As filed with the Securities and Exchange Commission on July 19, 2013

Registration No. 333-189067

 

 

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Amendment No. 6 to

FORM F-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

GRAÑA Y MONTERO S.A.A.

(Exact name of Registrant as specified in its charter)

 

 

 

Republic of Peru   1600   Not Applicable

(State or other jurisdiction of

incorporation or organization)

 

(Primary Standard Industrial

Classification Code Number)

 

(I.R.S. Employer

Identification No.)

Graña y Montero S.A.A.

Av. Paseo de la República 4667

Surquillo

Lima 34, Peru

(51) (1) 213 – 6565

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

 

CT Corporation System

111 Eighth Avenue

New York, New York 10011

1-800-223-7567

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

With copies to:

 

Juan Francisco Méndez

Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, New York 10017

(212) 455-2579

 

Claudia Drago Morante

Chief Legal Officer

Graña y Montero S.A.A.

Av. Paseo de la República

Surquillo

Lima 34, Peru

(51) (1) 213–6565

 

Nicholas Kronfeld

Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, New York 10017

(212) 450-4950

 

 

Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, please check the following box.   ¨

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ¨

If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ¨

If delivery of the prospectus is expected to be made pursuant to Rule 434, check the following box.   ¨

 

 

CALCULATION OF REGISTRATION FEE

 

 

 

Title of each class of

securities to be registered

  Amount to be
Registered (1)
        Proposed Maximum
Offering Price Per
Share (2)
        Proposed maximum
aggregate offering
price (2)
       

Amount of
registration

fee (3)

 

Common shares(4)

  93,604,650       S/.13.00 (US$4.66)       US$436,197,669       $ 59,497   

 

(1) Includes common shares that the underwriters may purchase solely to cover over-allotments, if any, and common shares that are to be offered outside the United States but that may be resold from time to time in the United States in transactions requiring registration under the Securities Act. Offers and sales of common shares outside the United States are being made pursuant to Regulation S and are not covered by the Registration Statement. All or part of these common shares may be represented by American depositary shares, each of which represents five of our common shares.
(2) Estimated solely for purposes of computing the amount of the registration fee pursuant to Rule 457(a) under the Securities Act of 1933.
(3) Registrant previously paid US$62,744.
(4) A separate Registration Statement on Form F-6 has been filed for the registration of ADSs issuable upon deposit of the common shares registered hereby.

 

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act, or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

 

 


EXPLANATORY NOTE

This Amendment No. 6 to the Registration Statement on Form F-1 of Graña y Montero S.A.A. is being filed for the purpose of filing updated Exhibits 5.1, 8.1 and 8.2 hereto.


PART II

INFORMATION NOT REQUIRED IN THE PROSPECTUS

Item 6. Indemnification of Directors and Officers

According to the Registrant’s by-laws, the directors and the chief executive officer of the company shall be indemnified by the company for any reasonable expenses incurred and for any loss or damage suffered in connection with any action, lawsuit or proceeding to which they have been a party as a result of their position as director or chief executive officer, to the extent such action, lawsuit or proceeding is not attributable to them. We maintain liability insurance which insure our directors and officers against liability which he or she may incur in his or her capacity as such.

Item 7. Recent Sales of Unregistered Securities

Within the past three years, the Registrant has not sold any securities, other than its common shares in transactions on the Lima Stock Exchange in the aggregate amounts of 443,872 common shares in 2010, 157,026 common shares in 2011, 1,200,000 common shares in 2012, with no securities sold in 2013 to the date of this Registration Statement. The Registrant believes that these sales did not require registration under the Securities Act because these securities were offered and sold outside the United States in reliance upon the exemption from the registration requirements of the Securities Act contained in Regulation S under the Securities Act or, alternatively, in transactions exempt from the registration requirements of the Securities Act pursuant to Section 4(2) thereof.

Item 8. Exhibits and Financial Statement Schedules

 

  (a) Exhibits

 

Exhibit
Number
   Description of Document
  1.1*    Form of Underwriting Agreement
  3.1*    By-laws of the Registrant, as currently in effect
  4.1    Registrant’s Form of American Depositary Receipt (included in Exhibit 4.2)
  4.2*    Form of Deposit Agreement among the Registrant, JPMorgan Chase Bank, N.A., as depositary, and the holders from time to time of American depositary shares issued thereunder.
  5.1    Opinion of Muñiz, Ramírez, Pérez-Taiman & Olaya Abogados regarding the validity of the common shares being registered
  8.1    Opinion of Simpson Thacher & Bartlett LLP regarding certain U.S. tax matters
  8.2    Opinion of Estudio Muñiz, Ramírez, Pérez-Taiman & Olaya regarding certain Peruvian tax matters
10.1*    Credit Agreement, dated as of February 27, 2013, among the Registrant, the initial lenders named therein, BBVA Bancomer S.A. Institucion de Banca Multiple, Grupo Financiero BBVA Bancomer, BBVA Continental and BBVA Securities Inc.
21.1*    Subsidiaries of the Registrant
23.1*    Consent of Dongo, Soria, Gaveglio y Asociados Sociedad Civil de Responsabilidad Limitada, a member firm of PricewaterhouseCoopers
23.2*    Consent of Muñiz, Ramírez, Pérez-Taiman & Olaya Abogados, Peruvian legal counsel of the Registrant
23.3    Consent of Simpson Thacher & Bartlett LLP (included in Exhibit 8.1)

 

II-1


Exhibit
Number
   Description of Document
23.4*    Consent of Netherland, Sewell & Associates, Inc.
23.5*    Consent of International Data Corporation
23.6*    Consent of Great Place to Work Institute, Inc.
24.1*    Powers of Attorney
99.1*    Reserve Report of Netherland, Sewell & Associates, Inc.

 

* Previously filed.

 

  (b) Financial Statement Schedules

All schedules are omitted because the required information is included in the Registrant’s financial statements in the prospectus part of this Registration Statement.

Item 9. Undertakings

The undersigned registrant hereby undertakes:

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described in Item 6 of this Registration Statement, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted against the Registrant by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

1. For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement at the time it was declared effective.

2. For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

For the purposes of Item 512(F) of Regulation S-K, the Registrant hereby also undertakes to provide to the underwriters at the closing specified in the underwriting agreement, certificates in such denominations registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

 

II-2


SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-1 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Lima, Peru, on July 19, 2013.

 

GRAÑA Y MONTERO S.A.A.
By:  

/s/ Mario Alvarado Pflucker

Name:   Mario Alvarado Pflucker
Title:   Chief Executive Officer
By:  

/s/ Mónica Miloslavich Hart

Name:   Mónica Miloslavich Hart
Title:   Chief Financial Officer and Principal Accounting Officer

 

II-3


Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons on July 19, 2013 in the capacities indicated.

Signature

 

*

     Chief Executive Officer / Director
Mario Alvarado Pflucker     

*

Mónica Miloslavich Hart

     Chief Financial Officer and Principal Accounting Officer

*

     Director
José Graña Miró Quesada     

*

     Director
Carlos Montero Graña     

*

     Director
Luis Miró Quesada Valega     

*

     Director
José Chlimper Ackerman     

*

     Director
Roberto Abusada Salah     

*

     Director
José Antonio Colomer Guiu     

*

     Director
Hernando Graña Acuña     

*

     Director
Hugo Santa María Guzmán     

/s/ Mario Alvarado Pflucker

    
Mario Alvarado Pflucker     

/s/ Mónica Miloslavich Hart

    
Mónica Miloslavich Hart     

 

* Signed by Mario Alvarado Pflucker and Mónica Miloslavich Hart, as attorneys-in-fact

 

II-4


SIGNATURE OF AUTHORIZED REPRESENTATIVE IN THE UNITED STATES

Pursuant to the Securities Act of 1933, the undersigned, the duly authorized representative in the United States of GRAÑA Y MONTERO S.A.A., has signed this registration statement or amendment thereto in Newark, Delaware, on July 19, 2013.

 

Authorized Representative
By:  

/s/ Donald J. Puglisi

  Donald J. Puglisi
  Managing Director
  Puglisi and Associates

 

II-5

Exhibit 5.1

Muñiz, Ramirez, Perez-Taiman & Olaya Abogados

Las Begonias 475, 6º Piso, Lima 27, Perú

Tel. (51-1) 611-7000 (6210)

Fax (51-1) 611-7010 / (51-1) 611-7020

July 19, 2013

Graña y Montero S.A.A.

Av. Paseo de la República 4667

Surquillo, Lima

Peru

RE: Legal opinion regarding the validity of shares issued by Graña y Montero S.A.A.

Ladies and Gentlemen:

We have acted as special Peruvian counsel to Graña y Montero S.A.A. (the “ Company ”), a sociedad anónima abierta organized under the laws of the Republic of Peru (“ Peru ”), in connection with the Company’s Registration Statement on Form F-1 filed by the Company with the Securities and Exchange Commission (the “ Registration Statement ”), under the Securities Act of 1933, as amended (the “ Securities Act ”). The Registration Statement relates to the initial public offering of American Depositary Shares of the Company representing common shares, par value S/. 1.00 per share (such shares to be originally issued in the form of certificados provisionales until such certificados provisionales are registered with the Peruvian public registry, collectively the “ Underlying Shares ”).

We have examined and relied on originals or copies, certified or otherwise identified to our satisfaction of (i) the Certificate of Incorporation and Bylaws of the Company, each as amended and/or restated as of the date hereof, (ii) the Registration Statement and all exhibits thereto, (iii) the Minutes and Resolutions of the Board of Directors of the Company authorizing and approving the issuance of the Underlying Shares and the Registration Statement and (iv) such other statutes, records, certificates, agreements, and documents as we have deemed necessary or appropriate for purposes of the opinion hereafter expressed. As to various questions of the fact material to the opinion hereinafter expressed, we have relied in part, and to the extent we have deemed necessary or appropriate, without independent check or verification of their accuracy, on the representations and warranties of the Company contained in the records, certificates, agreements, instruments, and documents furnished or made available to us by the Company or the officers or other representatives of the Company, including, without limitation, the representations of the Company regarding receipt of consideration for the Underlying Shares (having a value not less than the par value of the Underlying Shares). In making the foregoing examinations, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photo static copies thereof, and the authenticity of the originals of such latter documents.

Based upon the foregoing, subject to the assumptions, qualifications, limitations, and exceptions set forth herein, and reliance on the statements of facts contained in the documents that we have examined, we are of the opinion that the Underlying Shares will be when issued and sold, duly and validly authorized, legally issued, fully paid and non-assessable.

The opinions expressed herein are limited to the laws of Peru and we express no opinion as to the effect on the matters covered of the laws of any other jurisdiction.


We hereby consent to the filing of this opinion as an Exhibit 5.1 to the Registration Statement and to the reference to us under the heading “Legal matters” and “Enforcement of judgments against foreign persons” in the Prospectus that is a part of the Registration Statement.

This opinion is rendered only for the Registration Statement purposes and may not be used or relied upon for any other purpose. This opinion is given as of the effective date of the Registration Statement, and we assume no obligation to update or supplement the opinions contained herein to reflect any facts or circumstances which may hereafter come to our attention or any changes in laws which may hereafter occur.

Sincerely,

/s/ ESTUDIO MUÑIZ, RAMIREZ, PEREZ-TAIMAN & OLAYA

ESTUDIO MUÑIZ, RAMIREZ, PEREZ-TAIMAN & OLAYA

 

2

Exhibit 8.1

S IMPSON T HACHER  & B ARTLETT LLP

425 L EXINGTON A VENUE

N EW Y ORK , N.Y. 10017-3954

(212) 455-2000

 

 

F ACSIMILE (212) 455-2502

July 19, 2013

Graña y Montero S.A.A.

Av. Paseo de la República 4667

Surquillo

Lima 34, Peru

Ladies and Gentlemen:

We have acted as United States federal income tax counsel to Graña y Montero S.A.A., a Peruvian company (the “ Company ”), in connection with the registration statement on Form F-1, including the prospectus contained therein (together, the “ Registration Statement ”), filed by the Company with the U.S. Securities and Exchange Commission (the “ Commission ”) under the U.S. Securities Act of 1933, as amended, relating to the registration of the Company’s common shares, par value S/1.00 per share, which will be represented by American depositary shares evidenced by American depositary receipts.

We have examined the Registration Statement. In addition, we have examined, and have relied as to matters of fact upon, originals, or duplicates or certified or conformed copies, of such records, agreements, documents and other instruments and such certificates or comparable documents of public officials and of officers and representatives of the Company, and have made such other and further investigations as we have deemed necessary or appropriate as a basis for the opinion hereinafter set forth. In such examination, we have assumed the accuracy of the factual matters described in the Registration Statement and that the Registration Statement and other documents will be executed by the parties in the forms provided to and reviewed by us.


In rendering the opinion set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents.

Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein and in the Registration Statement, we hereby confirm that the discussion set forth in the Registration Statement under the caption “Taxation – United States Federal Income Tax Considerations,” insofar as such discussion relates to matters of United States federal income tax law, constitutes our opinion as to the material United States federal income tax consequences to United States Holders (as such term is defined in the Registration Statement under such caption) of the ownership of the Company’s common shares and American depositary shares.

We note that, because the determination of the Company’s status as a passive foreign investment company (a “PFIC”) for United States federal income tax purposes is based on an annual determination that cannot be made until the close of a taxable year, and involves extensive factual investigation, we do not express any opinion herein with respect to the Company’s PFIC status.

We do not express any opinion herein concerning any law other than the United States federal income tax law.

We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the Registration Statement.

Very truly yours,

/s/ SIMPSON THACHER & BARTLETT LLP

SIMPSON THACHER & BARTLETT LLP

Exhibit 8.2

Muñiz, Ramirez, Perez-Taiman & Olaya Abogados

Las Begonias 475, 6º Piso, Lima 27, Perú

Tel. (51-1) 611-7000 (6210)

Fax (51-1) 611-7010 / (51-1) 611-7020

July 19, 2013

Graña y Montero S.A.A.

Av. Paseo de la República 4667

Surquillo, Lima

Peru

Ladies and Gentlemen:

We have acted as Peruvian tax counsel to Graña y Montero S.A.A., a sociedad anónima abierta organized under the laws of Peru (the “ Company ”), in connection with the registration statement on Form F-1, including the prospectus contained therein (together, the “ Registration Statement ”), initially filed on June 4, 2013 by the Company with the U.S. Securities and Exchange Commission (the “ Commission ”) under the U.S. Securities Act of 1933, as amended, relating to the registration of the Company’s common shares, par value S/1.00 per share, which will be represented by American depositary shares evidenced by American depositary receipts.

We have examined the Registration Statement. In addition, we have examined, and have relied as to matters of fact upon, originals, or duplicates or certified or conformed copies, of such records, agreements, documents and other instruments and such certificates or comparable documents of public officials and of officers and representatives of the Company, and have made such other and further investigations as we have deemed necessary or appropriate as a basis for the opinion hereinafter set forth. In such examination, we have assumed the accuracy of the factual matters described in the Registration Statement (except as expressed in this opinion) and that the Registration Statement and other documents will be executed by the parties in the forms provided to and reviewed by us.

In rendering the opinion set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents.

Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein and in the Registration Statement, we hereby confirm our opinion set forth in the Registration Statement under the caption “Taxation – Peruvian tax considerations.”

We do not express any opinion herein concerning any law other than Peruvian law in connection with tax matters.

We hereby consent to the filing of this opinion with the Commission as Exhibit 8.2 to the Registration Statement and to the reference of our firm under the heading “ Legal matters ” in the Registration Statement.

Very truly yours,

/s/ ESTUDIO MUÑIZ, RAMIREZ, PEREZ-TAIMAN & OLAYA

ESTUDIO MUÑIZ, RAMIREZ, PEREZ-TAIMAN & OLAYA