To the beneficial owners, or authorized representatives acting on behalf of the beneficial owners, of the Old Notes (as defined below).
Andrade Gutierrez International S.A. (“AG International”), a public limited liability company (société anonyme) incorporated in the Grand Duchy of Luxembourg
(“Luxembourg”) with registered office at 19, rue Eugène Ruppert, L-2453 Luxembourg and registered with the
Luxembourg Register of Commerce and Companies under number B176492, is offering to exchange
(the “Exchange Offer”),
in a private exchange offer exempt from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”),
its outstanding 4.000% Senior Notes due 2018 with CUSIP Nos. 03439TAA9; L01795AA8 (the “Old Notes”)
for cash and newly-issued 11.000% Senior Secured Notes due 2021 issued by AG International (the “New Notes”) or for all New Notes and soliciting consents to amend the indenture related to the Old Notes
(the “Consent Solicitation” and, together with the Exchange Offer, the “Exchange Offer and Consent Solicitation”). If you are a beneficial owner, or an authorized representative acting on behalf of a beneficial owner, of the Old Notes that is an “Eligible Holder” (as defined below), please complete the certification (the “Eligibility Certification”) and return it to D.F. King & Co., Inc. at the address set forth in the Eligibility Certification or submit it online on the next page.
If you are an affiliate of the Issuer or a beneficial owner of the Old Notes that is not an Eligible Holder, you may not participate in the Exchange Offer and Consent Solicitation,
and you should not complete the attached Eligibility Certification.
If you do not submit a valid Eligibility Certification, you will not be entitled to receive any documents or materials relating to the Exchange Offer and Consent Solicitation.
An “Eligible Holder” is a beneficial owner of the Old Notes that certifies that it is either:
a) a “qualified institutional buyer,” as defined in Rule 144A under the Securities Act;
b) an “accredited investor,” as defined in Rule 501(a) of Regulation D under the
Securities Act; or
c) a person outside the United States who is:
i. not a “U.S. Person,” as defined in Rule 902 under the Securities Act
ii. not acting for the account or benefit of a U.S. person; and
iii. a “non-U.S. qualified offeree” (as defined below).
The definitions of “qualified institutional buyer,” “accredited investor,” “U.S. person” and “non-U.S. qualified offeree” are set forth in Annex A.
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Please submit your responses as soon as possible in order to allow sufficient time for you to review and submit the relevant paperwork to participate in the transaction. This letter does not constitute an offer or a solicitation of an offer with respect to the Old Notes. This letter does not create any obligations whatsoever on the part of AG International or any of its subsidiaries to make any offer or on the part of the recipient to participate if an offer is made. The New Notes that AG International proposes to offer pursuant to the Exchange Offer and Consent Solicitation referenced above will not be registered under the Securities Act, or applicable state securities laws, and may not be offered or sold in the United States absent registration or an applicable exemption from, or in transactions not subject to, the registration requirements of the Securities Act and applicable state laws. You may direct any questions to D.F. King & Co., Inc., Attn: Andrew Beck, at 48 Wall Street, 22nd Floor, New York, New York 10005, telephone number: (866)-342-4881 (toll-free) or (212) 269-5550 (banks and brokers) or email ag@dfking.com.
Very truly yours,
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ANNEX A “qualified institutional buyer”
means:
(1) Any of the following entities, acting for its own account or the accounts of other qualified institutional buyers, that in the aggregate owns and invests on a discretionary
basis at least $100 million in securities of issuers that are not affiliated with the entity:
(a) Any insurance company as defined in Section 2(a)(13) of the U.S. Securities Act of 1933, as amended (the “Securities Act”);
(b)
Any investment company registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”)
or any business development company as defined in Section 2(a)(48) of the Investment Company Act;
(c) Any small business investment company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958; (d) Any
plan established and maintained by a state, its political subdivisions, or any
agency or instrumentality of a state or its political subdivisions, for the
benefit of its employees; (e) Any
employee benefit plan within the meaning of Title I of the Employee Retirement
Income Security Act of 1974; (f) Any
trust fund whose trustee is a bank or trust company and whose participants are
exclusively plans of the types identified in subparagraph (1)(D) or (E) above,
except trust funds that include as participants individual retirement accounts
or H.R. 10 plans; (g) Any
business development company as defined in Section 202(a)(22) of the Investment
Advisers Act of 1940 (the “Investment Advisers
Act”); (h) Any
organization described in Section 501(c)(3) of the Internal Revenue Code,
corporation (other than a bank as defined in Section 3(a)(2) of the Securities
Act or a savings and loan association or other institution referenced in
Section 3(a)(5)(A) of the Securities Act or a foreign bank or savings and loan
association or equivalent institution), partnership, or Massachusetts or
similar business trust; and (i) Any
investment adviser registered under the Investment Advisers Act. (2) Any dealer
registered pursuant to Section 15 of the Securities Exchange Act of 1934 (the “Exchange Act”), acting for its own account or the accounts of
other qualified institutional buyers, that in the aggregate owns and invests on
a discretionary basis at least $10 million of securities of issuers that are
not affiliated with the dealer, provided,
that securities constituting the whole or a part of an unsold allotment to or
subscription by a dealer as a participant in a public offering shall not be
deemed to be owned by such dealer; (3) Any dealer
registered pursuant to Section 15 of the Exchange Act acting in a riskless
principal transaction on behalf of a qualified institutional buyer; (4) Any
investment company registered under the Investment Company Act, acting for its
own account or for the accounts of other qualified institutional buyers, that
is part of a family of investment companies which own in aggregate at least
$100 million in securities of issuers, other than issuers that are affiliated
with the investment company or are part of such family of investment companies. “Family of investment companies” means any
two or more investment companies registered under the Investment Company Act,
except for a unit investment trust whose assets consist solely of shares of one
or more registered investment companies, that have the same investment adviser
(or, in the case of unit investment trusts, the same depositor),
provided that: (a) Each
series of a series company (as defined in Rule 18f-2 under the Investment
Company Act) shall be deemed to be a separate investment company; and (b) Investment
companies shall be deemed to have the same adviser (or depositor) if their
advisers (or depositors) are majority-owned subsidiaries of the same parent, or
if one investment company's adviser (or depositor) is a majority-owned
subsidiary of the other investment company's adviser (or depositor); (5) Any entity,
all of the equity owners of which are qualified institutional buyers, acting
for its own account or the accounts of other qualified institutional buyers;
and (6) Any bank as
defined in Section 3(a)(2) of the Securities Act, any savings and loan
association or other institution as referenced in Section 3(a)(5)(A) of the
Securities Act, or any foreign bank or savings and loan association or
equivalent institution, acting for its own account or the accounts of other
qualified institutional buyers, that in the aggregate owns and invests on a
discretionary basis at least $100 million in securities of issuers that are not
affiliated with it and that has an audited net worth of at least $25 million as
demonstrated in its latest annual financial statements, as of a date not more
than 16 months preceding the date of sale under the rule in the case of a U.S.
bank or savings and loan association, and not more than 18 months preceding
such date of sale for a foreign bank or savings and loan association or
equivalent institution. For purposes of the foregoing definition of “qualified institutional buyer”: (1)
In
determining the aggregate amount of securities owned and invested on a
discretionary basis by an entity, the following instruments and interests shall
be excluded: bank deposit notes and certificates of deposit; loan
participations; repurchase agreements; securities owned but subject to a
repurchase agreement; and currency, interest rate and commodity swaps. (2) The aggregate value of securities owned and invested on a discretionary basis by an entity shall be the cost of such securities, except where the entity reports its securities holdings in its financial statements on the basis of their market value, and no current information with respect to the cost of those securities has been published. In the latter event, the securities may be valued at market for purposes of this section. (3)
In
determining the aggregate amount of securities owned by an entity and invested
on a discretionary basis, securities owned by subsidiaries of the entity that
are consolidated with the entity in its financial statements prepared in
accordance with generally accepted accounting principles may be included if the
investments of such subsidiaries are managed under the direction of the entity,
except that, unless the entity is a reporting company under Section 13 or 15(d)
of the Exchange Act, securities owned by such subsidiaries may not be included
if the entity itself is a majority-owned subsidiary that would be included in
the consolidated financial statements of another enterprise. (4) “Riskless principal transaction” means a transaction in which a dealer buys a security from any person and makes a simultaneous offsetting sale of such security
to a qualified institutional buyer, including another dealer acting as riskless principal for a qualified institutional buyer.
“accredited investor” means: 1. Any bank as defined in Section 3(a)(2) of the Securities Act, or any savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Act whether acting in its individual or fiduciary capacity; any broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934; any insurance company as defined in section 2(a)(13) of the Securities Act; any investment company registered under the Investment Company Act of 1940 or a business development company as defined in Section 2(a)(48) of that Act; any Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958; any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of $5,000,000; any employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 if the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such Act, which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors; 2. Any private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940; 3. Any organization described in Section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust, or partnership, not formed for the 3 specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; 4. Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer; 5. Any natural person whose individual net worth, or joint net worth with that person's spouse, exceeds $1,000,000. a. Except as provided in paragraph (5)(ii) of this section, for purposes of calculating net worth under this paragraph (a)(5): i. The person's primary residence shall not be included as an asset; ii. Indebtedness that is secured by the person's primary residence, up to the estimated fair market value of the primary residence at the time of the sale of securities, shall not be included as a liability (except that if the amount of such indebtedness outstanding at the time of sale of securities exceeds the amount outstanding 60 days before such time, other than as a result of the acquisition of the primary residence, the amount of such excess shall be included as a liability); and iii. Indebtedness that is secured by the person's primary residence in excess of the estimated fair market value of the primary residence at the time of the sale of securities shall be included as a liability; b. Paragraph (5)(i) of this section will not apply to any calculation of a person's net worth made in connection with a purchase of securities in accordance with a right to purchase such securities, provided that: i. Such right was held by the person on July 20, 2010; ii. The person qualified as an accredited investor on the basis of net worth at the time the person acquired such right; and iii. The person held securities of the same issuer, other than such right, on July 20, 2010. 6. Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person's spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year; 7. Any trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii); and 8. Any entity in which all of the equity owners are accredited investors. “U.S. person” means: (1) Any
natural person resident in the United States; (2) Any
partnership or corporation organized or incorporated under the laws of the United
States; (3) Any
estate of which any executor or administrator is a U.S. person; (4) Any
trust of which any trustee is a U.S. person; (5) Any
agency or branch of a foreign entity located in the United States; (6) Any
non-discretionary account or similar account (other than an estate or trust) held
by a dealer or other fiduciary for the benefit or account of a U.S. person; (7) Any
discretionary account or similar account (other than an estate or trust) held
by a dealer or other fiduciary organized, incorporated, or (if an individual)
resident in the United States; and (8) Any
partnership or corporation if: (a) Organized or incorporated under the laws of any foreign
jurisdiction; and (b) Formed by a U.S. person principally for the purpose of
investing in securities not registered under the Securities Act, unless it is
organized or incorporated, and owned, by accredited investors (as defined in
Rule 501(a) under the Securities Act) who are not natural persons, estates or
trusts. None of the following is
a “U.S.
person”: (1) Any
discretionary account or similar account (other than an estate or trust) held
for the benefit or account of a non-U.S. person by a dealer or other
professional fiduciary organized, incorporated, or (if an individual) resident
in the United States; (2) Any
estate of which any professional fiduciary acting as executor or administrator
is a U.S. person if: (a) An executor or administrator
of the estate who is not a U.S. person has sole or shared investment discretion
with respect to the assets of the estate; and (b) The estate is governed by
foreign law; (3) Any
trust of which any professional fiduciary acting as trustee is a U.S. person,
if a trustee who is not a U.S. person has sole or shared investment discretion
with respect to the trust assets, and no beneficiary of the trust (and no
settlor if the trust is revocable) is a U.S. person; (4) An
employee benefit plan established and administered in accordance with the law
of a country other than the United States and customary practices and
documentation of such country; (5) Any
agency or branch of a U.S. person located outside the United States if: (a) The agency or branch operates for valid business reasons; and (b) The agency or branch is engaged in the business of insurance
or banking and is subject to substantive insurance or banking regulation,
respectively, in the jurisdiction where located; and (6) The
International Monetary Fund, the International Bank for Reconstruction and
Development, the Inter-American Development Bank, the Asian Development Bank,
the African Development Bank, the United Nations, and their agencies,
affiliates and pension plans, and any other similar international
organizations, their agencies, affiliates and pension plans. “non-U.S. qualified offeree” means: (1)
In relation to each Member State of the European Economic Area (each, a “Relevant Member
State”) which has implemented Directive 2003/71/EC (as amended, including by Directive
2010/73/EU and including any relevant implementing measure in a Relevant Member State, the
“Prospectus Directive”), with effect from and including the date on which the Prospectus Directive
is implemented in that Relevant Member State, any legal entity which is a Qualified Investor as
defined in the Prospectus Directive; or
(2)
Any entity or person outside the United States and the European Economic Area to whom the offers
related to the New Notes may be made in compliance with all other applicable laws and regulations
of any applicable jurisdiction, other than an entity or person resident in any Restricted Jurisdiction,
provided that a discretionary account held for the benefit or account of a person or company resident
in Canada by an investment manager or a similar fiduciary outside Canada is not a resident of
Canada for this purpose.
States;
For purposes of the foregoing definition of non-U.S. qualified offeree: (1)
“Qualified Investor” means a “qualified investor” as defined in the Prospective Directive, and
includes:
(a)
persons or entities that are described in points (1) to (4) of Section I of Annex II to Directive
2004/39/EC of the European Parliament and of the Council of April 21, 2004 on markets in
financial instruments; and
(b)
persons or entities who are, on request, treated as professional clients in accordance with Annex
II to Directive 2004/39/EC, or recognized as eligible counterparties in accordance with Article 24
of Directive 2004/39/EC unless they have requested that they be treated as non-professional
clients.
(2)
“Restricted Jurisdiction” means each of Angola, Bahamas, Bahrain, Canada, Colombia, Curaçao, Gibraltar, Lebanon, Liechtenstein, the People’s Republic of China and the Russian Federation.
***** “United States” means the United States of America, its territories and possessions, any State of the United States, and the District of Columbia.
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