No. 2571-2021-SMV/11.1, dated June 24,
2021, through which the SMV forwarded Official Letter No.
428-2020-JUS/PPAH-ODEBRECHT issued by Ms. Silvana A. Carrión
Ordinola, Ad Hoc Public Prosecutor for the Case of Odebrecht and
Others to the Peru Tender Agent, on June 25, 2021, Purchaser became
aware that the 10,077,855 Common Shares owned by Mr. Alvarado
Pflucker, representing approximately 1.16% of the outstanding
Common Shares, including Common Shares represented by ADSs (the
“MA Shares”), were subject to a precautionary measure of
seizure (embargo e inhibición) in the form of registration
on the Common Shares owned by Mr. Alvarado Pflucker (the “MA
Embargo”) by the Peruvian Public Prosecutor (Fiscalía)
and the Peruvian Attorney General (Procuraduria), thereby
preventing Mr. Alvarado Pflucker from being able to tender the MA
Shares into the Peru Offer.
On July 2, 2021, Purchaser and the Sellers entered into a second
amendment agreement amending the Tender Offer Support Agreement
(the “Second Amendment Agreement” and together with the
First Amendment Agreement, the “Amendment Agreements”),
pursuant to which Purchaser and the Sellers agreed, among other
things, that:
|
(i) |
the Sellers will tender 92,884,670 Common Shares in the
aggregate, representing approximately 10.65% of the outstanding
Common Shares, including Common Shares represented by ADSs, into
the Peru Offer; and |
|
(ii) |
Purchaser and Mr. Alvarado Pflucker will enter into: (x) a
supplementary agreement in respect of the MA Shares (the “MA
Supplementary Agreement”) and (y) a syndication agreement (the
“MA Syndication Agreement”), pursuant to which Mr. Alvarado
Pflucker will agree, among other things, effective from the date of
the MA Syndication Agreement, to vote the MA Shares at each general
meeting of the shareholders of the Company in the same manner as
Purchaser. |
As a consequence of the foregoing, on July 2, 2021:
|
(i) |
Purchaser and Mr. Alvarado Pflucker entered into: |
|
(A) |
the MA Supplementary Agreement, pursuant to which (x) Mr.
Alvarado Pflucker agreed, among other things, that the MA Shares
will be transferred to the Trust (as defined below), subject to the
release of the MA Shares from the MA Embargo and the registration
of such release in Cavali, and (y) Purchaser agreed to make the
arrangements agreed upon with Mr. Alvarado Pflucker with respect to
such shares available to all shareholders of the Company on the
same terms and conditions and in accordance with the applicable
laws of Peru and the United States; and |
|
(B) |
the MA Syndication Agreement; and |
|
(ii) |
Purchaser and the Grantors (as defined below) entered into an
amendment agreement amending the Trust Agreement (as defined below)
(the “Trust Amendment Agreement”), pursuant to which
Purchaser and the Grantors agreed, among other things, that: |
|
(A) |
the 9,000,000 Common Shares transferred to the Trust by Ms.
Benavides, Mr. Alvarado Pflucker’s spouse, in accordance with the
Trust Agreement, will be returned to Ms. Benavides, thereby
terminating the Trust Agreement in relation to Mr. Benavides;
and |
|
(B) |
the political rights associated with the Trust Shares (as
defined below) will become exercisable by Purchaser on the date of
the Trust Amendment Agreement. |
On July 2, 2021:
(i) Purchaser and GH
Holding Group entered into:
|
(A) |
an amendment agreement amending the supplementary agreement
between Purchaser and GH Holding Group, dated as of June 3, 2021
(the “GH Supplementary Agreement”), in respect of
117,527,103 Common Shares, representing approximately 13.48% of the
outstanding Common Shares, including Common Shares represented by
ADSs (the “Amended GH Supplementary Agreement”), pursuant to
which Purchaser and GH Holding Group agreed, among other things,
that (x) GH Holding Group will sell 2,585,597 Common Shares,
representing approximately 0.30% of the outstanding Common Shares,
including Common Shares represented by ADSs, following completion
of the Offers directly to Purchaser for the Common Share Offer
Price per Common Share subject to the release of such Common Shares
from the GH Embargo and the registration of such release in Cavali,
and (y) Purchaser will make the arrangements agreed upon with GH
Holding Group with respect to such shares available to all
shareholders of the Company on the same terms and conditions and in
accordance with the applicable laws of Peru and the United States;
and |
|
(B) |
an amendment agreement amending the syndication agreement
between Purchaser and GH Holding Group dated as of June 3, 2021
(the “Amended GH Syndication Agreement” and the “GH
Syndication Agreement”, respectively), pursuant to which GH
Holding Group agreed, among other things, from the execution date
of the Amended GH Syndication Agreement and during the term of the
GH Syndication Agreement (as amended) to exercise the voting rights
in relation to the 61,349,148 Common Shares owned by GH Holding
Group, representing approximately 7.04% of the outstanding Common
Shares, including Common Shares represented by ADSs, at each
general meeting of the shareholders of the Company in the same
manner as Purchaser; |
(ii) Purchaser and Mr.
Graña Acuña entered into:
|
(A) |
an amendment agreement amending the supplementary agreement
between Purchaser and Mr. Graña Acuña dated as of June 3, 2021 (the
“HG Supplementary Agreement”) in respect of 15,531,208
Common Shares (the “HG Shares”), representing approximately
1.78% of the outstanding Common Shares, including Common Shares
represented by ADSs (the “Amended HG Supplementary
Agreement”), pursuant to which Purchaser and Mr. Graña Acuña
agreed, among other things, that (x) Mr. Graña Acuña will sell
7,765,604 Common Shares, representing approximately 0.89% of the
outstanding Common Shares, including Common Shares represented by
ADSs, following completion of the Offers directly to Purchaser for
the Common Share Offer Price per Common Share, subject to the
release of such Common Shares from the HG Embargo and the
registration of such release in Cavali, and (y) Purchaser will make
the arrangements agreed upon with Mr. Graña Acuña with respect to
such shares available to all shareholders of the Company on the
same terms and conditions and in accordance with the applicable
laws of Peru and the United States; and |
|
(B) |
an amendment agreement amending the syndication agreement
between Purchaser and Mr. Graña Acuña dated as of June 3, 2021 (the
“Amended HG Syndication Agreement” and the “HG
Syndication Agreement”, respectively), pursuant to which Mr.
Graña Acuña agreed, among other things, from the date of the HG
Syndication Agreement (as amended) to exercise the voting rights in
relation to the 15,531,208 Common Shares owned by Mr. Graña Acuña,
representing approximately 1.78% of the outstanding Common Shares,
including Common Shares represented by ADSs, at each general
meeting of the shareholders of the Company in the same manner as
Purchaser. |
|
Item 6. |
Purposes of the Transaction and Plans or Proposals. |
Item 6 of the Schedule TO is hereby amended and supplemented by
amending and supplementing the information set forth in Section 7
(“Possible Effects of the U.S. Offer on the Market for Common
Shares and ADSs”) of the Offer to Purchase as follows:
The
following paragraph replaces, in Section 7, the first paragraph on
page 37:
As a result of the Offers and the arrangements that we have made
pursuant to the Tender Offer Support Agreement, immediately
following consummation of the Offers, we expect to either own or
have the ability to direct the voting of 219,144,510 Common Shares
representing, in the aggregate, approximately 25.13% of the
outstanding Common Shares, including Common Shares represented by
ADSs (see “The U.S. Offer—Tender Offer Support Agreement and
Related Agreements”).
Item 6 of the Schedule TO is hereby further amended and
supplemented by amending and supplementing the information set
forth in Section 11 (“Purpose of the Offers; Plans for the
Company”) of the Offer to Purchase as follows:
The
following paragraph replaces, in Section 11, the first paragraph
under the caption “Purpose of the Offers” on page 44:
IG4 believes in the long term prospects of the Company and is
interested in acquiring a “participación significativa” (as
defined in Reglamento de Oferta Pública de Adquisicion y de
Compra de Valores por Exclusión approved by CONASEV Resolution
No. 009-2006-EF to mean the direct or indirect ownership, or the
ability to direct the voting, of 25% or more of the shares of a
Peruvian company listed on the LSE) of no less than 219,144,510
Common Shares, representing approximately 25.13% of the outstanding
Common Shares, including Common Shares represented by ADSs.
The
following paragraph replaces, in Section 11, the third paragraph
under the caption “Purpose of the Offers” on page 45:
As a result of the arrangements contemplated by the Tender Offer
Support Agreement, Purchaser has commenced on the date of the
publication of this Offer to Purchase, a tender offer to purchase
107,198,601 Common Shares, including Common Shares represented by
ADSs. The purpose of the Offers is for IG4, through Purchaser, to
acquire approximately 12.29% of the outstanding Common Shares,
including Common Shares represented by ADSs, and, together with the
additional Common Shares and the voting rights in respect of Common
Shares that IG4 will acquire pursuant to the terms of the Tender
Offer Support Agreement and related agreements, for Purchaser to
either own or have the ability to direct the voting of 219,144,510
Common Shares representing, in the aggregate, approximately 25.13%
of the outstanding Common Shares, including Common Shares
represented by ADSs, to enable IG4 to exert a level of influence
over the Company that, together with the support of the Other
Shareholders, will allow IG4 to promote and execute measures that
IG4 determines will enhance the value of the Company.
The
following paragraph replaces the last paragraph of Item 6 of the
amendment to the Schedule TO filed on June 22, 2021:
If IG4 achieves a “participación significativa” representing
no less than 219,144,510 Common Shares, representing approximately
25.13% of the outstanding Common Shares, including Common Shares
represented by ADSs, then according to the Peru Tender Offer
Regulations, IG4 is not permitted to acquire an additional
significant interest in the Company, including Common Shares and
Common Shares represented by ADSs, if such acquisition would result
in IG4’s percentage ownership of the voting interests in the
Company being equal to or exceeding 50% of the outstanding capital
stock of the Company, other than by means of a mandatory tender
offer.
|
Item 8. |
Interest in Securities of the Subject Company. |
Item 8 of the Schedule TO is hereby amended and supplemented by
amending and supplementing the information set forth in Section 12
(“Tender Offer Support Agreement and Related Agreements”) of the
Offer to Purchase as follows:
The following paragraph is added in Section 12 before the last
paragraph on page 56:
As a consequence of the entry by Purchaser into:
|
(i) |
the MA Syndication Agreement with Mr. Alvarado Pflucker in
connection with the 10,077,855 Common Shares owned by Mr. Alvarado
Pflucker; |
|
(ii) |
the Amended GH Syndication Agreement with GH Holding Group in
connection with the 61,349,148 Common Shares owned by GH Holding
Group; |
|
(iii) |
the Amended HG Syndication Agreement with Mr. Graña Acuña in
connection with the 15,531,208 Common Shares owned by Mr. Graña
Acuña; and |
|
(iv) |
the Trust Amendment Agreement with the Grantors in connection
with the 24,987,698 Common Shares collectively owned by the
Grantors, |
as of July 2, 2021, Purchaser, IG4 Capital Infrastructure GP, the
manager of Purchaser, and IG4 Capital Partners Holding Investments
LP, the sole shareholder of IG4 Capital Infrastructure GP, may be
deemed to beneficially own 111,945,909 Common Shares in the
aggregate, representing approximately 12.84% of the outstanding
Common Shares, including Common Shares represented by ADSs pursuant
to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended.
In accordance with the Tender Offer Support Agreement, Purchaser
shall pay the Political Rights Consideration to the Grantors for
each Common Share transferred to the Trust upon completion of the
Offers.
|
Item 11. |
Additional Information. |
Item 11 of the Schedule TO is hereby amended and supplemented by
amending and supplementing the information set forth on the cover
page of the Offer to Purchase as follows:
The following paragraph replaces the fourth paragraph on the
second cover page:
On August 24, 2020, Purchaser entered into a tender offer support
agreement with GH Holding Group Corp., Bamas International
Investment Corp., Bethel Enterprises Inc., Hernando Alejandro
Constancio Graña Acuña, Mario Germán Óscar Alvarado Pflucker,
Francisco Javier Dulanto Swayne, Hugo Rangel Zavala, Alfonso Galvez
Rubio, Ruth Alvarado Pflucker, Elisa Alvarado Pflucker, Gonzalo
Alvarado Pflucker and Claudia Gutierrez Benavides (collectively,
the “Sellers”), as amended by Purchaser and the Sellers on
June 3, 2021, and as further amended on July 2, 2021 (together, the
“Tender Offer Support Agreement”), pursuant to which the
Sellers have agreed to, among other things, tender into the Peru
Offer in the aggregate 92,884,670 Common Shares, representing
approximately 10.65% of the outstanding Common Shares, including
Common Shares represented by ADSs, on the terms and subject to the
conditions set forth in the Tender Offer Support Agreement (see
“The U.S. Offer—Tender Offer Support Agreement and Related
Agreements”).
Item 11 of the Schedule TO is hereby further amended and
supplemented by amending and supplementing the information set
forth in the Introduction of the Offer to Purchase as follows:
The following paragraph replaces the fifth paragraph of the
Introduction on page 18:
On August 24, 2020, Purchaser entered into a tender offer support
agreement with GH Holding Group Corp. (“GH Holding Group”),
Bamas International Investment Corp. (“Bamas”), Bethel
Enterprises Inc. (“Bethel”), Hernando Alejandro Constancio
Graña Acuña (“Mr. Graña Acuña”), Mario Germán Óscar Alvarado
Pflucker (“Mr. Alvarado Pflucker”), Francisco Javier Dulanto
Swayne (“Mr. Dulanto Swayne”), Hugo Rangel Zavala (“Mr.
Zavala”), Alfonso Galvez Rubio (“Mr. Rubio”), Ruth
Alvarado Pflucker, Elisa Alvarado Pflucker, Gonzalo Alvarado
Pflucker and Claudia Gutierrez Benavides (“Ms. Benavides,”
and collectively, the “Sellers”), as amended by Purchaser
and the Sellers on June 3, 2021, and as further amended on July 2,
2021 (together, the “Tender Offer Support Agreement”),
pursuant to which the Sellers have agreed to, among other things,
tender into the Peru Offer in the aggregate 92,884,670 Common
Shares, representing approximately 10.65% of the outstanding Common
Shares, including Common Shares represented by ADSs, on the terms
and subject to the conditions set forth in the Tender Offer Support
Agreement (see “The U.S. Offer—Tender Offer Support Agreement and
Related Agreements”).
Item 11 of the Schedule TO is hereby amended and supplemented by
amending and supplementing the information set forth in Section 12
(“Tender Offer Support Agreement and Related Agreements”) of the
Offer to Purchase as follows:
The following paragraph replaces, in Section 12, the first
paragraph on page 47:
The following is a summary of certain provisions of the Tender
Offer Support Agreement, including as amended by the Amendment
Agreements, and the agreements attached as exhibits to the Tender
Offer Support Agreement and the Schedule TO. This summary does
not purport to be complete and is qualified in its entirety by
reference to the Tender Offer Support Agreement itself, including
the exhibits thereto, and the Amendment Agreements which have been
filed as exhibits to the Schedule TO. Copies of the Tender
Offer Support Agreement, including the exhibits thereto, the
Amendment Agreements and the Schedule TO, and any other
filings that IG4 or Purchaser makes with the SEC with respect to
the Offers, may be obtained in the manner set forth in “The U.S.
Offer—Certain Information Concerning Purchaser, IG4 and IG4
Capital.” All shareholders of the Company (including ADS holders)
and other interested parties should read the Tender Offer Support
Agreement, including the exhibits thereto, and the Amendment
Agreements in their entirety for a more complete description of the
provisions summarized below.
The following paragraph replaces, in Section 12, the first
paragraph on page 47:
On August 24, 2020, Purchaser entered into the Tender Offer Support
Agreement with the Sellers (as amended pursuant to the Amendment
Agreements), pursuant to which the Sellers have agreed to, among
other things, tender into the Peru Offer in the aggregate
92,884,670 Common Shares, representing approximately 10.65% of the
outstanding Common Shares, including Common Shares represented by
ADSs, on the terms and subject to the conditions set forth in the
Tender Offer Support Agreement.
The following paragraph replaces, in Section 12, the fourth
paragraph on page 48:
In connection with the plea bargain processes that are currently
underway with Mr. Graña, Mr. Graña Acuña and Mr. Alvarado Pflucker,
(i) the 117,527,103 Common Shares owned by GH Holding Group became
subject to GH Embargo, (ii) the 15,531,208 Common Shares owned by
Mr. Graña Acuña became subject to the HG Embargo and (iii) the
10,077,855 Common Shares owned by Mr. Alvarado Pflucker became
subject to the MA Embargo, respectively, pursuant to which the
rights of GH Holding Group, Mr. Graña Acuña and Mr. Alvarado
Pflucker to transfer ownership of their Common Shares is
restricted. On June 18, 2020, 56,177,955 Common Shares owned by GH
Holding Group (out of the 117,527,103 Common Shares owned by GH
Holding Group) were released from the GH Embargo and such release
was registered in Cavali on December 16, 2020 (the “Clear GH
Shares”). The other 61,349,148 Common Shares owned by GH
Holding Group (the “Encumbered GH Shares”), the HG Shares
and the MA Shares remain subject to GH Embargo, the HG Embargo and
the MA Embargo, respectively.
The following paragraph replaces, in Section 12, the lead-in
language to the third paragraph on page 48:
The Sellers agreed, within five (5) business days of the
commencement date of the Offers, to grant an irrevocable power of
attorney to attorneys-in-fact Carlos Arata Delgado and Wilfredo
Cáceres Ghisilieri that authorizes each attorney-in-fact to tender
into the Peru Offer in the aggregate 93,962,525 Common Shares,
representing approximately 10.78% of the outstanding Common Shares,
including Common Shares represented by ADSs (which Purchaser and
the Sellers agreed to amend pursuant to the Second Amendment
Agreement, so that the Sellers will tender into the Peru Offer in
the aggregate 92,884,670 Common Shares, representing approximately
10.65% of the outstanding Common Shares, including Common Shares
represented by ADSs). Following the issuance of the report by the
Company Board, as required by article 15 of the Peru Tender Offer
Regulations, indicating the advantages and disadvantages of
accepting the Peru Offer, the Sellers have agreed to deliver, or to
instruct their attorneys-in-fact to deliver, their acceptance
letters in respect of the Peru Offer to BTG Pactual Perú Sociedad
Agente de Bolsa (the “Sellers’ Dealer”), to be held in
escrow until the Sellers instruct in writing their
attorneys-in-fact to instruct the Sellers’ Dealer to release the
acceptance letters; provided that their attorneys-in-fact will not
instruct the Sellers’ Dealer to release the acceptance letters
prior to notification by Purchaser that the following conditions
have been satisfied (or waived by Purchaser in writing):
The following paragraph replaces, in Section 12, the second
bullet point on page 49:
|
· |
Purchaser having been able to secure a “participación
significativa” (pursuant to the definition contained in
Reglamento de Oferta Pública de Adquisicion y de Compra de
Valores por Exclusión approved by CONASEV Resolution No.
009-2006-EF) of no less than 262,756,145 Common Shares,
representing approximately 30.14% of the outstanding Common Shares,
including Common Shares represented by ADSs (which Purchaser and
the Sellers agreed to amend (i) verbally so that the
“participación significativa” that Purchaser needs to secure
is no less than 219,144,510 Common Shares, representing
approximately 25.13% of the outstanding Common Shares, including
Common Shares represented by ADSs, which requirement, for the
avoidance of doubt, Purchaser has the right to waive in accordance
with the terms of the Tender Offer Support Agreement and (ii)
pursuant to the Second Amendment Agreement to include entry into
the MA Supplementary Agreement), comprising: |
|
(1) |
the committed tender into the Peru Offer in the aggregate of
92,884,670 Common Shares by the Sellers; |
|
(2) |
the entry into the Trust Agreement (as amended pursuant to the
Trust Amendment Agreement) with the Grantors in respect of
24,987,698 Common Shares, representing approximately 2.87% of the
outstanding Common Shares, including Common Shares represented by
ADSs; |
|
(3) |
the entry into the Amended GH Supplementary Agreement in
respect of 117,527,103 Common Shares, representing approximately
13.48% of the outstanding Common Shares, including Common Shares
represented by ADSs (of which 117,527,103 Common Shares, 56,177,955
will be tendered into the Peru Offer and the remaining 61,349,148
are the subject of the GH Syndication Agreement (as amended)); |
|
(4) |
the entry into the Amended HG Supplementary Agreement in
respect of 15,531,208 Common Shares, representing approximately
1.78% of the outstanding Common Shares, including Common Shares
represented by ADSs; |
|
(5) |
the entry into the MA Supplementary Agreement in respect of
10,077,855 Common Shares, representing approximately 1.16% of the
outstanding Common Shares, including Common Shares represented by
ADSs; and |
|
(6) |
the tender into the Offers by shareholders other than the
Sellers, |
(“Participación Significativa”);
The following paragraph replaces, in Section 12, the last
paragraph on page 49:
Pursuant to the Tender Offer Support Agreement (as amended pursuant
to the Second Amendment Agreement), Purchaser has agreed to
purchase 92,884,670 Common Shares from the Sellers. If more than
107,198,601 Common Shares, including Common Shares represented by
ADSs, are validly tendered (and not properly withdrawn) in the
Offers and, as a result of proration, fewer than 92,884,670 Common
Shares tendered by the Sellers into the Peru Offer are accepted for
payment, within five (5) LSE trading days after the settlement date
of the Peru Offer, the Sellers have agreed to transfer the
beneficial ownership of the Common Shares not accepted for payment
by Purchaser to the Trust (the “Additional Shares”).
The following paragraph replaces, in Section 12, the second last
paragraph under the caption “Amendment Agreement” on page
50:
First Amendment Agreement
On June 3, 2021, Purchaser and the Sellers entered into the First
Amendment Agreement, pursuant to which Purchaser and the Sellers
agreed, among other things, that their termination rights under
Section 7.1(b) of the Tender Offer Support Agreement shall be
waived and that the Outside Date shall be fifteen (15) business
days of the later of (a) the date of the release of the Clear GH
Shares from the GH Embargo and the registration of such release in
Cavali, or (b) the date of receipt of the Jersey Approval.
The
following paragraph is added after the second last paragraph under
the caption “First Amendment Agreement” on page 50:
Second Amendment Agreement
On July 2, 2021, Purchaser and the Sellers entered into the Second
Amendment Agreement, pursuant to which Purchaser and the Sellers
agreed, among other things, that (a) the Sellers will tender
92,884,670 Common Shares in the aggregate, representing
approximately 10.65% of the outstanding Common Shares, including
Common Shares represented by ADSs, into the Peru Offer and (b)
Purchaser and Mr. Alvarado Pflucker will enter into: (x) the MA
Supplementary Agreement and (y) the MA Syndication Agreement.
The
following paragraph replaces, in Section 12, the second paragraph
under the caption “GH Supplementary Agreement” on page 51:
Pursuant to the GH Supplementary Agreement, GH Holding Group has
agreed to:
|
• |
tender into the Peru Offer the Clear GH Shares following the
release of the Clear GH Shares from the GH Embargo and the
registration of such release in Cavali, provided that if the
release has not been registered in Cavali before the Expiration
Date, GH Holding Group has agreed to vote such Clear GH Shares on
the terms of the GH Syndication Agreement until the release is
registered in Cavali, following which such Clear GH Shares will be
automatically transferred to Purchaser at the Common Share Offer
Price – the Clear GH Shares were released from the GH Embargo on
June 18, 2020 and such release was registered in Cavali on December
16, 2020; |
|
• |
enter into the GH Syndication Agreement with Purchaser in
respect of the Encumbered GH Shares, representing approximately
7.04% of the outstanding Common Shares, including Common Shares
represented by ADSs, that remain subject to the GH Embargo; |
|
• |
sell to Purchaser 2,585,597 Common Shares of the Encumbered GH
Shares at the Common Share Offer Price, subject to the release of
the Encumbered GH Shares from the GH Embargo and the registration
of such release in Cavali, and Purchaser has agreed to make the
arrangements agreed upon with GH Holding Group with respect to such
shares available to all shareholders of the Company on the same
terms and conditions and in accordance with the applicable laws of
Peru and the United States; and |
|
• |
transfer to the Trust 58,763,551 Common Shares, subject to the
release of the Encumbered GH Shares from the GH Embargo and the
registration of such release in Cavali, and Purchaser has agreed to
make the arrangements agreed upon with GH Holding Group with
respect to such shares available to all shareholders of the Company
on the same terms and conditions and in accordance with the
applicable laws of Peru and the United States. |
The
following paragraph is inserted as a new paragraph after the second
paragraph under the caption “GH Supplementary Agreement” on page
51:
If GH Holding Group is not capable of transferring all of its
2,585,597 Common Shares of the Encumbered GH Shares to Purchaser
following the release of the Encumbered GH Shares and the
registration of such release in Cavali as described above, GH
Holding Group will transfer its remaining Encumbered GH Shares to
the Trust (and such Encumbered GH Shares will be treated as
Additional Shares).
The
following paragraph replaces, in Section 12, the first paragraph
under the caption “GH Syndication Agreement” on page 51:
Pursuant to the GH Syndication Agreement, GH Holding Group has
agreed to vote the Encumbered GH Shares (and, if applicable, the
Clear GH Shares) at each general meeting of the shareholders of the
Company in the same manner as Purchaser. The GH Syndication
Agreement was entered into on June 3, 2021 and the voting
arrangements contemplated by the GH Syndication Agreement became
effective on July 2, 2021 in accordance with the terms of the
Amended GH Syndication Agreement.
The
following paragraph replaces, in Section 12, the second bullet
point in the second paragraph under the caption “GH Syndication
Agreement” on page 51:
|
• |
the successful conclusion of the transfer process described in
the GH Supplementary Agreement; and |
The
following paragraph replaces, in Section 12, the second paragraph
under the caption “HG Supplementary Agreement” on page 51:
Pursuant to the HG Supplementary Agreement (as amended pursuant to
the Amended HG Supplementary Agreement), Mr. Graña Acuña has
agreed, on the same date as the execution of the Trust Agreement,
to enter into the HG Syndication Agreement, pursuant to which Mr.
Graña Acuña has agreed to vote the HG Shares at each general
meeting of the shareholders of the Company in the same manner as
Purchaser. The HG Syndication Agreement was entered into on June 3,
2021 and the voting arrangements contemplated by the HG Syndication
Agreement became effective on July 2, 2021 in accordance with the
terms of the Amended HG Syndication Agreement.
The
following paragraph replaces, in Section 12, the sixth paragraph
under the caption “HG Supplementary Agreement” on page 52:
Upon the release of the Common Shares from the HG Embargo, Mr.
Graña Acuña has agreed to transfer:
|
• |
7,765,604 Common Shares to the Trust and Purchaser has agreed
to pay Mr. Graña Acuña for each Common Share the Political Rights
Consideration; and |
|
• |
7,765,604 Common Shares to Purchaser and Purchaser has agreed
to pay to Mr. Graña Acuña for each Common Share the Common Share
Offer Price, |
and in each case, Purchaser has agreed to make the arrangements
agreed upon with Mr. Graña Acuña with respect to such shares
available to all shareholders of the Company on the same terms and
conditions and in accordance with the applicable laws of Peru and
the United States.
The
following paragraph replaces, in Section 12, the seventh paragraph
under the caption “HG Supplementary Agreement” on page 52:
If less than all of the Common Shares are released from the HG
Embargo, then 50% of any Common Shares released will be transferred
to the Trust and 50% of the Common Shares released will be
transferred to Purchaser as described above, and in each case
Purchaser has agreed to make the arrangements agreed upon with Mr.
Graña Acuña with respect to such released shares available to all
shareholders of the Company on the same terms and conditions and in
accordance with the applicable laws of Peru and the United
States.
The
following paragraph is inserted as a new paragraph after the
seventh paragraph under the caption “HG Supplementary Agreement” on
page 52:
If Mr. Graña Acuña is not capable of transferring all of his
7,765,604 Common Shares released from the HG Embargo to Purchaser
as described above, Mr. Graña Acuña will transfer his remaining
released Common Shares to the Trust (and such released Common
Shares will be treated as Additional Shares).
The
following paragraph replaces, in Section 12, the second bullet
point in the last paragraph under the caption “HG Supplementary
Agreement” on page 52:
|
• |
the successful conclusion of the transfer process described in
the HG Supplementary Agreement; and |
The
following paragraphs are inserted as new paragraphs after the last
paragraph under the caption “HG Supplementary Agreement” on page
52:
MA Supplementary Agreement
The MA Supplementary Agreement was entered into on July 2, 2021.
Pursuant to the MA Supplementary Agreement, Mr. Alvarado Pflucker
has agreed to:
|
• |
enter into the MA Syndication Agreement, pursuant to which Mr.
Alvarado Pflucker has agreed, with effect from the date of the MA
Syndication Agreement, to vote the MA Shares at each general
meeting of the shareholders of the Company in the same manner as
Purchaser – the MA Syndication Agreement was entered into on July
2, 2021; and |
|
• |
transfer to the Trust, the MA Shares, subject to the release of
the MA Shares from the MA Embargo and the registration of such
release in Cavali, and Purchaser has agreed to make the
arrangements agreed upon with Mr. Alvarado Pflucker with respect to
such released shares available to all shareholders of the Company
on the same terms and conditions and in accordance with the
applicable laws of Peru and the United States. |
The MA Supplementary Agreement and the MA Syndication Agreement
will terminate automatically if Purchaser has not been able to
achieve Participación Significativa following completion of the
Offers.
The MA Syndication agreement will also terminate upon the first to
occur of, among other things:
|
· |
the termination of the Trust Agreement or the MA Supplementary
Agreement, whichever occurs first; |
|
· |
the successful conclusion of the transfer process described in
the MA Supplementary Agreement; and |
|
· |
the notification of an order from the Peruvian Public
Prosecutor (Fiscalía), the Peruvian Attorney General
(Procuraduria) or any other governmental entity mandating
the termination of the MA Syndication Agreement. |
The
following paragraph replaces, in Section 12, the second paragraph
under the caption “Trust Agreement” on page 52:
Pursuant to the Trust Agreement (as amended by the Trust Amendment
Agreement), the Grantors have agreed to transfer the beneficial
ownership of 24,987,698 Common Shares, representing approximately
2.87% of the outstanding Common Shares, including Common Shares
represented by ADSs (the “Trust Shares”), to an irrevocable
trust established pursuant to the Trust Agreement (the
“Trust”). For as long as the Trust Shares remain in the
Trust, Purchaser will exercise, in its sole discretion, all
political rights associated with the Trust Shares, including, among
other things, attending shareholder meetings of the Company and
executing corporate documents requiring the participating of the
Trust. During the term of the Trust Agreement, the Grantors will
retain the economic rights associated with the Trust Shares. The
Trustee will have full rights to manage the proceeds of such
economic rights, including all collection rights and cash flows
arising from the sale of the Trust Shares by the Grantors.
Purchaser acquired the political rights associated with the Trust
Shares on July 2, 2021 in accordance with the Trust Amendment
Agreement.
The
fourth paragraph in Section 12 under the caption “Trust Agreement”
on page 53 is deleted in its entirety:
The exercise of the political rights by Purchaser in accordance
with the Trust Agreement is conditional upon Purchaser having
achieved Participación Significativa following completion of the
Offers.
The
second last and last paragraphs in Section 12 on pages 56 and 57
are deleted in their entirety and replaced as follows:
A summary of the foregoing arrangements contemplated by the Tender
Offer Support Agreement and the related agreements (as amended
pursuant to the Amendment Agreements) attached as exhibits thereto
is set forth in the table below.
|
Shareholder |
Number of Common Shares subject to the Tender Offer Support
Agreement |
Common Shares tendered in the Peru Offer |
Common Shares transferred pursuant to the Trust
Agreement |
Syndication Agreements
|
|
GH Holding Group Corp. |
117,527,103 |
56,177,955 |
0 |
61,349,148 |
|
Bamas International Investment Corp. |
1,802,001 |
1,802,001 |
0 |
0 |
|
Bethel Enterprises Inc. |
33,785,285 |
16,892,643 |
16,892,642 |
0 |
|
Hernando Alejandro Constancio Graña Acuña |
15,531,208 |
0 |
0 |
15,531,208 |
|
Mario Germán Óscar Alvarado Pflucker |
10,077,855 |
0 |
0 |
10,077,855 |
|
Francisco Javier Dulanto Swayne |
8,450,000 |
4,225,000 |
4,225,000 |
0 |
|
Hugo Rangel Zavala |
6,055,126 |
2,422,050 |
3,633,076 |
0 |
|
Alfonso Galvez Rubio |
394,966 |
157,986 |
236,980 |
0 |
|
Ruth Alvarado Pflucker |
402,345 |
402,345 |
0 |
0 |
|
Elisa Alvarado Pflucker |
402,345 |
402,345 |
0 |
0 |
|
Gonzalo Alvarado Pflucker |
402,345 |
402,345 |
0 |
0 |
|
Claudia Gutierrez Benavides |
10,000,000 |
10,000,000 |
0 |
0 |
|
Total |
204,830,579 |
92,884,670 |
24,987,698 |
86,958,211 |
As of the date hereof, the Common Shares subject to the foregoing
arrangements represent with respect to the outstanding Common
Shares of the Company:
|
Outstanding Common Shares |
Common Shares to be tendered in the Peru Offer |
Common Shares to be transferred pursuant to the Trust
Agreement |
|
871,917,855 |
Approximately 10.65% |
Approximately 2.87% |
Item 12 of the Schedule TO is hereby amended and supplemented by
adding the following exhibits:
|
(a)(5)(I) |
Second Amendment Agreement amending the Tender Offer Support
Agreement, dated July 2, 2021, between Purchaser and the
Sellers.* |
|
(a)(5)(J) |
Amended GH Supplementary Agreement amending the GH
Supplementary Agreement, dated July 2, 2021, between Purchaser and
GH Holding Group.* |
|
(a)(5)(K) |
Amended GH Syndication Agreement amending the GH Syndication
Agreement, dated July 2, 2021, between Purchaser and GH Holding
Group.* |
|
(a)(5)(L) |
Amended HG Supplementary Agreement amending the HG
Supplementary Agreement, dated July 2, 2021, between Purchaser and
Mr. Graña Acuña.* |
|
(a)(5)(M) |
Amended HG Syndication Agreement amending the HG Syndication
Agreement, dated July 2, 2021, between Purchaser and Mr. Graña
Acuña.* |
|
(a)(5)(N) |
Supplementary Agreement, dated July 2, 2021, between Purchaser
and Mr. Alvarado Pflucker.* |
|
(a)(5)(O) |
Syndication Agreement, dated July 2, 2021, between Purchaser
and Mr. Alvarado Pflucker.* |
|
(a)(5)(P) |
Trust Amendment Agreement amending the Trust Agreement, dated
July 2, 2021, between Purchaser and the Grantors.* |
*
Filed herewith.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true,
complete and correct.
Dated:
July 7, 2021
| |
IG4 CAPITAL
INFRASTRUCTURE INVESTMENTS LP |
| |
By: IG4 Capital
Infrastructure GP Limited, its general partner |
| |
|
| |
By: |
/s/
Mark Cleary |
| |
|
|
| |
Name: |
Mark Cleary |
| |
Title: |
Director |
| |
|
|
| |
By: |
/s/ Andrew
Cunningham |
| |
|
|
| |
Name: |
Andrew Cunningham |
| |
Title: |
Director |
| |
|
|
| |
IG4 CAPITAL PRIVATE
EQUITY INVESTMENTS II-A LP |
| |
By: IG4 Capital General
Partner II Limited, its general partner |
| |
|
|
| |
By: |
/s/ Mark
Cleary |
| |
|
|
| |
Name: |
Mark Cleary |
| |
Title: |
Director |
| |
|
|
| |
By: |
/s/ Andrew
Cunningham |
| |
|
|
| |
Name: |
Andrew Cunningham |
| |
Title: |
Director |
| |
|
|
| |
IG4 CAPITAL PRIVATE
EQUITY INVESTMENTS II-B LP |
| |
By: IG4 Capital General
Partner II Limited, its general partner |
| |
|
|
| |
By: |
/s/ Mark
Cleary |
| |
|
|
| |
Name: |
Mark Cleary |
| |
Title: |
Director |
| |
|
|
| |
By: |
/s/ Andrew
Cunningham |
| |
|
|
| |
Name: |
Andrew Cunningham |
| |
Title: |
Director |
| |
|
|
| |
|
|
[Signature Page – Schedule TO/A]
| |
|
|
| |
IG4 CAPITAL PRIVATE
EQUITY INVESTMENTS II-C LP |
| |
By: IG4 Capital General
Partner II Limited, its general partner |
| |
|
|
| |
By: |
/s/ Mark
Cleary |
| |
|
|
| |
Name: |
Mark Cleary |
| |
Title: |
Director |
| |
|
|
| |
By: |
/s/ Andrew
Cunningham |
| |
|
|
| |
Name: |
Andrew Cunningham |
| |
Title: |
Director |
| |
|
|
| |
IG4 CAPITAL
INFRASTRUCTURE CO-INVESTMENTS A LP |
| |
By: IG4 Capital General
Partner II Limited, its general partner |
| |
|
|
| |
By: |
/s/ Mark
Cleary |
| |
|
|
| |
Name: |
Mark Cleary |
| |
Title: |
Director |
| |
|
|
| |
By: |
/s/ Andrew
Cunningham |
| |
|
|
| |
Name: |
Andrew Cunningham |
| |
Title: |
Director |
[Signature Page – Schedule TO/A]
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