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REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934 |
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered | ||
Ordinary Participation Certificates ( Certificados de Participación Ordinarios |
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Accelerated filer |
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Non-accelerated filer |
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Emerging growth company |
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U.S. GAAP ☐ |
by the International Accounting Standards Board ☒ |
Other ☐ |
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Shaping the future together 20-F Report 2022
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TABLE OF CONTENTS
| PART I | ||||
| Item 1 — Identity of Directors, Senior Management and Advisors |
4 | |||
| 4 | ||||
| 4 | ||||
| 36 | ||||
| 146 | ||||
| 146 | ||||
| 243 | ||||
| 273 | ||||
| 275 | ||||
| 276 | ||||
| 278 | ||||
| Item 11 — Quantitative and Qualitative Disclosures About Market Risk |
292 | |||
| Item 12 — Description of Securities Other than Equity Securities |
292 | |||
| 292 | ||||
| 293 | ||||
| 293 | ||||
| 293 | ||||
| PART II | ||||
| 295 | ||||
| Item 14 — Material Modifications to the Rights of Security Holders and Use of Proceeds |
295 | |||
| 295 | ||||
| 296 | ||||
| 296 | ||||
| 296 | ||||
| 298 | ||||
| Item 16D — Exemptions from the Listing Standards for Audit Committees |
299 | |||
| Item 16E — Purchases of Equity Securities by the Issuer and Affiliated Purchasers |
299 | |||
| 299 | ||||
| 299 | ||||
| 302 | ||||
| Item 16I — Disclosure Regarding Foreign Jurisdictions that Prevent Inspections |
302 | |||
| PART III | ||||
| 303 | ||||
| 303 | ||||
| 303 | ||||
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INTRODUCTION
Cemex, S.A.B. de C.V. is incorporated as a publicly traded variable stock corporation (sociedad anónima bursátil de capital variable) organized under the laws of the United Mexican States (“Mexico”). Except as the context otherwise may require, references in this annual report to “Cemex,” the “Company,” “we,” “us” or “our” refer to Cemex, S.A.B. de C.V. and its consolidated entities. See note 1 to our 2022 audited consolidated financial statements included elsewhere in this annual report.
PRESENTATION OF FINANCIAL INFORMATION
The audited consolidated financial statements of Cemex, S.A.B. de C.V. included elsewhere in this annual report have been prepared in accordance with International Financial Reporting Standards (“IFRS”), as issued by the International Accounting Standards Board (“IASB”).
The regulations of the United States Securities and Exchange Commission (the “SEC”) do not require foreign private issuers that prepare their financial statements based on IFRS (as issued by the IASB) to reconcile such financial statements to United States Generally Accepted Accounting Principles (“U.S. GAAP”).
Unless otherwise indicated, references in this annual report to “$” and “Dollars” are to United States Dollars, references to “€” are to Euros, references to “£,” “Pounds Sterling” and “Pounds” are to British Pounds, and references to “Ps,” “Mexican Pesos” and “Pesos” are to Mexican Pesos. References to “billion” mean one thousand million. References in this annual report to “CPOs” are to Cemex, S.A.B. de C.V.’s Ordinary Participation Certificates (Certificados de Participación Ordinarios), each CPO represents two Series A shares (as defined below) and one Series B share (as defined below) of Cemex, S.A.B. de C.V. References to “ADSs” are to American Depositary Shares of Cemex, S.A.B. de C.V.; each ADS represents ten CPOs.
See notes 2.7, 17.1 and 17.2 to the 2022 audited consolidated financial statements of Cemex, S.A.B. de C.V. included elsewhere in this annual report for a detailed description of our debt and other financial obligations. Total debt plus other financial obligations differs from the calculation of debt under our main unsecured credit agreements, dated as of October 29, 2021, as amended and/or restated from time to time (the “2021 Credit Agreement”), dated as of December 23, 2021, as amended and/or restated from time to time (the “Mexican Peso Banorte Agreement”), and dated as of October 7, 2022, as amended and/or restated from time to time (the “2022 EUR Credit Agreement,” and collectively with the 2021 Credit Agreement and the Mexican Peso Banorte Agreement, the “Credit Agreements”). See “Item 5—Operating and Financial Review and Prospects—Liquidity and Capital Resources—Our Indebtedness” for more information.
During 2022, pursuant to tender offers and other market transactions, we partially repurchased different series of our notes for an aggregate notional amount of $1,172 million. The difference between the amount paid for such notes and the notional amount redeemed, net of transactional costs, generated a repurchase gain of $104 million, recognized in the statement of operations for the year ended December 31, 2022. On June 8, 2021, we issued $1,000 million of our 5.125% Subordinated Notes with no fixed maturity (the “5.125% Subordinated Notes”). Based on IFRS, the 5.125% Subordinated Notes qualify as equity instruments and are classified within controlling interest stockholders’ equity. See note 21.2 to the 2022 audited consolidated financial statements of Cemex, S.A.B. de C.V. included elsewhere in this annual report for a detailed description of the 5.125% Subordinated Notes.
We also refer in various places within this annual report to non-IFRS measures, including “Operating EBITDA,” “Operating EBITDA” equals operating earnings before other expenses, net, plus depreciation and amortization expenses, as more fully explained in “Item 5—Operating and Financial Review and Prospects—Results of Operations—Selected Consolidated Financial Information.” Additionally, we refer to “Operating EBITDA Margin,” which is calculated by dividing our “Operating EBITDA” by our revenues. The presentation
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of these non-IFRS measures is not meant to be considered in isolation or as a substitute for the 2022 audited consolidated financial results of Cemex, S.A.B. de C.V. prepared in accordance with IFRS as issued by the IASB.
We have approximated certain numbers in this annual report to their closest round numbers or a given number of decimal places. Due to rounding, figures shown as totals in tables may not be arithmetic aggregations of the figures preceding them.
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CERTAIN TECHNICAL TERMS
When used in this annual report, the terms set forth below mean the following:
| • | Aggregates are inert granular materials, such as stone, sand, and gravel, which are obtained from land- based sources (mainly mined from quarries) or by dredging marine deposits. They give ready-mix concrete its necessary volume and add to its overall strength. Under normal circumstances, one cubic meter of fresh concrete contains two tons of gravel and sand. |
| • | Cement is a binding agent which, when mixed with aggregates and water, produces either ready-mix concrete or mortar. |
| • | Cement mill (also called finish mill in the United States) is a piece of equipment used to reduce the size of the materials needed for cement production, usually to microns size (1 micron is equal to 0.001 millimeters). Traditionally, cement mills have adopted the form of ball mills. Vertical roller mills, which are more effective in terms of energy consumption compared to ball mills, are being gradually introduced to our operations in the United States, Mexico, the United Kingdom, the United Arab Emirates, and other regions in which we operate. |
| • | Clinker is an intermediate cement product made by sintering limestone, clay, and iron oxide in a kiln at around 1,450 degrees Celsius. One ton of clinker is used to make approximately 1.1 tons of gray portland cement. |
| • | Fly ash is a combustion residue from coal-fired power plants that can be used as a non-clinker cementitious material. |
| • | Gray Portland cement, used for construction purposes, is a hydraulic binding agent with a traditional composition by weight of approximately 95% clinker and up to 5% of a minor component (usually calcium sulfate). Blended portland cement has lower clinker factor, usually below 90%, which results in lower carbon dioxide (“CO2”) emissions. Both traditional and blended portland cement, when mixed with sand, stone or other aggregates and water, produce either concrete or mortar. |
| • | Petroleum coke or pet coke is a by-product of the oil refining coking process that can be incorporated into the cement production process as fuel, in substitution of fossil fuels such as natural gas or coal. |
| • | Ready-mix concrete is a mixture of cement, aggregates, admixtures and water. |
| • | Slag is the by-product of smelting ore to purify metals. |
| • | Tons means metric tons. One metric ton equals 1.102 short tons. |
| • | Urbanization Solutions is one of our four core businesses. It is a business that complements our value offering of products and solutions, looking to connect with the broader city ecosystem. It seeks to address urbanization challenges and provide means to all stakeholders in the construction value chain to enable sustainable urbanization by focusing on four market segments: performance materials, waste management, industrialized construction, and related services. |
| • | White cement is a specialty cement used primarily for decorative purposes. |
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PART I
Item 1 — Identity of Directors, Senior Management and Advisors
Not applicable.
Item 2 — Offer Statistics and Expected Timetable
Not applicable.
Item 3 — Key Information
Advancing our strategic priorities and being an industry leader
in the global transition to a lower-carbon and circular economy
During 2022, we made progress on our goal to optimize and rebalance our portfolio for growth by investing $474 million in strategic capital expenditures during 2022. Much of this investment was dedicated to our growth strategy of investing in bolt-on and margin enhancement projects as well as capacity additions. We estimate that our growth strategy resulted in a contribution of $100 million in incremental Operating EBITDA in 2022. Additionally, Operating EBITDA from our Urbanization Solutions core business was 21% higher in 2022 compared to 2021. In general, since 2020, we have invested more than $1 billion in strategic projects focused on accelerating growth. These investments are designed to allow us to achieve cost savings from operating efficiencies, advance our CO2 reduction goal, increase production capacity in supply-constrained markets, and drive growth in our Urbanization Solutions business. We plan to continue reorienting our portfolio more toward developed markets, particularly the U.S. and Europe, through the investments and strategic divestments we have executed, such as the divestment of our former operations in Costa Rica and El Salvador, among others.
In addition, to further fortify our balance sheet, we continue to focus mainly on the following three initiatives: (i) growing our Operating EBITDA through further cost-reduction efforts, operating efficiencies and customer-centric commercial strategies across all our core businesses; (ii) maximizing our free cash flow, which is expected to be used mainly for debt reduction and our bolt-on investments; and (iii) continuing to execute selective divestments by selling what we believe are non-essential assets, which would allow us to free up more free cash flow.
For the year ended December 31, 2022, we had net sales of $15.6 billion, which were higher than those for the year ended December 31, 2021, mainly driven by price increases across our products and services in all of the regions where we operate. During 2022, our pricing and cost mitigation efforts were able to offset much of the impact of inflation.
Strengthening our capital structure and deleveraging continues to be one of our top priorities. In response to significant market volatility, we also engaged in several liability management exercises, which included repurchasing some of our notes.
On April 13, 2022, Cemex consummated a cash tender offer and purchased $163,762,000 aggregate principal amount of the outstanding 5.200% Dollar-denominated Notes due 2030 (the “September 2030 Dollar Notes”), $108,648,000 aggregate principal amount of the outstanding 5.450% Dollar-denominated Notes due 2029 (the “November 2029 Dollar Notes”) and $156,178,000 aggregate principal amount of the outstanding 3.875% Dollar-denominated Notes due 2031 (the “July 2031 Dollar Notes”) validly tendered by holders of the tendered notes, and made a total payment of $419,293,717.35 (which included an early tender premium and accrued and unpaid interest) for such tendered notes, pursuant to the terms of an offer to purchase governing the tender offer.
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On April 27, 2022, Cemex, S.A.B. de C.V. consummated a cash tender offer and purchased $4,160,000 aggregate principal amount of the outstanding September 2030 Dollar Notes, $3,000,000 aggregate principal amount of the outstanding November 2029 Dollar Notes and $3,075,000 aggregate principal amount of the outstanding July 2031 Dollar Notes validly tendered by holders of the tendered notes after the early tender date and at or prior to the expiration date and made a total payment of $9,789,319.41 (which included accrued and unpaid interest) for such tendered notes, pursuant to the terms of an offer to purchase governing the tender offer.
On September 30, 2022, Cemex consummated a cash tender offer and purchased $291,177,000 aggregate principal amount of the July 2031 Dollar Notes, $81,944,000 aggregate principal amount of the September 2030 Dollar Notes and $94,955,000 of the November 2029 Dollar Notes validly tendered by holders of the tendered notes and made a total payment of $404,512,954.08 (which included an early tender premium and accrued and unpaid interest) for such tendered notes, pursuant to the terms of an offer to purchase and an offer to purchase supplement governing the tender offer.
On October 7, 2022, Cemex successfully closed the 2022 EUR Credit Agreement, a new €500 million three-year non-amortizing sustainability-linked term loan, the proceeds of which were used to repay other debt of the Company. The 2022 EUR Credit Agreement, which is denominated exclusively in Euros, has nearly identical terms and conditions as the other Credit Agreements, including guarantor structure, financial covenants and a parallel interest rate margin grid. The 2022 EUR Credit Agreement was issued under Cemex’s Sustainability-linked Financing Framework (the “Framework”), increasing the amount of debt that is linked to the company’s “Future in Action” program and its ultimate vision of a carbon-neutral economy. All sustainability-linked loans issued under the Framework have the same metrics and adjustments to the interest rate margin. In general, during 2022, we further aligned our funding strategy with our climate action roadmap through the 2022 EUR Credit Agreement and other financial efforts that we executed related thereto. As a result, as of the date of this report we have approximately 42% of our debt linked to sustainability key performance indicators (“KPIs”).
During 2022, we reduced total debt by $408 million and interest expenses by $45 million, compared to 2021. However, our leverage ratio, as calculated under the Credit Agreements, increased by 0.11x to 2.84x. As of December 31, 2022, we had decreased to $8,825 million (principal amount $8,870 million, excluding deferred issuance costs) our total debt plus other financial obligations in our statement of financial position (which does not include $1,000 million of 5.125% Subordinated Notes). As of December 31, 2022, 11% of our total debt plus other financial obligations was current (including current maturities of non-current debt) and 89% was non-current. As of December 31, 2022, 77% of our total debt plus other financial obligations was Dollar-denominated, 13% was Euro-denominated, 2% was Pound Sterling-denominated, 5% was Mexican Peso-denominated, 2% was Philippine Peso-denominated and 1% was denominated in other currencies. See notes 17.1 and 17.2 to our 2022 audited consolidated financial statements included elsewhere in this annual report.
In 2022, we also made significant advancements towards our climate action goals and our “Future in Action” program, focused on developing sustainable products and solutions, decarbonizing our operations, contributing to a circular economy, enhancing biodiversity, preserving water, and pursuing innovation and partnerships. Our 2030 climate action goals, which are aligned to CO2 reduction pathways in our industry, and our 2050 net-zero roadmap across the value chain were both validated by the Science Based Targets Initiative (“SBTi”) according to the 1.5°C scenario, during 2022. Most importantly, these goals should keep us on the right path to achieving our expected objective of delivering net-zero CO2 concrete globally by 2050. Also, during 2022, we enhanced the link between our executive compensation and our climate action goals. In order to meet our 2030 targets, yearly CO2 emission results will have an impact ranging from -10% to +10% on the total cash payout of the annual executive variable compensation of various of our executives eligible for variable compensation, including the Chief Executive Officer of the Company. See “Item 6—Directors, Senior Management and Employees—Board Practices—Variable Compensation Plan.”
As of 2022, we have reduced our specific net CO2 emissions by 30% as compared to our 1990 baseline, which we estimate puts us on track to achieve our goal of more than a 47% reduction by 2030.
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For 2022, our fuel mix consisted of 35% alternative fuels, a significant substitution rate for us. While our operations in Europe continue to lead with the highest substitution rate within our operations, we are moving to boost alternative fuel usage in all our other regions. Our operations in Mexico increased alternative fuel usage by 9% in 2022. This performance is supported by an increase of almost 6% in our use of alternative fuels and a reduction of 1.5% in our clinker factor during 2022.
Since 2019, we have used hydrogen injection to increase the use of alternative fuels and maximize thermal efficiency and, as of 2021, hydrogen is in use in all of our cement plants in Europe. At the end of 2022, approximately 44% of our clinker production used hydrogen injection technologies. We have also entered into partnerships to access new hydrogen injection technologies that should accelerate this strategy and allow us to further explore and scale the adoption of hydrogen in all of our operations while reducing the consumption of fossil fuels. Additionally, we have made progress in our clean electricity consumption strategy. As of the date of this annual report, 33% of our electricity supply is free of CO2 emissions, which we estimate should keep us on track to achieve our 2030 goal of having 65% of our electricity supply free of CO2 emissions.
Using biomass waste and non-recyclable materials to fuel our kilns is a key lever along our path to achieve our decarbonization goals. Not only does this activity benefit society by helping municipalities reduce waste going to landfills, but it also allows us to reduce our usage of expensive fossil fuels in our production processes. In 2022, our operations in Europe processed waste equivalent to the annual amount produced by a city the size of Madrid, achieving close to 70% alternative fuel substitution in the region, which is higher than the industry average. As of December 31, 2022, three of our cement plants were already producing cement with CO2 levels below 430 kg per ton, our new 2030 consolidated goal. As a result, our operations in Europe have achieved a 40% reduction in CO2 emissions as compared to our 1990 baseline. We are also boosting alternative fuel usage by injecting hydrogen into our cement kilns to optimize the process. After successfully implementing this technology in our plants in Europe, we have announced investments to implement hydrogen injection in four plants in Mexico in 2023, and expect to continue scaling its use in other operations worldwide.
In 2022, we launched Regenera, our new global waste management business, which is intended to further strengthen our capabilities and the circularity services we offer to our customers. Our aim is to increase by more than 50% the amount of waste and by-products we manage by 2030, with particular focus on (i) municipal and industrial waste; (ii) construction, demolition, and excavation waste; and (iii) other waste and industry by-products. Overall, in 2022, we estimate that we managed close to 27 million tons of waste, 67 times more than the non-recyclable waste we generated.
We believe that the success of our efforts will depend on the market’s reception to our lower-carbon products. Cemex estimates that, during 2022, Vertua-branded cement represented 41% of total cement volumes and Vertua-branded ready-mix represented 33% of total ready-mix volumes, a 14.8% and 16.1% year-over-year increase, respectively. Furthermore, we expanded our Vertua brand to include a comprehensive portfolio of products and solutions with sustainability attributes beyond a lower-carbon footprint, including water conservation, energy efficiency, recycled materials and efficient construction systems.
We also took significant steps in our innovation and partnership strategy, an important lever to reach our goal of net-zero CO2 by 2050. Among other initiatives, we are partnering with start-ups and leaders in the energy space on several carbon capture, utilization, and storage (“CCUS”) projects. We are also collaborating on transformative technologies for our industry, such as powering our kilns with solar heat or electricity and using CO2 for the production of value-added carbon nanomaterials, which are in growing demand in several traditional and high-tech industries. These partnerships, along with the capabilities of Cemex’s Global Research and Development, Cemex Ventures, and our internal “Smart Innovation” process, should be instrumental in developing our first net-zero CO2 plants by 2030.
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In 2022, we also advanced our social impact strategy, which allows us to contribute to the well-being of our communities in important areas such as affordable housing, education, employment capabilities, entrepreneurship, inclusion, environmental protection and community infrastructure. Overall, we have collaborated with over 26 million people globally, contributing to our goal of reaching 30 million community partners by 2030.
CEMEX Go, our end-to-end digital platform, is also an important enabler of our transition to a lower-carbon industry by better organizing supply chains, transitioning to a paperless industry, and increasing overall efficiency in the construction sector. CEMEX Go offers a digital customer experience to over 53,000 customers in 21 countries.
Furthermore, we continue to progress in our “Working Smarter” digital transformation initiative, through which Cemex is leveraging a combination of digital technologies, operative models and innovation from leading service suppliers in order to reshape its business management services.
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Risk Factors
We are subject to various risks mainly resulting from changing economic, environmental, political, industry, business, legal, regulatory, financial and climate conditions, as well as risks related to ongoing legal proceedings and investigations. The following risk factors are not the only risks we face, and any of the risk factors described below could significantly and adversely affect our business, liquidity, results of operations or financial condition, as well as, in certain instances, our reputation.
Risk Factor Summary
Risks Relating to Ownership of Our Securities
| • | Non-Mexicans may not hold Cemex, S.A.B. de C.V.’s Series A shares directly and must have them held in a trust at all times. |
| • | ADS holders may only vote the Series B shares represented by the CPOs deposited with the ADS depositary through the ADS depositary and are not entitled to vote the Series A shares represented by the CPOs deposited with the ADS depositary or to attend shareholders’ meetings. |
| • | Corporate rights may not be available to any person that acquires 2% or more of Cemex, S.A.B. de C.V.’s voting shares without the approval of Cemex, S.A.B. de C.V.’s Board of Directors. |
| • | Preemptive rights generally available under Mexican law may be unavailable to ADS holders. |
| • | The protections afforded to shareholders in Mexico are different from those in other countries and may be more difficult to enforce. |
Risks Relating to Our Business and Operations
| • | Economic conditions, including inflation, in countries where we operate and in other regions or countries have affected and may continue to adversely affect our business, financial condition, liquidity and results of operations. |
| • | The war between Russia and Ukraine may have a material adverse effect on our business, financial condition, liquidity and results of operation. |
| • | High energy and fuel costs have had and may continue to have a material adverse effect on our operating results. |
| • | We are subject to restrictions and reputational risks resulting from non-controlling interests held by third parties in our consolidated subsidiaries. As of the date of this annual report, we control three publicly listed companies, where this risk is heightened. |
| • | Our use of derivative financial instruments could negatively affect our net income and liquidity, especially in volatile and uncertain markets. |
| • | Political, social and geopolitical events, possible changes in public policies and other risks in some of the countries where we operate, which are inherent to the operations of an international company, could have a material adverse effect on our business, financial condition, liquidity and results of operations. |
| • | Complications in relationships with local communities may adversely affect our business continuity, reputation, liquidity and results of operations. |
| • | We are increasingly dependent on information technology and our systems and infrastructure, as well as those provided by third-party service providers, face certain risks, including cyber-security risks. |
| • | We may fail to secure certain materials required to run our business, which could have a material adverse effect on our business, financial condition, liquidity and results of operations. |
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| • | We may not be able to realize the expected benefits from any acquisitions or joint ventures, some of which may have a material impact on our business, financial condition, liquidity and results of operations. Any failure to realize expected benefits from the bolt-on acquisitions of our business strategy heightens this risk. |
| • | The introduction of or failure to introduce substitutes or alternative forms of cement, ready-mix concrete or aggregates into the market and the development of or failure to develop new construction techniques and technologies could have a material adverse effect on our business, financial condition, liquidity and results of operations. |
| • | We operate in highly competitive markets with numerous players employing different competitive strategies and if we do not compete effectively, our revenues, market share and results of operations may be affected. |
| • | A substantial amount of our total assets consists of intangible assets, including goodwill. We have recognized charges for goodwill impairment in the past and also in 2022, and if market or industry conditions deteriorate further, additional impairment charges may be recognized. |
| • | Activities in our business can be hazardous and can cause injury to people or damage to property in certain circumstances. |
| • | Our operations and ability to source products and materials can be affected by adverse weather conditions and natural disasters, including climate change, which could have a material adverse effect on our business, financial condition, liquidity and results of operations. |
| • | We could be adversely affected by any significant or prolonged disruption to our production facilities. |
| • | Labor activism and unrest, or failure to maintain satisfactory labor relations, could adversely affect our results of operations. |
| • | Our insurance coverage may not cover all the risks to which we may be exposed. |
| • | Our success depends on the leadership of Cemex, S.A.B. de C.V.’s Board of Directors and on key members of our executive management team and the availability of a specialized workforce. |
| • | Future pandemics and epidemics, such as the COVID-19 pandemic, could materially adversely affect our financial condition and results of operations. |
Risks Relating to Our Indebtedness and Certain Other Obligations
| • | The Credit Agreements, the indentures governing our outstanding 3.125% Euro-denominated notes due 2026 (the “March 2026 Euro Notes”), November 2029 Dollar notes, 7.375% Dollar-denominated notes due 2027 (the “June 2027 Dollar Notes”), September 2030 Dollar Notes and July 2031 Dollar Notes (collectively, the “Notes”) and our other debt agreements and/or instruments contain several restrictions and covenants. Our failure to comply with such restrictions and covenants or any inability to capitalize on business opportunities or refinance our debt resulting from them could have a material adverse effect on our business and financial conditions. |
| • | The elimination of the London Inter-Bank Offered Rate (“LIBOR”) after June 2023 may adversely affect our financial results. |
| • | We have a substantial amount of debt and other financial obligations. If we are unable to secure refinancing on favorable terms or at all, we may not be able to comply with our payment obligations upon their maturity. Our ability to comply with our principal maturities and financial covenants may depend on us implementing certain strategic initiatives, including, but not limited to, making asset sales, and there is no assurance that we will be able to implement any such initiatives or execute such sales, if needed, on terms favorable to us or at all. |
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| • | We may not be able to generate sufficient cash to service our indebtedness or satisfy our short-term liquidity needs, and we may be forced to take other actions to do so, which may not be successful. |
| • | Cemex, S.A.B. de C.V.’s ability to repay debt and pay dividends is highly dependent on our subsidiaries’ ability to transfer income and dividends to us. As of the date of this annual report, we control three publicly listed companies, where this risk is heightened. |
| • | We have to service part of our debt and other financial obligations denominated in Dollars and Euros with revenues generated in Mexican Pesos or other currencies, as we do not generate sufficient revenue in Dollars and Euros from our operations to service all our debt and other financial obligations denominated in Dollars and Euros. This could adversely affect our ability to service our obligations in the event of a devaluation or depreciation in the value of the Mexican Peso, or any of the other currencies of the countries in which we operate, compared to the Dollar and Euro. In addition, our consolidated reported results and outstanding indebtedness are significantly affected by fluctuations in exchange rates between the Dollar (our reporting currency) vis-à-vis the Mexican Peso and other significant currencies within our operations. |
| • | Increases in liabilities related to our pension plans could adversely affect our results of operations. |
Risks Relating to Regulatory and Legal Matters
| • | We are subject to the laws and regulations of the countries where we operate and do business and non-compliance, any material changes in such laws and regulations and/or any significant delays in assessing the impact and/or adapting to such changes in laws and regulations may have an adverse effect on our business, financial condition, liquidity and results of operations. |
| • | We or our third-party providers may fail to maintain, obtain, or renew or may experience material delays in obtaining requisite governmental or other approvals, licenses and permits for the conduct of our business. |
| • | We are subject to litigation proceedings, including, but not limited to, government investigations relating to corruption, antitrust and other proceedings, that could harm our business and our reputation. |
| • | We are subject to anti-corruption, anti-bribery, anti-money laundering, antitrust, anti-boycott, economic sanctions, trade embargoes, and export control laws and regulations in the countries in which we operate and do business, a considerable number of which are considered high and medium risk countries. Any violation of any such laws or regulations could have a material adverse impact on our reputation, results of operations and financial condition, as well as harm our reputation. |
| • | Certain tax matters may have a material adverse effect on our cash flow, financial condition and net income, as well as on our reputation. |
| • | Our operations are subject to environmental laws and regulations, including new and proposed reporting requirements, that are or could become increasingly stringent. |
| • | It may be difficult to enforce civil liabilities against us or the members of Cemex, S.A.B. de C.V.’s Board of Directors, our senior management and controlling persons. |
Risks Relating to Ownership of Our Securities
Non-Mexicans may not hold Cemex, S.A.B. de C.V.’s Series A shares directly and must have them held in a trust at all times.
Any person acquiring shares, CPOs or ADSs of Cemex, S.A.B. de C.V. should be aware that non-Mexican investors and Mexican companies without a foreign investment-exclusion clause in their by-laws may not directly hold the Series A shares underlying Cemex, S.A.B. de C.V.’s CPOs or ADSs, but may hold them indirectly through Cemex, S.A.B. de C.V.’s CPO trust. Upon the early termination or expiration of the term of
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Cemex, S.A.B. de C.V.’s CPO trust on September 6, 2029, the Series A shares underlying the CPOs held by non-Mexican investors or by Mexican companies without a foreign investment-exclusion clause in their by-laws must be placed into a new trust similar to the current CPO trust. We cannot guarantee that a trust similar to the CPO trust will exist or that the relevant authorization for the transfer of Cemex, S.A.B. de C.V.’s Series A shares to such a trust will be obtained. In that event, such investors might be required to sell their Series A shares to a Mexican individual or corporation that has a foreign investment-exclusion clause in its by-laws, which could expose shareholders to a loss in the sale of the corresponding Series A shares and may cause the price of Cemex, S.A.B. de C.V.’s CPOs and ADSs to decrease.
ADS holders may only vote the Series B shares represented by the CPOs deposited with the ADS depositary through the ADS depositary and are not entitled to vote the Series A shares represented by the CPOs deposited with the ADS depositary or to attend Cemex, S.A.B. de C.V.’s shareholders’ meetings.
Any person acquiring ADSs should be aware of the terms of the ADSs, the corresponding deposit agreement pursuant to which the ADSs are issued (the “Deposit Agreement”), the CPO Trust (as defined in the Deposit Agreement) and Cemex, S.A.B. de C.V.’s by-laws. Under such terms, in relation to shareholders’ meetings of Cemex, S.A.B. de C.V., a holder of an ADS has the right to instruct the ADS depositary to exercise voting rights only with respect to Series B shares represented by the CPOs deposited with the depositary, but not with respect to the Series A shares represented by the CPOs deposited with the depositary. ADS holders will not be able to directly exercise their right to vote unless they withdraw the CPOs underlying their ADSs (and, in the case of non-Mexican holders, even if they do so, they may not vote the Series A shares represented by the CPOs) and may not receive voting materials in time to ensure that they are able to instruct the depositary to vote the CPOs underlying their ADSs or receive sufficient notice of a shareholders’ meeting to permit them to withdraw their CPOs to allow them to cast their vote with respect to any specific matter. Holders of ADSs will not have the right to instruct the ADS depositary as to the exercise of voting rights in respect of Series A shares underlying CPOs held in the CPO Trust. Under the terms of the CPO Trust, Series A shares underlying CPOs held by non-Mexican nationals, including all Series A shares underlying CPOs represented by ADSs, will be voted by the Trustee (as defined in the Deposit Agreement), according to the majority of all Series A shares held by Mexican nationals and Series B shares voted at the meeting. In addition, the depositary and its agents may not be able to send out voting instructions on time or carry them out in the manner an ADS holder has instructed. As a result, ADS holders may not be able to exercise their right to vote and they may lack recourse if the CPOs underlying their ADSs are not voted as they requested. In addition, ADS holders are not entitled to attend shareholders’ meetings. ADS holders will also not be permitted to vote the CPOs underlying the ADSs directly at a shareholders’ meeting or to appoint a proxy to do so without withdrawing the CPOs. If the ADS depositary does not receive voting instructions from a holder of ADSs in a timely manner such holder will nevertheless be treated as having instructed the ADS depositary to give a proxy to a person we designate, or at our request, the corresponding CPO trust’s technical committee designates, to vote the Series B shares underlying the CPOs represented by the ADSs in his/her discretion. The ADS depositary or the custodian for the CPOs on deposit may represent the CPOs at any meeting of holders of CPOs even if no voting instructions have been received. The CPO trustee may represent the Series A shares and the Series B shares represented by the CPOs at any meeting of holders of Series A shares or Series B shares even if no voting instructions have been received. By so attending, the ADS depositary, the custodian or the CPO trustee, as applicable, may contribute to the establishment of a quorum at a meeting of holders of CPOs, Series A shares or Series B shares, as appropriate.
Corporate rights may not be available to any person that acquires 2% or more of Cemex, S.A.B. de C.V.’s voting shares without the approval of Cemex, S.A.B. de C.V.’s Board of Directors.
Cemex, S.A.B. de C.V.’s by-laws provide that its Board of Directors must authorize in advance any transfer of voting shares of its capital stock that would result in any persons, or groups acting in concert, becoming a holder of 2% or more of Cemex, S.A.B. de C.V.’s voting shares. In the event this requirement is not met, the persons acquiring such shares will not be entitled to any corporate rights with respect to such shares, such shares will not be taken into account for purposes of determining a quorum for shareholders’ meetings, Cemex, S.A.B.
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de C.V. will not record such persons as holders of such shares in its share registry and the registry undertaken by Indeval (as defined below) shall not have any effect.
Preemptive rights generally available under Mexican law may be unavailable to ADS holders.
ADS holders may be unable to exercise preemptive rights granted to Cemex, S.A.B. de C.V.’s shareholders, in which case ADS holders could be diluted following equity or equity-linked offerings. Under Mexican law, if Cemex, S.A.B. de C.V. issues new shares, Cemex, S.A.B. de C.V. would be generally required to grant preemptive rights to its shareholders, except in certain situations, including if such shares are issued in the context of a public offering or if such shares underlie convertible securities issued by Cemex, S.A.B. de C.V. However, ADS holders may not be able to exercise these preemptive rights to acquire new shares unless (i) Cemex, S.A.B. de C.V. files a registration statement with the SEC with respect to such shares or (ii) the offering of the shares qualifies for an exemption from registration under the U.S. Securities Act of 1933, as amended (the “Securities Act”). We cannot assure you that Cemex, S.A.B. de C.V. would file a registration statement in the United States that would allow holders of ADSs to participate in any preemptive rights offering. Under Mexican law, preemptive rights cannot be waived in advance or be assigned or be represented by an instrument that is negotiable separately from the corresponding shares. As a result of applicable United States securities laws, holders of ADSs may be restricted in their ability to exercise preemptive rights as provided in the Deposit Agreement with the ADSs depositary, as amended. Shares subject to a preemptive rights offering, with respect to which preemptive rights have not been exercised, may be sold by Cemex, S.A.B. de C.V. to third parties on the terms and conditions previously approved by Cemex, S.A.B. de C.V.’s shareholders or its Board of Directors. See “Item 10—Additional Information—Articles of Association and By-laws.”
The protections afforded to shareholders in Mexico are different from those in other countries and may be more difficult to enforce.
Under Mexican law, the protections afforded to shareholders are different from those in the United States and countries in continental Europe. In particular, the legal framework and case law pertaining to directors’ duties and disputes between shareholders and us, the members of Cemex, S.A.B. de C.V.’s Board of Directors or our officers are less protective of shareholders under Mexican law than under U.S. and continental European law. Mexican law only permits shareholder derivative suits (i.e., suits for our benefit as opposed to the direct benefit of our shareholders) and there are procedural requirements for bringing shareholder derivative lawsuits, such as minimum holdings, which differ from those in effect in other jurisdictions. There is also a substantially less active plaintiffs’ bar dedicated to the enforcement of shareholders’ rights in Mexico than in the United States or Europe. As a result, in practice it may be more difficult for our shareholders to initiate an action against us or our directors or obtain direct remedies than it would be for shareholders of a U.S. or European company.
Risks Relating to Our Business and Operations
Economic conditions, including inflation, in countries where we operate and in other regions or countries have affected and may continue to adversely affect our business, financial condition, liquidity and results of operations.
The economic conditions in some of the countries where we operate have had and may continue to have a material adverse effect on our business, financial condition, liquidity and results of operations worldwide. Our results of operations are highly dependent on the results of our operating subsidiaries worldwide, including those in the United States, Mexico, Europe, the Middle East, Africa and Asia (the “EMEAA”) region, and South America, Central America and the Caribbean (the “SCA&C”) region (as described in “Item 4—Information on the Company—Business Overview”).
For a geographic breakdown of our revenues for the year ended December 31, 2022, see “Item 4—Information on the Company—Geographic Breakdown of Revenues by Reportable Segment for the Year Ended December 31, 2022.”
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As of the date of this annual report, we believe that the main risk factors for the global economy and the countries where we operate include, but are not limited to: (i) monetary policies to reduce inflation could diverge from the optimal stance, increasing the risk of a recession or high inflation; (ii) policy paths in the largest economies could continue to diverge, leading to further Dollar appreciation with negative cross-border effects; (iii) energy and food price shocks might cause inflation to persist for longer and weigh on investment and productivity growth, raising additional roadblocks in the recovery path; (iv) global tightening of financing conditions could trigger widespread emerging market debt distress; (v) reduction in gas supplies from Russia or an escalation of the Russia-Ukraine war could depress output of gas in Europe; (vi) a resurgence in COVID-19 or any related COVID-19 strain, or new pandemics or epidemics, might further hinder growth; (vii) the rapid growth of cryptocurrencies without clear regulation could lead to financial instability with negative effects for the global economy; (viii) a worsening of China’s poverty sector crisis could spill over to the domestic banking sector and weigh heavily on the country’s growth, with negative cross-border effects; (ix) an increase in the spread and destructiveness of cyberattacks involving critical infrastructure could further delay the recovery of the global economy, particularly as teleworking and automation increase; (x) geopolitical risks like fragmentation could impede trade and capital flows, further hindering climate policy cooperation; and (xi) other geopolitical risks like the escalation of social unrest or more adverse climate shocks.
Since the beginning of 2022, inflation, as measured by the consumer price index has increased in advanced and emerging market economies, reached record highs in Europe and in the United States, driven mainly by supply chain issues (including input shortages, labor constrains, and rising commodity prices), an excess demand for goods and services and, since March 2022, a significant increase in energy and food prices, in part due to the war in Ukraine.
In this context, central banks worldwide have increased interest rates to try and reduce persistent high inflation, anchor inflation expectations and, in many cases, protect their own currencies from potential depreciation and market turmoil. Although inflation in 2023 is expected to be lower than in 2022, we cannot rule out other energy or food price shocks that could cause persistent inflation for longer. This environment of high inflation has caused, for the first time in years, a current account deficit in Europe, which could damage the value of the Euro if this situation persists.
High inflation can deteriorate economic conditions in the countries where we operate and has caused and may continue to cause a rise in the costs of manufacturing our products, as well as an increase in related expenses, such as freight related expenses. Furthermore, our operations, mainly those in the United States and Europe, have historically not experienced inflationary pressures, and thus there is no assurance that they will be well-prepared to cope with them. Inflation and its related effects could have a material adverse effect on our business, financial condition, liquidity, and results of operations. See “—High energy and fuel costs may have a material adverse effect on our operating results” for information on how energy and fuel costs affect the costs of manufacturing our products and related expenses.
On the other hand, central banks increasing interest rates to tighten monetary policy could fail to reduce inflation in the short term and be inclined to keep interest rates higher for longer, potentially causing deep damage to their economies (affecting the investment capacity of consumers and enterprises and damaging the purchasing power of consumers due to higher loan payments, causing governments to issue debt), enlarging and deepening a potential upcoming recession in Europe or the United States with potential spillovers worldwide. This global tightening of financing conditions could also trigger widespread emerging market debt distress, and could affect debt sustainability not only in emerging economies but also in developed countries with high debt levels. In addition, in Europe, the decision of the European Central Bank to reduce their balance sheet from March 2023 onwards could cause a credit spread crisis in the European periphery. This high interest rate environment could also limit our ability to access capital at reasonable terms or at all, and thus have a material adverse effect on our business, financial condition, liquidity, and results of operations.
Emerging markets and developing economies with significant foreign currency denominated-debt and financing needs could be particularly exposed and affected from the resulting effects of an environment of
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sustained higher interest rate such as capital outflows, exchange rate depreciations, shifts in investor sentiment and increasing borrowing costs, all of which lead to adverse growth outcomes. Similarly, large-scale corporate debt defaults or restructuring could reverberate widely. A substantial portion of our operations are located in developing countries which have shown to be negatively affected by capital outflows in the past and have volatile currency values. In the event that one or more of these risks materialize, demand for our products and services could decrease significantly due to a general deterioration in the economic conditions of these countries and/or our revenues and available resources in local currencies could depreciate significantly, which could limit our ability to satisfy our indebtedness and other obligations and/or incur expenditures and make investments in hard currency necessary to conduct our business, all of which could have a material adverse effect on our business, financial condition, liquidity, and results of operations. See “Geographic Breakdown of Revenues by Reportable Segment for the Year Ended December 31, 2022” and see “Item 5—Operating and Financial Review and Prospects—Liquidity and Capital Resources—Our Indebtedness.”
In the context of high inflation, high interest rates and low economic growth, social unrest could easily surge in countries where consumers’ purchasing power has been significantly damaged. Notwithstanding governmental plans to encourage economic growth, there is a risk that the lack of economic resources (like high debt, fiscal deficits and lack of access to financing), geopolitical tensions and political instability could make it difficult. Further intensification of social unrest could also damage economic sentiment and weigh on the economic recovery from the COVID-19 pandemic.
Climate change, one of the main causes of the more frequent and intense weather-related disasters, already has had visible immediate impacts, with effects beyond the regions where the disasters strike. Cross-border migration pressures, financial stresses (including among creditors and insurers in countries not directly impacted by a given event), and health care burdens may rise, with implications that persist long after the event itself. Disasters caused by climate change may pose further challenges to the global recovery.
Mexico’s economic recovery from the effects of the COVID-19 pandemic continued in 2022 mainly due to strong U.S. external demand, the remarkable remittance inflows and the “catch-up” momentum of domestic demand. Even though the Mexican economic activity reached its pre-pandemic levels in the third quarter of 2022, there are some sectors in which recovery is still lagging, such as the construction sector.
As of the date of this annual report, apart from the risks mentioned above, the Mexican economy faces other risks in the short term including, but not limited to: (i) a sharper than expected U.S. and global recession; (ii) monetary overtightening by the Mexican Central Bank due to a persistence of domestic inflationary pressures; (iii) higher pressures on public revenues and/or debt service costs might lead to the reallocation of budget funds and potential delays on non-priority infrastructure projects and housing programs; (iv) negative effects of the Mexican Peso’s abrupt depreciation on public and private debt trajectories; (v) a slowdown or pause of “nearshoring” dynamics; (vi) a possible downgrade of Petróleos Mexicanos’ (“PEMEX”) debt rating or further capital requirements to restructure PEMEX, which could negatively affect fiscal stability and Mexico’s sovereign debt rating; and (vii) the negative effects derived from uncertainty about institutional frameworks changes. Together or alone, these uncertainties and risks could have a material adverse impact on our financial condition, business and results of operations, particularly in Mexico.
In general, demand for our products and services is strongly related to construction levels and depends, in large part, on construction activity, as well as private and public infrastructure spending in the countries where we operate. Declines in the construction industry are usually correlated with declines in general economic conditions. As a result, the deterioration of economic conditions in the countries where we operate, could have a material adverse effect on our business, financial condition, liquidity and results of operations. There is no assurance that growth in gross domestic product (“GDP”) of the countries where we operate will translate into an increase in demand for our products. We are subject to the effects of general global economic and market conditions beyond our control. If these conditions are challenging or deteriorate, our business, financial condition, liquidity and results of operations could be adversely affected.
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The war between Russia and Ukraine may have a material adverse effect on our business, financial condition, liquidity and results of operation.
Global markets are experiencing volatility and disruption following the escalation of geopolitical tensions and the start of the war between Russia and Ukraine. In February 2022, Russia launched a full-scale military invasion of Ukraine. Although the length and impact of the ongoing military conflict is unpredictable, the conflict in Ukraine has created and could lead to further market disruptions, including significant volatility in commodity prices, credit and capital markets. After a year of conflict, hostilities continue to occur between Russia and Ukraine. As of the date of this annual report, comprehensive sanctions for Russian entities and officials have been enacted by the United States, the European Union (the “EU”), the United Kingdom, Switzerland, Japan, France, New Zealand, Australia, Canada, Germany and Poland, among others, mainly against Russia and Russian individuals and companies, including agreements to remove certain Russian financial institutions from the Society for Worldwide Interbank Financial Telecommunication payment system. A foreseeable peaceful resolution to this war is not expected to occur during 2023. The war is expected to have further global economic consequences, including, but not limited to, the possibility of severely diminished liquidity and credit availability, declines in consumer confidence, scarcity in certain raw materials and products, declines in economic growth, increases in inflation rates and uncertainty about economic and political stability. In addition, there is a risk that Russia and other countries supporting Russia in this conflict may launch cyber-attacks against the United States and its allies and other countries, their governments and businesses, including the infrastructure in such countries. Any of the foregoing consequences, including those we cannot yet predict, may have a material adverse effect on our business, financial condition, liquidity and results of operations.
High energy and fuel costs have had and may continue to have a material adverse effect on our operating results.
Energy and fuel costs represent an important part of our cost structure. The price and availability of energy and fuel are generally subject to market volatility and inflation, and have had, and may continue to have, an adverse impact on our costs and operating results. If third-party suppliers fail to provide to us the required amounts of energy or fuel under existing agreements, we may need to acquire energy or fuel at an increased cost from other suppliers to fulfill contractual commitments with third parties or for use in our operations. Governments in several countries in which we operate are working to reduce energy subsidies, introduce or tighten clean energy obligations or impose excise taxes and carbon emission caps, which could increase energy costs and have a material adverse effect on our business, financial condition, liquidity and results of operations.
Our commitment to transition to and increase the use of alternative energy sources and fuels may limit our flexibility to use energy sources and fuels that may be more cost-effective and require us to incur more in capital expenditures and investments than we currently have planned. However, if our efforts to increase our use of alternative fuels are unsuccessful, due to their limited availability, price volatility or otherwise, we would be required to use traditional fuels, which may be more expensive at any given time and increase our energy and fuel costs. Also, any such failure may cause us not to achieve the targets under our Future in Action climate action program and certain key performance indicators provided for in our sustainability-linked financing arrangements, which, among other adverse effects, would damage our reputation and give rise to an increase in our cost of capital. Any of this could have a material adverse effect on our business, financial condition, liquidity and results of operations. See “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings—Environmental Matters—Mexico” and “Item 5—Operating and Financial Review and Prospects—Recent Developments—Recent Developments Relating to Our Regulatory Matters and Legal Proceedings—Environmental Matters—Mexico” for a description of certain changes in the laws and regulations governing the energy, electricity and hydrocarbons sectors which have been enacted or are undergoing constitutional challenges or approval procedures, and which may result in increased costs for our business, which may in turn have a material adverse effect on our business, financial condition, liquidity and results of operations. See “Item 3—Key Information—Risk Factors—Risks Relating to Our Business and Operations—Economic conditions, including inflation, in countries where we operate and in other regions or countries have affected and may continue to adversely affect our business, financial condition, liquidity and results of operations.” for more information on the current inflationary environment.
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The failure of any bank in which we deposit our funds could have an adverse effect on our financial condition.
We currently have cash and cash equivalents deposited in several financial institutions significantly in excess of federally insured levels. If any of the financial institutions in which we have deposited funds ultimately fails, we may lose our deposits over $250,000 at such financial institutions in the United States, or over different amounts in other countries in which we have bank accounts, and/or we may be required to move our accounts to another financial institution, which could cause operational difficulties, such as delays in making payments to our partners and employees, which could have an adverse effect on our business and financial condition.
We are subject to restrictions and reputational risks resulting from non-controlling interests held by third parties in our consolidated subsidiaries. As of the date of this annual report, we control three publicly listed companies, where this risk is heightened.
We conduct our business mostly through subsidiaries. In some cases, third-party shareholders hold non-controlling interests in these subsidiaries. Our most important subsidiaries in which third-party shareholders held non-controlling interests as of the date of this annual report are Cemex Holdings Philippines, Inc. (“CHP”), Trinidad Cement Limited (“TCL”) and Caribbean Cement Company Limited (“CCCL”), all of which are publicly listed companies. Various disadvantages may result from the participation of non-controlling shareholders whose interests may not be aligned with ours. Some of these disadvantages may, among other things, result in our inability to, or complicate our ability to, implement organizational efficiencies, divest or acquire assets, contribute capital to such publicly listed subsidiaries to achieve operational improvements, and transfer cash and assets from one subsidiary to another in order to allocate assets most effectively. In addition, we are also exposed to third-party shareholders initiating different actions or proceedings against us as controlling shareholders on corporate and corporate governance related matters, such as tender offer procedures, which could also harm our reputation and have an adverse effect on our business, liquidity, financial condition and results of operations.
Our use of derivative financial instruments could negatively affect our net income and liquidity, especially in volatile and uncertain markets.
We have used, and may continue to use, derivative financial instruments, mainly to manage the risk profile associated with interest rates and currency exposure of our debt, to reduce the volatility of our financing costs, to hedge the costs of fuel and other commodities and to hedge our net assets in certain currencies. However, we cannot assure you that our use of such instruments will allow us to achieve these objectives due to the inherent risks in any derivatives transaction or the risk that we will not continue to have access to such instruments at reasonable costs, or at all.
As of December 31, 2022, our derivative financial instruments consisted of Dollar/Mexican Peso foreign exchange forward and option contracts, both designated as a net investment hedge of Cemex’s net investment in Mexican Pesos. It also included interest rate swap instruments related to bank loans, Dollar/Mexican Peso call spread option contracts negotiated to maintain the value in Dollars over revenues generated in Mexican Pesos, as well as fuel price hedging derivatives, which had an impact on our financial position. Changes in the fair value of our derivative financial instruments, not specifically designated as hedges, are reflected in our statement of operations, which could introduce volatility in our controlling interest net income and other related ratios. As of December 31, 2021 and 2022, the aggregate notional amount under our outstanding derivative financial instruments was $2,911 million ($1,511 million of net investment hedge, $1,005 million of interest rate swaps, $250 million of foreign exchange options and $145 million of fuel price hedging) and $2,491 million ($837 million of net investment hedge, $1,018 million of interest rate swaps, $136 million of fuel price hedging and $500 million of foreign exchange options), respectively, with a mark-to-market valuation representing net assets of $21 million as of December 31, 2021 and net assets of $32 million as of December 31, 2022. See note 17.4 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this
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annual report for a detailed description of our derivative financial instruments. As of December 31, 2022, Cemex’s risk of cash margin calls with respect to our existing financial derivatives is not material. However, if we enter into new derivative financial instruments, we may incur net losses and be subject to margin calls requiring a substantial amount of cash to be covered and may reduce the funds available to us for our operations or other capital needs. In addition, as with any derivative position, we assume the creditworthiness risk of the counterparty, including the risk that the counterparty may not honor its obligations to us. In addition, entering into new derivative financial instruments incurs costs, and we cannot assure you that any new derivative financial instrument that we enter into will be done so at reasonable costs or will be available to us at all.
Political, social and geopolitical events, possible changes in public policies and other risks in some of the countries where we operate, which are inherent to the operations of an international company, could have a material adverse effect on our business, financial condition, liquidity and results of operations.
As of December 31, 2022, our operations were mostly in Mexico, the United States, certain countries in the EMEAA region and the SCA&C region (as described in “Item 4—Information on the Company—Business Overview”). For a geographic breakdown of our revenues for the year ended December 31, 2022, see “Item 4—Information on the Company—Geographic Breakdown of Revenues by Reportable Segment for the Year Ended December 31, 2022.”
We are exposed to the circumstances prevalent in the countries in which we market our products and services. Like other companies with international operations, political, economic, geopolitical or social developments in the countries where we operate or elsewhere, such as elections, new governments, changes in public policy, economic circumstances, laws and/or regulations, trade policies, political agreements or disagreements, civil disturbances and a rise in violence or the perception of violence, could have a material adverse effect in the countries where we operate or on the global financial markets, and in turn on our business, financial condition, liquidity and results of operations.
Presidential, legislative, state and local elections took place in 2022 in several of the countries where we operate, including Mexico, France, Colombia, the United States, the Philippines and Barbados. In addition, future snap elections cannot be discarded. A change in federal or national government and the political party in control of the legislature in any of these countries could result in changes to the countries’ economic, political or social conditions, and in changes to laws, regulations and public policies, which may contribute to economic uncertainty or adverse business conditions and could also materially impact our business, financial condition, liquidity and results of operations. Similarly, if no political party wins a clear majority in the legislative bodies of these countries, legislative gridlock and political and economic uncertainty may continue or result.
Political events and social unrest have impacted the business and economic environment in the United States and beyond. The 2022 U.S. midterm elections resulted in changes to the controlling political party in the lower chamber of the U.S. Congress and, in turn, may result in potential changes to, and delays in, the U.S. federal government’s policy priorities and legislative endeavors. The new Congress could impose regulations and/or taxes reaching further than those currently in effect. We are not certain if any such regulations and/or taxes will be imposed or not; and, in the event they are imposed, if costs and expenses which may be incurred in order to comply with such regulations and/or taxes would have a material adverse effect on our business, financial condition, liquidity and results of operations. Additionally, the new Congress could suffer gridlock, for instance, in raising the U.S. government’s federal debt ceiling.
In Mexico, several laws, policies and regulations issued since the beginning of the current administration, as well as certain legislative proposals, differ substantially from those in effect in previous administrations. Additionally, emission caps per industrial sector in line with Mexico’s greenhouse gas emissions reduction targets are expected to come into effect in 2024. See “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings—Environmental Matters—Mexico” and “Item 5—Operating and Financial Review and Prospects—Recent Developments—Recent Developments Relating to Our Regulatory Matters and
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Legal Proceedings—Environmental Matters—Mexico” for a description of such changes in the laws and regulations governing the energy, electricity and hydrocarbons sectors which have been enacted or are undergoing constitutional challenges, as well as a description of potential emission caps regulations in Mexico. We are not certain if such laws and regulations undergoing constitutional challenges will prevail. Additionally, an increase of “green” taxes in states where we operate is also expected. These and any other policies, laws and regulations which are further adopted could result in a deterioration of investment sentiment, political and economic uncertainty, and increased costs for our business, which may in turn have a material adverse effect on our business, financial condition, liquidity and results of operations.
In Europe, though Brexit has already materialized, there continues to be uncertainty regarding the United Kingdom’s future relationship with the European Union and other key partners around the world. This uncertainty could still have a material adverse effect on our business, financial condition, liquidity and results of operations, particularly in the United Kingdom. To mitigate any such risk, a “Brexit taskforce” has been implemented and continues to operate with the following objectives: (i) monitoring and sharing relevant public information, (ii) identifying ongoing and evolving risks and opportunities, (iii) assessing potential impacts and action plan to minimize them, (iv) following-up with affected areas, and (v) preparing an effective communication for different audiences. As of the date of this annual report, the Brexit taskforce has been working, aligned with United Kingdom government guidelines, on critical issues to potentially anticipate and avoid a business disruption resulting from Brexit. These issues include: (i) the new chemical regulations and the Registration, Evaluation, Authorization and Restriction of Chemicals registry requirements for imported products, (ii) identifying commercial products being placed on the market in Great Britain with the previously used “CE” (conformité européenne) marking that will require U.K. Conformity Assessed marking in 2022, (iii) complying with the specific tariffs on imported goods through a new Economic Operators’ Registration and Identification number applicable to all of our operation sites in the United Kingdom, and (iv) supporting our employees living in the United Kingdom which do not have citizenship status with the preparation and filing of their settlement scheme application. The United Kingdom and the European Union have reached agreements in several matters to continue diplomatic relations, such as trade and travel. The withdrawal from either party from any of the agreements may have a material adverse effect on our business, financial condition, liquidity and results of operations.
Our operations in Egypt, the UAE and Israel have experienced disruption as a result of, among other things, political instability, civil unrest, terrorism, extremism, deterioration of general diplomatic relations and changes in the geopolitical dynamics in the region. There can be no assurances that political turbulence in Israel, Egypt, Iran, Iraq, Syria, Libya, Yemen and other countries in Africa, the Middle East and Asia will abate in the future or that neighboring countries (e.g., the United Arab Emirates) will not be drawn further into conflict or experience instability. In addition, some of our operations are or may be subject to political risks, such as confiscation, expropriation and/or nationalization, as for example was the case of our past operations in Venezuela and is currently the case in Egypt. See “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings—Other Legal Proceedings—Egypt Share Purchase Agreement.”
Our operations are also exposed to the Israeli-Palestinian conflict. Confrontations between the Israeli Defense Force and Palestinians in the Gaza Strip have continued generating events of violence in the region. Progress on peace remains stalled, despite efforts from third parties to reach an agreement. As of the date of this annual report, the parties continued to portray opposite views over the contested territory and neither side is expected to make concessions in the near future. If the conflict escalates, it could have a negative impact on the geopolitics and economy of the region, which in turn could adversely affect our operations, financial condition, liquidity and results of operations. In November 2022, Israel held legislative elections to constitute the 25th congress of Israel, marking the fifth general election held in the past three years. The previous election and successive negotiations resulted in the formation of a coalition government in June 2021. Nonetheless, a bill was introduced in June 2022 to dissolve the congress and call for a new election in November 2022. Political instability related to the governmental transition and disputes within the governing coalition could have an adverse effect on our business, financial condition, liquidity, and results of operations in Israel. Increased
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tensions in the Middle East could pose the risk of full military action and could have a material adverse effect on our business, financial condition, liquidity and results of operations, most importantly in Israel and the UAE.
In Asia, pro-democracy protests and demands, mainly in Hong Kong, ongoing disputes between North and South Korea, as well as territorial disputes among several Southeast Asian countries and China in the South China Sea continue to be a cause for social, economic and political uncertainty and instability in the region. A major outbreak of hostilities or political upheaval in China, Hong Kong, Taiwan, North Korea, South Korea or any other Asian nation could adversely affect the global economy, which could have a material adverse effect on our business, financial condition, liquidity or results of operations.
In Latin America, discontent with politicians, corruption, poverty, and inequality have been cause for numerous protests and general social unrest. Protests have sparked throughout the region in countries such as Haiti, Colombia, Guatemala, Costa Rica, Peru and others. Furthermore, the region continues to be affected by Venezuela’s economic and political crisis, which has had a major impact on the regional economy and poses an important economic, social and security risk.
Further geopolitical challenges, such as the conflict between the United States and China, could cause important disruptions in the global economic, financial markets and trade dynamics which could impact the markets in which we operate and materially and adversely affect our business, financial condition, liquidity and results of operations.
There have been terrorist attacks and ongoing threats of future terrorist attacks in countries in which we operate. We cannot assure you that there will not be new attacks or threats that will cause any damage to our operating units and facilities or locations, or harm any of our employees, including members of Cemex, S.A.B. de C.V.’s Board of Directors or senior management, or lead to an economic contraction, financial markets volatility or erection of material barriers to trade in any of our markets. An economic contraction in any of the markets where we operate could affect domestic demand for our products, which could have a material adverse effect on our business, financial condition, liquidity and results of operations.
As part of our risk governance approach, from time to time we evaluate the need to address the financial consequences of political or social risk through the purchase of insurance. As a result, we purchase certain types of political risk insurance policies for selected countries where we operate, and which are exposed to political turmoil, geopolitical issues or political uncertainty. These insurance policies are designed to offer some assistance to our financial flexibility to the extent that the specifics of a political incident could give rise to a financial liability. However, we cannot assure you that a given social or political event and possible changes in government policies will be covered by the political risk insurance policies we have in place, or that the amount of such insurance will be sufficient to offset the liability arising from such applicable events. Any such liability could have a material adverse effect on our business, financial condition, liquidity and results of operations.
These and other political, economic, social and geopolitical issues have the potential to materially and adversely impact the global economy, financial markets and the overall stability of the countries and regions in which we operate and, in turn, our business, financial condition, liquidity and results of operations.
Complications in relationships with local communities may adversely affect our business continuity, reputation, liquidity, and results of operations.
We make efforts to maintain good long-term relationships and continuous communication with local and neighboring communities where we operate; however, there can be no assurance that such communities will not have or will not develop interests or objectives which are different from, or even in conflict with, our objectives, which could result in legal or administrative proceedings, civil unrest, protests, negative media coverage, direct action or campaigns, including, but not limited to, requests for the government to revoke or deny our concessions, licenses or other permits to operate. Any such events could cause delays or disruptions in our
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operations, result in operational restrictions or higher costs, or cause reputational damage, which could materially and adversely affect our business, reputation, liquidity and results of operations. See “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings—Environmental Matters—Philippines Environmental Class Action.”
We are increasingly dependent on information technology and our systems and infrastructure, as well as those provided by third-party service providers, face certain risks, including cyber-security risks.
We increasingly rely on a variety of information technology and cloud services, on a fully digital customer integration platform, such as CEMEX Go, and on automated operating systems to manage and support our operations, as well as to offer our products to our customers. The proper functioning of this technology and these systems is critical to the efficient operation and management of our business, as well as for the sales generated by our business. Our systems and technologies may require modifications or upgrades as a result of technological changes, growth in our business and to enhance our business security. These changes may be costly and disruptive to our operations and could impose substantial demands on our systems and increase system outage time. Our systems and technology, as well as those provided by our third-party service providers, such as International Business Machines Corporation (“IBM”), Microsoft and HCL Technologies, among others, may be vulnerable to damage, disruption or intrusion caused by circumstances beyond our control, such as physical or electronic break-ins, catastrophic events, power outages, natural disasters, computer system or network failures, security breaches, computer viruses and cyber-attacks, including malicious codes, worms, ransomware, phishing, denial of service attacks and unauthorized access. For example, our digital solutions to improve sales, customer experience, enhance our operations and increase our business efficiencies could be impeded by such damages, disruptions or intrusions. Furthermore, while we expect to further integrate digital technologies into our operations as part of our Working Smarter digital transformation initiative and believe this is likely to assist us in fulfilling our strategic priorities, these integration efforts and the engagement of additional technology service providers and systems in our operations as part of Working Smarter could increase our exposure to these risks. See “Item 4—Information on the Company—Our Strategic Priorities—Operational Improvements” for more information on Working Smarter and the related technologies, service providers and systems engaged as part of this digital transformation initiative. To try to minimize such risks, we safeguard our systems and electronic information through a set of cyber-security controls, processes, and a proactive monitoring service to attend to potential breaches. In addition, we also have disaster recovery plans in case of incidents that could cause major disruptions to our business. However, these measures may not be sufficient, and our systems have in the past been subject to certain minor intrusions that did not result in a material breach or material impact to the Company, including distributed denial of service attacks, unauthorized access attempts, brute force attacks and phishing. Although, as of the date of this annual report, we are certified under and compliant with International Organization for Standardization (“ISO”) 27001:2013 standards for information security management systems to preserve the confidentiality, integrity and availability of data and also are certified on the Payment Card Industry security standard which provides a trustful e-commerce mechanism for customers, and the majority of our cement plants received the ISO 27001 certification, we cannot assure that we will always be able to retain or renew this certification or that our systems will not be subject to certain intrusions. In a global business environment that relies on complex digital networks, cybercriminals are often outpacing a company’s ability to prevent and manage cyberthreats. The digitalization of global supply chains creates new risks as they increasingly rely on technology and other third parties.
During 2022, there was a global trend of an increase in security threats, including, but not limited to, phishing and malware/ransomware campaigns, exploitation of video collaboration vulnerabilities, among other things. Furthermore, the increase in employees working from home increased cyber risk due to inadequate security configurations of domestic (home) networks and use of non-corporate devices. As of the date of this annual report, we have implemented additional cybersecurity technology and controls designed to reduce such risks and mitigate the impact of such risks, but these may also not be sufficient, and we cannot assure you that intrusions will not occur.
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In relation to our overall operations, particularly due to our digital transformation efforts and the implementation of CEMEX Go, Cemex, S.A.B. de C.V.’s Audit Committee is informed of the cyber-security threats we face and is involved in approving general steps to try to mitigate any such cyber-security threats. As of December 31, 2022, CEMEX Go had more than 53,000 customers across the countries in which we do business, and through CEMEX Go we receive approximately 50% of our main product orders and process 60% of our total global sales. As of December 31, 2022, we have not detected, and our third-party service providers have not informed us of, any relevant event that has materially damaged, disrupted or resulted in an intrusion of our systems. Any significant information leakages or theft of information, or any unlawful processing of personal data, could affect our compliance with data privacy laws and make us subject to regulatory action, including substantial fines and private litigation with potentially large costs, and could damage our relationship with our employees, customers and suppliers, which could have a material adverse impact on our business, financial condition, liquidity, results of operations and prospects.
Furthermore, in June 2022, our insurance program was renewed for 12 additional months. This program includes insurance coverage that, subject to its terms and conditions, is intended to address certain costs associated with cyber incidents, network failures and data privacy-related concerns. Nevertheless, this insurance coverage may not, depending on the specific facts and circumstances surrounding an incident, cover all losses or types of claims that may arise from an incident or the damage to our reputation or brands that may result from an incident. However, any significant disruption to our systems could have a material adverse effect on our business, financial condition, liquidity and results of operations, and could also harm our reputation.
We may fail to secure certain materials required to run our business, which could have a material adverse effect on our business, financial condition, liquidity and results of operations.
We increasingly use in most of our business certain by-products of industrial processes produced by third parties, such as pet coke, fly ash, slag and synthetic gypsum, among others, as well as natural resources such as water. While we are not dependent on any particular suppliers, we try to secure the supply of the required materials, products or resources through long-term renewable contracts and framework agreements, which allow us to better manage supplies. Short-term contracts are entered into in certain countries where we operate. Should existing suppliers cease operations or reduce or eliminate production of these by-products, or should for any reason any suppliers not be able to deliver to us the contractual quantities, or should laws and/or regulations in any region or country limit the access to these materials, products, reserves or resources, sourcing costs for these materials could increase significantly or require us to find alternative sources for these materials, which could have a material adverse effect on our business, financial condition, liquidity, results of operations and prospects. In particular, scarcity and quality of natural resources (such as water and aggregates reserves) in some of the countries where we operate could have a material adverse effect on our operations, costs and results of operations.
We may not be able to realize the expected benefits from any acquisitions or joint ventures, some of which may have a material impact on our business, financial condition, liquidity and results of operations. Any failure to realize expected benefits from the bolt-on acquisitions of our business strategy heightens this risk.
Our ability to realize the expected benefits from any acquisitions, joint ventures, investments or partnerships depends, in large part, on our ability to integrate acquired operations with our existing operations in a timely and effective manner or on our ability to impact financial results or operations of or properly manage, together with any partners, any joint venture business, partnership or other business where we hold an investment. These efforts may not be successful. Although we have disposed of assets in the past and may continue to do so to reduce our overall leverage and rebalance our portfolio, certain of our debt instruments restrict our ability to acquire assets and enter into joint ventures. We may in the future acquire new operations or enter into joint ventures or investments and integrate such operations or assets into our existing operations, and some of such acquisitions, joint ventures or investments may have a material impact on our business, financial condition,
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liquidity and results of operations. We cannot assure you that we will be successful in identifying or acquiring suitable assets in the future, or that the terms under which we may acquire any assets or enter into joint ventures in the future would be favorable to us or that we will be able to find suitable partners for our joint ventures at all.
We may also fail to achieve any anticipated cost savings from any acquisitions, joint ventures or investments. We have announced that the portfolio optimization efforts to grow Operating EBITDA that are a part of our strategic priorities are expected to include a variety of bolt-on investments, divestments and acquisitions, which included acquisitions in different geographies like France, Spain and Texas in 2021 and divestments in geographies like Costa Rica and El Salvador in 2022, which we expect to continue in 2023. Failure to realize the expected benefits from these acquisitions, if at all made, would cause us to not achieve certain of our strategic goals and, in turn, our business, financial condition, liquidity and results of operations could be materially and adversely affected.
The introduction of or failure to introduce substitutes or alternative forms of cement, ready-mix concrete or aggregates into the market and the development of or failure to develop new construction techniques and technologies could have a material adverse effect on our business, financial condition, liquidity and results of operations.
Materials such as plastic, aluminum, ceramics, glass, wood and steel can be used in construction as a substitute for cement, ready-mix concrete or aggregates. In addition, other construction techniques, such as the use of dry wall, and the integration of new technologies in the construction industry, such as 3-D printing, mini-mills and mobile plants, and changes in housing preferences could adversely impact the demand and price for our cement, ready-mix concrete and/or aggregates. Furthermore, research aimed at developing new construction techniques and modern materials and digitalizing the construction industry may introduce new products and technologies in the future that could reduce the demand for and prices of our products. Our efforts to introduce new products or products with non-traditional compositions (such as our Vertua family of products and those with reduced cement or clinker content introduced in 2021) or to develop and market new construction techniques and technologies (such as those that are part of our Urbanization Solutions) are not only aimed at increasing our operating results, but are also relevant to achieve the targets of our Future in Action program and certain key performance indicators provided for in our sustainability-linked financing arrangements. Therefore, if our efforts to introduce these products and construction techniques and technologies are unsuccessful or unprofitable, among other adverse effects, this would damage our operating results, reputation and give rise to an increase in our cost of capital. Any of this, individually or in the aggregate, could have a material adverse effect on our business, financial condition, liquidity and results of operations.
We operate in highly competitive markets with numerous players employing different competitive strategies and if we do not compete effectively, our revenues, market share and results of operations may be affected.
The markets in which we operate are highly competitive and are served by a variety of established companies with recognized brand names, as well as new market entrants and increasing imports. Companies in these markets compete based on a variety of factors, often employing aggressive pricing strategies to gain market share. For example, in the relatively consolidated cement and ready-mix concrete industries, we generally compete based on quality, client segmentation, value proposition, and superior customer experience. In the more fragmented market for aggregates, we generally compete based on capacity, price for our products and our customer centric culture. In certain areas of the markets in which we compete, some of our competitors may be more established, benefit from greater brand recognition or have greater manufacturing and distribution channels and other resources than we do or offer a better customer experience than we do. In addition, if our competitors were to combine, they may be able to compete more effectively with us, and they may also dispose of assets, which could lead to new market entrants, increasing competition in our markets. In the last year, mergers and acquisitions transactions played an important role in the markets where we operate. For example, in 2022, HeidelbergCement sold its Southern Spain business, including its integrated cement plant in Malaga and several
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sites in Andalusia to Votorantim Cimentos. This divestment complements a series of divestments made by HeidelbergCement in Spain, which include Asturias, Balearics, and Catalonia, with the business in Spain announced to be divested during 2023. We have substantial operations in Spain and it is unclear how competitive dynamics will change in these or other regions of the Iberian country following this transaction. Even though we have generally been able to compete effectively in Spain, these shifts in market participants in the markets where we participate could be detrimental to our position. In the United States, in late 2022, Holcim announced the acquisition of Polymers Sealants North America (“PSNA”), a company focused on coating, adhesive and sealant solutions with a presence in California, Arizona, Texas, Georgia and other states. This acquisition enables Holcim to expand its solutions and products division, which will further diversify their product portfolio and their applications. Cemex has a presence in several of the states in which PSNA has a presence, effectively modifying competitive dynamics in these markets, which could be detrimental to our position. We believe that Elementia Materiales and Holcim, which have operations in Mexico, the United States and Latin America, offer products and services that could increase competition with our Urbanization Solutions business in those markets. In addition, if any of our major competitors divest assets in different parts of the world, this may lead to increased competition in the markets in which we operate. It is unclear how competitors that could potentially acquire those assets will compete in the markets in which we operate. Some may use aggressive competitive strategies based on imports and pricing that could be damaging to our industry’s profitability and, as a consequence, our results of operations. In addition, asset optimization by buyers of the disposed assets could result in an operational cost advantage. As a result, if we are not able to compete effectively, we may lose market share, potentially substantially, in the countries in which we operate, and our revenues could decline or grow at a slower rate and our business and results of operations would be harmed, which could have a material adverse effect on our business, financial condition, liquidity and results of operations.
A substantial amount of our total assets consists of intangible assets, including goodwill. We have recognized charges for goodwill impairment in the past and also in 2022, and if market or industry conditions deteriorate further, additional impairment charges may be recognized.
Our 2022 audited consolidated financial statements included elsewhere in this annual report, have been prepared in accordance with IFRS as issued by the IASB, under which goodwill is not amortized and is tested for impairment. Tests for impairment are carried out when indicators exist or at least once a year during the fourth quarter of each year and are performed by determining the value-in-use of its groups of cash-generating units (“CGUs”) to which goodwill balances have been allocated. The recoverable amount of CGUs consists of the higher of such groups of cash-generating units’ fair value, less cost to sell, and their corresponding value in use, represented by the discounted amount of estimated future cash flows expected to be generated by such groups of CGUs to which goodwill has been allocated. An impairment loss is recognized under IFRS if the recoverable amount is lower than the net book value of the groups of CGUs to which goodwill has been allocated within other expenses, net. We determine the discounted amount of estimated future cash flows over periods of five years. If the value in use of a group of CGUs to which goodwill has been allocated is lower than its corresponding carrying amount, we determine its corresponding fair value using methodologies generally accepted in the markets to determine the value of entities, such as multiples of Operating EBITDA and/or by reference to market transactions.
Impairment tests are significantly sensitive to, among other factors, the estimation of future prices of our products, in the development of operating expenses, local and international economic trends in the construction industry, the long-term growth expectations in the different markets, as well as the discount rates and the growth rates in perpetuity applied. For purposes of estimating future prices, we use, to the extent available, historical data plus the expected increase or decrease according to information issued by trusted external sources, such as national construction or cement producer chambers and/or in governmental economic expectations. Operating expenses are normally measured as a constant proportion of revenues, following experience. However, such operating expenses are also reviewed considering external information sources in respect of inputs that behave according to international prices, such as oil and gas. We use specific pre-tax discount rates for each group of CGUs to which goodwill is allocated, which are applied to pre-tax cash flows. The amounts of estimated
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undiscounted cash flows are significantly sensitive to the growth rates in perpetuity applied. The higher the growth rate in perpetuity applied, the higher the amount of undiscounted future cash flows by group of CGUs obtained. Moreover, the amounts of discounted future cash flows are significantly sensitive to the weighted average cost of capital (discount rate) applied. The higher the discount rate applied, the lower the amount of discounted estimated future cash flows by group of CGUs obtained. During the fourth quarter of 2022, as part of our yearly impairment test, we recognized a non-cash aggregate goodwill impairment charge of $365 million, of which $273 million related to our business in the United States and $92 million related to our business in Spain. In both cases, the related book value of the operating segment exceeded the corresponding value-in-use. The impairment losses in 2022 are mainly related to the significant increase in the discount rates as compared to 2021 and the resulting significant decrease in our projected cash flows in these segments considering the global high inflationary environment, which increased the risk-free rates, and the material increase in the funding cost observed in the industry during the period. See notes 7, 16.1 and 16.2 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report. Considering the important role that economic factors play in testing goodwill for impairment, we cannot assure that any downturn in the economies where we operate will not necessitate further impairment tests and a possible downward readjustment of our goodwill for impairment under IFRS. Such an impairment test could result in impairment charges which could be material to our financial statements, which could have a material adverse effect on our financial condition.
Activities in our business can be hazardous and can cause injury to people or damage to property in certain circumstances.
Most of our production facilities and units, as well as mineral extraction locations, require individuals to work with chemicals, equipment and other materials that have the potential to cause fatalities, harm and injury when used without due care. An accident or injury that occurs at our facilities could result in disruptions to our business and operations and could have legal and regulatory, as well as reputational, consequences. As a result, we may be required to compensate such individuals or incur other costs and liabilities, any and all of which could have a material adverse impact on our reputation, business, financial condition, liquidity, results of operations and prospects.
Additionally, cement production raises a number of health and safety issues. As is the case with other companies in our industry, some of our aggregate products contain varying amounts of crystalline silica, a common mineral. Also, some of our construction and material processing operations release, as dust, crystalline silica that is in the materials being handled. Excessive, prolonged inhalation of very small-sized particles of crystalline silica has allegedly been associated with respiratory disease (including silicosis). As part of our annual due diligence, we work with our stakeholders to verify that certain health and safety protocols are in place with regards to the management of silica and its health effects, as well as in relation to other substances and products. Nonetheless, any health issues related to cement and aggregates production can result in future claims related to exposure to these products or substances, which could have a material adverse impact on our reputation, business, financial condition, liquidity, results of operations and prospects.
Other health and safety issues related to our business include: burns arising from contact with hot cement kiln dust or dust on preheater systems; airborne hazards related to our aggregates mining activities; noise, including from chutes and hoppers, milling plants, exhaust fans and blowers; the potential for dioxin formation if chlorine-containing alternative fuels are introduced into kilns; plant cleaning and maintenance activities involving working at elevated heights or in confined or other awkward locations, and the storage and handling of coal, pet coke and certain alternative fuels, which, in their finely ground state, can pose a risk of fire or explosion; and health hazards associated with operating ready-mix concrete trucks. We may also be exposed to liability resulting from injuries or fatalities involving third-party service providers, such as drivers for our suppliers when delivering products or services to us. While we actively seek to minimize the risk posed by these issues, personal injury claims may be made, and substantial damages awarded, against us, which could have a material adverse impact on our reputation, business, financial condition, liquidity and results of operations. Additionally, we may also be required to change our operational practices, involving material capital expenditure.
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Our operations and ability to source products and materials can be affected by adverse weather conditions and natural disasters, including climate change, which could have a material adverse effect on our business, financial condition, liquidity and results of operations.
Construction activity, and thus demand for our products, decreases substantially during periods of cold weather, when it snows or when heavy or sustained rainfalls occur, or generally, in any rainy and snowy weather. Consequently, demand for our products is significantly lower during the winter or raining and snowing seasons in the countries in which we operate and do business. Generally, winter weather in our European and North American operations significantly reduces our first quarter sales volumes, and to a lesser extent our fourth quarter sales volumes. Sales volumes in these and similar markets generally increase during the second and third quarters because of normally better weather conditions. However, high levels of rainfall and/or snow can also adversely affect our operations during these periods, as well as our access to products and materials used in our operations (as was the case in 2018 with regard to our operations in the Philippines, which was exacerbated by a natural landslide that affected our operations in the country). Natural disasters throughout 2022, such as the floods in southeast Asia and South America, earthquakes in Asia, severe droughts in North America and Hurricane Ian in Florida, have had and in the future could have a negative impact on our sales volumes, which could also have a material adverse effect on our results of operations. Our operations in Florida and Texas, the Caribbean and certain parts of the Gulf of Mexico are particularly exposed to hurricanes and similar weather events. For the years ended December 31, 2022, 2021 and 2020, the Company’s other expenses, net, in the statement of operations, include expenses and losses associated with severe weather conditions of $1 million, $5 million and $1 million, respectively, mainly related with Hurricane Ian in 2022, storms in Texas in 2021 and Hurricanes Sally and Maria in 2020. These events generated incremental costs related to power and gas consumption costs and additional parts replacement, but these costs could be higher, including materially higher, in case the frequency and severity of any weather event increases, in particular as a result of climate change. In general, decreases in sales volumes because of weather events or natural disasters are usually counterbalanced by the increase in the demand for our products during the reconstruction phase, unless any of our operating units or facilities are impacted by the natural disaster, or if our access to our sources of raw materials and the general supply chain is also affected. Such adverse weather conditions and natural disasters can have a material adverse effect on our business, financial condition, liquidity and results of operations if they occur with unusual intensity, during abnormal periods, or last longer than usual in our major markets, or if they cause scarcity and increases in the cost of the products we need to run our business, especially during peak construction periods.
We could be adversely affected by any significant or prolonged disruption to our production facilities.
Any prolonged and/or significant disruption to our production facilities, whether due to repair, maintenance or servicing, governmental or administrative actions, regulatory issues, civil unrest, industrial accidents, unavailability or excessively high cost of raw materials such as energy to the point of making it inefficient to run our production facilities, mechanical equipment failure, human error, natural disaster, cyber-attack to our systems, public health threat or otherwise, could disrupt and adversely affect our operations. Additionally, any major or sustained disruptions in the supply of utilities such as water, gas or electricity or any fire, flood, earthquake, hurricane, volcanic eruption, landslide, blizzard or other natural calamities or communal unrest or acts of terrorism may disrupt our operations or damage our production facilities or inventories and could have a material adverse effect on our business, financial condition, liquidity and results of operations. We typically shut down our facilities to undertake maintenance and repair work at scheduled intervals. Although we schedule shutdowns such that not all our facilities are shut down at the same time, the unexpected shutdown or closure of any facility or the unexpected prolongation for unforeseen reasons of any scheduled shutdown or temporary closure, may nevertheless materially affect our business, financial condition, liquidity and results of operations from one period to another.
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Labor activism and unrest, or failure to maintain satisfactory labor relations, could adversely affect our results of operations.
Labor activism and unrest may adversely affect our operations and thereby adversely affect our business, financial condition, liquidity, results of operations and prospects. Although most of our significant operations have not been affected by any significant labor disputes in the past, we cannot assure you that we will not experience labor unrest, activism, disputes or actions in the future, including as a result of labor laws and regulations that have recently been enacted or that could come into effect in the future, some of which may be significant and could adversely affect our business, financial condition, liquidity, results of operations and prospects. For example, collective bargaining agreements in some of the countries in which we operate have expired in the past year and, as a result, several negotiations have taken place and are expected to continue into 2023. For a description of our most relevant collective bargaining agreements, see “Item 6—Directors, Senior Management and Employees—Employees.”
Our insurance coverage may not cover all the risks to which we may be exposed.
Among others, we face the risks of fatalities and injury of our employees and contractors, loss and damage to our products, property and machinery due to, among other things, public health threats, fire, theft and natural disasters such as floods, and also face risks related to cyber-security related matters. Such events may cause a disruption to, or cessation of, our operations and business. Our insurance coverage may not be sufficient to cover all of our potential losses and liabilities. In addition, our insurance coverage may not cover all the risks to which we may be exposed, such as all risks related to pandemics and/or epidemics (such as COVID-19), and political risk. If our losses exceed our insurance coverage, or if we are not covered by the insurance policies we have taken up, we may be liable to cover any shortfall or losses. Our insurance premiums may also increase substantially because of such claims. Such circumstances could have a material adverse effect on our business, liquidity, financial condition and results of operations.
Our success depends on the leadership of Cemex, S.A.B. de C.V.’s Board of Directors and on key members of our executive management team and the availability of a specialized workforce.
Our success depends largely on strategic vision and actions of Cemex, S.A.B. de C.V.’s Board of Directors and on key members of our executive management team. The loss of some or all of Cemex, S.A.B. de C.V.’s directors or our senior management could have a material adverse effect on our business, financial condition, liquidity and results of operations, as well as on our reputation. Although Cemex, S.A.B. de C.V.’s shareholders have appointed new Board of Directors members, including to replace outgoing board members, we cannot assure you that this will continue to occur nor that the current structure and composition of Cemex, S.A.B. de C.V.’s Board of Directors will be maintained, in particular within the framework of any corporate government enhancements that Cemex, S.A.B. de C.V. continues to implement.
The execution of our business strategy also depends on our ongoing ability to attract and retain highly skilled employees. For a variety of reasons, particularly due to the competitive environment and the limited availability of skilled labor, we may not be successful in attracting and retaining the personnel we require. In addition, the availability of trained and skilled transportation operators and drivers is at times lacking in certain countries in which we operate, including, but not limited to, in the United States. Consequently, the manufacturing and distribution of our products may be adversely affected if we are unable to hire or train persons to perform such tasks. If we are unable to hire, train and retain qualified employees at a reasonable cost, we may be unable to successfully operate our business or capitalize on growth opportunities and, as a result, our business, financial condition, liquidity and results of operations could be materially and adversely affected.
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Future pandemics and epidemics, such as the COVID-19 pandemic, could materially adversely affect our financial condition and results of operations.
Any future pandemics and epidemics, as well as a resurgence in cases of currently existing strains of COVID-19, may cause governments and health authorities around the world to re-implement measures attempting to contain and mitigate the spread and effects of a virus. Measures previously implemented in connection with past pandemics and epidemics have resulted, and may continue to result, in: (i) restrictions on, or suspended access to, or shutdown, or suspension or the halt of, our facilities, including our cement plants and grinding mills; (ii) staffing shortages, production slowdowns or stoppages and disruptions in our delivery systems; (iii) disruptions or delays in our supply chains, including shortages of materials, products and services on which we and our businesses depend; (iv) reduced availability of land and sea transport, including labor shortages, logistics constraints and increased border controls or closures; (v) increased cost of materials, products and services on which we and our businesses depend; (vi) reduced investor confidence and consumer spending in the regions where we operate and globally; (vii) a slowdown in economic activity, including in the construction industry, and a decrease in demand for our products and services and industry demand generally; (viii) constraints on the availability of financing, if available at all, including on access to credit lines and working capital facilities; (ix) inability to satisfy liquidity needs if our operating cash flow and funds received under receivables and inventory financing facilities decrease or if we are not able to obtain borrowings under credit facilities, proceeds of debt and equity offerings and/or proceeds from asset sales; (x) our inability to refinance our indebtedness on desired terms, if at all; or (xi) our inability to comply with, or receive waivers with respect to, restrictions and covenants under the agreements governing our indebtedness and financial obligations, including, but not limited to, maintenance covenants under our Credit Agreements. New pandemics and epidemics could cause governments to implement similar containment measures such as, but not limited to, those implemented during the COVID-19 pandemic. As to the effects and duration of the COVID-19 pandemic, there could still be significant adverse effects in the future mainly in connection with: (i) impairment of long-lived assets including goodwill; (ii) foreign exchange losses related to our obligations denominated in foreign currency; (iii) increases in estimated credit losses on trade accounts receivable; and (iv) further disruption in supply chains.
Risks Relating to Our Indebtedness and Certain Other Obligations
The Credit Agreements, the indentures governing our outstanding Notes and our other debt agreements and/or instruments contain several restrictions and covenants. Our failure to comply with such restrictions and covenants or any inability to capitalize on business opportunities or refinance our debt resulting from them could have a material adverse effect on our business and financial conditions.
Each Credit Agreement requires us to comply with financial ratios and tests, including (i) a minimum Consolidated Coverage Ratio of Consolidated EBITDA to Consolidated Interest Expense and (ii) a maximum Consolidated Leverage Ratio of Consolidated Net Debt to Consolidated EBITDA, in each case, as described in each Credit Agreement. The calculation and formulation of Consolidated EBITDA, Consolidated Interest Expense, Consolidated Net Debt, Consolidated Coverage Ratio and Consolidated Leverage Ratio are defined and set out in each Credit Agreement and may differ from the calculation and/or formulation of analogous terms in this annual report. Our ability to comply with these ratios may be affected by our results of operations, economic conditions and volatility in foreign exchange rates, by overall conditions in the financial and capital markets and the construction sector, and by any monetary penalties or fines we may have to pay as a result of any administrative or legal proceedings to which we may be exposed to. See “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings” for more information. Additionally, each Credit Agreement requires us to comply with certain covenants and restrictions consistent with an investment grade capital structure. As of December 31, 2022, there were $3,730 million and €400 million aggregate principal amount of then-outstanding Notes under the indentures governing such notes. The indentures governing our Notes impose operating and financial restrictions on us, which are more stringent than those imposed by the Credit Agreements. These restrictions limit our ability, among other things, to: (i) incur debt, including restrictions on incurring debt at our subsidiaries, which are not parties to the indentures governing the Notes;
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(ii) pay dividends on stock; (iii) redeem stock or redeem subordinated debt; (iv) make investments; (v) guarantee indebtedness; and (vi) create or assume liens.
Most of the covenants and restrictions in the Credit Agreements and the indentures governing our Notes are subject to a number of exceptions and qualifications. Nevertheless, they still limit our ability to conduct business at our discretion and may, among other effects, potentially impede or restrict refinancing plans with respect to our debt limit, as well as our ability to seize opportunities for our business, particularly if we are unable to incur financing or make investments to take advantage of such opportunities. In addition, in connection with the entry into new financings or amendments to existing financing arrangements while our debt rating remains below investment grade, our financial and operational flexibility may be further reduced as a result of more restrictive covenants, requirements for security and other terms that are often imposed on sub-investment grade entities. The breach of any of these covenants could result in a default under the Credit Agreements and/or the indentures governing our outstanding Notes, as well as certain other existing debt obligations, as a result of cross-default provisions contained in the instruments governing such debt obligations. In the event of a default under any of the Credit Agreements and/or the indentures governing our outstanding Notes, lenders under the applicable Credit Agreement and holders of our outstanding Notes could seek to declare all amounts outstanding under such Credit Agreement and such Notes, together with accrued and unpaid interest, if any, to be immediately due and payable. If the indebtedness under the Credit Agreements, our outstanding Notes, or certain other existing debt obligations were to be accelerated, we cannot assure you that our assets would be sufficient to repay in full such accelerated indebtedness or our other indebtedness. We cannot guarantee that we will be able to comply with the covenants and limitations contained in the Credit Agreements or in the indentures governing our Notes, or that we will comply with other agreements which constitute financial indebtedness in excess of $50 million in which any non-compliance would trigger a cross-default. Our failure to comply with such covenants and limitations could result in an event of default, which could materially and adversely affect our business, financial condition, liquidity and results of operations.
We have historically, when needed, sought and obtained waivers and amendments to several of our debt instruments relating to a number of financial ratios, restrictions and covenants. Our ability to comply with these could be affected by global economic conditions, foreign exchange rates and the financial and capital markets, among other factors. We may need to seek waivers or amendments to debt agreements or debt instruments in the future. However, we cannot assure you that any such waivers or amendments will be obtained. If we are unable to comply with the provisions of our debt agreements or debt instruments, and are unable to obtain a waiver or amendment, the indebtedness outstanding under such debt agreements and/or instruments could be accelerated. Acceleration of these debt agreements and/or instruments would have a material adverse effect on our business, liquidity or financial condition.
The elimination of LIBOR after June 2023 may adversely affect our financial results.
On March 5, 2021, the United Kingdom Financial Conduct Authority (the “FCA”), which regulates LIBOR, announced that all LIBOR tenors relevant to the Company will cease to be published or will no longer be representative after June 30, 2023. The FCA’s announcement coincided with the March 5, 2021 announcement of LIBOR’s administrator, the ICE Benchmark Administration Limited (the “IBA”), indicating that, as a result of not having access to input data necessary to calculate LIBOR tenors relevant to the Company on a representative basis after June 30, 2023, IBA would cease publication of such LIBOR tenors immediately after the last publication on June 30, 2023. These announcements mean that any of our LIBOR-based borrowings that extend beyond June 30, 2023 will need to be converted to a replacement rate. For example, upon the occurrence of a Benchmark Transition Event (as defined in the 2021 Credit Agreement) in relation to the corresponding currency in place of the LIBOR benchmark interest rate, a benchmark replacement will replace the then-current benchmark in accordance with the “hardwired” replacement provisions of the 2021 Credit Agreement.
In the United States, the Alternative Reference Rates Committee (the “ARRC”), a committee of private sector entities with ex-officio official sector members convened by the Federal Reserve Board and the Federal
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Reserve Bank of New York, has recommended the Secured Overnight Financing Rate (“SOFR”) plus a recommended spread adjustment as LIBOR’s replacement. There are significant differences between LIBOR and SOFR, such as LIBOR being an unsecured lending rate while SOFR is a secured lending rate, and SOFR is an overnight rate while LIBOR reflects term rates at different maturities. As of December 31, 2022, 19% of our foreign currency-denominated non-current total debt including subordinated notes and leases bears floating rates at a weighted average interest rate of LIBOR plus 148 basis points. Additionally, as of December 31, 2022, 26% of our foreign currency-denominated non-current debt with a maturity beyond December 31, 2022 is referenced to LIBOR. The impending transition away from and/or changes to the LIBOR benchmark interest rate could adversely affect our business, financial condition, liquidity and results of operations. If our LIBOR-based borrowings are converted to SOFR, the differences between LIBOR and SOFR, plus the recommended spread adjustment, could result in interest costs that are higher than if LIBOR remained available, which could have an adverse effect on our operating results. Although SOFR is the ARRC’s recommended replacement rate, it is also possible that lenders may instead choose alternative replacement rates that may differ from LIBOR in ways similar to SOFR or in other ways that would result in higher interest costs for us. It is not yet possible to predict the magnitude of LIBOR’s end on our borrowing costs given the remaining uncertainty about which rates will replace LIBOR. See “Recent Developments—Recent Developments Relating to Our Indebtedness.”
We have a substantial amount of debt and other financial obligations. If we are unable to secure refinancing on favorable terms or at all, we may not be able to comply with our payment obligations upon their maturity. Our ability to comply with our principal maturities and financial covenants may depend on us implementing certain strategic initiatives, including, but not limited to, making asset sales, and there is no assurance that we will be able to implement any such initiatives or execute such sales, if needed, on terms favorable to us or at all.
As of December 31, 2022, our total debt plus other financial obligations was $8,825 million (principal amount $8,870 million, excluding deferred issuance costs). Of such total debt plus other financial obligations, $987 million (principal amount $987 million) matures during 2023; $579 million (principal amount $585 million) matures during 2024; $1,587 million (principal amount $1,599 million) matures during 2025; $1,598 million (principal amount $1,608 million) matures during 2026; and $4,074 million (principal amount $4,091 million) matures after 2026. If we are unable to comply with, or refinance or extend, maturities under certain of our indebtedness, substantially all of our debt could be accelerated. Acceleration of our debt would have a material adverse effect on our business, financial condition, liquidity and results of operations. As a result of the potential failure to achieve the targets under our strategic initiatives the restrictions under the Credit Agreements, the indentures that govern our outstanding Notes and other debt instruments, the current global economic environment, volatility in the credit and capital markets and uncertain market conditions, we may not be able to generate enough cash or, if needed to repay our indebtedness, raise debt, equity and/or equity-linked capital on favorable terms or at all. These circumstances could also prevent us from securing extensions from relevant creditors and undertaking alternative actions to refinance, such as the completion of asset sales on terms that are economically attractive or at all, and could significantly limit the availability of funds to potential acquiring parties. If we fail to secure funds to repay our indebtedness in these or any other manners and our cash flow or capital resources prove inadequate, we could face liquidity problems and may not be able to comply with financial covenants and payment obligations under our indebtedness, which would have a material adverse effect on our business, financial condition, liquidity and results of operations.
Also, there can be no assurance that we will be able to implement our business strategy and initiatives and improve our results and revenues, which could affect our ability to refinance and/or comply with our payment obligations under our debt agreements and instruments.
We may not be able to generate sufficient cash to service our indebtedness or satisfy our short-term liquidity needs, and we may be forced to take other actions to do so, which may not be successful.
Historically, we have addressed our liquidity needs, including funds required to make scheduled principal and interest payments, refinance debt, and fund working capital and planned capital expenditures, mostly with
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operating cash flow, borrowings under credit facilities and receivables and inventory financing facilities, proceeds of debt and equity offerings and proceeds from asset sales. As of December 31, 2022, we had $678 million funded under our securitization programs in Mexico, the United States, France and the United Kingdom. We cannot assure you that, going forward, we will be able to roll over or renew these programs or generate sufficient cash to service our indebtedness or satisfy our short-term liquidity needs through the means we have historically used. This could adversely affect our liquidity and force us to take other actions to service our indebtedness or satisfy our short-term liquidity needs, which may be unsuccessful.
Specifically, we have periodically resorted and may continue to resort to the capital markets to raise debt, equity and equity-linked capital as our principal alternative to the means to obtain liquidity described in the paragraph above. A wide variety of factors may have adverse effects on our operating results and negatively affect our credit rating and the market value of our CPOs and ADSs, or that of our publicly listed subsidiaries, CHP, TCL and CCCL. In such event, securities issued by us could be deemed undesirable in the capital markets, which could make traditional sources of capital unavailable to us on reasonable terms or at all. If the global economic environment deteriorates and our operating results worsen, if we are unable to complete divestitures and/or debt or equity offerings on favorable terms or at all and/or our cash flow or capital resources prove inadequate, we could face liquidity problems and may not be able to comply with our principal payments under our indebtedness or refinance our indebtedness.
Cemex, S.A.B. de C.V.’s ability to repay debt and pay dividends is highly dependent on our subsidiaries’ ability to transfer income and dividends to us. As of the date of this annual report, we control three publicly listed companies, where this risk is heightened.
Aside from its operations in Mexico, Cemex, S.A.B. de C.V. is a holding company that owns the stock of its direct subsidiaries and is the beneficial owner of the equity interests of its indirect subsidiaries and has holdings of cash and marketable securities. In general, Cemex, S.A.B. de C.V.’s ability to repay debt and pay dividends, as well as to make other payments, depends on the continued transfer to it of dividends and other income and funds from its subsidiaries. The ability of Cemex, S.A.B. de C.V.’s subsidiaries to pay dividends and make other transfers to Cemex, S.A.B. de C.V. is subject to various regulatory, contractual and legal constraints of the countries in which we operate, as well as our continued compliance with terms under our debt agreements and instruments under which certain covenants have been partially suspended.
The ability of Cemex, S.A.B. de C.V.’s subsidiaries to pay dividends and make loans and other transfers to it is generally subject to various regulatory, legal and economic limitations. Depending on the jurisdiction of organization of the relevant subsidiary, limitations may include solvency and legal reserve requirements, dividend payment restrictions based on interim financial results or minimum net worth and withholding taxes on loan interest payments. For example, our subsidiaries in Mexico may declare and pay dividends only out of the profits reflected in the year-end financial statements approved by its stockholders. In addition, such payment can be approved by stockholders only after the creation of a required legal reserve (equal to one fifth of the relevant company’s capital) and compensation or absorption of losses, if any, incurred by such corporation in previous fiscal years.
Cemex, S.A.B. de C.V. may also be subject to exchange controls on remittances by its subsidiaries from time to time in a number of jurisdictions. In addition, Cemex, S.A.B. de C.V.’s ability to receive funds from its subsidiaries may be restricted by the debt instruments and other contractual obligations of these entities. The jurisdictions of organization of Cemex, S.A.B. de C.V.’s current or future subsidiaries may impose additional and more restrictive regulatory, legal and/or economic limitations. In addition, Cemex, S.A.B. de C.V.’s subsidiaries may not be able to generate sufficient income to pay dividends or make loans or other transfers to it in the future, or may not have access to Dollars in their respective countries, which, as of the date of this annual report, would be the preferred currency to be received by Cemex, S.A.B. de C.V. Also, any decision to have any of Cemex, S.A.B. de C.V.’s not wholly-owned subsidiaries, such as CHP, TCL or CCCL, declare and pay dividends or
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make loans or other transfers to us is subject to any rights that non-controlling shareholders may have in the corresponding subsidiary. Additional or more restrictive limitations on our subsidiaries could adversely affect Cemex, S.A.B. de C.V.’s ability to service our debt, meet its other cash obligations and pay dividends to its shareholders.
We have to service part of our debt and other financial obligations denominated in Dollars and Euros with revenues generated in Mexican Pesos or other currencies, as we do not generate sufficient revenue in Dollars and Euros from our operations to service all our debt and other financial obligations denominated in Dollars and Euros. This could adversely affect our ability to service our obligations in the event of a devaluation or depreciation in the value of the Mexican Peso, or any of the other currencies of the countries in which we operate, compared to the Dollar and Euro. In addition, our consolidated reported results and outstanding indebtedness are significantly affected by fluctuations in exchange rates between the Dollar (our reporting currency) vis-à-vis the Mexican Peso and other significant currencies within our operations.
A substantial portion of our total debt plus other financial obligations is denominated in Dollars and Euros. As of December 31, 2022, our debt plus other financial obligations denominated in Dollars and Euros represented 77% and 13% of our total debt plus other financial obligations, respectively. Our Dollar-denominated and Euro-denominated debt must be serviced with funds generated to some extent by our direct and indirect subsidiaries’ operations outside the United States and Europe. Although we have substantial operations in the United States and Europe, we continue to rely to some extent on our non-U.S. assets and non-European assets to generate revenues to service our Dollar-denominated and Euro-denominated debt. Consequently, we have to use revenues generated in Mexican Pesos or other currencies to service our Dollar-denominated and Euro-denominated obligations. See “Item 5—Operating and Financial Review and Prospects—Quantitative and Qualitative Market Disclosure—Interest Rate Risk, Foreign Currency Risk and Equity Risk—Foreign Currency Risk.” A devaluation or depreciation in the value of the Mexican Peso, Pound Sterling, Colombian Peso, Philippine Peso or any of the other currencies of the countries in which we operate, compared to the Dollar and Euro, could adversely affect our ability to service our Dollar-denominated and Euro-denominated debt. In 2022, our operations in Mexico, the United Kingdom, France, Germany, Poland, Spain, the Philippines, Israel, the Rest of EMEAA (as defined below) segment, Colombia, Caribbean TCL (as defined below), the Dominican Republic and the Rest of SCA&C (as defined below) segment, which are our main non-Dollar denominated operations, together generated 56% of our total revenues in Dollar terms (21%, 5%, 4%, 3%, 2%, 2%, 2%, 5%, 4%, 2%, 2%, 2% and 2%, respectively) before eliminations resulting from consolidation. In 2022, 27% of our revenues in Dollar terms were generated from our operations in the United States before eliminations resulting from consolidation.
During 2022, the Mexican Peso appreciated 4.9% against the Dollar, the Euro depreciated 6.3% against the Dollar and the Pound Sterling depreciated 11.8% against the Dollar. Currency hedges that we may be a party to or may enter into in the future may not be effective in covering all our currency-related risks. Our consolidated reported results for any period and our outstanding indebtedness as of any date are significantly affected by fluctuations in exchange rates between the Dollar and other currencies, as those fluctuations influence the amount of our non-Dollar indebtedness when translated into Dollars and also result in foreign exchange gains and losses as well as gains and losses on derivative contracts, including those entered into to hedge our exchange rate exposure. For a description of these impacts, see “Item 3—Key Information—Risk Factors—Risks Relating to Our Business and Operations—Our use of derivative financial instruments could negatively affect our net income and liquidity, especially in volatile and uncertain markets.”
Increases in liabilities related to our pension plans could adversely affect our results of operations.
We have obligations under defined benefit pension and other benefit plans in certain countries in which we operate, mainly in North America and Europe. Our actual funding obligations will depend on benefit plan changes, government regulations and other factors, including changes in longevity and mortality statistics.
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Despite the fact that we support our projections with studies by external actuaries, it is difficult to predict pension liabilities and funding requirements due to the large number of variables and assumptions involved, which are difficult to predict because they change continuously as demographics evolve. We have a net projected liability recognized in our statement of financial position as of December 31, 2022 of $695 million. The future cash funding requirements for our defined benefit pension plans and other post-employment benefit plans could significantly differ from the amounts estimated as of December 31, 2022. If so, these funding requirements, as well as our possible inability to properly fund, and/or provide sufficient guarantees for, such pension plans if we are unable to deliver the cash or equivalent funding requirements, could have a material adverse effect on our business, financial condition, liquidity, results of operations and prospects. See note 19 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report for a detailed description of our pension obligations.
Risks Relating to Regulatory and Legal Matters
We are subject to the laws and regulations of the countries where we operate and do business and non-compliance, any material changes in such laws and regulations and/or any significant delays in assessing the impact and/or adapting to such changes in laws and regulations may have an adverse effect on our business, financial condition, liquidity and results of operations.
Our operations are subject to the laws and regulations of the countries where we operate and do business, and such laws and regulations, and/or governmental interpretations of such laws and regulations, may change. Because Cemex, S.A.B. de C.V. is organized under Mexican laws, and because of the considerable size of our operations in the United States, and the fact that the ADSs trade on the New York Stock Exchange (the “NYSE”), we have to comply with the laws and regulations, and/or governmental interpretations of such laws and regulations, of Mexico and, for certain matters, of the United States, whether or not we operate and do business through a subsidiary located in Mexico or the United States, also because of the size of our operations in EU countries, we, or most of our subsidiaries in the EU, are also required to comply with certain EU legislation.
Any change in such laws and regulations, and/or governmental interpretations of such laws and regulations, may have a material adverse effect on our business, financial condition, liquidity and results of operations. Furthermore, changes in laws and regulations, and/or governmental interpretations of such laws and regulations, may require us to devote a significant amount of time and resources to assess and, if required, to adjust our operations to any such changes, which could have a material adverse effect on our business, financial condition, liquidity and results of operations. In addition, any significant delays in assessing the impact and/or, if required, in adapting to changes in laws and regulations and/or governmental interpretations of such laws and regulations may also have a material adverse effect on our business, financial condition, liquidity, results of operations and prospects. For more information, see “Item 3—Key Information—Risk Factors—Risks Relating to Our Business and Operations—Economic conditions, including inflation, in countries where we operate and in other regions or countries have affected and may continue to adversely affect our business, financial condition, liquidity and results of operations,” “Item 3—Key Information—Risk Factors—Risks Relating to Our Business and Operations—Political, social and geopolitical events, possible changes in public policies and other risks in some of the countries where we operate, which are inherent to the operations of an international company, could have a material adverse effect on our business, financial condition, liquidity and results of operations,” and “Item 3—Key Information—Risk Factors—Risks Relating to Regulatory and Legal Matters—Our operations are subject to environmental laws and regulations, including new and proposed reporting requirements, that are or could become increasingly stringent.”
We or our third-party providers may fail to maintain, obtain, or renew or may experience material delays in obtaining requisite governmental or other approvals, licenses and permits for the conduct of our business.
We and our third-party providers of goods and services, as applicable, require various approvals, licenses, permits, concessions and certificates in the conduct of our business. We cannot assure you that we, or our third-
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party providers of goods and services, will not encounter significant problems in obtaining new or renewing existing approvals, licenses, permits, concessions and certificates required in the conduct of our business, or that we, or our third-party providers of good and services, will continue to satisfy the current or new conditions to such approvals, licenses, permits, concessions and certificates that we currently have or may be granted in the future. There may also be delays on the part of regulatory and administrative bodies in reviewing our applications and granting approvals, which have become increasingly common since the beginning of the COVID-19 pandemic due to closures and/or reduced operations of public offices. The implementation of new laws and regulations on environmental-related matters in the countries in which we operate or in the countries from which our third-party providers of goods and services source their deliverables to us, may create stricter requirements to comply with. This could delay our ability to obtain the related approvals, licenses, permits, concessions and certificates, or could result in us not being able to obtain them at all. If previously obtained approvals, licenses, permits and certificates are revoked and/or if we, or our third-party providers of goods and services, fail to obtain and/or maintain the necessary approvals, licenses, permits, concessions and certificates required for the conduct of our business, we may be required to incur substantial costs or temporarily suspend or alter the operation of one or more of our operating units, production facilities, mineral extraction locations or of any relevant component of them, which could affect the general production of these units, facilities or locations, which in turn could have a material adverse effect on our business, financial condition, liquidity, results of operations and prospects.
We are subject to litigation proceedings, including, but not limited to, government investigations relating to corruption, antitrust and other proceedings, that could harm our business and our reputation.
From time to time, we are and may become involved in litigation, investigations and other legal or administrative proceedings relating to claims arising from our operations, either in the normal course of business or not, or arising from violations or alleged violations of laws, regulations or acts. As described in, but not limited to, “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings,” as of December 31, 2022, we were subject to a number of significant legal proceedings, including, but not limited to, an SEC investigation concerning a new cement plant being built by Cemex Colombia S.A. (“Cemex Colombia”) in the Municipality of Maceo in the department of Antioquia, Colombia (the “Maceo Plant”), as well as an investigation from the United States Department of Justice (the “DOJ”) mainly relating to our operations in Colombia and other jurisdictions, and are exposed to investigations in Colombia against former employees, and also to antitrust investigations in countries in which we operate or do business. Investigations and litigation, and in general any legal or administrative proceedings, are subject to inherent uncertainties and unfavorable rulings may occur. We cannot assure you that these or any of our other regulatory matters and legal proceedings, including any that may arise in the future, will not harm our reputation or materially affect our ability to conduct our business in the manner that we expect or otherwise materially adversely affect us should an unfavorable ruling occur, which could have a material adverse effect on our business, financial condition, liquidity and results of operations.
We are subject to anti-corruption, anti-bribery, anti-money laundering, antitrust, anti-boycott, economic sanctions, trade embargoes, and export control laws and regulations in the countries in which we operate and do business in, a considerable number of which are considered high and medium risk countries. Any violation of any such laws or regulations could have a material adverse impact on our reputation, results of operations and financial condition, as well as harm our reputation.
We are subject to anti-corruption, anti-bribery, anti-money laundering, antitrust and other international laws and regulations and are required to comply with the applicable laws and regulations of the countries in which we operate, some of which, including Mexico, Jamaica, Trinidad and Tobago, Guyana, Barbados, Colombia, Panama, Egypt, the Philippines, the Dominican Republic, Guatemala, Nicaragua, Croatia, the Czech Republic and Haiti, are considered medium and high-risk countries with regard to corruption-related matters. We also have operations and do business in countries considered medium-risk, such as Poland and Italy. In addition, we are subject to regulations on international trade that restrict dealings with certain sanctioned countries, individuals and entities, including regulations administered by the United States of America, the United Kingdom, the
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European Union, and the United Nations Security Council and other international organizations and governments, including export control regulations, economic sanctions and trade embargoes. Given the large number of contracts that we are a party to around the world, the geographic distribution of our operations and the great variety of actors that we interact with in the course of business, we are subject to the risk that our affiliates, employees, directors, officers, partners, agents and service providers may misappropriate our assets, manipulate our assets or information, make improper payments or engage in corruption, bribery, money laundering or other illegal activity; and, as a consequence, we may be held liable for such misconduct, even if we do not engage in or authorize such activities.
Although we have implemented policies and procedures, which include training certain groups of our employees, seeking compliance with anti-corruption and other applicable laws and regulations, there can be no assurance that our internal policies and procedures will be sufficient to prevent or detect all inappropriate practices, fraud or violations of law by our affiliates, employees, directors, officers, partners, agents and service providers or that any such persons will not take actions in violation of our policies and procedures. If we fail to fully comply with applicable laws and regulations, the relevant government authorities of the countries where we operate have the power and authority to investigate us and, if necessary, impose fines, penalties and remedies, which could cause us to lose clients, suppliers and access to debt and capital markets. Any violations by us, or the third parties we transact with, of anti-bribery, anti-corruption, anti-money laundering, antitrust, anti-boycott, economic sanctions, trade embargoes, and export control laws or regulations could have a material adverse effect on our business, liquidity, reputation, results of operations and financial condition. For further information regarding our ongoing proceedings with respect to anti-corruption laws, see “Item 3—Key Information—Risk Factors—Risks Relating to Regulatory and Legal Matters—We are subject to litigation proceedings, including, but not limited to, government investigations relating to corruption, antitrust and other proceedings, that could harm our business and our reputation” and “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings.”
Certain tax matters may have a material adverse effect on our cash flow, financial condition and net income, as well as on our reputation.
We are subject to certain tax matters, mainly in Spain and Colombia, that, if adversely resolved, may have a material adverse effect on our operating results, liquidity and financial position, as well as on our reputation. See notes 2.14 and 20.4 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report, “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings—Tax Matters—Colombia,” and “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings—Tax Matters—Spain” for a description of the legal proceedings regarding these Colombian and Spanish tax matters, all included elsewhere in this annual report.
Our operations are subject to environmental laws and regulations, including new and proposed reporting requirements that are or could become increasingly stringent.
Our operations are subject to a broad range of environmental laws and regulations in each of the jurisdictions in which we operate. These laws and regulations impose stringent environmental protection standards, which in recent years have and in the future are expected to continue becoming progressively stricter regarding, among other things, air emissions (including greenhouse gas emissions), land use and biodiversity, use of alternative fuels, water availability, wastewater discharges, the use and handling of hazardous waste or materials, waste management practices and the remediation of environmental impacts from our operations. These laws and regulations expose us to the risk of substantial environmental costs and liabilities, including taxes, higher investment in equipment and technology, fines and other sanctions, the payment of compensation to third parties, remediation costs, business disruption and damage to reputation. Moreover, the enactment of stricter laws and regulations, stricter interpretation of existing laws or regulations or new enforcement initiatives, may impose new risks or costs on us or result in the need for additional investments, which could result in a material decline in our profitability. Such may be the case, for example, if policy derived from Executive Order 14008, Tackling
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the Climate Crisis at Home and Abroad, signed by U.S. President Joe Biden on January 27, 2021, results in new regulatory or legislative initiatives relating to climate change, the application of regulatory criteria in relation to environmental matters stricter than that currently being applied, or in preferential treatment regarding pricing, contracting, the granting of operational permits or other economic activities being given to entities which may have environmental standards that are stricter than ours.
In late 2010, the United States Environmental Protection Agency (“EPA”) issued the final Portland Cement National Emission Standard for Hazardous Air Pollutants (“Portland Cement NESHAP”) under the federal Clean Air Act (“CAA”). This rule required portland cement plants to limit mercury emissions, total hydrocarbons, hydrochloric acid and particulate matter by September 2013. The rule was challenged in federal court, and in December 2011, the D.C. Circuit Court of Appeals remanded the Portland Cement NESHAP to EPA and directed the agency to recompute the standards. In February 2013, EPA issued a revised final Portland Cement NESHAP rule that relaxed emissions limits for particulate matter and moved the compliance deadline to September 2015.
While we expect to meet all emissions standards imposed by the Portland Cement NESHAP, we estimate that we will continue to incur operating costs at each plant to comply and could incur penalties if we fail to do comply.
In February 2013, EPA issued revised final emissions standards under the CAA for commercial and industrial solid waste incinerators (the “CISWI rule”). If a material being used in a cement kiln as an alternative fuel is classified as a solid waste, the plant must comply with the CISWI rule. The CISWI rule covers nine pollutants and imposes potentially more stringent emissions limits on certain pollutants that also are regulated under the Portland Cement NESHAP. EPA received petitions to further reconsider certain provisions of the CISWI rule. EPA granted reconsideration on four specific issues and finalized the reconsideration of the CISWI rule in June 2016. The CISWI rule was also challenged by both industrial and environmental groups in federal court. In July 2016, the D.C. Circuit issued a ruling upholding most of the rule and remanding several portions to EPA for further consideration. EPA has not issued a revised final rule after remand, but the portions of the rule upheld on appeal are final and in effect. The final CISWI rule established a compliance date of February 2018, which was not impacted by the appeal. As of December 31, 2022, none of our kilns at Cemex plants in the United States have been determined to be CISWI kilns; but, if they are determined to be CISWI kilns due to the use of certain alternative fuels, the emissions standards imposed by the CISWI rule could have a material impact on our business operations.
Under certain environmental laws and regulations, liability associated with investigation or remediation of hazardous substances can arise at a broad range of properties, including properties currently or formerly owned or operated by Cemex, as well as facilities at which any hazardous substances or wastes generated by us were sent for treatment, storage or disposal, or any areas affected while any hazardous substances or wastes were transported. Such laws and regulations may apply without regard to fault, causation or knowledge of contamination. We occasionally evaluate various alternatives with respect to our facilities, including possible dispositions or closures. Investigations undertaken in connection with these activities (or ongoing operational or construction activities) may lead to hazardous substance releases or discoveries of historical contamination that must be remediated, and closures of facilities may trigger compliance requirements that are not applicable to operating facilities. While compliance with these laws and regulations has not materially adversely affected our operations in the past, we cannot assure you that these requirements will not change, and that compliance will not adversely affect our operations in the future. Furthermore, we cannot assure you that existing or future circumstances or developments with respect to the impact of our operations will not require us to make significant remediation or restoration expenditures, which could have a material adverse effect on our business, financial condition, liquidity and results of operations.
The cement manufacturing process requires the combustion of large amounts of fuel and creates CO2 as a by-product of the calcination process. Therefore, efforts to address climate change through federal, state, regional, EU and international laws and regulations requiring reductions in emissions of greenhouse gases (“GHGs”) can create economic risks and uncertainties for our business. Such risks could include the cost of purchasing allowances or credits to meet GHG emission caps, the cost of paying higher energy costs or new CO2-
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related taxes, the cost of installing equipment, adopting new technologies and employing non-clinker cementitious materials and other processes to reduce emissions to comply with GHG limits or required technological standards, decreased profits or losses arising from decreased demand for our goods and higher production costs resulting directly or indirectly from the imposition of legislative or regulatory controls. To the extent that financial markets view climate change and GHG emissions as a financial risk or that certain laws and regulations limit our access to the financial markets or financial products due to environmental considerations, this could have a material adverse effect on our cost of and access to capital. Given the uncertain nature of the actual or potential statutory and regulatory requirements for GHG emissions at the federal, state, regional, EU and international levels, we cannot predict the impact on our operations or financial condition or make a reasonable estimate of the potential costs to us that may result from such requirements. However, the impact of any such requirements, whether individually or cumulatively, could have a material economic impact on our operations in the United States, Europe, Mexico, United Kingdom and in other countries where we operate. In particular, rules and regulations that may come into effect to obtain the United States’ achievement of its Nationally Determined Contribution (as defined below) following its reentering to the Paris Agreement, an international treaty aiming to reduce the emission of greenhouse gases, the potential approval of the European Commission’s July 2021 proposal to implement measures to procure the fulfillment of the goals contained in the EU’s Green Deal (as defined below), the expected start of an emissions trading system in Mexico in 2024 and any further rules and regulations that may come into effect to complete the United Kingdom’s implementation of the UK ETS (as defined below) may cause these risks to be realized. For more information on certain laws and regulations addressing climate change that we are, or could become, subject to, and the impacts to our operations arising therefrom, see “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings—Environmental Matters.”
As part of our insurance-risk governance approach, from time to time we evaluate the need to address the financial consequences of environmental laws and regulations through the purchase of insurance. As a result, we do arrange certain types of environmental impairment insurance policies for both site-specific, as well as multi- site locations. We also organize non-specific environmental impairment insurance as part of the provision of a broader corporate insurance strategy. These latter insurance policies are designed to offer some assistance to our financial flexibility to the extent that the specifics of an environmental incident could give rise to a financial liability. However, we cannot assure you that a given environmental incident will be covered by the environmental insurance we have in place, or that the amount of such insurance will be sufficient to offset the liability arising from the incident. Any such liability may be deemed to be material to us and could have a material adverse effect on our business, financial condition, liquidity, results of operations and reputation.
It may be difficult to enforce civil liabilities against us or the members of Cemex, S.A.B. de C.V.’s Board of Directors, our senior management and controlling persons.
Cemex, S.A.B. de C.V. is a publicly traded variable stock corporation (sociedad anónima bursátil de capital variable) organized under the laws of Mexico. Most of the members of Cemex, S.A.B. de C.V.’s Board of Directors and of our senior management reside in Mexico, and all or a significant portion of the assets of those persons may be, and a substantial part of our assets are, located outside the United States. As a result, it may not be possible for you to effect service of process within the United States upon such persons or to enforce against them or against us in U.S. courts judgments predicated upon the civil liability provisions of the federal securities laws of the United States. We have been advised by our General Counsel, Roger Saldaña Madero, that there is doubt as to the enforceability in Mexico, either in original actions or in actions for enforcement of judgments of U.S. courts, of civil liabilities predicated on the U.S. federal securities laws.
Item 4 — Information on the Company
Unless otherwise indicated, references in this annual report to our sales and assets, including percentages, for a country or region are calculated before eliminations resulting from consolidation, and thus include intercompany balances between countries and regions. These intercompany balances are eliminated when calculated on a consolidated basis.
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Business Overview
Cemex, S.A.B. de C.V. is a publicly traded variable stock corporation (sociedad anónima bursátil de capital variable) organized under the laws of Mexico, with its principal executive offices located at Avenida Ricardo Margáin Zozaya #325, Colonia Valle del Campestre, San Pedro Garza García, Nuevo León, 66265, Mexico. Cemex, S.A.B. de C.V.’s main phone number is +52 81 8888-8888.
Our website is located at www.cemex.com. The information on our website is not, and is not intended to be, part of this annual report and is not incorporated into this annual report by reference.
Cemex, S.A.B. de C.V. started doing business in 1906 and was registered with the Mercantile Section of the Public Registry of Property and Commerce in Monterrey, Nuevo León, Mexico, on June 11, 1920, which as of the date of this annual report is for an indefinite period. Beginning April 2006, Cemex, S.A.B. de C.V.’s full legal and commercial name is Cemex, Sociedad Anónima Bursátil de Capital Variable.
We are one of the largest cement companies in the world, based on annual installed cement production capacity. As of December 31, 2022, we had 89.2 million tons of annual installed cement production capacity and our cement sales volumes in 2022 were 63.4 million tons. We estimate we are one of the largest ready-mix concrete and aggregates companies in the world with annual sales volumes of 50.1 million cubic meters and 139.2 million tons, respectively, in each case, based on our annual sales volumes in 2022. In 2022, we traded 11.8 million tons of cementitious and non-cementitious materials, in 92 countries, including 9.6 million tons of cement and clinker and 2.3 million tons of cementitious and other materials. This information does not include discontinued operations. See note 4.2 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report. Cemex, S.A.B. de C.V. is an operating and a holding company engaged, directly or indirectly, through its operating subsidiaries, primarily in the production, distribution, marketing and sale of cement, ready-mix concrete, aggregates, clinker, other construction materials and urbanization solutions throughout the world. We also provide related services and reliable construction-related services to customers and communities and maintain business relationships in more than 50 countries throughout the world.
We operate in different parts of the world, with operations in Mexico, the United States, the EMEAA region and the SCA&C region. We had total assets of $26,447 million as of December 31, 2022, and an equity market capitalization of $8,795 million as of April 25, 2023.
As of December 31, 2022, our cement production facilities were located in Mexico, the United States, the United Kingdom, Germany, Spain, Poland, the Czech Republic, Croatia, Egypt, the Philippines, the UAE, Colombia, Panama, Nicaragua, Guatemala, the Dominican Republic, Puerto Rico, Trinidad and Tobago, Jamaica and Barbados. As of December 31, 2022, our assets (after eliminations), cement and grinding plants, and installed capacity were as set forth below on an unconsolidated basis by region. Installed capacity, which refers to theoretical annual production capacity, represents gray portland cement and white cement grinding capacity, and includes installed capacity of cement and grinding plants that have been temporarily closed. Installed capacity may vary due to product mix changes in our production facilities.
| As of December 31, 2022 | ||||||||||||
| Consolidated assets (in Millions of Dollars) |
Number of Cement and Grinding Plants |
Installed Cement Grinding Capacity (Millions of Tons Per Annum) |
||||||||||
| Mexico |
$ | 3,846 | 15 | 27.3 | ||||||||
| United States(1) |
12,623 | 10 | 14.1 | |||||||||
| EMEAA |
22 | 34.5 | ||||||||||
| United Kingdom(2) |
1,393 | 3 | 3.6 | |||||||||
| France |
952 | — | — | |||||||||
| Germany |
452 | 2 | 3.1 | |||||||||
| Poland |
341 | 3 | 3.8 | |||||||||
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| As of December 31, 2022 | ||||||||||||
| Consolidated assets (in Millions of Dollars) |
Number of Cement and Grinding Plants |
Installed Cement Grinding Capacity (Millions of Tons Per Annum) |
||||||||||
| Spain(3) |
616 | 6 | 7.7 | |||||||||
| Philippines |
792 | 2 | 5.7 | |||||||||
| Israel |
771 | — | — | |||||||||
| Rest of EMEAA(4) |
783 | 6 | 10.6 | |||||||||
| SCA&C |
13 | 13.2 | ||||||||||
| Colombia |
742 | 4 | 4.1 | |||||||||
| Panama |
302 | 1 | 1.2 | |||||||||
| Caribbean TCL(5) |
499 | 3 | 2.9 | |||||||||
| Dominican Republic |
232 | 1 | 2.4 | |||||||||
| Rest of SCA&C(6) |
268 | 4 | 2.6 | |||||||||
| Corporate and Other Operations |
1,767 | — | — | |||||||||
| Continuing Operations |
26,379 | 60 | 89.2 | |||||||||
| Assets held for sale |
68 | — | — | |||||||||
| Total |
26,447 | 60 | 89.2 | |||||||||
| “—” Not applicable |
||||||||||||
The above table excludes our proportional interest in the installed capacity of companies in which we hold a non-controlling interest and reflects our organizational structure as of December 31, 2022.
| (1) | “Number of cement and grinding plants” and “installed cement grinding capacity” include two cement plants that are temporarily inactive with an aggregate annual installed grinding capacity of 2.0 million tons of cement. |
| (2) | “Number of cement and grinding plants” and “installed cement grinding capacity” include one cement plant that is temporarily inactive with an annual installed capacity of 1.0 million tons of cement. |
| (3) | “Number of cement and grinding plants” and “installed cement grinding capacity” include two cement plants that are temporarily inactive with an annual installed grinding capacity of 1.4 million tons of cement. |
| (4) | “Rest of EMEAA” refers mainly to our operations in the Czech Republic, Croatia, Egypt and the UAE. |
| (5) | “Caribbean TCL” refers to TCL’s operations mainly in Trinidad and Tobago, Jamaica, Barbados and Guyana. |
| (6) | “Rest of SCA&C” refers mainly to our operations in Peru, Puerto Rico, Nicaragua, Jamaica, the Caribbean and Guatemala, excluding the operations of TCL. |
Beginning in the late 1980s, we embarked on a major geographic expansion program intended to diversify our cash flows and enter into markets whose economic cycles within the cement industry operate largely independently from Mexico and which, at the time, we believed offered long-term growth potential. We have also built an extensive network of marine and land-based distribution centers and terminals that give us marketing access around the world. As part of our strategy, we have undertaken and are undertaking actions designed to streamline and reposition our portfolio in order to enhance our diversification and achieve higher profitable growth. As such, we expect to rebalance our portfolio by focusing on the markets that we believe offer long-term growth potential and retaining those assets that we believe are best suited to grow, offering us long-term profitability. While these actions are being undertaken, we could continue to complement our strategy with organic, bolt-on investments, on a stand-alone basis or with other partners, using a metropolis-centric approach leveraging our related businesses and digital strategy. The following are our most significant acquisitions, divestitures and reconfigurations that we have announced or closed since 2020 through 2022:
| • | On January 29, 2020, CHP announced the results of its stock rights offering pursuant to which 8,293,831,169 common shares of CHP were issued and listed on the Philippine Stock Exchange on March 4, 2020. As of December 31, 2022, after giving effect to the stock rights offering, and other repurchased in the market over the last few years, our indirect ownership of CHP’s outstanding common shares had further increased to 77.90%. See “Item 5—Operating and Financial Review and Prospects—Recent Developments—Recent Developments Relating to Our Business and Operations.” |
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| • | During the first six months of 2020, one of our subsidiaries in Israel acquired a ready-mix concrete products business (“Netivei Noy”) from Ashtrom Industries for an amount in shekels equivalent to $33 million. After the conclusion of the purchase price allocation to the fair values of the assets acquired and liabilities assumed of this business, we determined goodwill of $2 million. |
| • | On March 6, 2020, we concluded the sale of our U.S. affiliate Kosmos Cement Company (“Kosmos”), a partnership with a subsidiary of Buzzi Unicem S.p.A. in which we held a 75% interest, to Eagle Materials Inc. for $665 million. The share of proceeds to us from this transaction was $499 million before transactional and other costs and expenses. The assets that were divested consisted of Kosmos’ cement plant in Louisville, Kentucky, as well as related assets which include seven distribution terminals and raw material reserves. The operations of these assets in the United States for the period from January 1, 2020 to March 6, 2020, which includes a gain on sale of $14 million, net of the proportional allocation of goodwill of $291 million, are presented in our statements of operations, net of income tax, as part of the single line item “Discontinued operations.” |
| • | On August 3, 2020, through an affiliate in the United Kingdom, we closed the sale of certain assets to Breedon Group plc (“Breedon”) for an amount in Pounds equivalent to $230 million, including $30 million of debt. The assets included 49 ready-mix plants, 28 aggregate quarries, four depots, one cement terminal, 14 asphalt plants, four concrete products operations, as well as a portion of our paving solutions business in the United Kingdom. After completion of this divestiture, we maintain a significant footprint in key operating geographies in the United Kingdom related to the production and sale of cement, ready-mix, aggregates, asphalt and paving solutions, among others. Our operations of these assets in the United Kingdom for the period from January 1, 2020 to August 3, 2020, which includes a loss on sale of $57 million net of the proportional allocation of goodwill of $47 million, are presented in our statements of operations, net of tax, as part of the single line item “Discontinued operations.” |
| • | During 2020, Cemex España, S.A. (“Cemex España”) made a cash tender offer for any and all outstanding ordinary shares of Cemex Latal Holdings, S.A. (“CLH”), then registered with the National Register of Securities and Issuers (Registro Nacional de Valores y Emisores) (“RNVE”) and the Colombian Securities Exchange (Bolsa de Valores de Colombia) (the “BVC”) (except for shares either owned by Cemex España or CLH) (the “2020 CLH Tender Offer”). As of December 31, 2022, considering the effects of the 2020 CLH Tender Offer and additionally including shares of CLH purchased by us in the secondary market, we indirectly own 95.30% of all outstanding shares of CLH (which excludes shares of CLH owned by CLH). See “Recent Developments—Recent Developments Relating to Our Business and Operations.” |
| • | In January 2021, one of our subsidiaries in Israel acquired two ready-mix concrete plants from Kinneret and Beton-He’Emek for an amount in shekels equivalent to $6 million. After the conclusion of the purchase price allocation to the fair values of the assets acquired and liabilities assumed of this business, we determined goodwill of $5 million. |
| • | On March 31, 2021, we sold 24 concrete plants and one aggregates quarry in France to LafargeHolcim for an amount in Euros equivalent to $44 million. These assets were located in the Rhône-Alpes region in the Southeast of France, east of our operations in Lyon, France. The operations related to these assets for the year ended December 31, 2020 and for the three-month period ended March 31, 2021 are presented in our statements of operations, net of income tax, as part of the single line item “Discontinued operations.” |
| • | On July 9, 2021, we announced that we concluded the sale agreed in March 2019 of our white cement business, except for Mexico and the U.S., to Çimsa Çimento Sanayi Ve Ticaret A.S¸ for a total consideration of $155 million. Assets sold included our Buñol cement plant in Spain and white cement customer list. Our operations of these assets in Spain for the year ended December 31, 2020 and for the period from January 1, 2021 to July 9, 2021 are reported in the statements of operations, net of income tax, as part of the single line item “Discontinued operations,” including in 2021 a loss on sale of $67 million net of the proportional allocation of goodwill of $41 million. |
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| • | On August 31, 2022, we announced that we, through certain of our subsidiaries, concluded the sale agreed in December 2021 of our operations in Costa Rica and El Salvador to affiliates of Cementos Progreso Holdings, S.L. for a total consideration of $325 million, related to our aggregate controlling interest. The divested assets consisted of one fully integrated cement plant, one grinding station, seven ready-mix plants, one aggregate quarry, as well as one distribution center in Costa Rica and one distribution center in El Salvador. As of December 31, 2021, the assets and liabilities related to our operations in Costa Rica and El Salvador were presented in the financial statements in the line items “Assets held for sale” and “Liabilities directly related to assets held for sale.” Our operations of these assets in Costa Rica and El Salvador for the years ended December 31, 2020 and 2021 and for the period from January 1, 2022 to August 31, 2022 are reported in the statements of operations, net of income tax, as part of the single line item “Discontinued operations,” including in 2022 a gain on sale of $240 million, which includes the reclassification of foreign currency translation effects accrued in equity until the disposal date. |
| • | On December 10, 2021, through a subsidiary in Mexico, we acquired Broquers Ambiental, a sustainable waste management company for a total consideration of $13 million. Broquers Ambiental assets include a plant for solid waste treatment for its use as alternate fuel. During 2022, considering the fair values of the assets acquired and liabilities assumed, we determined goodwill of $4 million. |
| • | On July 11, 2022, through a subsidiary in Germany, we completed the acquisition of a 53% stake in the German aggregates company ProStein for a total consideration of $21 million. The investment expands our aggregates business in the region and we estimate that it increases the life of aggregates reserves for our operations in Central Europe for at least the next 25 years. The majority stake in ProStein’s assets adds a full range of fine and hard aggregates to our aggregates portfolio. In addition to supplying the greater Berlin area, the additional capacity can supply several urban centers in Poland and the Czech Republic. ProStein’s assets include six active hardstone plants and six construction, demolition, and excavation waste (“CDEW”) recovery sites. As of December 31, 2022, based on the preliminary valuation of the fair values of the assets acquired and liabilities assumed, we have not determined any goodwill. |
| • | On October 25, 2022, we created a partnership with Advent International (“Advent”). As part of the partnership we sold to Advent a 65% stake in Neoris N.V. (“Neoris”) for a total consideration of $119 million. While surrendering control to Advent, we retain a 34.8% stake and remain as a key strategic partner and customer of Neoris. Our retained 34.8% stake in Neoris was remeasured at fair value at the date of loss of control, is subsequently accounted for under the equity method and is presented in the line item “Investments in associates and joint ventures.” Neoris’ results for the years ended December 31, 2020 and 2021 and for the period from January 1 to October 25, 2022 are reported in the statements of operations, net of income tax, in the single line item “Discontinued operations,” including in 2022 a gain on sale of $117 million, net of the reclassification of foreign currency translation effects accrued in equity until the date of loss of control. |
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Geographic Breakdown of Revenues by Reportable Segment for the Year Ended December 31, 2022
The following chart indicates the geographic breakdown of our revenues by reportable segment, before eliminations resulting from consolidation, for the year ended December 31, 2022:
Breakdown of Revenues by Line of Business for the Year Ended December 31, 2022
The following chart indicates the breakdown of our revenues by line of business, before other revenues and eliminations resulting from consolidation, for the year ended December 31, 2022:
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Our Businesses
We strive to provide superior building solutions in the markets we serve. To this end, we tailor our products and services to suit customers’ specific needs, from home construction, improvement and renovation to infrastructure, commercial, industrial, agricultural and marine/hydraulic applications.
Cement
Cement is a binding agent, which, when mixed with sand, stone or other aggregates and water, produces either ready-mix concrete or mortar. Whether in bags or in bulk, we provide our customers with high-quality branded cement products and services. We use our professional knowledge and experience to develop customized products designed to satisfy our clients’ specific requirements and that also foster sustainable construction. In many of the countries where we have cement operations, a large proportion of cement sold is a bagged, branded product. We often deliver the product to a large number of distribution outlets such that our bagged, branded cement is available to the end users at a point of sale in close proximity to where the product will be used. We seek to develop brand identity and recognition in our bagged product.
We manufacture cement through a closely controlled chemical process, which begins with the mining and crushing of limestone and clay, and, in some instances, other raw materials. The clay and limestone are then pre-homogenized, a process which consists of combining different types of clay and limestone. The mix is typically dried, then fed into a grinder which grinds the various materials in preparation for the kiln. The raw materials are calcined, or processed, at a very high temperature in a kiln, to produce clinker. Clinker is the intermediate product used in the manufacture of cement. For limestone, clay and gypsum, requirements are based on chemical composition that, depending on the other materials available, matches the quality demanded by the production process. For cement limestone, clay and gypsum, we run chemical tests to prepare the mining plan of the quarry, to confirm material quality and reduce variations in the mineral content. We consider that limestone and clay quality of our cement raw materials quarries are adequate for the cement production process.
There are two primary processes used to manufacture cement: the dry process and the wet process. The dry process is more fuel efficient. As of December 31, 2022, 48 of our 50 operative cement production plants used the dry process and two used the wet process. Our operative production plants that use the wet process are in Nicaragua and Trinidad and Tobago. In the wet process, the raw materials are mixed with water to form slurry, which is fed into a kiln. Fuel costs are greater in the wet process than in the dry process because the water that is added to the raw materials to form slurry must be evaporated during the clinker manufacturing process. In the dry process, the addition of water and the formation of slurry are eliminated, and clinker is formed by calcining the dry raw materials. In the most modern application of this dry process technology, the raw materials are first blended in a homogenizing silo and processed through a pre-heater tower that utilizes exhaust heat generated by the kiln to pre-calcine the raw materials before they are calcined to produce clinker.
Clinker and gypsum are fed in pre-established proportions into a cement grinding mill where they are ground into an extremely fine powder to produce finished cement. We primarily cover our gypsum needs from third parties; however, we also operate gypsum quarries in the United States, Spain, the Dominican Republic and Egypt. Our main types of cement include the following:
Gray Portland Cement: Our gray portland cement is a high-quality, cost-effective building material, mainly composed of clinker, that meets applicable chemical and physical requirements and is widely used in all construction segments: residential, commercial, industrial, and public infrastructure.
White Cement: We manufacture this type of cement with limestone, low iron content kaolin clay, and gypsum. Customers use our white portland cement in architectural works requiring great brightness and artistic finishes, to create mosaics and artificial granite, and for sculptural casts and other applications where white prevails.
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Masonry or Mortar: Masonry or mortar is a portland cement that we mix with finely ground inert matter (limestone). Our customers use this type of cement for multiple purposes, including concrete blocks, templates, road surfaces, finishes, and brick work.
Oil-well Cement: Our oil-well cement is a specially designed variety of hydraulic cement produced with gray portland clinker. It usually forges slowly and is manageable at high temperatures and pressures. Produced in classes from A to H and J, our oil-well cement is applicable for different depth, chemical aggression, or pressure levels.
Blended Cement: Blended hydraulic cements are produced by inter-grinding or blending portland cement and supplementary cementitious materials such as ground granulated blast furnace slag, fly ash, silica fume, calcined clay, hydrated limestone, and other pozzolans. The use of blended cements in ready-mix concrete reduces mixing water and bleeding, improves workability and finishing, inhibits sulfate attack and the alkali- aggregate reaction, and reduces the heat of hydration. Cemex offers an array of blended cements which have a lower CO2 footprint resulting from their lower clinker content due to the addition of supplementary cementitious materials. The use of blended cements reinforces our dedication to sustainable practices and furthers our objective of offering an increasing range of more sustainable products.
Ready-Mix Concrete
Ready-mix concrete is a combination of cement, fine and coarse aggregates, admixtures (which control properties of the concrete including plasticity, pumpability, freeze-thaw resistance, strength and setting time), and water. We tailor our ready-mix concrete to fit our clients’ specific needs. By changing the proportion of water, aggregates, and cement in the mix, we modify our concrete’s resistance, manageability, and finish. We also use additives to customize our concrete consistent with the transportation time from our plant to the project, weather conditions at the construction site, and the project’s specifications. From our water-resistant to our self- compacting concrete, we produce a great variety of specially designed concrete to meet the many challenges of modern construction.
We develop solutions based on our thorough knowledge and application of ready-mix concrete technology. Leveraging years of experience, a global pool of knowledge, and state-of-the-art expertise about the different ready-mix concrete constituents and their interaction, we offer our customers tailor-designed concrete. Cemex ready-mix concrete technologists are able to modify the properties of concrete through the use of innovative chemical admixtures, combined with the proper proportions of the various concrete constituents. For example, depending on the type of application and jobsite requirements, we can design ready-mix concrete that is more fluid, stronger, develops strength faster, and also retains workability longer. Through the development of chemical admixtures solutions, our researchers design special concretes that fulfill the construction industry’s increasingly demanding performance requirements. Cemex offers a special ready-mix concrete portfolio, comprised of such products as ultra-rapid hardening concrete, crack-resistant/low shrinkage concrete, self- consolidating concrete, architectural concrete, pervious concrete, antibacterial concrete and a number of others.
We continuously work to improve the properties of ready-mix concrete that make it a key component of sustainable construction: durability, resistance to aggressive environments, light reflection, and capacity to store energy, among others. We also constantly work to develop innovative solutions that advance the sustainability of structures made with ready-mix concrete. This way, our customers can design sustainable buildings that can take advantage of the benefits of concrete in a wide range of applications. We offer engineered concrete for harbors and bridges with a special design of high-performance concrete that combines durability and low maintenance with resistance to aggressive environments, and for industrial applications which consists of concrete with high acid resistance which is robust and durable for such uses as cooling towers. We also offer concrete for building and housing used for structures such as self-compacting concrete that improves the strength and durability of building structures, while reducing energy use and noise due to concrete vibration, and envelope concrete such as structural lightweight concrete or insulating concrete forms which offer insulation solutions to improve energy
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efficiency in buildings, and concrete for building design that takes advantage of concrete’s capacity to store energy—its thermal mass—minimizing temperature fluctuations in a building over the course of the day, reducing the need for additional heating and cooling. We also offer ready-mix concrete for water and wastewater management and for roads and pavements.
The types of ready-mix concrete we offer our clients include, but are not limited to:
Standard Ready-Mix Concrete: Standard ready-mix concrete is the most common form of concrete. It is prepared for delivery at a concrete plant instead of mixed on the construction site.
Architectural and Decorative Concrete: This type of ready-mix concrete can provide a structural function, as well as an aesthetic or decorative finish. It can offer smooth or rough surfaces or textures, as well as a variety or range of colors.
Rapid-Setting Concrete: Designed to enhance early strength development, this type of ready-mix concrete allows fast formwork removal, accelerated construction sequencing, and rapid repair for such jobs as roads and airport runways. Typically used in low temperature (5-10°C) concreting during winter, this type of ready-mix concrete can also be used in buildings, railways, and precast applications. In addition to saving time, this type of ready-mix concrete technology offers improved durability and acid resistance.
Fiber-Reinforced Concrete: Ready-mix concrete designed with micro or macro fibers that can be used either for structural applications, where the fibers can potentially substitute for steel rebar reinforcement, or for reducing shrinkage, primarily early age shrinkage. Macro fibers can significantly increase the ductility of concrete, making it highly resistant to crack formation and propagation.
Fluid-Fill Concrete: Fluid mortar or ready-mix concrete simplifies the process of laying pipe and cable by surrounding the pipe or cable with a tightly packed shell that provides protection from the elements, prevents settling, and enables crews to work quickly.
Roller-Compacted Concrete: Compacted in place and cured, roller-compacted concrete is a zero-slump ready-mix concrete with the abrasion resistance to withstand high velocity water, making it the material of choice for spillways and other infrastructure subject to high flow conditions. It represents a competitive solution in terms of cost and durability when compared to asphalt.
Self-Consolidating Concrete: Self consolidating concrete has very high flow; therefore, it is self-leveling, eliminating the need for vibration. Due to the superplasticizers used, chemical admixtures that impart very high flow, self-consolidating concrete exhibits very high compaction as a result of its low air content. Consequently, self-consolidating concrete can have very high strengths, exceeding 50 megapascals.
Pervious Concrete: Because of its unique design mix, pervious concrete is a highly porous material that allows water, particularly rainwater, to filter through, reduces flooding and heat concentration by up to 4°C, and helps to prevent skidding on wet roads. This ready-mix concrete is ideally used in parking lots, footpaths, and swimming pool border applications.
Antibacterial Concrete: This type of ready-mix concrete helps to control bacteria growth and is used to help maintain clean environments in structures such as hospitals, laboratories, and farms.
Aggregates
We are one of the world’s largest suppliers of aggregates: primarily the crushed stone, sand, and gravel, used in virtually all forms of construction. Our customers use our aggregates for a wide array of applications: as a key component in the construction and maintenance of highways, walkways, parking lots, airport runways, and
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railways; for drainage, water filtration, purification, and erosion control; as fill material; for sand traps on golf courses, beaches, playing field surfaces, horse racing tracks, and related applications; and to build bridges, homes, and schools.
Aggregates are obtained from land-based sources such as sand and gravel pits and rock quarries or by dredging marine deposits.
Hard Rock Production. Rock quarries usually operate for at least 30 years and are developed in distinct benches or steps. A controlled explosion is normally used to release the rock from the working face. It is then transported by truck or conveyor to a crusher to go through a series of crushing and screening stages to produce a range of final sizes to suit customers’ needs. Dry stone is delivered by road, rail or water from the quarry.
Sand and Gravel Production. Sand and gravel quarries are much shallower than rock quarries and are usually worked and restored in progressive phases. Water can either be pumped out of the quarries allowing them to be worked dry or they can be operated as lakes with extraction below water. A conveyor draws the raw material into the processing plant where it is washed to remove unwanted clay and to separate sand. Sand separated during processing is dewatered and stockpiled. Gravel then passes over a series of screens that sieve the material into different sizes. Processing separates the gravel into stockpiles in a range of sizes for delivery.
Marine Aggregate Production. A significant proportion of the demand for aggregates is satisfied from rivers, lakes, and seabeds. Marine resources are increasingly important to the sustainable growth of the building materials industry. Marine aggregates also play an important role in replenishing beaches and protecting coastlines from erosion. At sea, satellite navigation is used to position a vessel precisely within its licensed dredging area. Vessels trail a pipe along the seabed and use powerful suction pumps to draw sand and gravel into the cargo hold. Dredged material is discharged at wharves, where it is processed, screened and washed for delivery.
Aggregates are an indispensable ingredient in ready-mix concrete, asphalt, and mortar. Accounting for 60% to 75% of ready-mix concrete’s volume, aggregates strongly influence concrete’s freshly mixed and hardened properties. Aggregates not only increase concrete’s strength, but also can make the mix more compact, enabling applications such as weatherproofing and heat retention. They can further contribute to concrete’s aesthetic qualities. For example, sand gives surface treatments their brightness.
The types of aggregates we offer our clients include, but are not limited to:
Crushed Stone and Manufactured Sand: These products are obtained by mining rock and breaking it down to a preferred size. In the case of manufactured sand, the product is obtained by crushing rock to the selected shape or texture, ensuring product and project specifications are met. Sources of crushed stone can be igneous, sedimentary, or metamorphic.
Gravel: Gravel deposits are produced through a natural process of weathering and erosion. It can be used for roads, for concrete manufacturing, or for decorative purposes.
Sand: Sand occurs naturally and is composed of fine rock material and mineral particles. Its composition is variable depending on the source. It can be used for roads, concrete manufacturing, or sanitation.
Recycled Concrete: Recycled concrete is created by breaking, removing, and crushing existing concrete to a preferred size. It is commonly used as a base layer for other construction materials because it compacts to form a firm surface.
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Urbanization Solutions
Urbanization Solutions is one of our four core businesses, a portfolio of related businesses that complements our value offering of products and solutions, looking to connect with the broader metropolis ecosystem, address urbanization challenges and provide means to all stakeholders in the construction value chain to enable sustainable urbanization by focusing on four key verticals:
Performance Materials.
Performance materials are used to modify or enhance the properties and usability of building materials and construction systems. Performance materials include admixtures, mortars & special mortars (e.g., tiling adhesives, renders & plasters, concrete repair, waterproofing) and asphalt. The following are examples of performance materials we offer to our customers:
| • | Admixtures ISOMILL 4000 Series grinding aids and cement enhancers provide significant carbon reduction, higher process efficiency and enhanced strength. |
| • | Admixtures ISOFLOW 6000 Series high-performance superplasticizer technology for ready-mixed concrete producers allows water and carbon reduction of up to 50% in concrete mix designs. |
| • | Cemex dry silo mortar provides an innovative and efficient solution to mortar delivery, particularly to larger sites. There is no need for mixing areas on site as all the material is contained in the silo. The guaranteed color, consistency and controlled workability are backed up by Cemex’s training and support. The dedicated Cemex dry silo team can support with silo placement and specification. |
| • | VIALOW is our low temperature asphalt, that allows the re-opening of a jobsite more quickly after completion of road works, as the asphalt reaches appropriate trafficking temperatures faster than conventional hot mix asphalt. VIALOW reduced carbon asphalt includes the option to offset residual CO2 to provide a CarbonNeutral® product, in accordance with The CarbonNeutral® Protocol. |
Industrialized Construction.
We manufacture finished building elements that are easy and safe to assemble and install on-site. Industrialized construction products range from precast components to complete structures, 2D panels, 3D modules, 3D structures, etc. The following are examples of industrialized construction products we offer to our customers:
| • | Precast elements for mobility and urban infrastructure: rail sleepers, box culverts, bridges, drainage basins, barriers and parking curbs. |
| • | High-end architectural concrete products with a range of styles for different building and urban landscaping projects: fully serviced façade panels, standard and architectural blocks, block paving and decorative paving solutions. |
| • | Social infrastructure solutions for rapid response: like the fully equipped COVID-19 hospital sections. |
Circularity.
We provide services that improve the circularity of the construction value chain by focusing on three waste streams:
| • | Municipal & Industrial Waste which is waste generated by households, commerce, and industrial activities. An example is our separation facilities in Mexico City that process around 25% of all the municipal waste the city generates, recovering from the waste stream what is recyclable and transforming most of the remaining waste to alternative fuels. Transforming municipal and industrial waste to alternative fuels replaces part of the fossil fuels used in our cement kilns, increasing the sustainability attributes of our products and reducing the carbon footprint in our processes. |
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| • | Construction, Demolition & Excavation Waste, which is waste generated specifically from the built environment. All debris, returned concrete, bricks, shingles, wood, excavation soil, etc., that can be reprocessed and reintegrated into the economy as raw materials. As an example, the Cemex Circularity Center in Gennevilliers, France, is a multiservice dock located in an industrial harbor in Paris offering a wide range of circular economy services to the construction industry. Gennevilliers receives a variety of materials, including construction waste, excavated material and inert soil, which it sorts, processes, and transforms into recycled aggregates or organic material used to restore quarries. |
| • | Alternative Raw Materials Waste, which is waste generated from other industries and by-products that can help Cemex preserve natural resources and reduce our CO2 footprint. Materials such as slag, fly ashes, pozzolans, calcined clays and other decarbonated raw materials can be used as substitutes for limestone and clinker in our production processes. |
Related Services.
We provide complementary services to offer integrated solutions through logistics and transportation, retail, pavement services and design and engineering, among others, that add value along the construction value chain. These services enable Cemex to provide value for our customers by offering building solutions for their construction needs. The following are examples of related services we offer to our customers:
| • | Logistics services provide multi-faceted transportation solutions like our New Line Transport business that serves the pneumatic tank, aggregate dump and flatbed markets promoting safety and providing a superior customer service through a centralized customer care dispatch center. |
| • | Retail services like ConstruramaSupply®, an eCommerce platform for construction materials such as steel, hardware, plumbing, finishes and electrical material that brings the Cemex product offer closer to the Construrama retail network. |
| • | Pavement services specialize in surface schemes from major highways and airfield surfacing to business parks, car parks, storage and materials handling depots where we offer a comprehensive range of paving solutions to both private and public sector clients. |
| • | Design and engineering services like Construhub, a Building Information Modeling (“BIM”) platform based on BIM methodology that reduces risks, improves quality and facilitates the delivery of projects on time and within budget for our clients. |
Services
We continuously communicate and interact with our customers to identify and implement effective ways to meet their toughest challenges. We recognize that customer loyalty happens by design, not by chance. To better serve our customers, we not only need to have a clear understanding of what they need, but also the means and passion to fulfill those needs.
In each market and locality in which we operate, we do our best to provide our customers with the most compelling integrated building solutions. For example, to solve infrastructure needs in major cities, we not only provide ready-mix concrete, but for some projects we also design the project, define the best technical solution, offer different financial schemes and execute the project in collaboration with local builders. Similarly, we work alongside our neighbors in small, less-affluent communities to help them solve their housing needs and pave their streets and sidewalks.
The following are examples of the different services offered to our customers throughout our operations, which may vary from location to location:
Enhanced Loading Experience: This service offers our customers flexibility and efficiency by applying technologies and solutions in the loading process in order to, among other results, minimize loading time and
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improve truck efficiency. These technologies and solutions include: ATM-like Bulk-Cement, fast lanes, real time loading status, License Plate Recognition, and Radio-Frequency Identification.
Customer-oriented Educational and Training Services: Webinars continue to be an effective channel to engage with existing and potential customers. In 2022, Cemex hosted over 160 webinars on several topics, including CEMEX Go trainings about new functionalities, new product releases, Vertua and sustainability.
Online Services: During 2022, we continued working on our customer-centricity and global business strategy, enhancing our customers’ experience while using CEMEX Go. We have successfully deployed the CEMEX Go digital platform by making it available in 21 countries and having 50% of our total recurring cement, ready-mix concrete, and aggregates customers conducting more than half of their purchases, or more than 60% of our global sales, through the platform.
We released the Online Connection, an online application enabled for cement and ready-mix, allowing our customers to receive an immediate response for a delivery request according to resources and capacity available for dispatch, allowing orders to be confirmed automatically and in real time since 2021. In 2022, we connected the Ready-Mix Go application to our online capabilities, so that users can place, view, schedule, confirm, and manage orders, as well as to track deliveries, configure notifications, and view order history from mobile and web devices. Moreover, we have been encouraging the digitalization of internal and customer processes to minimize the use of paper. Today, around 74% of our invoices are delivered in a fully digital manner, putting us on track to achieving our global paperless goal.
Service Centers: Our Service Centers globally play a key role in providing a superior customer experience to our customers. As part of our Service Delivery Model Transformation, we are evolving our Contact Centers to become Next Generation Service Centers, enabled by quality processes and state of the art technology. Our customers will live an omnichannel experience for all important touchpoints, from inquiring about product and services to placing and following up on orders and providing feedback for improvement.
Technical Support: We aim to provide our customers with top-level technical assistance through our state-of-the-art equipment and our highly professional, well-trained technical services staff. We strive to provide value above and beyond fulfilling our customers’ need for cement, aggregates, ready-mix concrete, and related products such as mortar.
These services do not produce revenues on a stand-alone basis but are part of our comprehensive value proposition.
Description of Our Raw Materials Resources and Reserves
We are a leading global provider of building materials and solutions, including cement, ready-mix concrete, aggregates and Urbanization Solutions. Our cement production process begins with the mining and crushing of limestone and clay, and, in some instances, other raw materials. We have access to limestone and clay quarries near most of our cement plant sites worldwide since these minerals are the main raw materials in the cement production process.
In addition, we are one of the world’s largest suppliers of aggregates, primarily hard rock, sand, and gravel, obtained from quarries, to be used in ready-mix concrete and other concrete-based products such as blocks and pipes.
Customers use our aggregates for a wide array of purposes, from key components in the construction and maintenance of highways, walkways, and railways to indispensable ingredients in concrete, asphalt and mortar. Aggregates can be used in their natural state or crushed into smaller size pieces.
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The types of mines mostly used to extract raw materials for aggregates and cement production are open pit or open cut, which relate to deposits of economically useful minerals or rocks that are found near the land surface. Open-pit mines that produce raw materials for our industry are commonly referred to as quarries.
Open-pit mines are typically enlarged until either the mineral resource is exhausted or an increasing ratio of overburden to exploitable material makes further mining uneconomic. In some cases, we also extract raw materials by dredging underwater deposits.
Raw materials for our own cement production processes are obtained mainly from our own sources. However, we may cover our aggregates and other raw materials needs through supply from third parties. For the year ended December 31, 2022, approximately 4.1% of our total raw material needs were supplied by third parties.
Mineral resources are defined as a concentration or occurrence of material of economic interest in or on the earth’s crust in such form, grade or quality, and quantity that there are reasonable prospects for its economic extraction. A mineral resource is a reasonable estimate of mineralization, taking into account relevant factors such as cut-off grade, likely mining dimensions, location or continuity, that, with the assumed and justifiable technical and economic conditions, is likely to, in whole or in part, become economically extractable.
Our resources estimates are prepared by Cemex’s engineers and geologists, some of which are considered qualified persons under sub-part 1300 of Regulation S-K of the Securities Act (“Regulation S-K 1300”), and such estimates are then analyzed and verified annually by other business units within the Company, jointly with the associated regional technical managers, once information is available. Our quarries must also be operated and maintained in accordance with applicable environmental permits and requirements (see “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings—Environmental Matters” for details). In specific circumstances we have used the services of third-party geologists and/or engineers to validate our own estimates. The three categories of resources, in decreasing level of confidence, are the following:
1) A measured mineral resource is that part of a mineral resource for which quantity is estimated on the basis of conclusive geological evidence and sampling. A measured mineral resource has a higher level of confidence than the level of confidence of either an indicated mineral resource or an inferred mineral resource. It may be converted to a proven mineral reserve or to a probable mineral reserve.
2) An indicated resource is that part of a mineral resource for which quantity is estimated on the basis of adequate geological evidence and sampling. The level of geological certainty associated with an indicated mineral resource is sufficient to allow a qualified person to apply modifying factors in sufficient detail to support mine planning and evaluation of the economic viability of the deposit. An indicated mineral resource has a lower level of confidence than the level of confidence of a measured mineral resource and may only be converted to a probable mineral reserve.
3) An inferred mineral resource is that part of a mineral resource for which quantity is estimated on the basis of limited geological evidence and sampling. An inferred mineral resource has the lowest level of geological confidence of all mineral resources, which prevents the application of the modifying factors in a manner useful for evaluation of economic viability. An inferred mineral resource may not be converted to a mineral reserve.
Mineral reserves are defined as the economically mineable part of a measured or indicated mineral resource. Our reserves estimates are prepared by Cemex’s engineers and geologists, some of which are considered qualified persons under Regulation S-K 1300, and such estimates are then analyzed and verified annually by other business units within the Company, jointly with the regional technical managers associated, once information is available. Our quarries must also be operated and maintained in accordance with applicable environmental permits and requirements. See “Item 4—Information on the Company—Regulatory Matters and
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Legal Proceedings—Environmental Matters” for more information. In specific circumstances we have used the services of third-party geologists and/or engineers to validate our own estimates. The two categories of reserves, in decreasing level of confidence, are the following:
1) Proven reserves are for which (i) the quantity is computed from dimensions revealed by drill data, together with other direct and measurable observations such as outcrops, trenches and quarry faces; (ii) the grade and/or quality are computed from the results of detailed sampling; and (iii) the sampling and measurement data are spaced so closely and the geologic character is so well defined that size, shape, depth and mineral content of the reserves are well-established. Reserves are considered as proven when all legal and environmental conditions have been met and required permits and approvals have been obtained to allow for the extraction of the material.
2) Probable reserves are those for which quantity and grade and/or quality are computed from information similar to that used from proven reserves, but the sites for inspection, sampling and measurement are farther apart or are otherwise less adequately spaced. The degree of assurance, although lower than that for proven reserves, is high enough to assume continuity between points of observation.
Our reserves determination incorporates only materials meeting specific quality requirements. For aggregates used in ready-mix concrete, such requirements are based on hardness, shape and size. For cement raw materials (mainly limestone and clay), such requirements are based on a chemical composition that matches the quality demanded by the production process. In the case of cement raw materials, since chemical composition varies from production sites and even within the same site, we conduct geostatistical chemical tests and determine the best blending proportions to meet production quality criteria and to try to maintain an extraction ratio close to 100% of the reported reserves for such materials.
The main equipment utilized in our production sites consists of the following:
| • | In our cement facilities: drills, crushers, kilns, coolers, mills, packing/loading machines, pay loaders, excavators, off-road trucks and other material handling equipment. |
| • | In our ready-mix concrete facilities: batch plants, silos and mobile equipment and mixer trucks. |
| • | In our aggregates facilities: drills, crushers, screens, belt conveyors, pay loaders, excavators, trucks and other material handling equipment. |
Our estimates distinguish between owned and leased reserves, the latter being determined over the term of the lease contract, and including only those permitted reserves which are proven and probable. As of December 31, 2022, our total cement raw materials and aggregates resources and reserves were located in 409 sites, comprising a property surface of approximately 96,701 hectares. Of these sites, 211 are located on land owned by Cemex, 94 are on land leased by Cemex, and 104 are on land owned in part and leased in part. The following maps show our operating quarries’ locations as of December 31, 2022:
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Mexico, USA and SCA&C regions
EMEAA region(1)
| (1) | Excludes 15 marine extraction sites in the United Kingdom. |
Our mining properties are classified as follows:
| (1) | Production Stage: Properties with reported proven or probable reserves where we have active mining operations, |
| (2) | Development Stage: Properties with reported proven or probable reserves where we do not have active mining operations, and |
| (3) | Exploration Stage: Properties with no reported reserves. |
As of December 31, 2022, we have 314 cement raw materials and aggregates properties in the production stage, 60 properties in the development stage and 35 properties in the exploration stage.
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As of December 31, 2022, we operated 144 cement raw materials quarries across our global operations, serving our facilities dedicated to cement production, which are commonly located at or near the cement plant facilities. Annualized production of cement raw materials totaled 67.4 million tons for 2022, 75.5 million tons for 2021, and 69.3 million tons for 2020. We estimate that our proven and probable cement raw material reserves, on a consolidated basis, have an average remaining life of approximately 75 years. Average remaining life, also known as years to depletion, is calculated based on total reserves divided by the average production of the five previous years; so, for the year ended December 31, 2022, total reserves are divided by the average annual cement raw materials production between the years ended December 31, 2018 and December 31, 2022. Immaterial volumes extracted from the quarry located in Maceo during its trial period and for the Maceo Plant road construction are excluded from this calculation. As of December 31, 2022, we operated substantially all of our cement raw materials quarries, some of which are jointly-operated with third parties.
The tables set forth below present our total measured, indicated and inferred cement raw materials resources (exclusive of proven and probable reserves) and permitted proven and probable cement raw materials reserves by geographic segment and material type extracted or produced in our cement raw materials quarries operations:
| As of December 31, 2022 | ||||||||||||||||||
| Resources (million tons)(4)(5)(6) | ||||||||||||||||||
| Location | Mineral | Measured (M) | Indicated (I) | Total(M) | Inferred | |||||||||||||
| Mexico(1) |
Limestone | 20 | 325 | 345 | 1,551 | |||||||||||||
| Clay | 7 | 0 | 7 | 105 | ||||||||||||||
| Others | 0 | 1 | 1 | 4 | ||||||||||||||
| United States(2) |
Limestone | 89 | 183 | 272 | 125 | |||||||||||||
| Clay | 0 | 0 | 0 | 0 | ||||||||||||||
| Others | 0 | 0 | 0 | 0 | ||||||||||||||
| EMEAA |
||||||||||||||||||
| United Kingdom |
Limestone | 0 | 25 | 25 | 0 | |||||||||||||
| Clay | 0 | 5 | 5 | 0 | ||||||||||||||
| Germany |
Limestone | 0 | 0 | 0 | 75 | |||||||||||||
| Poland |
Limestone | 0 | 0 | 0 | 174 | |||||||||||||
| Spain |
Limestone | 5 | 0 | 5 | 207 | |||||||||||||
| Clay | 0 | 0 | 0 | 2 | ||||||||||||||
| Others | 0 | 0 | 0 | 0 | ||||||||||||||
| Philippines(3) |
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| Property that supplies Solid Cement |
||||||||||||||||||
| Plant |
Limestone | 494 | 394 | 888 | 0 | |||||||||||||
| Other properties |
Limestone | 195 | 190 | 385 | 0 | |||||||||||||
| Clay | 0 | 0 | 0 | 0 | ||||||||||||||
| Others | 0 | 0 | 0 | 0 | ||||||||||||||
| Rest of EMEAA |
Limestone | 270 | 0 | 270 | 89 | |||||||||||||
| Clay | 72 | 0 | 72 | 0 | ||||||||||||||
| Others | 2 | 0 | 2 | 1 | ||||||||||||||
| SCA&C |
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| Colombia |
Limestone | 351 | 330 | 681 | 883 | |||||||||||||
| Clay | 16 | 1 | 18 | 3 | ||||||||||||||
| Others | 4 | 7 | 11 | 3 | ||||||||||||||
| Panama |
Limestone | 16 | 3 | 19 | 0 | |||||||||||||
| Clay | 1 | 1 | 2 | 0 | ||||||||||||||
| Caribbean TCL |
Limestone | 237 | 0 | 237 | 0 | |||||||||||||
| Clay | 0 | 0 | 0 | 0 | ||||||||||||||
| Others | 0 | 0 | 0 | 0 | ||||||||||||||
| Dominican Republic |
Limestone | 393 | 0 | 393 | 0 | |||||||||||||
| Clay | 4 | 0 | 4 | 0 | ||||||||||||||
| Others | 0 | 50 | 50 | 0 | ||||||||||||||
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| As of December 31, 2022 | ||||||||||||||||||
| Resources (million tons)(4)(5)(6) | ||||||||||||||||||
| Location | Mineral | Measured (M) | Indicated (I) | Total(M) | Inferred | |||||||||||||
| Rest of SCA&C(7) |
Limestone | 8 | 1 | 10 | 0 | |||||||||||||
| Clay | 0 | 0 | 0 | 0 | ||||||||||||||
| Others | 0 | 0 | 0 | 0 | ||||||||||||||
| Cemex Consolidated |
Limestone | 2,078 | 1,452 | 3,529 | 3,104 | |||||||||||||
| Clay | 101 | 7 | 108 | 110 | ||||||||||||||
| Others | 6 | 58 | 64 | 8 | ||||||||||||||
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| Totals | 2,185 | 1,517 | 3,702 | 3,222 | ||||||||||||||
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| As of December 31, 2022 | ||||||||||||||||||||||
| Reserves (Million tons)(4)(5)(6) | ||||||||||||||||||||||
| Location | Mineral | Number of quarries(8) |
Proven | Probable | Total | 2022 Annualized Production |
||||||||||||||||
| Mexico(1) |
Limestone | 15 | 1,254 | 1,376 | 2,630 | 20.8 | ||||||||||||||||
| Clay | 12 | 156 | 148 | 304 | 2.6 | |||||||||||||||||
| Others | 12 | 6 | 4 | 9 | 0.5 | |||||||||||||||||
| United States(2) |
Limestone | 21 | 469 | 92 | 561 | 10.5 | ||||||||||||||||
| Clay | 3 | 15 | 17 | 32 | 0.4 | |||||||||||||||||
| Others | 2 | 0 | 0 | 1 | 0.1 | |||||||||||||||||
| EMEAA |
||||||||||||||||||||||
| United Kingdom |
Limestone | 2 | 52 | 34 | 86 | 1.5 | ||||||||||||||||
| Clay | 3 | 21 | 0 | 21 | 0.5 | |||||||||||||||||
| Germany |
Limestone | 1 | 6 | 80 | 85 | 2.5 | ||||||||||||||||
| Poland |
Limestone | 2 | 114 | 84 | 198 | 3.3 | ||||||||||||||||
| Spain |
Limestone | 11 | 130 | 76 | 206 | 2.7 | ||||||||||||||||
| Clay | 4 | 4 | 3 | 7 | 0.2 | |||||||||||||||||
| Others | 2 | 0 | 15 | 15 | 0.0 | |||||||||||||||||
| Philippines(3) |
||||||||||||||||||||||
| Property that supplies Solid Cement Plant |
Limestone | 4 | 258 | 0 | 258 | 1.2 | ||||||||||||||||
| Other properties |
Limestone | 3 | 96 | 36 | 133 | 3.7 | ||||||||||||||||
| Clay | 1 | 1 | 2 | 3 | 0.0 | |||||||||||||||||
| Others | 2 | 5 | 0 | 5 | 0.3 | |||||||||||||||||
| Rest of EMEAA |
Limestone | 5 | 71 | 209 | 280 | 5.4 | ||||||||||||||||
| Clay | 2 | 1 | 19 | 20 | 0.7 | |||||||||||||||||
| Others | 4 | 1 | 0 | 1 | 0.1 | |||||||||||||||||
| SCA&C |
||||||||||||||||||||||
| Colombia |
Limestone | 11 | 70 | 127 | 198 | 3.3 | (7) | |||||||||||||||
| Clay | 2 | 4 | 1 | 5 | 0.0 | |||||||||||||||||
| Others | 2 | 1 | 4 | 5 | 0.1 | |||||||||||||||||
| Panama |
Limestone | 3 | 66 | 22 | 87 | 1.7 | ||||||||||||||||
| Clay | 2 | 5 | 1 | 6 | 0.2 | |||||||||||||||||
| Caribbean TCL |
Limestone | 4 | 2 | 23 | 25 | 2.4 | ||||||||||||||||
| Clay | 1 | 0 | 5 | 5 | 0.2 | |||||||||||||||||
| Others | 3 | 0 | 15 | 15 | 0.2 | |||||||||||||||||
| Dominican Republic |
Limestone | 1 | 88 | 0 | 88 | 2.0 | ||||||||||||||||
| Clay | 1 | 16 | 0 | 16 | 0.0 | |||||||||||||||||
| Others | 1 | 10 | 0 | 10 | 0.2 | |||||||||||||||||
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| As of December 31, 2022 | ||||||||||||||||||||||
| Reserves (Million tons)(4)(5)(6) | ||||||||||||||||||||||
| Location | Mineral | Number of quarries(8) |
Proven | Probable | Total | 2022 Annualized Production |
||||||||||||||||
| Rest of SCA&C |
Limestone | 2 | 1 | 4 | 5 | 0.3 | ||||||||||||||||
| Clay | 0 | 0 | 0 | 0 | 0.0 | |||||||||||||||||
| Others | 0 | 0 | 0 | 0 | 0.0 | |||||||||||||||||
| Cemex Consolidated |
Limestone | 85 | 2,677 | 2,164 | 4,841 | 61.3 | ||||||||||||||||
| Clay | 31 | 222 | 196 | 418 | 4.7 | |||||||||||||||||
| Others | 28 | 23 | 37 | 60 | 1.5 | |||||||||||||||||
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| Totals | 144 | 2,921 | 2,398 | 5,318 | 67.4 | |||||||||||||||||
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| (1) | Our cement raw materials operations in Mexico include three limestone quarries that also produce hard rock aggregates. |
| (2) | Our cement raw materials operations in the United States include one limestone quarry that also produces hard rock aggregates. |
| (3) | Although Cemex, S.A.B. de C.V. consolidates CHP into its consolidated financial statements under IFRS, as of December 31, 2022 we did not control the raw materials used in our operations in the Philippines. Such raw materials were primarily supplied by APO Land & Quarry Corporation (“ALQC”) and Island Quarry and Aggregates Corporation (“IQAC”). ALQC was wholly owned by Impact Assets Corporation, which is a corporation in which we owned a 40% equity interest. As of December 31, 2022, IQAC was wholly owned by Albatross Holdings, Inc. (“Albatross Holdings”), which is a corporation in which we owned a 40% equity interest. Values presented for properties in the Philippines have not been prorated by the 40% interest. |
| (4) | Figures for reserves and resources are rounded. |
| (5) | Our 2022 cement raw materials resources and reserves were estimated based on an average sales price during 2022 for cement of $114.30 per metric ton, excluding freight. This price is impacted by product mix, location and exchange rates. One ton of limestone is used to produce 1.08 tons of cement. |
| (6) | Resources and reserves are reported excluding expected wastes, meaning its best estimation of final usable/saleable material. |
| (7) | Immaterial volumes extracted from the quarry located in Maceo for the Maceo Plant road construction are excluded from this calculation. |
| (8) | The number of quarries may include sites in exploration stages. |
As of December 31, 2022, we operated approximately 265 aggregates quarries across our global operations, mostly dedicated to serving our ready-mix concrete and aggregates businesses. Annualized production of aggregates totaled 117.7 million tons for 2022, 116.1 million tons for 2021, and 113.5 million tons for 2020. We estimate that our proven and probable aggregates reserves, on a consolidated basis, have an average remaining life of 30 years. Average remaining life, also known as years to depletion, is calculated based on total reserves divided by the average production of the five previous years; so, for the year ended December 31, 2022, total reserves are divided by the average annual cement raw materials production between the years ended December 31, 2018 and December 31, 2022. As of December 31, 2022, we operated substantially all of our aggregates quarries, some of which are jointly-operated with third parties.
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The tables set forth below present our total measured, indicated, and inferred aggregates resources (exclusive of proven and probable reserves) and permitted proven and probable aggregates reserves by geographic segment and material type extracted or produced in our aggregates quarries operations. We note that the locations of our aggregates reserves differ from those of our cement reserves:
| As of December 31, 2022 | ||||||||||||||||||
| Resources (million tons)(9)(10)(11) | ||||||||||||||||||
| Location | Mineral | Measured (M) | Indicated (I) | Total (M) + (I) | Inferred | |||||||||||||
| Mexico |
Hardrock | 1 | 21 | 22 | 24 | |||||||||||||
| United States |
Hardrock | 78 | 208 | 286 | 876 | |||||||||||||
| Sand&Gravel | 32 | 354 | 387 | 47 | ||||||||||||||
| Others | 0 | 0 | 0 | 0 | ||||||||||||||
| EMEAA |
||||||||||||||||||
| United Kingdom |
Hardrock | 0 | 62 | 62 | 0 | |||||||||||||
| Sand&Gravel | 29 | 149 | 178 | 139 | ||||||||||||||
| France |
Hardrock | 0 | 0 | 0 | 49 | |||||||||||||
| Sand&Gravel | 0 | 24 | 24 | 50 | ||||||||||||||
| Germany |
Hardrock | 24 | 20 | 44 | 3 | |||||||||||||
| Sand&Gravel | 3 | 0 | 3 | 1 | ||||||||||||||
| Poland |
Hardrock | 0 | 0 | 0 | 0 | |||||||||||||
| Sand&Gravel | 8 | 12 | 20 | 0 | ||||||||||||||
| Spain |
Hardrock | 0 | 0 | 0 | 0 | |||||||||||||
| Sand&Gravel | 0 | 0 | 0 | 0 | ||||||||||||||
| Others | 0 | 0 | 0 | 0 | ||||||||||||||
| Philippines(8) |
Hardrock | 144 | 208 | 352 | 0 | |||||||||||||
| Israel |
Hardrock | 0 | 0 | 0 | 0 | |||||||||||||
| Sand&Gravel | 0 | 0 | 0 | 0 | ||||||||||||||
| Rest of EMEAA |
Hardrock | 0 | 0 | 1 | 0 | |||||||||||||
| Sand&Gravel | 6 | 6 | 12 | 6 | ||||||||||||||
| SCA&C |
||||||||||||||||||
| Colombia |
Sand&Gravel | 44 | 67 | 111 | 325 | |||||||||||||
| Panama |
Hardrock | 0 | 0 | 0 | 0 | |||||||||||||
| Others | 0 | 0 | 0 | 0 | ||||||||||||||
| Caribbean TCL |
Hardrock | 0 | 0 | 0 | 4,700 | |||||||||||||
| Sand&Gravel | 4 | 5 | 9 | 0 | ||||||||||||||
| Dominican Republic |
Hardrock | 0 | 0 | 0 | 0 | |||||||||||||
| Rest of SCA&C |
Sand&Gravel | 13 | 0 | 13 | 0 | |||||||||||||
| Cemex Consolidated |
Hardrock | 248 | 519 | 766 | 5,653 | |||||||||||||
| Sand&Gravel | 139 | 616 | 755 | 568 | ||||||||||||||
| Others | 0 | 0 | 0 | 0 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||
| Totals | 386 | 1,135 | 1,521 | 6,220 | ||||||||||||||
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|
|
|||||||||||
| As of December 31, 2022 | ||||||||||||||||||||||
| Reserves (million tons)(9)(10)(11) | ||||||||||||||||||||||
| Location | Mineral | Number of quarries(13) |
Proven | Probable | Total | 2022 Annualized Production |
||||||||||||||||
| Mexico |
Hardrock | 13 | 233 | 394 | 627 | 11.1 | ||||||||||||||||
| United States |
Hardrock | 20 | 667 | 38 | 705 | 28.4 | ||||||||||||||||
| Sand&Gravel | 42 | 280 | 92 | 372 | 19.5 | |||||||||||||||||
| Others | 1 | 0 | 0 | 0 | 0.0 | |||||||||||||||||
| EMEAA |
||||||||||||||||||||||
| United Kingdom |
Hardrock | 3 | 269 | 0 | 269 | 6.0 | ||||||||||||||||
| Sand&Gravel | 44 | 161 | 52 | 213 | 9.4 | |||||||||||||||||
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| As of December 31, 2022 | ||||||||||||||||||||||
| Reserves (million tons)(9)(10)(11) | ||||||||||||||||||||||
| Location | Mineral | Number of quarries(13) |
Proven | Probable | Total | 2022 Annualized Production |
||||||||||||||||
| France |
Hardrock | 10 | 68 | 36 | 104 | 3.2 | ||||||||||||||||
| Sand&Gravel | 36 | 143 | 23 | 166 | 7.3 | |||||||||||||||||
| Germany |
Hardrock | 14 | 88 | 36 | 124 | 3.1 | ||||||||||||||||
| Sand&Gravel | 14 | 33 | 61 | 93 | 2.7 | |||||||||||||||||
| Poland |
Hardrock | 1 | 4 | 12 | 16 | 1.7 | ||||||||||||||||
| Sand&Gravel | 5 | 11 | 10 | 21 | 3.4 | |||||||||||||||||
| Spain |
Hardrock | 17 | 265 | 83 | 348 | 2.4 | ||||||||||||||||
| Sand&Gravel | 3 | 33 | 0 | 33 | 1.5 | |||||||||||||||||
| Others | 2 | 2 | 1 | 3 | 0.1 | |||||||||||||||||
| Philippines(9) |
Hardrock | 1 | 138 | 0 | 138 | 0.0 | ||||||||||||||||
| Israel |
Hardrock | 6 | 41 | 2 | 43 | 13.9 | ||||||||||||||||
| Sand&Gravel | 1 | 0 | 0 | 0 | 0.8 | |||||||||||||||||
| Rest of EMEAA |
Hardrock | 5 | 3 | 0 | 3 | 0.7 | ||||||||||||||||
| Sand&Gravel | 9 | 13 | 2 | 15 | 1.8 | |||||||||||||||||
| SCA&C |
||||||||||||||||||||||
| Colombia |
Sand&Gravel | 9 | 1 | 46 | 47 | 0.2 | ||||||||||||||||
| Panama |
Hardrock | 0 | 0 | 0 | 0 | 0.0 | ||||||||||||||||
| Others | 0 | 0 | 0 | 0 | 0.0 | |||||||||||||||||
| Caribbean TCL |
Hardrock | 2 | 8 | 0 | 8 | 0.1 | ||||||||||||||||
| Sand&Gravel | 2 | 0 | 4 | 4 | 0.5 | |||||||||||||||||
| Dominican Republic |
Hardrock | 1 | 18 | 0 | 18 | 0.0 | ||||||||||||||||
| Rest of SCA&C |
Sand&Gravel | 4 | 0 | 2 | 2 | 0.0 | ||||||||||||||||
| Cemex Consolidated |
Hardrock | 93 | 1,801 | 601 | 2,403 | 70.5 | ||||||||||||||||
| Sand&Gravel | 169 | 675 | 293 | 968 | 47.1 | |||||||||||||||||
| Others | 3 | 2 | 1 | 3 | 0.1 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
| Totals | 265 | 2,478 | 895 | 3,373 | 117.7 | |||||||||||||||||
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| (9) | Although Cemex, S.A.B. de C.V. consolidates CHP into its consolidated financial statements under IFRS, as of December 31, 2022, we did not control the raw materials used in our operations in the Philippines. Such raw materials were primarily supplied by ALQC and IQAC. ALQC was wholly owned by Impact Assets Corporation, which is a corporation in which we owned a 40% equity interest. As of December 31, 2022, IQAC was wholly owned by Albatross Holdings, which is a corporation in which we owned a 40% equity interest. Values presented for properties on the Philippines have not been prorated by the 40% interest. |
| (10) | Figures for Reserves and Resources are rounded. |
| (11) | Our 2022 aggregates resources and reserves were estimated based on an average sales price during 2022 for aggregates of $14.20 per ton, excluding freight. This price is impacted by product mix, location and exchange rates. |
| (12) | Resources and reserves are reported excluding expected wastes, meaning its best estimation of final usable/salable material. |
| (13) | The number of quarries may include sites in exploration stages. |
See “Item 4—Information on the Company—Our Corporate Structure” for further details on our processing plants, other available facilities and operations.
Internal Controls
Cemex has implemented controls and procedures designed for quality assurance and quality control on the Company’s production activities and associated information for the estimation of mineral resources and reserves.
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The quality assurance and quality control measures are applied to exploration, quarry production and cement plant processing activities. Cemex applies industry standards to evaluate the reliability of laboratory results that analyze exploration samples used in calculating mineral resource and reserve estimates, which are then analyzed and verified annually by other business units within the Company, jointly with the associated regional technical managers, once such information is available. Qualified persons and experts also verify the data resulting from analysis prior to using it in their work.
Additionally, Cemex has implemented internal controls designed for its mineral resources and reserves estimates to be compliant with Regulation S-K 1300 requirements, including the preparation of resources and reserve estimates by qualified persons and experts on the matter in the different locations where Cemex operates.
Our Strategic Priorities
Cemex has a general vision and value creation model comprised of the following six elements: (i) purpose, (ii) mission, (iii) values, (iv) strategic priorities, (v) operating model and (vi) stakeholders.
PURPOSE. We expect to build a better future for, among others, our employees, our customers, our shareholders, our investors, our suppliers and the communities where we live and work.
MISSION. We intend to create sustainable value by providing industry-leading products and solutions to satisfy the construction needs of our customers around the world.
VALUES. We intend to: (i) protect the safety of all our employees by being accountable to each other for our actions and behaviors and trying to be an industry leader by example; (ii) focus on our customers by aligning ourselves closely with their business and their needs and, following through with our commitments, resolving problems quickly and making it easy to do business with us; (iii) pursue excellence in all aspects of our business and interactions with customers by challenging ourselves to constantly improve and build upon our strong reputation around the world for quality and reliability; (iv) work as one Cemex by leveraging our collective strength and global knowledge to share best practices, replicate good ideas and collaborate across boundaries; and (v) act with integrity by remaining honest and transparent in all our interactions, complying with our code of ethics and laws and regulations, and caring for our people, communities and natural resources.
STRATEGIC PRIORITIES. To achieve our mission, our strategy is to create value by building and managing a global portfolio of integrated cement, ready-mix concrete, aggregates and Urbanization Solutions businesses. Our five strategic priorities, in no particular order, are (i) Health and Safety, (ii) Customer Centricity, (iii) Innovation, (iv) Sustainability and (v) Operating EBITDA Growth.
Implemented in 2018, our action plan “A Stronger Cemex,” was a transformational plan designed to fortify Cemex’s position as a leading global heavy building materials company, accelerate our path to investment grade, enhance our total shareholder return and generate long-term value for our stakeholders. Under said plan, Cemex: (i) divested $1.6 billion in assets by the end of 2020; (ii) achieved recurring operational improvements of $230 million by 2020; and (iii) accelerated our path to investment grade by further deleveraging Cemex by reducing our debt by $3.5 billion by the end of 2020.
In 2020, we implemented the “One Cemex” commercial model to improve our customers’ experience through customer centricity, aiming to provide a superior omnichannel experience, everywhere and every time. It was supported by digital platforms and the importance of minimizing financial risk, with an aim to maintain ample liquidity. In 2020, we developed “Operation Resilience,” our medium-term strategy for the following three years, a decisive action plan designed to maximize shareholder value and reposition us for higher Operating EBITDA growth on a risk-adjusted basis. “Operation Resilience” was not only about deleveraging but also about
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building a lower risk and faster growing business. Initially, “Operation Resilience” was aimed at (i) growing the profitability of our business to achieve a consolidated Operating EBITDA margin equal to or greater than 20% by 2023, considering our then current portfolio, through cost reduction measures and other commercial and operational initiatives; (ii) optimizing our portfolio for Operating EBITDA growth through the execution of strategic divestments and reinvestments, thereby constructing a portfolio more weighted towards the United States and Europe, after which we expect we will be a heavy building materials company with a large part of its footprint represented by the United States, Europe and Mexico, focusing on vertically integrated positions near growing metropolises and developing Urbanization Solutions as one of our four core businesses; (iii) de-risking our capital structure, reducing our cost of funding and ultimately achieving investment grade capital structure by targeting additional net debt paydowns and a leverage target equal to or below 3.0x for December 2023, among other initiatives, including extending our debt maturity profile, minimizing our cost of funding and raising funds in local currency to better align our Operating EBITDA and debt; and (iv) leveraging sustainability and digital platforms as a competitive advantage by moving forward on achieving our 2030 target to reduce our cement CO2 emissions by 35% compared to our 1990 baseline and our ambition to deliver net-zero CO2 concrete by 2050.
During 2022, we made progress on our “Operation Resilience” targets mainly by achieving (i) a consolidated Operating EBITDA margin of 17.2%, despite rising inflation; (ii) $600 million of closed asset sales, which includes our divestments in Costa Rica and El Salvador, as well as a controlling interest in Neoris, and additional fixed assets; (iii) growth investments of $474 million on strategic capital expenditures during 2022, which include bolt-on acquisitions in different geographies like Germany, Spain and Texas, leading to a solid 21% Operating EBITDA growth in our Urbanization Solutions core business; (iv) leverage of 2.84x, reaching two years in a row with a leverage ratio below our initial objective, with a total debt plus other financial obligations reduction of $332 million during 2022; and (v) as of December 31, 2022, a reduction in CO2 emissions of 30% compared to our 1990 baseline. As a result of the progress made, in addition to our previously existing “Operation Resilience” targets not yet achieved, we now look, as part of our strategic priorities, to maintain our investment grade capital structure and ultimately regain an investment grade rating, and also replaced our previously existing 2030 target to reduce our cement CO2 emissions by 35% compared to our 1990 baseline with a more ambitious 47% reduction goal.
During 2022, we repaid or refinanced $1.9 billion of debt, and by applying free cash flow and proceeds from asset sales, we reduced consolidated net debt, as defined in the Credit Agreements, by $300 million. Also during 2022, we reduced interest expenses by $45 million, or 8% compared to 2021. Most importantly, we increased the leverage ratio, as calculated under the Credit Agreements, by 0.11x to 2.84x.
In addition, to further fortify our balance sheet, we continue to be focused mainly on the following three initiatives, while at all times remaining committed to building a better world and helping alleviate some of the biggest challenges communities are facing today: (i) growing our Operating EBITDA through further cost- reduction efforts, operating efficiencies, customer-centric commercial strategies across all our core businesses and strategic growth investments; (ii) maximizing our free cash flow, which is expected to be used mainly for debt reduction and our bolt-on investments; and (iii) continuing to execute selective accretive divestments by selling what we believe are non-essential assets, which could allow us to free up more free cash flow.
Health and Safety
Health and Safety (“H&S”) remains our top value and priority. We are working towards developing a culture within which everyone in our organization embraces H&S. We believe that the health and safety of our employees, contractors and the people we interact with in our local communities on a day-to-day basis is of the utmost importance.
To help us meet our goals, four core principles guide our decisions and actions: (i) nothing comes before the health and safety of our employees, contractors, and communities; (ii) making health and safety a moral responsibility per employee by looking after ourselves and each other; (iii) looking to create safe workplaces; and (iv) maintaining accountability for health and safety practices.
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Our Global Health and Safety Policy is the cornerstone of our Health and Safety Management System (“HSMS”) and sets out clear expectations for our leaders and workforce to carry out their activities in a safe manner and to care for the well-being of our employees, contractors and other people with whom we interact. The HSMS is our main tool to establish performance requirements and goals for our operations by helping us assess potential risks and plan the measures needed to mitigate them in a coordinated manner. The HSMS is designed to empower our leaders to implement a successful health and safety strategy across our operations and guides us on how to adequately allocate resources to training programs for our employees. Furthermore, our line managers utilize our HSMS on an ongoing basis to make an annual review of further improvement opportunities and to formulate annual Health and Safety Improvement Plans.
We are constantly working towards our ultimate target of zero injuries worldwide, evidenced by our Zero4Life objective. In 2022, we maintained a low employee Lost-Time Injuries (“LTIs”) frequency rate of 0.5, and we are working toward reducing this rate to 0.3 and 0.2 by the end of 2023 and 2025, respectively. Our employee Total Recordable Injuries (“TRIs”) frequency rate improved to 2.3, and we also expect to reduce this rate by the end of 2023. While the number of contractor LTIs increased by six cases when compared to 2021, contractor TRIs decreased by 5.3% in 2022. In 2023, we continue to work on health-related actions to achieve a reduction in our employee sickness absence rate, which decreased by 10% in 2022.
We had 79% fewer overall fatalities in 2022 compared to 2021 when considering third-party, contractor and employee fatalities. However, the number of employee fatalities specifically increased from one to three. Our figures are aligned with the recently revised Global Cement & Concrete Association’s (“GCCA”) guidelines and guidance. We also continued to make progress in most countries, as 96% of our operations achieved zero fatalities and LTIs of employees and contractors.
We continue to pay particular attention to the avoidance of incidents involving moving vehicles. In an effort to eliminate such types of incidents, we continue to focus on specific initiatives ranging from innovative awareness campaigns and safety features to defensive driving training and workshops. In 2022, we took a step forward in digitalization to become one of the most advanced fleets in our industry. The digital vehicle safety features we employ include sensors, mobile apps, GPS tracking, camera systems and other types of safety equipment, such as artificial intelligence systems that managers review to give feedback to our drivers to highlight both risky behaviors and good driving performance. We will continue to work hard and drive forward with our initiatives so that our employees and contractors understand the importance of and become integral to our H&S culture.
The following table sets forth our performance indicators with respect to safety by geographic location, accurate at the time of reporting and in accordance with GCCA’s guidelines and guidance for the year ended December 31, 2022:
| Mexico | United States |
EMEAA | SCA&C | Total Cemex |
||||||||||||||||
| Total fatalities, employees, contractors and other third parties (#) |
1 | 1 | 0 | 1 | 3 | |||||||||||||||
| Fatalities employees (#) |
1 | 1 | 0 | 1 | 3 | |||||||||||||||
| Fatality rate employees(1) |
0.6 | 1.1 | 0 | 1.9 | 0.6 | |||||||||||||||
| Lost-Time injuries (LTI), employees (#) |
28 | 17 | 8 | 3 | 56 | |||||||||||||||
| Lost-Time injuries (LTI), contractors (#) |
22 | 7 | 12 | 8 | 49 | |||||||||||||||
| Lost-Time injury (LTI) frequency rate, employees per million hours worked(2) |
0.6 | 0.8 | 0.4 | 0.2 | 0.5 | |||||||||||||||
| (1) | Incidents per 10,000 employees in a year. |
| (2) | Working hours are directly measured and/or obtained using recognized industry methods. |
At Cemex, training is a key part of our strategy to achieve our Zero4Life commitment. We continuously revise and seek to improve our training programs and strive for all our employees to possess the correct knowledge, skills, and experience to perform their jobs safely.
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As part of our training program, executives, line managers, and supervisors must complete our Health and Safety Academy, designed to enhance their leadership skills in relation to our Health and Safety number one value and priority across our organization. The Health and Safety Academy was launched in 2016 with our Foundation Module, which prepares our line managers to lead by example and play a fundamental role in ensuring safety throughout our operations. Launched in 2017, Module 2 enables our line managers to utilize our HSMS tool to help achieve our Zero4Life commitment in their operations. Module 3, deployed in 2018, is designed to enhance the health and safety proficiency of our line managers in key topics.
In 2021, due to restrictions on face-to-face meetings, we strengthened our Health and Safety Academy training to address the new pandemic and epidemics element in our HSMS tool through Cemex University’s self-learning platform. During 2022, following our implementation of Behaviors That Save Lives, we restarted our in-person Health and Safety Academy sessions in EMEAA, Mexico, SCA&C and the USA covering an audience of over 2,000 learners. This effort focused not only on training employees but also on developing new trainers. To support this effort, we enhanced our 360-assessment, which is a crucial element of the Health and Safety Academy, and translated it into nine languages. We expect to deploy the 360-assessment across the regions in which we operate.
In 2022, we launched a new Cemex Wellbeing Model to serve as a common framework for all our operations worldwide. We expect the model will help us have a unified approach and a solid base to improve our wellbeing offering over the coming years. We have developed a gap analysis tool to assist our operation teams implementing the model. The initiative will be supported by medical professionals from our Global Health Forum of experts. Additionally, we developed a communications campaign to promote our Wellbeing Model focused on emotional health, physical health, financial fitness, and workforce experience. All activities included in the Cemex Wellbeing Model are designed to reduce the prevalence of health risks and encourage employees to live a healthy lifestyle both inside and outside the workplace.
Finally, we started the development of an online course focused on the principles of Visible Felt Leadership, which is the development of a constant, consistent and positive leadership approach towards Health and Safety in everything a manager does, starting with those at the very top of an organization. This learning experience will be deployed globally as an introductory module of the Health and Safety Academy, and as a tool to develop senior leadership with a focus on health and safety issues.
As part of our Contractor Health and Safety Verification Program, in 2022, we reached our goal of evaluating health and safety practices of at least 91% of our company’s procurement contractors spend. To achieve this goal, we engaged our operations in different countries and worked closely with our Health and Safety Functional Network made up of national health and safety specialists.
Customer Centricity
Cemex is dedicated to helping our customers succeed and our efforts are focused on what success means to them. We are passionate about finding new ways to inspire and satisfy them by innovating around their needs to surpass their expectations in every interaction. Through our “One Cemex” commercial model, we aim to provide our customers with a superior omnichannel experience everywhere and every time, and are creating new opportunities to serve them better. In 2022, we focused on four key efforts:
(1) An Integrated Service Delivery Model
Since 2021, we set on a path to provide our customers with a frictionless, consistent, and personalized omnichannel experience to deliver fast responses to their needs. Our Service Delivery Model aims to leverage cost efficiencies and unleash revenue growth potential, while improving our customers’ experience across geographies and within each of our customer segments.
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(2) A Robust Voice of The Customer Program
We have been using Bain & Co.’s Net Promoter System® to gather, manage, and act on customer feedback. The Net Promoter Score (“NPS”) is a key experience indicator used to measure our customers’ loyalty across all of our business units since 2018. In 2022, we maintained an outstanding annual global NPS result of 66, significantly above the Retently 2022 NPS benchmark of 45 for the construction and engineering industry and on track for our 2030 NPS target of 70, which we updated from 60 to 70 in 2021.
This Net Promoter System® allows us to transform our customers’ feedback into actionable improvements, leverage enhanced analytics to better understand them, and develop insights to design more targeted, data-based value propositions for them. Since 2021, as part of our Voice of the Customer program, we enabled new means to measure customer satisfaction at a transactional level throughout the entire customer journey and added advanced capabilities such as text analytics, sentiment analysis, and touchpoint correlation analysis.
(3) An Empowered Sales Force
Our employees are at the core of our ability to deliver a superior customer experience and we are committed on empowering them with the right skills, tools and technology to deliver on our customer-centricity promise. LEAP, Cemex’s global sales learning experience, received the Brandon Hall Excellence Bronze Award for the Best Sales Onboarding Program category in 2022, achieved a 91% adoption rate, and earned outstanding satisfaction rates of over 90%. LEAP will continue to evolve into six LEAP Masterclasses, fully focused on sustainable construction and the skills required to deploy Cemex’s products and solutions and reach the company’s goal of achieving net zero CO2 by 2050.
As part of our customer-centricity practice, we recognize excellence and best practices adopted across our business units that lead to a superior customer experience. In 2022, we celebrated our Company’s customer-centric culture and commitment toward our customers at Cemex’s second Customer Experience Day. We will continue working toward delivering such programs that are part of our most valued Cemex traditions.
(4) Cemex: A Digitally Driven Company
We view the creation of a digital organization as essential to our customer-centricity and global business strategy. The technological applications we develop are designed to strengthen our competitive advantage by boosting our customers’ productivity, positively impacting their bottom line and improving their experience when interacting with Cemex. Our digital solutions support our customers in seamlessly carrying out their work with promotional content about our Vertua brand to aid our customers in their transition toward more sustainable construction.
To continue with our digital evolution focused on our customers, we expanded Olivia, our artificial intelligence chatbot, into other markets and countries to help our Customer Service Centers provide responses to our customers’ most common questions. In 2022, Olivia was introduced in the UK in CEMEX Go, WhatsApp, and “ReadyMix2Go,” a professional self-builder’s website. We also launched Olivia in certain of our SCA&C countries, including Peru, Guatemala, the Dominical Republic, Panama, Nicaragua, and Puerto Rico, reaching a global presence in twelve geographies.
(4)(a) Leading the Industry’s Digital Transformation through CEMEX Go
CEMEX Go enables our customers to build more efficient operations and the use of our online store has grown remarkably since 2017. This innovative digital solution automates order-to-cash workflows, which looks to streamline customers’ ability to achieve real-time management, from ordering to tracking to fulfillment. Additionally, CEMEX Go is designed to enhance decision-making capabilities by offering ready access to detailed information and in-depth analytics to make more informed decisions and to save time and money. As of
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December 31, 2022, more than 53,000 customers across 21 countries, have been onboarded to our CEMEX Go Online Store, and we received approximately 50% of our main product orders and processed 60% of our total global sales through this platform.
We continue to develop next generation functionalities of our CEMEX Go Online Store. Since its release in 2021, we continued expanding the Online Connection in more business lines and more countries, so that orders are confirmed automatically and in real time. In 2022, we also connected the Ready-Mix Go application to our online capabilities so that customers can view, schedule, confirm, and manage their orders in real time, as well as track deliveries, configure notifications, and view order history from mobile and web devices.
Moreover, we have been encouraging the digitalization of internal and customer processes to minimize the use of paper. As of the date of this annual report, around 73% of our invoices are delivered in a fully digital manner, putting us on track to achieving our global paperless goal.
(4)(b) CEMEX Go Developer Center: New Digital Connections with Our Customers
Our CEMEX Go Developer Center is a platform that allows customers to interact directly with our systems via digital platforms and Application Programming Interfaces. Since 2022, the CEMEX Go Developer Center assists customers from the United States, Mexico, the United Kingdom, Germany, France, Spain, Poland and the Czech Republic creating their orders and receiving real-time status updates in their own management systems of the products they purchased and the services they requested.
(4)(c) CEMEX Go CRM: The Digital Ally for Customer Relationship Service
CEMEX Go Customer Relationship Manager (“CRM”) is present in Mexico, the United States, Colombia, and Cemex’s EMEAA region. CEMEX Go CRM for sales management helps commercial teams provide insightful data and save time in daily planning and managing activities across our global operations by personalizing daily follow-up activities with customers such as the creation of quotes and demand planning. Furthermore, CEMEX Go CRM for customer service is consolidating our core technological layer to strengthen our customer service center capabilities through an omnichannel experience.
(4)(d) Buying Construction Materials in the Digital Age
Construrama.com is the e-commerce solution boosting Construrama in Mexico, the largest construction materials distribution network in the country. Today, more than 100,000 online users can purchase from a wide catalog of products and construction materials.
Cemex Professional and Self Builders (“PSB”) platform offers a full e-commerce experience for self- builder customers through a simple and fast online solution that guides them to select the right concrete products, place orders and pay online. In 2022, we improved the PSB platform user experience and released version 2.0 in the United Kingdom, which we expect to make available in the United States in 2023. As of the date of this annual report, Cemex PSB is also available in Mexico and Colombia.
Innovation
Innovation is key to remaining at the forefront of our industry and advance in achieving our strategic goals as a forward-looking company. More importantly, it is one of the key levers in building a sustainable and profitable business in the new green economy.
Cemex’s innovation activities occur on two fronts: “Open Innovation” and Internal Research and Development (“R&D”). Open Innovation initiatives, led by Cemex Ventures, aim to monitor and identify the next generation of products and services, invest in high potential opportunities/technological breakthroughs, seek strategic collaborations accelerate technological developments with high potential and create an ecosystem of collaboration with partners. Internal innovation is led by our Global R&D team in Switzerland, and our experts work in close
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collaboration with Cemex Ventures to harness R&D knowledge and experience and bring value to the Open Innovation process, as well as develop novel and alternative paths to address climate change and sustainable construction needs. A key element of Cemex’s R&D is the engagement and close collaboration with key partners and stakeholders, whether that is start-ups, universities, companies or external and internal customers.
Our Global R&D team’s technological agenda is focused on addressing climate change to support Cemex’s Future in Action climate program, which is built on four pillars: (i) developing sustainable products and solutions; (ii) decarbonizing Cemex’s operations; (iii) innovations and partnerships; and (iv) promoting a green economy. As a result of these efforts, in 2021 we developed a range of low embodied CO2 cement and ready-mix products under the global brand Vertua, including Vertua Lower Carbon, a range of products in our portfolio that have a lower embodied CO2 compared to a corresponding reference. For cement, the reference is 822 net kg CO2/ton of gray cement, which is the GGCA default value for gray clinker emissions, based on the world weighted average for clinker net direct emissions. For ready-mix concrete, the reference is a concrete composed of 100% Ordinary Portland Cement fulfilling the average strength of the most standard structural concrete, which is 350 kg CO2/m3. On the sustainable products and solutions front, sales of Vertua Lower Carbon products have reached 40% for cement and 30% for ready-mix concrete in 2022. Also in 2022, the scope of Vertua has been extended beyond Lower Carbon, and currently includes the following attributes in its value proposition: energy efficiency, design optimization, water conservation, and recycled materials. Consequently, Cemex is well positioned to offer a portfolio of products and solutions addressing as well as promoting sustainable construction practices. As of the date of this annual report, Cemex estimates that, during 2022, Vertua-branded cement represented 41% of total cement volumes and Vertua-branded ready-mix represented 33% of total ready-mix volumes, a 14.8% and 16.1% year-over-year increase, respectively.
Our focus goes beyond products. We establish meaningful targets to de-carbonize our operations and drive our CO2 footprint of concrete to net zero. Some innovations in our pipeline include novel approaches to reduce clinker factor, value creation from CO2, CO2 utilization in mineralization (carbonation) of materials (e.g., recycle concrete), technologies to repurpose waste materials to enable their reuse and recycling, and the exploration of renewable energy sources to replace fossil fuels. In 2022, one of our projects provided an example of value creation from CO2 by demonstrating that it is possible to use CO2 directly as is from the flue gases to produce carbon nano materials, which in turn have several high-value uses in the automotive, electronic, and medical fields, among others. As we previously announced, Cemex is working on using Concentrated Solar Thermal energy to entirely drive the clinker production process with renewable energy. Recently, we produced the first-ever solar clinker. Furthermore, we are developing processes that can micronize materials that are potential clinker substitutes and we are finding that due to increased reactivity of these materials, we can expect to further decrease the clinker factor in our cement products. CCUS is another central focus of our research. We expect that approximately 30% of our total CO2 emissions may one day be reduced through CCUS. CCUS is an important part to achieve our net zero concrete strategy by 2050. We are diligently working to assess different technologies and pilot the most promising ones, always taking a targeted approach. Cemex is also competing for public funds. At least 50% of such publicly funded projects related to CCUS. Other publicly funded projects include electrification, renewable energy, waste heat recovery, circularity, and sustainable products. Additionally, through Global R&D, Cemex is actively participating in the GCCA’s innovation network Innovandi to develop pre-competitive knowledge on these very same key technologies for our industry. Collaboration among companies from different sectors of the industry is fundamental to address the challenge of climate change in unison. We have played an active role in GCCA’s Innovandi Open Innovation Challenge, which has resulted in the first six consortia between start-ups and GCCA member companies, which are formal working partnerships supported by the GCCA to accelerate groundbreaking technologies addressing CCUS. Innovation at Cemex is taking place on different fronts, processes, and initiatives that harness the most advanced knowledge and experience to support Cemex in achieving its strategic goals.
During 2022, we have been active in the integration of building information modeling technology into our interaction with customers, which provides our customers with tools that allow them to visualize the impact of our products on their projects as well as the potential time, energy, and CO2 savings from incorporating our
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technologies and construction solutions. By providing superior and sustainable products, solutions and services, we aim to grow from being a product-selling company to a comprehensive solutions provider.
To the best of our knowledge, as the only global building materials company that develops and manufactures its own chemical admixtures for cement, ready-mix concrete, and aggregates, we can design and develop novel, tailor-made product technologies with our proprietary chemicals. An increasing number of admixtures are being developed to enhance the performance and sustainable characteristics of our core products and solutions, such as increasing our cement strength and helping concrete to harden more rapidly, improve its flow, develop its self-curing properties and water repellency, and enable the recycling of returned concrete into aggregates. But beyond specific products or solutions, our value proposition is designed around a “Palette of Technologies” from which we can draw up new solutions based on each project’s specific and unique requirements. We expect our Urbanization Solutions core business to be well positioned to develop and grow in the performance materials market, and be competitive due to the growing range of admixture products. An important development from Cemex’s admixtures R&D efforts has been the development of the D.fab admixture family for the 3D Printing of ready-mix concrete—a true first. With Cemex’s D.fab technology it is possible to adopt locally sourced materials, instead of bagged and very specific as well as highly expensive mortar products, to produce actual concrete for 3D printing construction at one-sixth the price of mortars. Cemex and its 3D Printing partner COBOD, manufacturers of multifunctional construction robots based on 3D printing technology, have seen a very important adoption of the D.fab technology in 2022: 85% of the projects printed by COBOD.
Our Global R&D team supported the design, creation and launch of our new value-added aggregates brand, Neogem. These products are specialized high-quality aggregates, whose intrinsic properties are designed to meet the essential needs of five market sectors—Agricultural, Environmental, Industrial, Landscaping and Sports. Neogem covers an extensive range of premium minerals that can add value to our customers’ projects through particular functional or aesthetic features. Neogem products are innovative, carefully selected and tailor-made solutions designed to go beyond commonly known building materials. In 2023, we plan to continue the development of the Neogem brand.
Technologies developed by our Global R&D team are protected by more than 45 international patent families and over 70 trade secrets covering new types of cement, cementitious materials, concrete mix designs, admixtures formulations, construction systems and advanced manufacturing processes.
In addition, we have more than 40 core strategic trademarked software products, developed to enable new specific capabilities in Cemex’s Digital Commercial Model, which are protected by copyrights that primarily cover online stores and order-to-fulfillment in our cement, ready-mix and aggregates businesses. This software includes proprietary developments in machine learning and vectorized algorithms to reduce response time, reduce costs and honor commitments made with customers, providing Cemex with cutting edge competitive advantages.
Fostering Innovation and Enabling New Business Opportunities. Since its launch in 2017, our open innovation and corporate venture capital unit, Cemex Ventures, continues to engage with startups, entrepreneurs, universities, and other stakeholders to shape the construction ecosystem of tomorrow by tackling our industry’s toughest challenges.
Leveraging our knowledge of the industry and Cemex’s leading edge technologies and platforms, Cemex Ventures develops collaboration opportunities and targets innovating partnerships and investments in the following four target areas connected to the execution of our strategic priorities, which we further subdivide as set forth below:
| • | Green Construction—CO2 capture, utilization & storage; sustainable materials; circular economy; waste management & recycling; and new energy sources & solutions. |
| • | Construction Supply Chain—Materials, resourced procurement and marketplaces; logistic tools & materials tracking; fleet management & dispatching; last mile & delivery marketplaces; inventory management & on-site handling. |
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| • | Enhanced Productivity—Project design, specification and budgeting; planning & scheduling; project monitoring & control; document management; H&S compliance; project quality; and asset management & maintenance. |
| • | Construction’s Future is Now—Advanced building materials; 3D printing; industrialized construction (offsite, modular and precast); robotics & machine assisted applications; and smart cities & buildings. |
Jointly with the Cemex Global R&D and other functions, Cemex Ventures also promotes the expansion of our open innovation ecosystem in search of opportunities in new construction trends and technologies, including construction materials, decarbonization and processes evolution.
Cemex Ventures’ main role is to look for strategic partnerships and investment opportunities that go beyond our core businesses. It also aims to identify and assess emerging technologies to bring Cemex new ideas and perceptions of the construction ecosystem. To this end, Cemex Ventures allocates resources to search, incubate, and deploy innovative construction-related opportunities and solutions.
As of December 2022, Cemex Ventures has invested in 21 startups headquartered in nine countries and focused on developing the aforementioned target areas within the construction industry. During 2022, Cemex Ventures invested in three new startups and six follow-on investments in its portfolio companies. Additionally, Cemex Ventures held its 2022 Construction Startup Competition with other top industry partners, seeking entrepreneurs and startups to drive innovation in the construction industry. Almost 500 startups participated, closing the event with 8 winners (two in each of the four target areas).
A significant contribution of Cemex Ventures has been the establishment of strategic collaborations with external partners to contribute to Cemex’s strategic goals in Cemex’s Climate Action, Digitalization and Urbanization Solutions programs, strategy, and business, respectively. We have closed several agreements in collaboration with the relevant Cemex areas. Some examples are: 1) the evaluation of an offtake agreement to sell 450,000 tons of CO2 to be converted into sustainable fuels (e-methanol), 2) cooperation in the development and large-scale deployment of electrification technology for high-temperature heating in production sites of Cemex for low-CO2 clinker and cement production; 3) processing of waste (refuse-derived fuel) for the production of syngas as an energy source for our cement operations; and 4) introduction of the first 3D printer for concrete in Mexico.
In 2019, Cemex Ventures launched the “Smart Innovation” platform, aiming to bolster internal innovation at Cemex. A vehicle to foster innovation at all levels of the organization, the Smart Innovation platform seeks to challenge the status quo, promote a culture of innovation within Cemex and facilitate the execution of ideas. As of the date of this annual report, the Smart Innovation platform has more than 170 projects in the experimentation phase which we expect to have a direct impact on Cemex and the construction industry.
This platform, has enhanced the portfolio management process within the organization, ensuring initiatives are correctly managed, resources are assigned to experiment and scale up innovative solutions.
In addition, the Cemex Ventures’ Leaplab acceleration program was launched in the second semester of 2022. A fixed term collaboration scheme with early-stage startups aiming to catalyze their growth and boost innovation, by timely accessing promising solutions that can generate strategic value and business opportunities. In its first cohort, Leaplab launched pilots with five startups in six Cemex operations (Spain, Mexico, USA, Israel, the United Kingdom and Colombia) testing different technologies like energy harvesting solutions, machine learning and computer vision applications for Health and Safety matters, and digital solutions for concrete monitoring, production optimization and fleet maintenance. The program is also designed to expose and connect a key group of Cemex subject matter experts to Cemex Ventures open innovation platform and the wider entrepreneurial ecosystem.
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Sustainability
Our sustainability efforts begin with Cemex, S.A.B. de C.V.’s Board of Directors and are then facilitated across our entire organization. During 2022, Cemex, S.A.B. de C.V.’s Sustainability Committee (now named the Sustainability, Climate Action, Social Impact, and Diversity Committee) was comprised of four members of Cemex, S.A.B. de C.V.’s Board of Directors, including Cemex’s Chief Executive Officer. This committee reports directly to Cemex, S.A.B. de C.V.’s Board of Directors and is supported by our Corporate Sustainability function, which as of December 31, 2022, reported to the Executive Vice President of Sustainability, Commercial and Operations Development, who is also a member of our senior management. To help embed sustainability into our entire business strategy, we have coordinators representing each geographical region where we operate. In parallel, our Global Sustainability Functional Network works to implement our core sustainability initiatives across all our operating regions and business lines. The members of the committee as of the date of this annual report were elected at Cemex, S.A.B. de C.V.’s ordinary general shareholders’ meeting on March 23, 2023.
Our Climate Action Strategy. In 2020, we announced that we would move ahead with our Climate Action Strategy and continue advancing towards our vision of a carbon-neutral economy. At the time, we defined a 2030 reduction target of 35% of net CO2 emissions per ton of cementitious product compared with our 1990 baseline, established our ambition to deliver net-zero CO2 concrete globally to all our customers by 2050 and developed a detailed CO2 roadmap for each of our manufacturing plants aligned with a 2°C scenario.
In 2021, we announced our Future in Action climate action program focused on developing lower-carbon products, solutions and processes while increasing sustainability awareness and promoting a green economy. Under Future in Action, we are accelerating our short-term effort to reach our climate goals; our original intermediate goals were to (i) achieve a 35% reduction of CO2 emissions in cement compared to our 1990 baseline, increase our use of alternative fuels to 43% of our total fuel mix, reduce our clinker factor to less than 74% and reach approximately 40% in clean electricity consumption, all by 2025; and (ii) achieve a 35% reduction of CO2 emissions in cement compared to our 1990 baseline, achieve a 40% reduction of CO2 content in concrete compared to our 1990 baseline, increase our use of alternative fuels to more than 50% of our total fuel mix, reduce our clinker factor to 71% and reach 55% in clean electricity consumption, all by 2030.
As a result of our performance in 2021, as of the date of this annual report, we set the following more ambitious CO2 emissions reduction targets for 2030: (i) achieve a 47% reduction of CO2 emissions in cement as compared to our 1990 baseline, (ii) achieve a 41% reduction of CO2 content in concrete as compared to our 1990 baseline, (iii) increase our use of alternative fuels to more than 55% of our total fuel mix, (iv) reduce our clinker factor to 68%, and (v) reach 65% in clean electricity consumption. Also, in 2022, we validated our 2050 net-zero CO2 target and new 2030 decarbonization goals under SBTi’s 1.5ºC scenario methodology, becoming one of the first companies in the industry to do so. Most importantly, these goals should keep us on the right path to achieving our expected objective of net-zero emissions across the company by 2050. As of the end of 2022, we reduced our direct CO2 emissions to 562 kg CO2 per ton of cementitious product, which represents a 29.9% reduction compared to our 1990 baseline and is in line with how our industry measures progress on reducing net CO2 emissions.
Our 2030 goals and commitments are aligned and have been validated by the SBTi according to the 1.5°C scenario. To achieve our 2030 goals, we have updated our detailed CO2 roadmap for each of our manufacturing plants to accelerate the rollout of proven technologies worldwide. Our roadmap is mainly based on the following CO2 reduction levers: (i) accelerating the use of alternative fuels with high biomass content, (ii) optimizing thermal efficiency in our cement kilns, (iii) increasing the use of decarbonated raw materials in clinker, (iv) using novel clinkers such as low-temperature clinker and low CO2 clinker, (v) reducing clinker factor through blended cements and (vi) maximizing our clean electricity consumption. Additionally, during 2022, our targets for scope 2 and 3 emissions were validated by SBTi. We are currently working on our transport roadmap to reduce our transport-related emissions. Our roadmap, including our direct (Scope 1) greenhouse gas emissions and indirect electricity (Scope 2) emissions, has been validated by Carbon Trust, an internationally recognized consulting company that provides a rigorous third-party assessment of carbon reduction plans.
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As of December 31, 2022, Cemex reduced its clinker factor by 1.5% to 73.7%, at net CO2 emission levels of 562 kgs per ton of cementitious product. Additionally, as of December 31, 2022, 44% of our clinker production utilized hydrogen injection technology and we reached an alternative fuel substitution rate of 35%.
The technology for some of the main CO2 reduction levers on which our path to achieve our 2050 ambition will be based is still in the early stages of development, setting an open path for innovation that requires continuous work in our Research and Development Center, new investments by Cemex Ventures, the formation of strategic partnerships, and cross-industry collaboration. Nevertheless, we anticipate that the main levers that will lead us towards our 2050 ambition will be: (i) our 2030 CO2 reduction cement levers, (ii) carbon capture, utilization and storage, (iii) increasing clean electricity and energy efficiency, (iv) low-carbon transport, (v) extending circular economy principles, (vi) new concrete technologies, (vii) reforestation and carbon removal and (viii) concrete re-carbonation.
Improving Quality of Life and Well-being. As a company that looks to make a progressive positive impact through its innovative services and solutions, our ability to operate as a responsible business is fundamental to our business model. This enables us to understand stakeholders’ material issues, map social impacts, and identify risks and opportunities to create shared value for us and society.
Furthermore, to reinforce our commitment with climate action, we have signed the Business Ambition for 1.5°C commitment led by the We Mean Business Coalition in partnership with the SBTi and the U.N. Global Compact, joined the Race to Zero Campaign of the UNFCCC launched to mobilize net-zero commitments from cities, businesses, and investors ahead of the 2021 United Nations Climate Change Conference (“COP26”), joined the Corporate Leaders Group Europe convened by the Cambridge Institute for Sustainability Leadership in support of a climate neutral economy, and are founding members of both the First Movers Coalition launched at COP26 by the World Economic Forum and the U.S. State Department and of the United Nations Global Compact CFO Coalition for the Sustainable Development Goals, which provides a platform to interact with peers, investors, financial institutions, and the United Nations with the aim of attracting more capital towards sustainable development. During 2022, Cemex had a strong presence at the 2022 United Nations Climate Change Conference (“COP27”).
Our high impact social strategy directly contributes to our vision of seeking to build a better future and aims to create value, understand our stakeholders’ expectations by managing our impacts and contribute to the quality of life and well-being of the cities and communities where we operate through four focus areas:
| • | People—We provide community members with access to education and workplace training that enables inclusive long-term upward mobility. |
| • | Economy—We support organizations and individuals that contribute to boosting local economies by developing skills to foster entrepreneurship, enable a sustainable economy and lay the groundwork for a just transition. |
| • | Structures—We leverage our expertise and quality by building materials to improve the standards for livable housing and basic infrastructure in cities and communities. |
| • | Cities—We contribute to building green spaces and resilient communities, focusing on the natural and built environments. |
Although our social projects focus on our core business expertise to create value and well-being, we believe that we are also causing positive impacts on other global challenges. Thus, consistent with our commitment to the United Nations Sustainable Development Goals, we measure our progress and contributions to some of these goals.
Pursuing Excellence in Environmental Management. We believe the pursuit of excellent environmental practices benefits sustainable growth. In addition to Cemex, S.A.B. de C.V. Board of Directors’ Sustainability,
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Climate Action, Social Impact, and Diversity Committee, our primary environmental executives responsible for each of our operating regions, shares new trends, proposals and best practices to identify, inform, and tackle key environmental management concerns.
We are committed to contributing to climate change mitigation and its consequences. For years, as part of our carbon emissions reduction strategy, we have focused on using low-emission alternatives to traditional fossil fuels, decreasing our clinker factor, promoting clean energy and increasing energy efficiency across our operations. To this end, we have continuously sought to increase our use of low carbon alternative fuels, which represented 35% of our total fuel mix in 2022, and generated approximately $411 million in savings including fossil fuels costs and CO2 emissions avoided in carbon regulated markets.
As a result of our efforts, in 2022, we reduced our net CO2 emissions per ton of cementitious products by 29.9% compared to our 1990 baseline—equivalent to the annual emissions generated by 2.4 million passenger vehicles. We actively seek to develop new technologies to reduce our carbon footprint. Most notably, as of December 31, 2022, we are participating in more than 30 disruptive projects in the pipeline across our value chain to assess potential CO2 emissions reduction solutions as well as carbon capture, utilization and storage technologies. Furthermore, we explore alternatives to traditional clinker and cement chemistry that enable the production of less CO2-intensive cements.
To complement these technical measures, we participate in several forums and bilateral dialogues with key stakeholders. These activities are designed to disseminate knowledge about potential reduction measures in our sector and to promote a legislative framework that enables us to implement these measures. As an example, we have a long history of contributing our best practices through our work with the Cement Sustainable Initiative (“CSI”). The work done in CSI was transferred as of January 1, 2019 to the GCCA. The GCCA is an initiative of more than 39 major producers that actively promotes the use of concrete as an essential material for construction.
We have the expertise to responsibly source, process, store and recover energy from alternative fuels and we strongly believe that increasing co-processing residues from other sectors in our cement plants will further contribute to overcoming challenges such as climate change, waste management and fossil fuel depletion, while utilizing the principles of a circular economy.
Our key contribution to a circular economy is our transformation of waste streams from other sectors into valuable materials. In 2022, we managed approximately 27 million tons of waste in our business, including alternative fuels and raw materials, alternative/secondary aggregates, own recycled material in our main businesses and other waste managed by the company. This is close to 67 times the amount of waste we sent to landfills and equivalent to the waste produced by more than 33 million people in one year. Regarding our own waste, to reduce most of the waste generated from our processes, we maximize our reuse of clinker kiln dust in our production loop, largely avoiding landfill disposal.
To realize the financial and environmental benefits of waste, we monitor, minimize, reuse and recycle our waste, whenever possible. In 2022, 94% of the waste generated by our production processes was recovered, reused or recycled. The remaining material was sent to disposal sites.
Cemex Environmental Management System (“EMS”). We use EMS to evaluate and facilitate consistent and complete implementation of risk-based environmental management tools across our operations. The EMS consists of key mechanisms for environmental performance enhancement and impact assessment, stakeholder engagement and accident response based on input from a range of environmental and biodiversity specialists.
As of December 31, 2022, 92% of our operations had implemented either the EMS or equivalent programs. As we approach full implementation of our global EMS, our goal is for all of Cemex’s operational facilities to be 100% compliant with our internal environmental criteria.
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The release of nitrogen oxides, sulfur compounds and dust occurs during cement manufacturing. Other emissions, including dioxins, furans, volatile organic compounds and other heavy metals, are released in very small or negligible quantities. To control our stack emissions and assists us in remaining compliant with local and national regulations, we have steadily expanded emissions monitoring at our manufacturing operations even exceeding regulation requirements in many geographies.
Through our internal EMS and more specifically through our Atmospheric Emissions Global Procedure, we monitor major emissions which assists us with our compliance with local regulation limits. In 2020, we launched a new industry-benchmark online tool that allows operators and management teams to closely analyze major emissions, improve monitoring abilities from kilns with a Continuous Emissions Monitoring System installed, and strengthen emissions performance. To further improve upon these efforts, we have updated the minimum performance levels to fulfill annually for major emissions. In addition, we are working on establishing more stringent environmental standards for air emissions that are expected to be based on EU “Best Available Techniques.”
In 2022, we invested $170.8 million in sustainability related projects at our global operations, including projects to monitor and control our air emissions, increase our operations efficiency and mitigate our carbon footprint through alternative fuels and clinker substitution efforts.
Our Environmental Incidents Management. We consistently work to minimize our environmental impact, and we believe we are generally prepared to respond to emergencies that may pose a potential threat to our operations and local communities: (i) we work with our neighbors, law enforcement officials, public agencies, and other stakeholders to develop contingency plans at each of our sites; (ii) we created emergency response teams that are specifically trained to address environmental incidents and hold annual emergency drills; and (iii) we consistently record and report incidents at every level of our business to identify recurring root causes and to share corrective actions.
Our Global Environmental and Social Incident Reporting Process enables all our sites to maintain a proactive approach to respond to emergencies that could potentially impact our communities or our operations. The thorough application of this reporting procedure requires a timely registration of environmental and social impact events, identification and analysis of the root causes, and the implementation of corrective and preventive action plans as a first step toward avoiding their occurrence and reducing their severity. In 2022, our total reported incidents decreased by 7.7%, which is consistent with our permanent efforts for risks monitoring and transparency. There were no category 1 environmental events (major) registered in the year.
Preserving Land, Water and Biodiversity. The preservation of land, biodiversity and water plays a key role in our long-term resource management strategy.
To protect water and enable our business to succeed, we are increasing our water efficiency and minimizing our water waste through the implementation of our Corporate Water Policy. This policy includes standardization of our water measurement based on the water protocol developed in coordination with the International Union for Conservation of Nature. We also have the goal of developing a specific Water Action Plan (“WAP”) comprised of a customized set of response actions to maximize water use efficiency and mitigate specific water risks for each community by adopting recommendations based on the Water Risk Filter tool from the World Wildlife Foundation, for each one of more than 1,500 of our cement, ready-mix concrete and aggregates sites in water- stressed zones. Results indicate that 1% of our operations are in extremely high water-stressed zones and 15% are in high water-stressed zones. In line with our 2030 targets, we plan to develop a specific WAP and follow the implementation roadmap for each of these sites. In 2021, we completed the implementation of WAPs in 100% of the sites located in extremely high water-stressed zones and the first pilot for a site located in high water-stressed zones. During 2022, we completed the implementation of WAPs in 20% of our sites located in water-stressed zones including all the sites located in extremely high water stressed zones.
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Sustainable Finance. In September 2021, we launched the Framework that establishes our guiding principles when issuing new sustainability-linked financing instruments, including public bonds, private placements, loans, derivatives, working capital solutions, and other financing instruments. The Framework includes three sustainability-linked key performance indicators, including net CO2 emissions per ton of cementitious product, clean electricity consumption and alternative fuels rate. Additionally, Sustainalytics, a leading independent firm that specializes in providing environmental, social and governance research, ratings, and data to institutional investors and companies, validated the Framework’s alignment with the Sustainability- Linked Bond Principles, the International Capital Market Association’s Climate Transition Finance Handbook, and the Loan Market Association’s Sustainability-Linked Loan Principles. Furthermore, on November 8, 2021, we repaid in full all outstanding indebtedness under the facilities agreement, dated as of July 19, 2017, as amended on April 2, 2019, November 4, 2019, May 22, 2020 and October 13, 2020 (the “2017 Facilities Agreement”). The funds used to repay the 2017 Facilities Agreement were sourced from the 2021 Credit Agreement. The 2021 Credit Agreement is our first borrowing issued under the Framework, which is aligned to the company’s Future in Action climate action program and its ultimate vision of a carbon-neutral economy. The borrowings under the Mexican Peso Banorte Agreement and the 2022 EUR Credit Agreement are also issued under the Framework. The annual performance in respect of the three metrics referenced in the Credit Agreements, which are aligned with those provided for in the Framework, may result in an adjustment of the interest rate margin of up to plus or minus five basis points, in line with other sustainability-linked loans to investment grade rated borrowers. Further expanding our commitments to sustainable finance and building a more sustainable world, in June 2022, we launched the Green Financing Framework, which enables Cemex to issue green financing instruments aligned with the International Capital Market Association’s Green Bond Principles and the Loan Market Association Green Loan Principles. Under the Green Financing Framework, Cemex intends to allocate the net proceeds from the issuances to finance eligible green projects in areas such as CO2 emissions reduction, clean electricity and energy efficiency, clean transportation, water management, air quality, circular economy, and waste management. Sustainalytics issued a second party opinion confirming that the Cemex Green Financing Framework is credible and impactful and aligns with the Green Bond Principles 2021, the Green Loan Principles 2021 and the Transition Finance Handbook 2020.
Attracting and Retaining Talent. Our employees are our competitive advantage and the reason for our success. We aim to offer programs, benefits and a work environment that are designed to attract and retain talented employees. Our approach to talent management is founded on three pillars: (i) employ the right people, in the right place, at the right time to perform the right job to achieve our strategy; (ii) enable a high-performing and rewarding culture to deliver sustainable business value in a safe, ethical workplace and (iii) build and develop our workforce capabilities to confront challenges and pursue excellence.
As we transform and look to expand, one of our main objectives is to develop people with the potential to fill key leadership positions, increasing their experience and capabilities with the intention of having them succeed in increasingly challenging roles. Through this process, we make efforts to help our employees meet their career development expectations and prepare them for key roles as they face critical challenges in their professional development. Our succession management process enables us to build a talented pool of leaders with the skills and understanding of our business fundamentals required to continue the successful implementation of our strategy. Through ongoing training and development opportunities, our employees are taught new skills and their expertise is deepened in several critical areas, including H&S, customer-centric capabilities, environmental conservation and awareness, leadership development and stakeholder engagement.
We look to foster a dynamic, high-performance environment where open dialogue is encouraged and rewarded. Apart from competitive compensation, more than 82% of our global workforce receives health and life insurance benefits beyond those required by local law in their respective countries. Approximately 79% of our global workforce receives retirement provision benefits above local requirements and more than 82% of our operations receive additional funds for disability and invalidity coverage beyond what is required by local laws in their respective countries.
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In 2017, we introduced Cemex University, which aims to develop a digital continuous learning ecosystem for our employees and respond to our multi-region, multi-business learning needs. Cemex University leverages traditional in-person training with new digital learning platforms to embed a growth mindset throughout our organization and fulfill our employees’ potential. Today, Cemex University’s learning portfolio comprises of seven academies and a suite of leadership development programs.
Through our Health & Safety, Cement Operations, Culture & Values, Supply Chain, Commercial, Sustainability and Digital Academies, Cemex University develops, business capabilities among our people to support Cemex’s strategy. An example of this is our Award-Winning program LEAP, which in 2021 and 2022 released a total of thirteen modules and a podcast, to help Sales Advisors better understand successful commercial interactions and our new commercial model. During this time, Cemex University also introduced a new Sustainability Academy and three new modules for the Operations Academy providing in-depth perspectives of our production and maintenance processes, as well as our strategy to decarbonize our operation. We continue to develop continuous learning pathways on current topics such as cybersecurity and anticorruption and, during 2023, we plan to continue expanding our learning portfolio by adding new courses on ethics, inclusive leadership and sustainable construction, among others.
Our Human Rights Policy reflects our support and respect for the protection of internationally proclaimed human rights principles, as expressed in the International Bill of Human Rights and the International Labor Organization’s Declaration on Fundamental Principles and Rights at Work. In addition, it recognizes employees, communities, contractors, and suppliers as main areas of impact and reaffirms our commitment to the promotion of and respect for human rights throughout our worldwide operations, local communities, and supply chain. This includes providing a workplace that is free from harassment and discrimination on the basis of race, gender, national origin, sexual orientation, disability and membership in any political, religious or union organization and, as reaffirmed in our Global Recruitment Policy launched in 2020, offering equal opportunities for training, personal development, individual recognition and promotion on the basis of merit. Employees who believe that there may have been a violation of the principles laid down in our Human Rights Policy can report it through various channels, including local Human Resources departments, Ethics Committees and our secured ETHOS line internet website. Community members, contractors and suppliers are also encouraged to submit a report through the ETHOS line if they believe there may have been a violation of our Human Rights Policy or any other guideline as stated in our Code of Ethics and Business Conduct.
Our four Leadership Development Programs—CONNECT, THRIVE, IGNITE, and Leader-to-Leader—allow us to provide new managers, newly appointed directors, and top-tier executives the foundational knowledge and necessary tools to support a successful transition and development in their roles. In 2022, 364 leaders across all our regions and business units participated in these programs.
In order to comprehensively measure the positive net balance of our employee experience, we build on the Employee Net Promoter Score (“eNPS”) methodology, a straightforward statistic. When asked whether they would recommend Cemex as a good place to work, our employees’ responses generated an eNPS score of 45 in 2022, higher than the global benchmark score measured by our survey provider and above our recently updated 2030 annual goal of 43 points. We are using this indicator to identify areas for improvement and for structuring regional, local, and team-specific action plans to address employee concerns.
Additionally, our Workforce Experience Survey helps us better understand from the perspective of our employees what organizational, digital, physical and interpersonal elements of our company require strengthening or developing so we can provide a consistently positive work experience for our employees worldwide. In 2022, 83% of our employees worldwide participated in this anonymous engagement survey, which yielded many important findings. The survey was 100% digital to promote hygiene protocols. To allow for a faster and consistent follow-up to the insights, we not only digitized much of the survey process but also empowered our “X Force” teams, a select group of employees who lead our coordinated follow-up and implementation of action plans that have been derived from our survey results.
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Operating EBITDA Growth
We look to operate in markets where we can add value for our employees, our customers and our shareholders. We intend to focus on those markets that offer long-term profitability and Operating EBITDA growth potential, especially around high growth metropolitan areas, leveraging those assets that are best suited to achieve this. We believe that a geographically diverse portfolio of assets, in markets, regions or cities that we believe offer long-term profitability, provides us with the opportunity for significant value creation through profitable organic growth over the medium-to-long-term. Consequently, we intend to be selective and strategic about where we remain and where we operate. We believe our business portfolio should be particularly focused on high growth metropolitan areas that combine strong fundamentals, ranging from economic growth potential to strong construction investment, population growth, degree of urban development and political stability, all under the basis of sustainable urbanization. By identifying the needs of these markets and metropolises, we expect to be in a better position to offer a more complete value proposition of products and solutions to our clients and citizens of these markets and metropolises.
As of the date of this annual report, as part of our strategic priorities, we are undertaking actions that are designed to streamline and reposition our portfolio in order to enhance our diversification and achieve higher profitable growth. As such, we expect to rebalance our portfolio by focusing on the markets we believe offer long-term growth potential and retaining those assets that we believe are best suited to grow, offering us long-term profitability. While these actions are being undertaken, we could continue to complement our strategic priorities with organic, bolt-on investments, on a stand-alone basis or with other partners, using a metropolis-centric approach leveraging our related businesses and digital strategy.
We believe that by managing our core operations as one vertically integrated business, we capture a significant portion of the construction value chain and create value for our customers by offering comprehensive building products and solutions. Historically, this strategic focus has enabled us to grow our existing businesses, particularly in high-growth markets and with specialized, high-margin products.
In particular, as outlined in our strategic priorities, we believe that the United States, Europe and Mexico are well-suited for vertically integrated positions near growing metropolises; and, in addition to our traditional cement, aggregated and ready-mix concrete core businesses, these metropolises exhibit a need for a value proposition we’re well-positioned to deliver by means of our Urbanization Solutions, which has led us to consider it as a key component of our Operating EBITDA Growth strategic priority.
Urbanization Solutions. Urbanization Solutions is one of our four core businesses. It is a business that complements our value offering of products and solutions, looking to connect with the broader city ecosystem. It seeks to address urbanization challenges and provide means to all stakeholders in the construction value chain to enable sustainable urbanization by focusing on four market segments:
| • | Performance Materials. |
They are used to modify or enhance the properties and usability of building materials and construction systems. Performance materials include construction chemicals, building finishes, admixtures and additives, mortars and special mortars, cellular concrete, asphalt, pavement solutions, etc.
| • | Industrialized Construction. |
We manufacture finished building elements that are easy and safe to assemble and install on-site. Products of industrialized construction range from precast components to complete structures, 2D panels, 3D modules, 3D structures, etc.
| • | Circularity. |
Efficient management of resources to improve the circularity of the construction value chain, ranging from reducing and managing waste to its recycling into the construction lifecycle value chain.
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| • | Related Services. |
We provide certain services to offer integrated solutions through logistics and transportation, retail, pavement services, and design and engineering, among others, that add value along the construction value chain and complement our offering in performance materials, industrialized construction and waste management, while enabling Cemex to provide value for our customers by offering building solutions for their construction needs.
OPERATING MODEL. We aim to operate effectively and achieve the greatest possible value by leveraging our knowledge and scale to establish best practices and common practices worldwide. Our operating model consists of: (i) working with global networks to share operative best practices and market our products and solutions; (ii) providing modern support functions and technology to clients and customers; (iii) having clear and effective transactional functions at all levels of our business; and (iv) maintaining efficient governance controls.
STAKEHOLDERS. Our stakeholders include our people, customers, shareholders, investors, suppliers, communities, NGOs, academia, governments, policymakers and business associations.
We add value to our: (i) employees by having plans and other resources that we believe provide a great workplace that helps them grow and build skills, expertise and a strong sense of purpose; (ii) customers by tailoring our offerings to solve their construction needs while making it easy for them to work with us and by providing enhanced performance and reliability; (iii) shareholders and investors by focusing on plans designed to maximize revenue, reduce costs, optimize assets, reduce risk and enforce strong governance; and (iv) communities and suppliers by serving as an engine of economic growth, building more capable, inclusive and resilient communities, striving to reduce local air, water and waste and conserve biodiversity, encouraging the creation of innovative solutions to reduce costs while promoting sustainable goods and services, and being a reliable client throughout the value chain, adding a trustworthy reputation to the negotiation.
Environment and Biodiversity Partners. We work closely with several partners to protect the environment and biodiversity of the countries in which we operate by engaging in fruitful partnerships with global, national and local organizations.
Knowledge and Innovation Partners. We often leverage the knowledge and expertise of thought partners from varied perspectives such as consulting, research institutions, universities, and technology partners.
These collaborations enable the design, development, curation and delivery of relevant learning experiences aligned with our strategic capabilities and emerging practices.
Shared Value Partners. Collaborations and partnerships with multilateral or international organizations, the private sector, and academia allow us to build synergies to scale our contributions to build a better future, continue to contribute to the development of sustainable communities and to support the enablement of a just transition to a lower-carbon economy.
Some of the most relevant partners we collaborate or have collaborated with include UN Global Compact, Resilient Cities, and All4Youth. We leverage our partnerships to foster the creation and scaling of social impact programs through four focus areas: (i) People, to provide community members with access to education and workplace training that enables inclusive long-term societal resilience; (ii) Economy, to support organizations and individuals that contribute to boosting local economies by developing skills to foster entrepreneurship, enable a sustainable economy, and lay the groundwork for a just transition; (iii) Structures, to leverage our expertise and quality building materials to improve the standards of livable housing and basic infrastructure in cities and communities; and (iv) Cities, to contribute to building green spaces and resilient communities, focusing on the natural and built environments.
Business Associations. We actively participate in various global, regional and national business associations to develop partnerships and promote our products and solutions. Our active involvement in these associations
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provides us, alongside other companies in our industry, with a platform to advocate for and educate on important topics such as promoting the use of concrete as an essential material for sustainable construction and policies.
Regain our Investment Grade Rating
We remain committed to regaining our investment grade rating, which is one of our top priorities. We believe our strategic priorities should allow us to make progress in reaching this goal, as we expect that we should be able to increase our free cash flow, which would enable us to further reduce our debt, invest in our business and potentially return value to our shareholders.
As a result of implementing our “Operation Resilience” strategy, in June 2021, we reached our investment grade capital structure target of reducing our consolidated leverage ratio (as defined in the then-effective 2017 Facilities Agreement) below 3.0x. During 2022, we achieved a total debt plus other financial obligations reduction of $332 million.
Our financial strategy is designed to strengthen our capital structure by: (i) reducing refinancing risks, mainly by reducing short-term maturities and extending average life of debt, which reached 5.0 years as of the end of 2022; (ii) lowering our financial costs, using available free cash flow and divestments to reduce our liabilities and/or optimizing our funding sources by looking for opportunities to issue new securities while redeeming other securities with higher costs, as well as managing our interest rate mix between fixed and floating rates; and (iii) maintaining ample liquidity through the revolving credit facility under the 2021 Credit Agreement and access to short-term credit lines. We believe that our debt portfolio currency mix, mainly in Dollars and Euros, together with our financial derivatives strategy, allows us to balance exposures to currency fluctuations in our most important markets while allowing for optimization of our funding costs.
Also, we have been focusing, and expect to continue to focus, on optimizing our operations by looking to grow our market positions in the markets that we believe offer the highest growth potential, and our core businesses and implementing our pricing policies for our products, on strengthening our capital structure and regaining financial flexibility through reducing our debt and cost of debt, on improving cash flow generation and on extending maturities. Our efforts in lowering our interest expense and our effective management of working capital have allowed us to support our free cash flow. As of the date of this annual report, we plan to continue with these efforts.
We have also introduced a comprehensive pricing strategy for our products that we expect to more fully reflect and capture the high value-creating capability of our products and services. Our strategy focuses on value enhancement, optimizing gains in customer relationships and on generating sufficient returns that would allow us to reinvest in our business. Under this strategy, we are establishing internal procedures and guidelines that are expected to support our approach to pricing our different products and services.
In addition, we plan to maintain and grow our market positions in cement, ready-mix concrete, aggregates and Urbanization Solutions by being one of the most customer-centric companies in the industry. Among other actions, we also expect to implement pricing initiatives for our products and receive compensation through fees for the services we provide that should allow us to improve our overall profits, as well as to operate in the most capital and cost-efficient manner possible. We may also seek to expand our presence in businesses related to cement, ready-mix concrete, aggregates and Urbanization Solutions, and potentially also implement similar pricing strategies in the markets related to these businesses.
We continue to look to reduce our overall production related costs for all our products and regional and corporate overhead through disciplined cost management policies and through improving efficiencies by removing redundancies. We have implemented several worldwide standard platforms as part of this process and have also started different initiatives, such as a system designed to improve our operating processes worldwide and other digital-based solutions to achieve this. In addition, we implemented, and have been using, centralized
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management information systems throughout our operations, including administrative, accounting, purchasing, customer management, budget preparation and control systems, which have helped us achieve cost efficiencies. We also have agreements with several service providers expected to improve some of our business processes. We have also transferred key processes, such as procurement and trading, from a centralized model to a regional model and are simplifying and delayering our business to accelerate decision-making and maximize efficiency.
In a number of our core markets, such as Mexico, we launched initiatives aimed at reducing the use of fossil fuels, consequently looking to reduce our overall energy costs.
Furthermore, significant economies of scale in key markets at times allow us to obtain competitive freight contracts for key components of our cost structure, such as fuel and coal, among others.
Through a worldwide import and export strategy, we plan to continue to seek to optimize capacity utilization and maximize profitability by redirecting our products from countries experiencing economic downturns to target export markets where demand may be greater. Our global trading system enables us to coordinate our export activities globally to try and take advantage of demand opportunities. Should demand for our products in the United States improve, subject to any measures the current U.S. government could implement, we believe we are well-positioned to service this market through our established presence in the southern and southwestern regions of the country and our current ability to import into the United States.
Our industry relies heavily on natural resources and energy, and we use cutting-edge technology to increase energy efficiency, reduce CO2 emissions and optimize our use of raw materials and water. We are committed to measuring, monitoring and improving our environmental performance. In the last few years, we have implemented various procedures to improve the environmental impact of our activities as well as our overall product quality, such as a reduction of CO2 emissions, an increased use of alternative fuels to reduce our reliance on primary fuels, an increased number of sites with local environmental impact plans in place and the use of alternative raw materials in our cement.
Operational Improvements
As a key lever to achieve our Operating EBITDA growth objective, we are constantly looking for ways to implement reductions in our cost structure. Throughout the years, such global cost-reduction initiatives have encompassed different undertakings, including headcount reductions, capacity closures across the cement value chain and a general reduction in global operating expenses. During the past years, Cemex has launched company-wide programs aimed at enhancing competitiveness, providing a more agile and flexible organizational structure and supporting an increased focus on the Company’s markets and customers.
Our latest significant initiative with operational improvement and cost-reduction implications is our Working Smarter digital transformation initiative. With Working Smarter, we leverage a combination of digital technologies, operative models, and innovation from leading service suppliers to reshape our business management services. As part of this initiative, in the first quarter of 2022, we signed separate multi-year contracts that range from 5 to 7 years that in the aggregate total $500 million with six service providers in the fields of finance and accounting, information technology, and human resources. We estimate that the combination of these next-generation service contracts and its internal delivery transformation should materially contribute towards a $100 million annual savings goal we have set once implementation is complete.
As part of our strategic priorities, we have implemented initiatives that seek to improve our operational performance and expense rationalization, increasing our use of alternative fuels in several of the countries in which we operate, serving our customers better and at lower costs, optimizing our production and logistics supply chain models and optimizing our procurement strategy. Also, in connection with the implementation of our cost-reduction initiatives, since 2017, we have implemented a low-cost sourcing initiative which is designed to maintain the continuity of our operations, while looking to provide attractive costs without materially affecting
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the quality of the products and services we acquire by using a strategic sourcing process empowered by our people’s knowledge and quality management. This initiative is intended to reduce our cost of operations, while maintaining quality and timely delivery by acquiring goods and equipment from Mexico, India, Turkey and certain countries in Asia and Eastern Europe, among others.
Also, as part of these initiatives, at times we temporarily shut down (in some cases for a period of at least two months) some of our cement production lines in order to rationalize the use of our assets and reduce the accumulation of our inventories. In the past we have announced the permanent closure of some of our cement plants. Similar actions were taken in our ready-mix concrete and aggregates businesses. In the past, such rationalizations have included, among others, our operations in Mexico, the United States, including Puerto Rico, Spain, Croatia and the United Kingdom. As of December 31, 2022, we had four cement and grinding plants temporarily shut down (two cement plants in the United States, one cement plant in the United Kingdom, and two cement plants in Spain).
Furthermore, we intend to achieve energy cost-savings by actively managing our energy contracting and sourcing, and by increasing our use of alternative fuels. We believe that these cost-saving measures could better position us to quickly adapt to potential increases in demand and thereby benefit from the operating leverage we have built into our cost structure.
We also aim to better serve our customers at lower cost and to optimize our production and logistics supply chain models.
During different parts of the past years, we had reduced capital expenditures related to maintenance and expansion of our operations in response to weak demand for our products in some of the markets in which we do business. Such reductions were implemented with the intention of maximizing our free cash flow generation available for debt service and debt reduction, consistent with our ongoing efforts to strengthen our capital structure, improve our conversion of Operating EBITDA to free cash flow and regain our financial flexibility. During 2021 and 2022, our capital expenditures related to maintenance and expansion of our operations have been $1,094 million and $1,362 million, respectively, higher than the $795 million expended in 2020. Pursuant to the 2017 Facilities Agreement, until November 8, 2021, we were prohibited from making aggregate annual capital expenditures in excess of $1.5 billion (which were temporarily limited to $1.2 billion pursuant to the May 2020 Facilities Agreement Amendments (as defined below) for as long as we failed to report two consecutive quarters with a Consolidated Leverage Ratio of 5.25:1 or below) in any financial year (excluding certain capital expenditures, joint venture investments and acquisitions by each of CLH and CHP and their respective subsidiaries and those funded by Relevant Proceeds (as defined in the 2017 Facilities Agreement)), which capital expenditures, joint venture investments and acquisitions at any time then incurred were subject to a separate aggregate limit of (i) $500 million (or its equivalent) for CLH and its subsidiaries and (ii) $500 million (or its equivalent) for CHP and its subsidiaries. In addition, the amount which we and our subsidiaries were allowed to put towards permitted acquisitions and investments in joint ventures was restricted from exceeding certain thresholds as set forth in the 2017 Facilities Agreement. However, no similar restrictions apply pursuant to the Credit Agreements as long as we are in compliance with our financial covenants.
User Base
Cement is the primary building material in the industrial and residential construction sectors of the majority of markets in which we operate. We believe that the lack or shortage of available cement substitutes further enhances the marketability of our product. The primary end-users of cement in each region in which we operate vary but usually include, among others, wholesalers, ready-mix concrete producers, industrial customers and contractors in bulk. Additionally, sales of bagged cement to individuals for self-construction and other basic needs have traditionally been a significant component of the retail sector. The end-users of ready-mix concrete generally include homebuilders, commercial and industrial building contractors and road builders. Major
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end-users of aggregates include ready-mix concrete producers, mortar producers, general building contractors and those engaged in road building activity, asphalt producers and concrete product producers. Our Urbanization Solutions have a wide user base which includes, but is not limited to, contractors, builders and developers in general, ready-mix concrete, cement, mortars and special mortars producers, governments, paving companies, architects and civil engineers. In summary, because of their many favorable qualities, a considerable number of builders and other users worldwide use our cement, ready-mix concrete, aggregates and Urbanization Solutions for almost every kind of construction project, from hospitals and highways to factories and family homes.
As of December 31, 2022, we did not depend on any single existing customer to conduct our business and the loss of any of our existing customers individually would not have had a material adverse effect on our financial condition or results of operations. For the period ended December 31, 2022, none of our individual customers represented more than 10% of our consolidated revenues.
Our Corporate Structure
Cemex, S.A.B. de C.V. is an operating and a holding company that primarily operates its business through subsidiaries which, in turn, hold interests in Cemex’s cement, aggregates, ready-mix concrete and Urbanization Solutions operating companies, as well as other businesses. The following chart summarizes Cemex’s corporate structure as of December 31, 2022. The chart also shows for each company, unless otherwise indicated,
Cemex’s approximate direct or indirect, or consolidated, percentage equity ownership or economic interest. The chart has been simplified to show only some of Cemex’s major holding companies and/or operating companies in most of the main countries in which Cemex operates, and/or relevant companies in which Cemex holds a significant direct or indirect interest and does not include all of Cemex’s operating subsidiaries and its intermediate holding companies.
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| (1) | Includes Cemex’s direct or indirect, or consolidated, interest. |
| (2) | CxNetworks N.V. is the direct owner of 34.78% interest of the global business and Information Technology (“IT”) consulting entity Neoris N.V. |
| (3) | Includes Cemex Operaciones México, S.A. de C.V.´s (“COM”), Cemex Innovation Holding Ltd (“CIH”) and Cemex’s interest, as well as shares held in Cemex España’s treasury. |
| (4) | Includes Cemex España’s direct or indirect, or consolidated, interest. |
| (5) | Represents Cemex España’s indirect economic interest in three companies incorporated in the United Arab Emirates: Cemex Topmix LLC, Cemex Supermix LLC and Cemex Falcon LLC. Cemex España indirectly owns a 49% equity interest in each of these companies and indirectly holds the remaining 51% of the economic benefits through agreements with other shareholders. |
| (6) | Represents CHP’s direct and indirect equity interest. |
| (7) | Represents outstanding shares of CLH’s capital stock and excludes treasury stock. |
| (8) | Represents CLH’s 99.483% indirect interest in ordinary shares, which excludes a 0.516% interest held in Cemento Bayano, S.A.’s treasury. |
| (9) | Represents CLH’s direct and indirect interest in three companies incorporated in Guatemala: Cemex Guatemala, S.A., Global Concrete, S.A., and Cementos de Centroamérica, S.A. |
| (10) | Represents CLH’s direct and indirect interest in ordinary and preferred shares and includes shares held in Cemex Colombia’s treasury. |
| (11) | Includes Cemex Colombia’s 99% interest and Corporación Cementera Latinoamericana, S.L.U.’s 1% interest. |
| (12) | Includes TCL’s direct and indirect 74.08% interest and Cemex’s indirect 4.96% interest held through other subsidiaries. |
Our Operations in Mexico
Overview. For the year ended December 31, 2022, our operations in Mexico represented 21% of our revenues before eliminations resulting from consolidation in Dollar terms. As of December 31, 2022, our operations in Mexico represented 31% of our total installed cement capacity and 15% of our total assets, in Dollar terms.
As of December 31, 2022, Cemex, S.A.B. de C.V. was both a holding company for some of our operating companies in Mexico and was involved in the production, marketing, sale and distribution of cement, ready-mix concrete, aggregates and other construction materials and urbanization solutions in Mexico, as well as a construction materials and related products service provider. Cemex, S.A.B. de C.V., indirectly, is also the holding company of all our international operations. Cemex, S.A.B. de C.V. accounts for a substantial part of the revenues and operating income of our operations in Mexico.
Our Tepeaca cement plant in Puebla, Mexico, as of December 31, 2022, had a production capacity of 3.1 million tons of cement per year. In December 2014, we announced the restart of expansion project of the Tepeaca cement plant, consisting of the construction of a new kiln that is already in operation and a mill. Its total production capacity is expected to reach 4.6 million tons of cement per year by 2023 based on mill capacity. Additionally, we invested in the same region to increase our cement production capacity by 0.5 million tons of cement through a debottlenecking project for our operations in Huichapan. This project was completed during the first quarter of 2019. In May 2021, in order to generate enough supply to meet the increasing demand in the U.S. market and strengthen our position in the region, we resumed our operations in our CPN cement plant in Sonora, which has a production capacity of 1.9 million tons of cement per year.
In March 2022, following the successful restart of our operations in our CPN cement plant in Sonora, we announced the reactivation of our second CPN kiln in the Sonora plant to continue leveraging Cemex’s regional trading network to meet growing cement demand throughout the western United States. This project was
completed during the fourth quarter of 2022 serving customers across Arizona, California and Nevada.
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In 2001, we launched the Construrama program, a registered brand name for construction material stores. Through this program, we offer to an exclusive group of our Mexican distributors the opportunity to sell a variety of products under the Construrama brand name, a concept that includes the standardization of stores, image, marketing, products and services. As of December 31, 2022, 1,123 independent concessionaries with 2,389 stores were integrated into the Construrama program, with nationwide coverage.
Industry. For 2022, the National Institute of Statistics and Geography (Instituto Nacional de Estadística y Geografía) indicated that total construction activity in Mexico increased 0.4% as of December 2022 (seasonally adjusted figures). Such marginal increase has been attributed to the post-pandemic recovery of the formal construction industry, particularly in the industrial sector.
Cement in Mexico is sold mainly through distributors, with the remaining balance sold through ready-mix concrete producers, manufacturers of pre-cast concrete products and construction contractors. Cement sold through distributors is mixed with aggregates and water by the end user at the construction site to form concrete. Ready-mix concrete producers mix the ingredients in plants and deliver it to local construction sites in mixer trucks, which pour the concrete. Unlike more developed economies, where purchases of cement are concentrated in the commercial and industrial sectors, retail sales of cement through distributors in 2022 accounted for approximately 55% of Mexico’s demand (bagged presentation). Individuals who purchase bags of cement for self-construction and other basic construction needs are a significant component of the retail sector. We believe that this large retail sales base is a factor that significantly contributes to the overall performance of the cement market in Mexico.
The retail nature of the Mexican cement market also enables us to foster brand loyalty, which distinguishes us from other worldwide producers selling primarily in bulk. We own the registered trademarks for our brands in Mexico, such as “Tolteca,” “Monterrey,” “Maya,” “Anahuac,” “Campana,” “Gallo,” “Centenario,” as well as certain sub-brands, such as “Extra,” “Impercem” and “Optimo” for gray cements and mortar and, additionally, recently launched “Multiplast” for coatings. We believe that these brand names are important in Mexico since cement is principally sold in bags to retail customers who may develop brand loyalty based on differences in quality and service. We also have trademark registrations for our special concrete’s brands such as “Promptis,” “Resilia,” “Pervia,” “Insularis” and “Evolution.” In Mexico, we introduced “Vertua” as a value cement and concrete brand. “Vertua” is Cemex’s global brand for low carbon footprint products. In addition, we own the registered trademark for the “Construrama” brand name for construction material stores and for our new digital solution we have trademark registrations for “CEMEX Go” and “Olivia.”
Competition. In the early 1970s, the cement industry in Mexico was regionally fragmented. However, since that time, cement producers in Mexico have increased their production capacity and the cement industry in Mexico has consolidated into a national market, thus becoming increasingly competitive. As of December 31, 2022, the major cement producers in Mexico were Cemex; Holcim; Sociedad Cooperativa Cruz Azul, a Mexican operator; Cementos Moctezuma, an associate of Cements Molins and Buzzi-Unicem; and GCC, S.A.B. de C.V. (“GCC,” formerly named Grupo Cementos de Chihuahua, S.A.B. de C.V.), a Mexican operator in whose majority holder, Camcem, S.A. de C.V., we hold a minority interest. During 2013, a then-new cement producer, Elementia (now Fortaleza Materiales), entered the market and in 2014 acquired two cement plants from Lafarge (prior to the Lafarge-Holcim merger). As of December 31, 2022, the major ready-mix concrete producers in Mexico were Cemex, Holcim, Sociedad Cooperativa Cruz Azul and Cementos Moctezuma. In addition, as of December 31, 2022, the use of non-integrated ready-mixers has been increasing.
We believe potential entrants into the Mexican cement market face various barriers to entry, including, among other things: the time-consuming and expensive process of establishing a retail distribution network and developing the brand identification necessary to succeed in the retail market; the lack of port infrastructure and the high inland transportation costs resulting from the low value-to-weight ratio of cement; the distance from ports to major consumption centers and the presence of significant natural barriers, such as mountain ranges, which border Mexico’s east and west coasts; the strong brand recognition and the wide variety of special
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products with enhanced properties; the extensive capital expenditure requirements; and the length of time required for construction of new plants, which we estimate is approximately two years. Nevertheless, Fortaleza Materiales started a stand-alone cement mill in the Yucatán Peninsula during October 2020. Additionally, at the end of the first quarter of 2021, Holcim started operating a stand-alone cement mill located in the Yucatán Peninsula, aiming to strengthen its market position and supply cost in this region. During 2022, a new independent producer, Grupo Comercial AMORI, entered the market in the Yucatán Peninsula with a cement mill facility located in Progreso, Yucatán, under the brand “Cementos Jaguar.” This facility corresponds to the first new entry into the cement industry since Fortaleza’s incursion in 2013.
Urbanization Solutions. In Mexico, for the year ended December 31, 2022, in terms of relevant revenues, our Related Services and Circularity verticals were the main contributors. These businesses are located across Mexico.
Our Operating Network in Mexico
During 2022, we operated 15 cement plants and 108 cement distribution centers (including eight marine terminals) located throughout Mexico.
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We operate cement plants on the Gulf of Mexico and Pacific coasts of Mexico, most of the time allowing us to take advantage of attractive transportation costs to export to the United States and the SCA&C region, when possible.
Products and Distribution Channels
Cement. For the year ended December 31, 2022, our cement operations represented 57% of revenues from our operations in Mexico before eliminations resulting from consolidation in Dollar terms and our domestic cement sales volume represented 89% of our total cement sales volume in Mexico. As a result of the retail nature of the Mexican market, our operations in Mexico are not dependent on a limited number of large customers. The total volume of the five most important distributors accounted for 12% of our total cement sales by volume in Mexico in 2022 (excluding our in-house channels).
Ready-Mix Concrete. For the year ended December 31, 2022, our ready-mix concrete operations represented 20% of revenues from our operations in Mexico before eliminations resulting from consolidation in Dollar terms. Our ready-mix concrete operations in Mexico purchase substantially all their cement requirements from our cement operations in Mexico. Ready-mix concrete is sold through our own internal sales force and facilities network.
Aggregates. For the year ended December 31, 2022, our aggregates operations represented 6% of revenues from our operations in Mexico before eliminations resulting from consolidation in Dollar terms.
Urbanization Solutions and Others: For the year ended December 31, 2022, our Urbanization Solutions and other businesses operations represented 17% of revenues from our operations in Mexico before eliminations resulting from consolidation in Dollar terms.
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Exports. Our operations in Mexico export a portion of their cement production, mainly in the form of cement and to a lesser extent in the form of clinker. Exports of cement by our operations in Mexico represented 14% of our total cement sales volume in Mexico for 2022. In 2022, 92% of our cement exports from Mexico were to the United States and 8% were to our Rest of SCA&C segment.
The cement and clinker exports by our operations in Mexico to the United States are mostly marketed through our trading network subsidiaries. Our cement and clinker transactions between Cemex and its subsidiaries, are conducted on an arm’s-length basis.
Production Costs. Our cement plants in Mexico primarily utilize pet coke and alternative fuels. Two 20-year pet coke supply contract agreements with PEMEX Madero refinery expired at the end of September 2022. The contracts were replaced by a 5-year supply agreement awarded in a tender for an estimated 30% of our pet coke consumption. By the end of October 2022, PEMEX unilaterally suspended deliveries from the Cadereyta refinery in two additional contracts. Cemex and PEMEX agreed on a new pricing methodology based on the current pet coke market for the remainder of the contract period. PEMEX is expected to open a tender for the Cadereyta refinery in June 2023. Cemex was also awarded a 2-year contract for the Minatitlan refinery in November 2022, which is equivalent to 11% of our cement plant consumption. In general, we have been able to purchase pet coke in the open market when needed to make up for any quantities not supplied by PEMEX. In addition, in 1992, our operations in Mexico began using alternative fuels to further reduce the consumption of residual fuel oil and natural gas. These alternative fuels represented 36% of the total fuel consumption for our cement plant operations in Mexico in 2022. For additional information, see “Item 5—Operating and Financial Review and Prospects—Summary of Material Contractual Obligations and Commercial Commitments—Cash Requirements.”
In 1999, we entered into an agreement with an international partnership, which financed, built and operated TEG, a 230 megawatt (“MW”) energy plant in Tamuín, San Luis Potosí, Mexico. We entered into this agreement in order to reduce the volatility of our energy costs. The power plant commenced commercial operations in April 2004. In 2007, the original operator was replaced and the agreement was extended to 2027. At the end of 2023, TEG is expected to migrate to the wholesale market to supply Cemex load points. For additional information, see “Item 5—Operating and Financial Review and Prospects—Summary of Material Contractual Obligations and Commercial Commitments—Cash Requirements.”
In 2006, in order to take advantage of the high wind potential in the “Tehuantepec Isthmus,” Cemex and the Spanish company ACCIONA, S.A. (“ACCIONA”), formed an alliance to develop a wind farm project for the generation of 250 MW in the Mexican state of Oaxaca. The installation of 167 wind turbines in the farm was finished on November 15, 2009. For additional information, see “Item 5—Operating and Financial Review and Prospects—Summary of Material Contractual Obligations and Commercial Commitments—Cash Requirements.”
In connection with the beginning of full commercial operations of Ventika, S.A.P.I. de C.V. and Ventika II S.A.P.I. de C.V. wind farms (jointly, “Ventikas”), located in the Mexican state of Nuevo León, with a combined generation capacity of 252 MW, we agreed to acquire a portion of the energy generated by Ventikas for our Mexican plants for a period of 20 years, which began in April 2016. During 2022, Ventikas supplied 8.5% of Cemex’s overall electricity needs in Mexico. This agreement is for Cemex’s own use and as of the date of this annual report, Cemex does not intend to engage in energy trading in Mexico.
On October 24, 2018, in order to take advantage of lower electric energy prices, we entered into agreements for a period of 20 years with Tuli Energía, S. de R.L. de C.V. (“Tuli Energía”) and Helios Generación, S. de R.L. de C.V. (“Helios Generación”) to acquire a portion of the energy generated by such solar projects. The solar plants located in the Mexican state of Zacatecas have a combined generation capacity of 300 MW. These solar plants started producing test energy in September 2019, and the effective commencement date of such agreements was December 21, 2019 for Tuli Energía and April 22, 2020 for Helios Generación.
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We have, from time to time, purchased hedges from third parties to reduce the effect of volatility in energy prices in Mexico. See “Item 5—Operating and Financial Review and Prospects—Summary of Material Contractual Obligations and Commercial Commitments—Cash Requirements.” Additionally, a Cemex subsidiary participated as a buyer in the third long-term power auction organized in 2017 by the National Center for Energy Control (Centro Nacional de Control de Energía) (“CENACE”) (the independent system operator) and has been allocated a 20-year contract, that started in November 2020. The contract is for 16,129 clean energy certificates per year for compliance with legal requirements and 14.9 GWh/a of electric power.
Description of Properties, Plants and Equipment. As of December 31, 2022, we had 15 wholly-owned cement plants (all of them active) with a cement installed capacity of 27.3 million tons per year and proportional interests through associates in three other cement plants located throughout Mexico. We have exclusive access to limestone quarries and clay reserves near each of our plant sites in Mexico. We estimate that, as of December 31, 2022, the limestone and clay permitted proven and probable reserves of our operations in Mexico had an average remaining life of 127 and 107 years, respectively, assuming 2018 to 2022 average annual production levels. As of December 31, 2022, all our producing plants in Mexico utilized the dry process.
As of December 31, 2022, we had a network of 100 land distribution centers in Mexico, which are supplied through a fleet of our own trucks and rail cars, as well as leased trucks and rail facilities, and operated eight marine terminals. In addition, we had 259 ready-mix concrete plants (31 were temporarily inactive) throughout 75 cities in Mexico, more than 2,200 ready-mix concrete delivery trucks and 13 aggregates quarries (one was temporarily inactive).
Capital Expenditures. We made capital expenditures of $144 million in 2020, $190 million in 2021, and $265 million 2022. As of December 31, 2022, we expected to make capital expenditures of over $186 million in our operations in Mexico during 2023.
Our Operations in the United States
Overview. For the year ended December 31, 2022, our operations in the United States represented 27% of our revenues before eliminations resulting from consolidation in Dollar terms. As of December 31, 2022, our operations in the United States represented 16% of our total installed cement capacity and 48% of our total assets, in Dollar terms. As of December 31, 2022, Cemex, Inc. was the main holding company of our operating subsidiaries in the United States.
On September 23, 2013, we and Concrete Supply Company, a leading producer of ready-mix concrete throughout North and South Carolina, entered into a joint venture agreement and formed a joint venture company named Concrete Supply Co. LLC, in which Concrete Supply Holdings Co. holds a majority ownership stake in and acts as the managing member. This joint venture is a leading concrete supplier in North and South Carolina with strong local management.
Industry. Demand for cement is derived from the demand for ready-mix concrete and concrete products which, in turn, is dependent on the demand for construction. The construction industry is composed of three major sectors: the residential, the industrial-and-commercial and the public sectors. The public sector is the most cement intensive sector, particularly for infrastructure projects such as streets, highways and bridges.
Prior to the impact of the COVID-19 pandemic, the construction industry had showed signs of a slow recovery from the financial crisis experienced during 2008 and 2009, which was the worst downturn in over 70 years. The construction industry was hit particularly hard during this financial crisis due to the collapse of the housing sector. Housing starts fell 73% from a peak of 2.1 million units in 2005 to only 554,000 units in 2009. The decline in housing and other construction activity resulted in a 45% decline in cement demand from 2005 to 2010. The economic recovery had proceeded at a relatively moderate pace, with real GDP average annual growth
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of 2.3% since 2011 through the end of 2019. With the economy growing again, the construction sector stabilized in 2010 and joined the economy-wide recovery in 2011. The excess vacant inventory in the housing sector has been absorbed and existing home inventories for sale have declined to below normal levels across the nation, which together have supported an increase in housing prices for 2017, 2018 and 2019 of about 16%. Housing starts increased by 223% from 554 thousand units in 2009 to 1.3 million units in 2019. Housing starts in 2019 increased by 3% from 2018 to 1.3 million units, which remains below the historical steady state level. The industrial-and-commercial sector had also been growing with nominal spending up 8% from 2014 to 2019. Industrial-and-commercial nominal spending decreased by 2% in 2019. The public sector, which has lagged compared to the other construction sectors in this recovery, recorded a spending increase of 9% in 2019. Cement demand had been increasing annually since 2014 with an estimated growth of 1.8% in 2022 after an increase of 15% from 2016 to 2022. As of December 31, 2022, the Portland Cement Association is forecasting a 3.5% decrease in cement demand in the United States for 2023, but as of the date of this annual report we are not able to assess whether the cement demand in the United States will decrease or not during 2023. See “Item 3—Key Information—Risk Factors—Risks Relating to Our Business and Operations—Future pandemics and epidemics, such as the COVID-19 pandemic, could materially adversely affect our financial condition and results of operations.” High mortgage rates resulting from Federal Reserve interest rate increases and quantitative tightening could result in lower than expected single family housing demand. See “Item 3—Key Information—Risk Factors—Risks Relating to Our Business and Operations.”
Competition. As of December 31, 2022, the cement industry in the United States was highly competitive, including national and regional cement producers in the United States. As of December 31, 2022, our principal competitors in the United States were Holcim, Buzzi-Unicem, HeidelbergCement AG (“Heidelberg”) and CRH.
As of December 31, 2022, the independent U.S. ready-mix concrete industry was highly fragmented. According to the National Ready Mixed Concrete Association (“NRMCA”), it is estimated that as of December 31, 2022 there were about 6,500 ready-mix concrete plants that produce ready-mix concrete in the United States and about 65,000 ready-mix concrete mixer trucks that delivered the concrete to the point of placement. The NRMCA estimates that, as of December 31, 2022, the value of ready-mix concrete produced by the industry was approximately $35 billion per year. Given that the concrete industry has historically consumed approximately 75% of all cement produced annually in the United States, many cement companies choose to develop concrete plant capabilities.
Aggregates are widely used throughout the United States for all types of construction because they are the most basic materials for building activity. The United States Geological Survey (“USGS”) estimates over 2.5 billion tons of aggregates were produced in 2022, an increase of about 1% over 2021. As of December 31, 2022, crushed stone accounted for 60% of aggregates consumed, sand & gravel for 39%, and slag for 1%. These products are produced in all 50 states and had a value of $32 billion as of December 31, 2022. The United States aggregates industry is highly fragmented and geographically dispersed. The top ten producing states represented more than 53% of all production as of year-end 2022. According to the USGS, during 2022, an estimated 3,300 companies operated 6,200 sand and gravel sites and 1,340 companies operated 3,290 crushed stone quarries in the 50 states.
Urbanization Solutions. In the United States, for the year ended December 31, 2022, in terms of relevant revenues, our Related Services and Industrialized Construction verticals were the main contributors. These businesses are located across the Sun Belt region of the United States.
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Our Operating Network in the United States
The maps below reflect the location of our operating assets, including our cement plants and cement terminals in the United States as of December 31, 2022.
Products and Distribution Channels
Cement. For the year ended December 31, 2022, our cement operations represented 30% of revenues from our operations in the United States, before eliminations resulting from consolidation in Dollar terms. In the
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United States, we deliver a substantial portion of cement by rail, which occasionally goes directly to customers. Otherwise, shipments go to distribution terminals where customers pick up the product by truck or we deliver the product by truck. The majority of our cement sales in the United States are made directly to users of gray portland and masonry cements, generally within a radius of approximately 200 miles of each plant.
Ready-Mix Concrete. For the year ended December 31, 2022, our ready-mix concrete operations represented 42% of revenues from our operations in the United States, before eliminations resulting from consolidation in Dollar terms. Our ready-mix concrete operations in the United States purchase most of their cement aggregates requirements from our cement operations in the United States. Our ready-mix concrete products are mainly sold to residential, commercial and public contractors and to building companies.
Aggregates. For the year ended December 31, 2022, our aggregates operations represented 18% of revenues from our operations in the United States, before eliminations resulting from consolidation in Dollar terms. We estimate that, as of December 31, 2022, the hard rock quarries and sand and gravel pits permitted proven and probable reserves of our operations in the United States had an average remaining life of 26 and 20 years, respectively, assuming 2018 to 2022 average annual aggregates production levels. Our aggregates are consumed mainly by our internal operations and by our trade customers in the ready-mix, concrete products and asphalt industries.
Urbanization Solutions and Others: For the year ended December 31, 2022, our Urbanization Solutions and other businesses operations represented 10% of revenues from our operations in the United States before eliminations resulting from consolidation in Dollar terms.
Production Costs. The largest cost components of our plants are usually electricity and fuel. Fuel accounted for 12% of our total production costs of our cement operations in the United States in 2022. As of December 31, 2022, we had been implementing a program expected to gradually replace coal with more economic fuels, such as pet coke, tires and other alternative fuels, which has resulted in reduced energy costs. By retrofitting our cement plants to handle alternative energy fuels, we believe we have gained more flexibility in supplying our energy needs and have become less vulnerable to potential price spikes in energy. Power costs in 2022 represented 7% of the cash manufacturing cost of our cement operations in the United States, which represents production cost before depreciation. We aim to improve the efficiency of our electricity usage of our cement operations in the United States, concentrating our manufacturing activities in off-peak hours and negotiating lower rates with electricity suppliers.
Description of Properties, Plants and Equipment. As of December 31, 2022, we operated a geographically diverse base of 10 cement manufacturing plants in the United States (two were temporarily inactive) located in Alabama, California, Colorado, Florida, Georgia, Pennsylvania, Tennessee and Texas, and had a total installed cement capacity of 14.1 million tons per year. We estimate that, as of December 31, 2022, the limestone permitted proven and probable reserves of our operations in the United States had an average remaining life of 49 years, assuming 2018 to 2022 average annual production levels. As of December 31, 2022, we operated a distribution network of 33 cement terminals (four of which we distributed fly ash through) and 11 deep-water import terminals. All of our 10 cement production facilities in 2022 were wholly-owned by Cemex, Inc. As of December 31, 2022, Cemex, Inc. had 327 ready-mix concrete plants (36 were temporarily inactive) located in Alabama, Arizona, California, Florida, Georgia, Louisiana, Nevada, Tennessee, Texas and Virginia and operated a total of 55 aggregates quarries (14 were temporarily inactive) in Arizona, California, Florida, Georgia, Nevada, South Carolina and Texas. As of December 31, 2022, we had 16 concrete block facilities. Considering mainly the negative effects of the COVID-19 pandemic on certain idle assets that will remain closed for the foreseeable future in relation to the estimated sales volumes and our ability to supply demand by achieving efficiencies in other operating assets, during 2022, we recognized non-cash impairment losses related to fixed assets of $26 million in the United States.
In the United States, we have continued to take a number of actions to streamline our operations and improve productivity, including temporary capacity adjustments and rationalizations in some of our cement
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plants, and shutdowns of ready-mix concrete and block plants and aggregates quarries. As of December 31, 2022, we were utilizing approximately 89% of our ready-mix concrete plants, 75% of our block manufacturing plants and 73% of our aggregates quarries in the United States.
Capital Expenditures. We made capital expenditures of $284 million in 2020, $373 million in 2021 and $551 million in 2022 in our operations in the United States. As of December 31, 2022, we expected to make capital expenditures of $492 million in our operations in the United States during 2023.
EMEAA
For the year ended December 31, 2022, our business in the EMEAA region, which includes our operations in the EMEAA region and the Rest of EMEAA segment, as described below, represented 27% of our revenues before eliminations resulting from consolidation in Dollar terms. As of December 31, 2022, our operations in the EMEAA region represented 39% of our total installed capacity and 23% of our total assets, in Dollar terms.
Our Operations in the United Kingdom
Overview. For the year ended December 31, 2022, our operations in the United Kingdom represented 5% of our revenues, before eliminations resulting from consolidation in Dollar terms. As of December 31, 2022, our operations in the United Kingdom represented 5% of our total assets, in Dollar terms.
As of December 31, 2022, we were a leading provider of building materials in the United Kingdom with vertically integrated cement, ready-mix concrete, aggregates and asphalt operations, and we were also an important provider of concrete and precast materials solutions such as concrete blocks, concrete block paving, flooring systems and sleepers for rail infrastructure.
Industry. According to the United Kingdom Office for National Statistics (“ONS”), total construction output increased by 5.6% in 2022, which follows a record increase of 12.8% in 2021. The ONS also reported that construction orders increased by 3.8% year-over-year in 2022. This was driven by an 8.5% growth in new housing orders while industrial-commercial new construction rose by 7.4%. Industrial projects were particularly strong during the year, increasing by 42.5%, although they accounted for only about 6.1% of total new construction orders. Meanwhile, infrastructure decreased by 2.5% in 2022. As of December 31, 2022, the official data corresponding to 2022 has not been released by the Mineral Products Association, but as of the date of this annual report we estimate that domestic cement demand decreased at low single-digit rates in 2022 compared to 2021. Ready-mix concrete consumption in the full year 2022 decreased by 3.8%.
Competition. As of December 31, 2022, our primary competitors in the United Kingdom are: Tarmac (owned by CRH after divestments by Lafarge and Holcim during their merger), Hanson (a subsidiary of Heidelberg), Aggregate Industries (a subsidiary of Holcim) and Breedon, which acquired Hope Construction Materials (owned by Mittal Investments). In addition, during 2022 an estimated 3.4 million tons of cement were imported to the United Kingdom by various players including CRH, Holcim, Heidelberg and other independents, with products that compete with ours increasingly arriving from over-capacity markets including Ireland, Spain and Greece.
Urbanization Solutions. In the United Kingdom, for the year ended December 31, 2022, in terms of relevant revenues, our Urbanization Solutions business consisted primarily of asphalt, concrete block, mortars and admixtures, among others. These businesses are located across the United Kingdom.
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Our Operating Network in the United Kingdom
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Products and Distribution Channels
Cement. For the year ended December 31, 2022, our cement operations represented 25% of revenues from our operations in the United Kingdom before eliminations resulting from consolidation in Dollar terms. About 83% of our United Kingdom cement sales were of bulk cement, with the remaining 17% in bags. Our bulk cement is mainly sold to ready-mix concrete, concrete block and pre-cast product customers and contractors. Our bagged cement is primarily sold to national builders’ merchants.
Ready-Mix Concrete. For the year ended December 31, 2022, our ready-mix concrete operations represented 26% of revenues from our operations in the United Kingdom before eliminations resulting from consolidation in Dollar terms. Special products, including self-compacting concrete, fiber-reinforced concrete, high strength concrete, flooring concrete and filling concrete, represented 27% of our 2022 United Kingdom sales volume. In 2022, our ready-mix concrete operations in the United Kingdom purchased 96% of its cement requirements from our cement operations in the United Kingdom and 82% of its aggregates requirements from our aggregates operations in the United Kingdom. Our ready-mix concrete products are mainly sold to public, commercial and residential contractors.
Aggregates. For the year ended December 31, 2022, our aggregates operations represented 30% of revenues from our operations in the United Kingdom before eliminations resulting from consolidation in Dollar terms. In 2022, our United Kingdom aggregates sales were divided as follows: 60% were sand and gravel, 39% were limestone, and 1% was hardstone. In 2022, 35% of our aggregates volumes were obtained from marine sources along the United Kingdom’s coast. In 2022, 31% of our United Kingdom aggregates production was consumed by our own ready-mix concrete operations as well as our asphalt, concrete block and precast operations. We also sell aggregates to major contractors to build roads and other infrastructure projects.
Urbanization Solutions and Others: For the year ended December 31, 2022, our Urbanization Solutions and other businesses operations represented 19% of revenues from our operations in the United Kingdom before eliminations resulting from consolidation in Dollar terms.
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Cement Production Costs. In 2022, fixed production costs increased by 6.5% driven by increased maintenance costs and significant inflationary pressures. Variable costs increased by 23% in absolute terms, primarily as a result of increased costs of energy and purchased cement and clinker. During 2022, we continued to implement our cost reduction programs through our use of alternative fuels.
Ready-Mix Concrete Production Costs. In 2022, fixed production costs increased by 10.9%, as compared to fixed production costs in 2021, due to increased maintenance spend following only essential spend during the COVID-19 pandemic.
Aggregates Production Costs. In 2022, fixed production costs increased by 5.6% as compared to 2021 fixed production costs due to a change in insurance allocation between U.K. businesses and increased spend on temporary labor and machine hire following restrictions resulting from the COVID-19 pandemic.
Description of Properties, Plants and Equipment. As of December 31, 2022, we had two cement plants (one was temporarily inactive) and one clinker grinding facility in the United Kingdom. Assets in operation at year-end 2022 represent an installed cement capacity of 3.6 million tons per year, the same level as 2021. We estimate that, as of December 31, 2022, the limestone and clay permitted proven and probable reserves of our operations in the United Kingdom had an average remaining life of 46 and 38 years, respectively, assuming 2018 to 2022 average annual production levels. As of December 31, 2022, we also owned three cement import terminals and operated 125 ready-mix concrete plants (25 were temporarily inactive), 32 aggregates quarries (11 were temporarily inactive), 15 marine licenses (all of them active), 16 distribution centers, and 13 marine terminals in the United Kingdom. In addition, we had operating units dedicated to the asphalt, concrete blocks, concrete block paving, sleepers and flooring businesses in the United Kingdom.
In order to have access to blended cements, which are more sustainable based on their reduced clinker factor and use of by-products from other industries, our grinding and blending facility at the Port of Tilbury, located on the Thames River east of London has an annual grinding capacity of 0.9 million tons, which allows us to have access to blended cements.
Capital Expenditures. We made capital expenditures of $55 million in 2020, $94 million in 2021 and $74 million in 2022 in our operations in the United Kingdom. As of December 31, 2022, we expected to make capital expenditures of $64 million in our operations in the United Kingdom during 2023.
Our Operations in France
Overview. As of December 31, 2022, we were a leading ready-mix concrete producer and a leading aggregates producer in France. For the year ended December 31, 2022, our ready-mix concrete operations represented 64%, aggregates represented 34% and Urbanization Solutions represented 2%, respectively, of revenues from our operations in France before eliminations resulting from consolidation in Dollar terms. We distribute most of our materials by road and a significant quantity by waterways, seeking to maximize the use of this efficient and sustainable alternative. For the year ended December 31, 2022, our operations in France represented 4% of our revenues before eliminations resulting from consolidation in Dollar terms. As of December 31, 2022, our operations in France represented 4% of our total assets, in Dollar terms.
Industry. According to the National Institute of Statistics and Economic Studies, housing starts in the residential sector decreased by 3.9% in 2022 compared to 2021. Non-residential starts (m2) increased by 6.5% in 2022 compared to 2021 and demand from the public works sector decreased by 7.4% over the same period. According to National Union of Quarrying and Building Materials Industries (French Association), ready-mix concrete consumption decreased by 4% in 2022.
Competition. As of December 31, 2022, our main competitors in the ready-mix concrete market in France included Holcim, Heidelberg, CRH and Vicat SA, and our main competitors in the aggregates market in France
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included Holcim, Heidelberg, Colas (Bouygues) and Eurovia (Vinci). In France, we rely on sourcing cement from third parties, while many of our major competitors in ready-mix concrete are subsidiaries of French cement producers.
Urbanization Solutions. In France, for the year ended December 31, 2022, our Urbanization Solutions business consisted of admixtures. This business is located across France.
Our Operating Network in France
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Description of Properties, Plants and Equipment. As of December 31, 2022, we operated 195 ready-mix concrete plants in France (five were temporarily inactive), two marine terminals located in Le Havre, on the northern coast of France, 18 land distribution centers, 46 aggregates quarries (five were temporarily inactive) and 11 river ports.
Capital Expenditures. We made capital expenditures of $62 million in 2020, $44 million in 2021, and $57 million in 2022 in our operations in France. As of December 31, 2022, we expected to make capital expenditures of $40 million in our operations in France during 2023.
Our Operations in Germany
Overview. For the year ended December 31, 2022, our operations in Germany represented 3% of our revenues, before eliminations resulting from consolidation in Dollar terms. As of December 31, 2022, our operations in Germany represented 2% of our total assets, in Dollar terms. For the year ended December 31, 2022, cement represented 37%, ready-mix concrete represented 32%, aggregates represented 14%, Urbanization Solutions and our other businesses represented 17%, respectively of revenues from our operations in Germany before eliminations resulting from consolidation in Dollar terms. As of December 31, 2022, we were a leading provider of building materials in Germany, with vertically integrated cement, ready-mix concrete and aggregates businesses.
Industry. Relatedly, according to DESTATIS, the German Federal Statistical Office, domestic sales volume decreased by 5.2% in 2022 compared to 2021. This coincided with a 20.9% increase in producer prices for cement during this same period.
Competition. As of December 31, 2022, our primary competitors in the cement market in Germany were Heidelberg, Dyckerhoff (a subsidiary of Buzzi-Unicem), Holcim, CRH and Schwenk, a local German competitor. These competitors, along with Cemex in Germany, represented a market share of above 95%, as estimated by us, for 2022. The ready-mix concrete and aggregates markets in Germany are fragmented and regionally heterogeneous, with many local competitors. The consolidation process in the ready-mix concrete and aggregates markets is moderate.
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Urbanization Solutions. In Germany, for the year ended December 31, 2022, our Urbanization Solutions business consisted of admixtures. This business is located mainly in the eastern and western regions of Germany.
Our Operating Network in Germany
Description of Properties, Plants and Equipment. As of December 31, 2022, we operated one cement plant and one cement grinding mill in Germany and our installed cement capacity was 3.1 million tons per year. We estimate that, as of December 31, 2022, the limestone permitted proven and probable reserves of our operations in Germany had an average remaining life up to 33 years, assuming 2018 to 2022 average annual production levels. In July 2022, Cemex completed the acquisition of a 53% stake in ProStein, a German aggregates company. Our aggregate sales in Germany are expected to double as a result of the acquisition. ProStein’s assets
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include six active hardstone plants. As of December 31, 2022, our operations in Germany also included 57 ready-mix concrete plants (all of them active), 28 aggregates quarries (12 were temporarily inactive) and three land distribution centers.
Capital Expenditures. We made capital expenditures of $24 million in 2020, $29 million in 2021, and $33 million in 2022 in our operations in Germany. As of December 31, 2022, we expected to make capital expenditures of $38 million in our operations in Germany during 2023.
Our Operations in Poland
Overview. For the year ended December 31, 2022, our operations in Poland represented 2% of our revenues before eliminations resulting from consolidation in Dollar terms. As of December 31, 2022, our operating business in Poland represented 1% of our total assets, in Dollar terms. As of December 31, 2022, we were a leading provider of building materials in Poland, serving the cement, ready-mix concrete and aggregates markets. As of December 31, 2022, we operated two cement plants (all of them active) and one grinding mill with an installed cement capacity of 3.8 million tons per year. As of December 31, 2022, we also operated 44 ready-mix concrete plants (two were temporarily inactive), six aggregates quarries (all of them active), two distribution centers and two marine terminals in Poland. For the year ended December 31, 2022, cement represented 58%, ready-mix concrete represented 33%, aggregates represented 8% and Urbanization Solutions and our other businesses represented 1%, respectively of revenues from our operations in Poland before eliminations resulting from consolidation in Dollar terms.
Industry. Preliminary estimates suggest that total cement consumption in Poland decreased approximately 1% in 2022 from 2021.
Competition. As of December 31, 2022, our primary competitors in the cement, ready-mix concrete and aggregates markets in Poland were Heidelberg, Holcim, CRH, Dyckerhoff and Miebach.
Capital Expenditures. We made capital expenditures of $19 million in 2020, $29 million in 2021, and $33 million in 2022 in our operations in Poland. As of December 31, 2022, we expected to make capital expenditures of $41 million in our operations in Poland during 2023.
Urbanization Solutions. In Poland, for the year ended December 31, 2022, in terms of relevant revenues, our Urbanization Solutions business consisted primarily of admixtures and mortars. These businesses are located across Poland.
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Our Operations in Spain
Overview. For the year ended December 31, 2022, our operations in Spain represented 2% of our revenues before eliminations resulting from consolidation in Dollar terms. As of December 31, 2022, our operating business in Spain represented 2% of our total assets, in Dollar terms.
Industry. According to the Spanish Ministry of Industry, total cement consumption in Spain decreased by 1% in 2022 compared to 2021. As of December 31, 2022, cement exports from Spain amounted to 4.1 million tons. In recent years, Spanish cement and clinker export volumes have fluctuated, reflecting the rapid changes in demand in the Mediterranean basin as well as the strength of the Euro and changes in the domestic market. According to the Spanish Ministry of Industry, these total export volumes remained flat in 2020, increased 25% in 2021 and decreased 2% in 2022 compared to 2021.
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Competition. According to our estimates, as of December 31, 2022, we were one of the top four producers of clinker and cement in Spain. Competition in the ready-mix concrete industry is intense in large urban areas. The overall high degree of competition in the Spanish ready-mix concrete industry is reflected in the multitude of offerings from a large number of concrete suppliers. We have focused on developing value-added products and attempting to differentiate ourselves in the marketplace. The distribution of ready-mix concrete remains a key component of our business strategy in Spain.
Urbanization Solutions. In Spain, for the year ended December 31, 2022, in terms of relevant revenues, our Urbanization Solutions business consisted primarily of mortars and admixtures. These businesses are located across Spain.
Products and Distribution Channels
Cement. For the year ended December 31, 2022, our cement operations represented 64% of revenues from our operations in Spain before eliminations resulting from consolidation in Dollar terms. We offer various types of cement in Spain, targeting specific products to specific markets and users. In 2022, 16% of the domestic sales volume of our main operating subsidiary in Spain consisted of bagged cement, and the remainder of its domestic sales volume consisted of bulk cement, primarily to ready-mix concrete operators, including sales to our other operations in Spain, as well as industrial customers that use cement in their production processes and construction companies.
Ready-Mix Concrete. For the year ended December 31, 2022, our ready-mix concrete operations represented 23% of revenues from our operations in Spain before eliminations resulting from consolidation in Dollar terms. Our ready-mix concrete operations in Spain in 2022 purchased 94% of their cement requirements from our cement operations in Spain and 63% of their aggregates requirements from our aggregates operations in Spain.
Aggregates. For the year ended December 31, 2022, our aggregates operations represented 8% of revenues from our operations in Spain before eliminations resulting from consolidation in Dollar terms.
Urbanization Solutions and Others: For the year ended December 31, 2022, our Urbanization Solutions and other businesses operations represented 5% of revenues from our operations in Spain before eliminations resulting from consolidation in Dollar terms.
Exports. Exports of cement and clinker by our operations in Spain, which represented 29% of our total cement sales volume in Spain for 2022, which increased 8% in 2022 compared to 2021. Of our total exports from Spain in 2022, 58% consisted of gray portland cement and 42% of clinker.
Production Costs. We have improved the efficiency of our operations in Spain by introducing technological improvements that have significantly reduced our energy costs, including the use of alternative fuels, in accordance with our cost reduction efforts. In 2022, we used organic waste, tires and plastics as fuel, achieving a 48% substitution rate for pet coke in our gray and white clinker kilns for the year.
Description of Properties, Plants and Equipment. As of December 31, 2022, our operations in Spain included six cement plants (two were temporarily inactive) located in Spain with an annual installed cement capacity of 7.7 million tons. As of that date, we also had 30 operative distribution centers, including 19 land and 11 marine terminals, 51 ready-mix concrete plants (15 were temporarily inactive), 22 aggregates quarries (eight were temporarily inactive), eight mortar plants and one admixture plant. We estimate that, as of December 31, 2022, the limestone and clay permitted proven and probable reserves of our operations in Spain had an average remaining life of 56 and 36 years, respectively, assuming 2018 to 2022 average annual production levels.
Capital Expenditures. We made capital expenditures of $22 million in 2020, $34 million in 2021, and $27 million in 2022 in our operations in Spain. As of December 31, 2022, we expected to make capital expenditures of $27 million in our operations in Spain during 2023.
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Our Operations in the Philippines
Overview. As of December 31, 2022, on a consolidated basis, Cemex España indirectly held 100% of Cemex Asian South East Corporation (“CASEC”), which in turn owned 77.9% of the outstanding share capital of CHP. As of December 31, 2022, CHP directly and indirectly owned 100% of our two principal operating subsidiaries in the Philippines, Solid Cement Corporation (“Solid Cement”) and APO Cement Corporation (“APO”). For the year ended December 31, 2022, our operations in the Philippines represented 2% of our revenues before eliminations resulting from consolidation in Dollar terms. As of December 31, 2022, our operations in the Philippines represented 3% of our total assets, in Dollar terms.
As of December 31, 2022, CHP was investing in a new 1.5 million ton integrated cement production line at the Solid Cement Plant located in Luzon, Philippines (the “Solid Cement Plant”) with an estimated total investment of $371.8 million. Upon completion, this new line should nearly double the capacity of the Solid Cement Plant and would represent a 26% increase in our cement capacity in the Philippines. In October 2018, we entered into principal project agreements with CBMI Construction Co., Ltd (“CBMI”), an affiliate of Sinoma International Engineering Co., Ltd., for the procurement, construction and installation of the new line. On April 25, 2019, Solid Cement held its ceremonial groundbreaking for the new line. Various work was already ongoing, including the mobilization of equipment and site development. The new rotary kiln was lifted into position in January 2021. On December 7, 2021, Solid Cement served a notice of termination with respect to the construction contract with CBMI, which covered the construction and installation of Solid Cement’s new line. Solid Cement’s notice of termination, which applies to one of the principal project agreements with CBMI, was issued due to the delay in construction and installation work. Solid Cement took measures to address contingencies which have arisen as a result of this termination, including engaging replacement contractors for the project. During the first quarter of 2022, Solid Cement entered into contracts with Atlantic Gulf and Pacific Company of Manila, Inc. and Betonbau Phil., Inc. to continue the construction and installation of Solid Cement’s new line. As of December 31, 2022, among the project components completed were the slip form works for the raw meal silo, clinker silos, and cement silos of the new line. CHP estimates that the construction of the new line should be completed by March 2024 and the start of its operations could commence in April 2024.
Industry. According to the Philippine Statistics Authority, gross fixed capital formation in construction in 2022 was still below pre-COVID-19 pandemic 2019 levels by 12.4%. Although the public sector saw a resilient performance with its 37.2% growth compared to 2019, the private sector, which accounts for more than 60% of gross fixed capital formation in construction, pulled down the overall industry as it was lower by 28.8% in 2022 compared to 2019.
Competition. As of December 31, 2022, our major competitors in the Philippine cement market were Holcim, Republic, Eagle, Northern, Goodfound, Taiheiyo, and Mabuhay.
Description of Properties, Plants and Equipment. As of December 31, 2022, our operations in the Philippines included two cement plants (all of them active) with an annual installed cement capacity of 5.7 million tons, exclusive access to four quarries to supply raw materials to our cement plants, one aggregate quarry (which was temporarily inactive), 19 land distribution centers and six marine distribution terminals. We estimate that, as of December 31, 2022, the limestone and clay permitted proven and probable reserves accessed by our operations in the Philippines had an average remaining life of 193 years for Solid Cement and 36 years for APO, assuming 2018 to 2022 average annual production levels.
Cement. For the year ended December 31, 2022, our cement operations represented 99% of revenues from our operations in the Philippines before eliminations resulting from consolidation in Dollar terms.
Urbanization Solutions and Others: For the year ended December 31, 2022, our Urbanization Solutions and other businesses operations represented 1% of revenues from our operations in Philippines before eliminations resulting from consolidation in Dollar terms.
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Capital Expenditures. We made capital expenditures of $82 million in 2020, $89 million in 2021, and $72 million in 2022 in our operations in the Philippines. As of December 31, 2022, we expected to make capital expenditures of $127 million in our operations in the Philippines during 2023.
Urbanization Solutions. In the Philippines, for the year ended December 31, 2022, in terms of relevant revenues, our Urbanization Solutions business consisted of admixtures. This business is located across the Philippines.
Our Operations in Israel
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Overview. We are a leading producer and supplier of raw materials for the construction industry in Israel. In addition to ready-mix concrete and aggregates, we produce a diverse range of building materials and infrastructure products in Israel. As of December 31, 2022, as indicated in the above maps, we operated 56 ready-mix concrete plants (all of them active), seven aggregates quarries (all of them active), which includes one sand pit, two concrete products plants and one admixtures plants. For the year ended December 31, 2022, our operations in Israel represented 5% of our revenues before eliminations resulting from consolidation in Dollar terms and 3% of our total assets, in Dollar terms. For the year ended December 31, 2022, ready-mix concrete represented 68%, aggregates represented 21%, Urbanization Solutions and our other businesses represented 11%, respectively of revenues from our operations in Israel before eliminations resulting from consolidation in Dollar terms.
Capital Expenditures. We made capital expenditures of $28 million in 2020, $45 million in 2021, and $37 million in 2022 in our operations in Israel. As of December 31, 2022, we expected to make capital expenditures of $29 million in our operations in Israel during 2023.
Urbanization Solutions. In Israel, for the year ended December 31, 2022, in terms of relevant revenues, our Urbanization Solutions business consisted primarily of other concrete products and admixtures, among others. These businesses are located across Israel.
Rest of EMEAA
As of December 31, 2022, our operations in the Rest of EMEAA segment consisted primarily of our operations in the Czech Republic, Croatia, Egypt and the UAE. These operations represented 4% of our revenues, before eliminations resulting from consolidation in Dollar terms, for the year ended December 31, 2022, and 3% of our total assets as of December 31, 2022, in Dollar terms. As of December 31, 2022, we expected to make capital expenditures of $46 million in the Rest of EMEAA segment during 2023.
Our Operations in the Czech Republic
Overview. As of December 31, 2022, we were a leading producer of ready-mix concrete and aggregates in the Czech Republic. We also distribute cement in the Czech Republic. As of December 31, 2022, we operated
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one cement plant and one grinding mill with annual cement installed capacity of 1.7 million tons, one cement terminal and one admixtures plant in the Czech Republic. As of December 31, 2022, we also operated 71 ready-mix concrete plants (three of which were temporarily inactive), which include three mobile equipment producing concrete and 14 aggregates quarries in the Czech Republic (one was inactive).
Industry. According to the Czech Statistical Office, total construction output in the Czech Republic grew 2.5% year-over-year in 2022 as buildings construction increased by 2.8% while civil engineering was up by 1.7% year-over-year.
According to the Czech Cement Association, total cement consumption in the Czech Republic reached year- over-year growth of 2% in the first half of 2022. According to our estimates, in 2023, ready-mix concrete production in the Czech Republic is estimated to decrease slightly in comparison to 2022.
Competition. As of December 31, 2022, our main competitors in the cement, ready-mix concrete and aggregates markets in the Czech Republic were Heidelberg, Buzzi-Unicem, Holcim, Strabag and Skanska.
Capital Expenditures. We made capital expenditures of $17 million in 2020, $26 million in 2021 and $21 million in 2022, in our operations in the Czech Republic. As of December 31, 2022, we expected to make capital expenditures of $25 million in our operations in the Czech Republic during 2023.
Urbanization Solutions. In the Czech Republic, for the year ended December 31, 2022, in terms of relevant revenues, our Urbanization Solutions business consisted of admixtures. This business is located in the northeastern region of the Czech Republic.
Our Operations in Croatia
Overview. We were the largest cement producer in Croatia based on installed capacity as of December 31, 2022, according to our estimates. As of December 31, 2022, we had two cement plants (all of them active) in Croatia with an annual cement installed capacity of 2.2 million tons. In 2022, one cement plant was permanently shut down. As of December 31, 2022, we also operated 11 land distribution centers, two marine cement terminals in Croatia, Bosnia and Herzegovina, Serbia and Montenegro, seven ready-mix concrete facilities in Croatia and Bosnia and Herzegovina (all of them active), and one recycling yard in Croatia.
Industry. According to our estimates made as of the date of this annual report, total cement consumption in Croatia, Bosnia and Herzegovina and Montenegro increased by 1.2% in 2022 compared to 2021.
Competition. As of December 31, 2022, our primary competitors in the cement market in Croatia were Nexe and Holcim.
Capital Expenditures. We made capital expenditures of $8 million in 2020, $15 million in 2021, and $11 million in 2022 in our operations in Croatia. As of December 31, 2022, we expected to make capital expenditures of $6 million in our operations in Croatia during 2023.
Urbanization Solutions. In Croatia, during the 2022 calendar year, our Urbanization Solutions business for most of the year consisted of pavement services; however, as of December 31, 2022, such services were no longer being provided.
Our Operations in Egypt
Overview. As of December 31, 2022, we operated one cement plant in Egypt with an annual installed cement capacity of 5.4 million tons. This plant is located approximately 280 miles south of Cairo and serves the
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upper Nile region of Egypt, as well as Cairo and the Delta region, Egypt’s main cement market. We estimate that, as of December 31, 2022, the limestone and clay permitted proven and probable reserves of our operations in Egypt had an average remaining life of 22 and 22 years, respectively, assuming 2018 to 2022 average annual production levels. In addition, as of December 31, 2022, we had six ready-mix concrete plants (one was inactive) and three land distribution centers in Egypt, and one admixtures plant. See “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings—Other Legal Proceedings—Egypt Share Purchase Agreement” for a description of certain legal proceedings relating to the share purchase agreement, signed in November 1999 between Cemex, S.A.B. de C.V. and state-owned Metallurgical Industries Company, pursuant to which Cemex, S.A.B. de C.V. acquired a controlling interest in ACC Limited (“ACC”).
Industry. According to the Ministry of Trade and Industry official figures and Cemex’s estimates, based on government data (local and imported cement), the Egyptian market cement consumption increased by 5.4% in 2022 compared to 2021, which was mainly attributed to the governmental construction ban in 2020. As of December 31, 2022, the cement industry in Egypt had a total of 18 cement producers, with an aggregate annual installed cement production capacity of approximately 91 million tons.
Competition. According to the Ministry of Investment official figures, during 2022, Holcim (Egyptian Cement Company), ACC and Heidelberg (Suez Cement, Torah Cement and Helwan Portland Cement) represented approximately 28% of the total cement production in Egypt. Other significant competitors in Egypt are Arabian (La Union), Titan (Alexandria Portland Cement and BeniSuef Cement), Amreyah (InterCement), Sinai (Vicat), South Valley, Nile Valley, El Seweedy, Arish Cement, National Company for Cement (Beni Suef plant), Aswan Medcom, Misr BeniSuef, Al Nahda and Misr Quena Cement Companies, Building Materials Industries Co. and ASEC Cement.
Capital Expenditures. We made capital expenditures of $8 million in 2020, $20 million in 2021 and $16 million in 2022 in our operations in Egypt. As of December 31, 2022, we expected to make capital expenditures of $11 million in our operations in Egypt during 2023.
Urbanization Solutions. In Egypt, for the year ended December 31, 2022, in terms of relevant revenues, our Urbanization Solutions business consisted primarily of admixtures and pavement services. These businesses are located across Egypt.
Our Operations in the UAE
Overview. As of December 31, 2022, Cemex España held a 49% equity interest (and a 100% economic interest) in all of our main UAE companies: Cemex Topmix LLC and Cemex Supermix LLC, ready-mix concrete manufacturing companies, and Cemex Falcon LLC, which specializes in the production of cement and slag. We are not permitted to have a controlling interest in these companies (UAE Commercial Companies Law requires 51% ownership by UAE nationals). However, through agreements with other shareholders in these companies, we have control over the remaining 51% of the economic benefits in each of the companies. As a result, we own a 100% economic interest in all three companies. As of December 31, 2022, we owned 12 ready-mix concrete plants (two were temporarily inactive), three pugmill plants, one admixture plant and one cement and slag grinding facility in the UAE with an annual installed cement capacity of 1.2 million tons, serving the markets of Dubai and Abu Dhabi as well as neighboring countries such as Oman.
Capital Expenditures. We made capital expenditures of $1 million in 2020, $5 million in 2021, and $7 million in 2022 in our operations in the UAE. As of December 31, 2022, we expected to make capital expenditures of $4 million in our operations in the UAE during 2023.
Urbanization Solutions. In the UAE, for the year ended December 31, 2023, in terms of relevant revenues, our Urbanization Solutions business consisted of admixtures. This business is located across the UAE.
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SCA&C
For the year ended December 31, 2022, our business in the SCA&C region, which included our operations in Colombia, Panama, Caribbean TCL, the Dominican Republic and the Rest of SCA&C segment, as described below, represented 9% of our revenues before eliminations resulting from consolidation in Dollar terms. As of December 31, 2022, our operations in the SCA&C region represented 15% of our total installed capacity and 8% of our total assets, in Dollar terms.
CLH is the main holding company for Cemex’s operations in Colombia, Panama, Guatemala and Nicaragua.
On August 31, 2022, through certain of our subsidiaries, we concluded the sale of our operations in Costa Rica and El Salvador with affiliates of Cementos Progreso Holdings, S.L., for a total consideration of $325 million, related to our aggregate controlling interest. Our operations of these assets in Costa Rica and El Salvador for the years ended December 31, 2020, 2021 and for the period from January 1, 2022 to August 31, 2022 are reported in the statements of operations, net of income tax, as part of the single line item “Discontinued operations,” including in 2022 a gain on sale of $240 million.
Our Operations in Colombia
Overview. As of December 31, 2022, Cemex Colombia was the second-largest cement producer in Colombia, based on installed cement capacity of 4.1 million tons per year as of December 31, 2022. For the year ended December 31, 2022, our operations in Colombia represented 2% of our revenues before eliminations resulting from consolidation in Dollar terms. As of December 31, 2022, our operating business in Colombia represented 3% of our total assets, in Dollar terms.
Cemex Colombia has a significant market share in the cement and ready-mix concrete market in the “Urban Triangle” of Colombia comprising the cities of Bogotá, Medellín and Cali. During 2022, these three metropolitan areas accounted for approximately 37.7% of Colombia’s cement consumption. Cemex Colombia’s Ibagué plant, which is strategically located in the Urban Triangle, is Cemex Colombia’s largest plant as of December 31, 2022. Cemex Colombia, through its Cúcuta plant and Clemencia grinding facility, is also an active participant in Colombia’s northeastern and coastal markets.
Industry. According to our estimates made as of the date of this annual report, the installed capacity for cement in Colombia was 21.2 million tons in 2022. According to the Colombian National Statistical Administrative Department (Departamento Administrativo Nacional de Estadística), total cement consumption in Colombia reached 13.5 million tons during 2022, an increase of 4% from 2021, while cement exports from Colombia during 2022 reached 1.05 million tons (according to the global trade and market research platform, SICEX). We estimate that as of December 31, 2022, close to 65% of cement in Colombia was consumed by the housing and self-construction sector, while the infrastructure sector accounted for approximately 28% of total cement consumption and has been growing in recent years up to December 31, 2022. The other construction segments in Colombia, including the formal housing and commercial sectors, account for the balance of cement consumption in Colombia.
Competition. As of December 31, 2022, our two largest competitors in Colombia were Cementos Argos, which has established a leading position in the Colombian Caribbean coast, Antioquia and Southwest region markets, and Holcim in the central region of the country. We estimate that as of December 31, 2022 there were 13 other local and regional competitors in Colombia.
The ready-mix concrete industry in Colombia was fairly consolidated with the top three producers accounting for approximately 66.3% of the market as of December 31, 2022. Cemex Colombia was the second-largest ready-mix concrete producer as of December 31, 2022. The first and third largest producers were Cementos Argos and Holcim Colombia, respectively.
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The aggregates market in Colombia is highly fragmented and is dominated by the informal market. Approximately 95% of the aggregates market in Colombia was comprised of small independent producers as of December 31, 2022.
Urbanization Solutions. In Colombia, for the year ended December 31, 2022, in terms of relevant revenues, our Urbanization Solutions business consisted primarily of energy, multiproducts and admixtures, among others. These businesses are located across Colombia.
Our Operating Network in Colombia
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Products and Distribution Channels
Cement. For the year ended December 31, 2022, our cement operations represented 53% of revenues from our operations in Colombia before eliminations resulting from consolidation in Dollar terms.
Ready-Mix Concrete. For the year ended December 31, 2022, our ready-mix concrete operations represented 25% of revenues from our operations in Colombia before eliminations resulting from consolidation in Dollar terms.
Aggregates. For the year ended December 31, 2022, our aggregates operations represented 7% of revenues from our operations in Colombia before eliminations resulting from consolidation in Dollar terms.
Urbanization Solutions and Others: For the year ended December 31, 2022, our Urbanization Solutions and other businesses operations represented 15% of revenues from our operations in Colombia before eliminations resulting from consolidation in Dollar terms.
Description of Properties, Plants and Equipment. As of December 31, 2022, Cemex Colombia owned two operating cement plants and two cement grinding mills, having a total installed cement grinding capacity of 4.1 million tons. In 2022, we replaced 28.6% of our total fuel consumed in Cemex Colombia with alternative fuels, and we had an internal electricity generating capacity of approximately 37 MW as of December 31, 2022. We estimate that, as of December 31, 2022, the limestone and clay permitted proven and probable reserves of our operations in Colombia had an average remaining life of 60 and 261 years, respectively, assuming 2018 to 2022
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average annual production levels. The operating licenses for quarries in Colombia are renewed every 30 years; assuming renewal of such licenses, we estimate having sufficient cement raw materials reserves for our operations in Colombia for over 61 years assuming 2018 to 2022 average annual cement raw materials production levels. Immaterial volumes extracted from the quarry located in Maceo during its trial period and for the Maceo Plant road construction are excluded from this calculation. As of December 31, 2022, Cemex Colombia also operated 11 distribution centers, one mortar plant, one admixtures plant, 32 ready-mix concrete plants (all of them active), nine aggregates operations (eight were temporarily inactive) and one adhesives plant.
Cemex Colombia continues its progress on the Maceo Plant Project, with 90% and 26% of the plant and road portions completed as of the year ended December 31, 2022, respectively. We expect the Maceo Plant Project to enter into commission in the second half of 2023. See “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings—Other Legal Proceedings—Maceo, Colombia—Legal Proceedings in Colombia” for the status of that project.
Capital Expenditures. We made capital expenditures of $14 million in 2020, $27 million in 2021 and $45 million in 2022 in our operations in Colombia. As of December 31, 2022, we expected to make capital expenditures of $77 million in our operations in Colombia during 2023.
Our Operations in Panama
Overview. For the year ended December 31, 2022, our operations in Panama represented 1% of our revenues before eliminations resulting from consolidation in Dollar terms. For the year ended December 31, 2022, cement represented 71%, ready-mix concrete represented 16%, aggregates represented 4%, Urbanization Solutions and other businesses represented 9%, respectively, of our revenues from our operations in Panama before eliminations resulting from consolidation in Dollar terms. As of December 31, 2022, our operating business in Panama represented 1% of our total assets, in Dollar terms.
Industry. As of the date of this annual report, we estimate that approximately 0.99 million cubic meters of ready-mix concrete were sold in Panama during 2022. Cement consumption in Panama increased 8% in 2022 compared to 2021, mainly due to increased consumption in the housing sector and due to the reactivation of the Subway Line 3 Project. However, cement consumption in Panama was still approximately 19% lower in 2022 when compared to 2019, mainly due to high residence inventories and an increasing level of unoccupied industrial and commercial buildings that have affected the organic growth of cement consumption.
Competition. As of December 31, 2022, the cement industry in Panama included three cement producers: Cemento Bayano, Argos Panamá, an affiliate of Cementos Argos, and Cemento Chagres, a company that started operations during the second half of 2020 and is 100% owned by Panamanian investors.
Description of Properties, Plants and Equipment. As of December 31, 2022, our operations in Panama through Cemento Bayano operated one cement plant in Panama, with an installed cement capacity of 1.2 million tons and clinker capacity of 1.6 million tons. As of that date, Cemento Bayano also operated six ready-mix concrete plants (one was temporarily inactive), one admixtures plant and three distribution centers, including one location at the cement plant.
Capital Expenditures. We made capital expenditures of $3 million in 2020, $9 million in 2021 and $19 million in 2022 in our operations in Panama. As of December 31, 2022, we expect to make capital expenditures of $8 million in our operations in Panama during 2023.
Urbanization Solutions. In Panama, for the year ended December 31, 2022, in terms of relevant revenues, our Urbanization Solutions business consisted primarily of admixtures, among others. These businesses are located across Panama.
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Our Operations in Caribbean TCL
As of December 31, 2022, Caribbean TCL was one of the leading producers and marketers of cement and ready-mix concrete products in the Caribbean’s construction sector, with operations strategically located in Jamaica, Trinidad and Tobago, Guyana and Barbados. For the year ended December 31, 2022, our operations in Caribbean TCL represented 2% of our revenues before eliminations resulting from consolidation in Dollar terms. As of December 31, 2022, our operations in Caribbean TCL represented 2% of our total assets, in Dollar terms. For the year ended December 31, 2022, cement represented 95%, ready-mix concrete represented 1%, aggregates represented 2%, Urbanization Solutions and our other businesses represented 2%, respectively, of our revenues from our operations in Caribbean TCL before eliminations resulting from consolidation in Dollar terms.
As of December 31, 2022, our focus with respect to Caribbean TCL will continue on attempting to maximize further synergies from TCL’s integration with us. As of December 31, 2022, we intended to improve the productivity and capacity of our Caribbean TCL’s cement plants, continue the vertical integration of Caribbean TCL’s business, invest in developing its employees and offer strong value products to our customers in the region and elsewhere.
Capital Expenditures. We made capital expenditures of $16 million in 2020, $22 million in 2021, and $16 million in 2022 in Caribbean TCL. As of December 31, 2022, we expected to make capital expenditures of $20 million during 2023 in Caribbean TCL.
Our Operations in Trinidad & Tobago
Description of Properties, Plants and Equipment. As of December 31, 2022, TCL operated 1 cement plant in Trinidad & Tobago, with a total annual cement installed capacity of 1.0 million tons. As of December 31, 2022, TCL had 2 operational ready-mix concrete plants (one was temporarily inactive), three aggregates quarries (all of them active), four land distribution centers and one marine terminal.
Urbanization Solutions. In Trinidad & Tobago, for the year ended December 31, 2022, in terms of relevant revenues, our Urbanization Solutions business consisted primarily of admixtures.
Our TCL Operations in Jamaica
Overview. As of December 31, 2022, we held an indirect controlling position mainly through TCL in CCCL.
Description of Properties, Plants and Equipment. As of December 31, 2022, CCCL operated one cement plant in Jamaica, with a total cement installed capacity of 1.5 million tons. As of December 31, 2022, CCCL had four land distribution centers, including one location at the cement plant, and one marine terminal.
Our Operations in Barbados
Overview. As of December 31, 2022, through TCL, we held an indirect controlling position in Arawak Cement Company Limited (“Arawak”) in Barbados.
Description of Properties, Plants and Equipment. As of December 31, 2022, Arawak operated one cement plant in Barbados, with a total cement installed capacity of 0.4 million tons. As of that date, Arawak had one ready-mix concrete plant (temporarily inactive), one land distribution center and one marine terminal.
Urbanization Solutions. In Barbados, for the year ended December 31, 2022, we did not have any Urbanization Solutions business.
Our Operations in the Dominican Republic
Overview. As of December 31, 2022, Cemex Dominicana, S.A.’s (“Cemex Dominicana”) sales network covered the country’s main consumption areas, which are Santo Domingo, Santiago de los Caballeros, La
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Altagracia, San Cristobal and San Pedro de Macoris. On May 8, 2000, Cemex Dominicana entered into a lease agreement with the government of the Dominican Republic related to the exploitation of a gypsum mine located at Las Salinas, Barahona, which has enabled Cemex Dominicana to supply local and regional gypsum requirements. The lease agreement expires on May 8, 2025 and may be extended by the parties. For the year ended December 31, 2022, our operations in the Dominican Republic represented 2% of our revenues before eliminations resulting from consolidation, in Dollar terms. As of December 31, 2022, our operations in the Dominican Republic represented 1% of our total assets, in Dollar terms. For the year ended December 31, 2022, cement represented 79%, ready-mix concrete represented 6%, Urbanization Solutions and other businesses represented 15%, respectively, of our revenues from our operations in the Dominican Republic before eliminations resulting from consolidation in Dollar terms.
Industry. According to figures from the Dominican Cement Producers Association (Asociación Dominicana de Productores de Cemento Portland), cement consumption in the Dominican Republic reached 5.5 million tons in 2022.
Competition. As of December 31, 2022, our principal competitors in the Dominican Republic were: Cementos Cibao, a local producer; Domicem, a mixed Italian/local cement producer; Cementos Argos, a grinding operation of a Colombian cement producer; Cementos Santo Domingo, a cement grinding partnership between a local investor and Cementos La Union from Spain; Cementos Panam, a local cement producer; and Cementos Andino, a grinding operation; and a partially constructed cement kiln of a Colombian cement producer, currently inactive.
Description of Properties, Plants and Equipment. As of December 31, 2022, Cemex Dominicana operated one cement plant in the Dominican Republic, with an installed cement capacity of 2.4 million tons per year. As of that date, Cemex Dominicana also owned five ready-mix concrete plants (one was temporarily inactive), one aggregates quarry (currently inactive), two land distribution centers and two leased marine terminals.
Capital Expenditures. We made capital expenditures of $2 million in 2020, $15 million in 2021, and $18 million in 2022 in our operations in the Dominican Republic. As of December 31, 2022, we expected to make capital expenditures of $15 million in our operations in the Dominican Republic during 2023.
Urbanization Solutions. In the Dominican Republic, for the year ended December 31, 2022, in terms of relevant revenues, our Urbanization Solutions business consisted primarily of multiproducts, among others. This business is located across the country.
Rest of SCA&C
As of December 31, 2022, our operations in the Rest of SCA&C segment consisted primarily of our operations and activities in Peru, Puerto Rico, Nicaragua, Jamaica, the Caribbean and Guatemala, excluding our Caribbean TCL segment. These operations represented 2% of our revenues, before eliminations resulting from consolidation in Dollar terms. As of December 31, 2022, our business in the Rest of SCA&C segment represented 1% of our total assets, in Dollar terms.
Our Operations in Puerto Rico
Overview. As of December 31, 2022, Cemex de Puerto Rico, Inc. (“Cemex Puerto Rico”) was our main subsidiary in Puerto Rico.
Industry. In 2022, cement consumption in Puerto Rico reached 0.6 million tons according to the Puerto Rico Economic Development Bank.
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Competition. The cement industry in Puerto Rico in 2022 was comprised of two cement companies: Cemex Puerto Rico and Cementos Argos (formerly Antilles Cement Co (Marine Terminal) and San Juan Cement Co (Cement Plant)).
Description of Properties, Plants and Equipment. As of December 31, 2022, Cemex Puerto Rico operated one grinding mill, with an installed cement capacity of 1.3 million tons per year. As of that date, Cemex Puerto Rico also operated four ready-mix concrete plants (three were temporarily inactive), two land distribution centers and one marine terminal used for fly ash. As of that date, Cemex Puerto Rico also owned one aggregates quarry, which is currently inactive.
Capital Expenditures. We made capital expenditures of $0.2 million in 2020, $2 million in 2021, and $3 million in 2022 in our operations in Puerto Rico. As of December 31, 2022, we expected to make capital expenditures of $3 million in our operations in Puerto Rico during 2023.
Urbanization Solutions. In Puerto Rico, for the year ended December 31, 2022, in terms of relevant revenues, our Urbanization Solutions business consisted primarily of lime, among others. These businesses are located across Puerto Rico.
Our Operations in Nicaragua
Overview. As of December 31, 2022, Cemex Colombia and Corporación Cementera Latinoamericana, S.L.U., both CLH subsidiaries, indirectly and directly owned 100% of Cemex Nicaragua, S.A. (“Cemex Nicaragua”), our operating subsidiary in Nicaragua.
Industry. We estimate that 0.89 million tons of cement, 0.14 million cubic meters of ready-mix concrete and 4.9 million tons of aggregates were sold in Nicaragua during 2022.
Competition. As of December 31, 2022, two market participants compete in the Nicaraguan cement industry, Cemex and Holcim.
Description of Properties, Plants and Equipment. As of December 31, 2022, we leased and operated one cement plant (currently active) and owned one grinding mill with a total installed cement capacity of 0.7 million tons, six ready-mix concrete plants (two were temporarily inactive) and two distribution centers in Nicaragua. We also had three aggregate quarries (all of them inactive). Since March 2003, Cemex Nicaragua has also leased a 100,000 tons milling plant in Managua, which has been used exclusively for pet coke milling.
Capital Expenditures. We made capital expenditures of $3 million in 2020, $5 million in 2021 and $4 million in 2022 in our operations in Nicaragua. As of December 31, 2022, we expected to make capital expenditures of $7 million in our operations in Nicaragua during 2023.
Urbanization Solutions. In Nicaragua, for the year ended December 31, 2022, in terms of relevant revenues, our Urbanization Solutions business consisted primarily of multiproducts. These businesses are located across Nicaragua.
Our Operations in Guatemala
Overview. As of December 31, 2022, CLH indirectly owned 100% of Cemex Guatemala, our main operating subsidiary in Guatemala.
Industry. We estimate that 5.01 million tons of cement, .099 million cubic meters of ready-mix concrete and 28.9 million tons of aggregate were sold in Guatemala during 2022. National cement consumption in Guatemala increased 2% against 2021, mainly driven by the reactivation of the formal construction section (e.g., vertical housing and industrial projects in metropolitan areas) and a steady consumption from the self-building sector.
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Competition. As of December 31, 2022, 11 market participants compete in the Guatemalan cement industry (Cemex, CEMPRO, REGIONAL, Wan Peng, Bonanza, Robusto, Mayacem, Stark, CEMGUA, Argos and Ultracem).
Description of Properties, Plants and Equipment. As of December 31, 2022, we owned and operated one cement grinding mill in Guatemala with an installed cement capacity of 0.6 million tons per year. As of that date, we also owned and operated five land distribution centers (including one location at the cement plant), one clinker dome close to our leased marine terminal in the southern part of the country and three ready-mix concrete plants (two were temporarily inactive).
Capital Expenditures. We made capital expenditures of $1 million in 2020, $3 million in 2021 and $10 million in 2022 in Guatemala. As of December 31, 2022, we expected to make capital expenditures of $16 million in our operations in Guatemala during 2023.
Urbanization Solutions. In Guatemala, for the year ended December 31, 2022, in terms of relevant revenues, our Urbanization Solutions business consisted primarily of multiproducts, among others. These businesses are located across Guatemala.
Our Operations in the Rest of SCA&C
Overview. As of December 31, 2022, we held a non-controlling position in National Cement Ltd. in the Cayman Islands, Maxcem Bermuda Ltd. in Bermuda and Societe des Ciments Antillais, a company with cement operations in Guadalupe and Martinique. As of December 31, 2022, Cemex España additionally indirectly held a 100% interest in Cemex Jamaica Limited, which operates one calcined limestone plant in Jamaica with a capacity of 120,000 tons per year and one hydrate line with a capacity of 4,800 tons per year.
As of December 31, 2022, we operated a network of five marine terminals in these countries, which facilitated exports from our operations in Mexico, the Dominican Republic and Puerto Rico. Three of our marine terminals are in the Bahamas. As of December 31, 2022, we also had a non-controlling interest in two other terminals, one in Bermuda and one in the Cayman Islands. We also had three distribution centers in Guyana, Haiti and Peru, and one ready-mix plant (temporarily inactive) in Guyana.
Capital Expenditures. In our operations in the Rest of SCA&C segment, we made capital expenditures of $3 million in 2020, $4 million in 2021 and $1 million in 2022. As of December 31, 2022, we expected to make capital expenditures of $4 million in our operations in other SCA&C countries during 2023.
Urbanization Solutions. In Jamaica, for the year ended December 31, 2022, in terms of relevant revenues, our Urbanization Solutions business consisted primarily of lime. This business serves specific customers.
Our Trading Operations
In 2022, we traded 11.8 million tons of cementitious and non-cementitious materials, in 92 countries, including 9.6 million tons of cement and clinker and 2.3 million tons of cementitious and other materials. In addition, we traded 4.1 million tons of coal and pet coke. Slightly more than 4.5 million tons of the traded cement and clinker consisted of exports from our operations in Mexico, Croatia, Spain, Germany, Trinidad and Tobago, Barbados, and Panama, among others. Slightly above 5.0 million tons remaining were purchased from third parties in countries such as Vietnam, Turkey, Saudi Arabia, Spain, Greece, and Algeria. In 2022, we traded 1.6 million tons of granulated blast furnace slag, a non-clinker cementitious material, and 0.6 million tons of other products. This information does not include discontinued operations. Our trading network enables us to maximize the capacity utilization of our facilities worldwide while reducing our exposure to the inherent cyclicality of the cement industry. We are generally able to distribute excess capacity to regions around the world
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where there is demand. In addition, we believe that our worldwide network of strategically located marine terminals allows us to coordinate maritime logistics on a global basis and minimize transportation expenses. Our trading operations also enable us to explore new markets without significant initial capital expenditure.
Freight rates, which account for a large share of the total import supply cost, have been subject to significant volatility in recent years. We estimate, however, that our trading operations have obtained significant savings by contracting maritime transportation in due time and by using our own and chartered fleets, which transported more than 66% of our coal, petcoke, cement and clinker traded volume during 2022.
In addition, we provide freight service to third parties, which allows us to generate additional revenues.
Our Cement and Grinding Plants
The following table provides a summary of our cement and grinding plants, including location, used capacity, including grinding mill production, and years of operation as of and for the year ended December 31, 2022:
| Location |
Used Capacity |
Years of Operation(1) | ||||||
| Mexico |
||||||||
| Atotonilco, Hidalgo |
1,273,451 | 64 | ||||||
| Barrientos, Estado de México |
684,659 | 78 | ||||||
| Ensenada, Baja California |
485,731 | 47 | ||||||
| Guadalajara, Jalisco |
724,113 | 49 | ||||||
| CPN, Sonora |
539,521 | 42 | ||||||
| Hidalgo, Nuevo León |
98,766 | 117 | ||||||
| Huichapan, Hidalgo |
3,197,390 | 38 | ||||||
| Mérida, Yucatán |
822,885 | 69 | ||||||
| Monterrey, Nuevo León |
1,380,789 | 103 | ||||||
| Tamuín, San Luis Potosí |
1,584,488 | 58 | ||||||
| Tepeaca, Puebla |
2,557,891 | 28 | ||||||
| Torreón, Coahuila |
1,064,470 | 56 | ||||||
| Valles, San Luis Potosí |
398,722 | 57 | ||||||
| Yaqui, Sonora |
2,064,966 | 33 | ||||||
| Zapotiltic, Jalisco |
1,645,254 | 55 | ||||||
| USA |
||||||||
| Balcones, TX |
1,684,912 | 42 | ||||||
| Brooksville, FL (North) |
0 | 47 | ||||||
| Brooksville, FL (South) |
1,135,269 | 35 | ||||||
| Clinchfield, GA |
579,409 | 48 | ||||||
| Demopolis, AL |
654,217 | 45 | ||||||
| Knoxville, TN |
593,332 | 43 | ||||||
| Miami, FL |
893,635 | 64 | ||||||
| Lyons, CO |
352,287 | 42 | ||||||
| Victorville, CA |
2,639,782 | 57 | ||||||
| Wampum, PA |
0 | 57 | ||||||
| United Kingdom |
||||||||
| Rugby |
1,204,643 | 23 | ||||||
| Ferriby |
0 | 56 | ||||||
| Tilbury |
538,261 | 14 | ||||||
| Germany |
||||||||
| Rudersdof |
2,054,731 | 56 | ||||||
| Eisenhüttenstadt |
255,153 | 70 | ||||||
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| Location |
Used Capacity |
Years of Operation(1) | ||||||
| Spain |
||||||||
| Alcanar |
787,064 | 54 | ||||||
| Castillejo |
493,128 | 111 | ||||||
| Lloseta |
0 | 55 | ||||||
| Morata |
370,140 | 90 | ||||||
| San Vicente |
832,228 | 47 | ||||||
| Gador |
0 | 46 | ||||||
| Poland |
||||||||
| Chelm |
1,480,797 | 62 | ||||||
| Rudniki |
803,916 | 57 | ||||||
| Gdynia |
193,308 | 22 | ||||||
| Czech Republic |
||||||||
| Prachovice |
867,886 | 68 | ||||||
| Detmarovice |
143,221 | 19 | ||||||
| Croatia |
||||||||
| Juraj |
1,073,112 | 110 | ||||||
| Kajo |
248,072 | 118 | ||||||
| Philippines |
||||||||
| APO |
3,148,538 | 24 | ||||||
| Solid Cement |
1,376,181 | 29 | ||||||
| Egypt |
||||||||
| Assiut |
3,876,686 | 36 | ||||||
| United Arab Emirates |
||||||||
| Falcon |
360,122 | 15 | ||||||
| Colombia |
||||||||
| Cucuta |
257,917 | 39 | ||||||
| Ibagué |
2,210,670 | 30 | ||||||
| Clemencia |
197,214 | 9 | ||||||
| Santa Rosa |
481,633 | 40 | ||||||
| Panama |
||||||||
| Calzada Larga |
589,084 | 45 | ||||||
| Trinidad and Tobago |
||||||||
| Claxton Bay |
707,088 | 69 | ||||||
| Jamaica |
||||||||
| Rockport |
960,519 | 71 | ||||||
| Barbados |
||||||||
| St. Lucy |
184,939 | 39 | ||||||
| Dominican Republic |
||||||||
| San Pedro de Macorís | 1,913,474 | 32 | ||||||
| Nicaragua |
||||||||
| San Rafael del Sur(2) | 373,308 | 80 | ||||||
| Managua | 205,093 | 7 | ||||||
| Puerto Rico |
||||||||
| Ponce | 296,908 | 32 | ||||||
| Guatemala |
||||||||
| Arizona | 564,333 | 17 | ||||||
| (1) | Approximate. |
| (2) | Leased. |
For the aggregate installed cement production capacity of our cement plants by region, see “Item 4—Information on the Company—Business Overview.”
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We have insurance coverage for our cement plants, which we believe is sufficient and in line with industry practices. However, in some instances, our insurance coverage may not be sufficient to cover all of our potential unforeseen losses and liabilities. In addition, our insurance coverage may not cover all the risks to which our cement plants may be exposed. See “Item 3—Key Information—Risk Factors—Risks Relating to Our Business and Operations—Our insurance coverage may not cover all the risks to which we may be exposed.”
Regulatory Matters and Legal Proceedings
A description of material regulatory matters and legal proceedings affecting us as of December 31, 2022 is provided below. Materiality is tested at a Cemex, S.A.B. de C.V. consolidated level. See “Item 5—Operating and Financial Review and Prospects—Recent Developments—Recent Developments Relating to Our Regulatory Matters and Legal Proceedings” for more information.
Antitrust Proceedings
Polish Antitrust Investigation
On January 2, 2007, Cemex Polska Sp. Z.O.O. (“Cemex Polska”) received a notification from the Polish Competition and Consumer Protection Office (the “Protection Office”) informing it of the formal initiation of an antitrust proceeding against all cement producers in Poland, including Cemex Polska and another of our indirect subsidiaries in Poland. The notification alleged that there was an agreement between all cement producers in Poland regarding prices and other sales conditions for cement, an agreed division of the market with respect to the sale and production of cement, and the exchange of confidential information, all of which limited competition in the Polish market with respect to the production and sale of cement. On December 9, 2009, the Protection Office delivered to Cemex Polska its decision against Polish cement producers related to an investigation which covered a period from 1998 to 2006. The decision-imposed fines on a number of Polish cement producers, including Cemex Polska. The fine imposed on Cemex Polska was Polish Zloty 115.56 million ($26.39 million as of December 31, 2022, based on an exchange rate of Polish Zloty 4.3795 to $1.00), which was 10% of Cemex Polska’s total revenue in 2008. Cemex Polska disagreed with the decision, denied that it committed the practices alleged by the Protection Office and, therefore, on December 23, 2009, Cemex Polska filed an appeal before the Polish Court of Competition and Consumer Protection in Warsaw (the “First Instance Court”). After a series of hearings, on December 13, 2013, the First Instance Court issued its judgment in regard to the appeals filed by Cemex Polska and other cement producers, which were previously combined into a joint appeal. The First Instance Court reduced the penalty imposed on Cemex Polska to Polish Zloty 93.89 million ($21.44 million as of December 31, 2022, based on an exchange rate of Polish Zloty 4.3795 to $1.00), which was equal to 8.125% of Cemex Polska’s revenue in 2008. On May 8, 2014, Cemex Polska filed an appeal against the First Instance Court judgment before the Appeals Court of Warsaw. On March 27, 2018, after different hearings, the Appeals Court of Warsaw issued its final judgment reducing the fine imposed upon Cemex Polska to Polish Zloty 69.4 million ($15.85 million as of December 31, 2022, based on an exchange rate of Polish Zloty 4.3795 to $1.00). This fine, which was equal to 6% of Cemex Polska’s revenue in 2008, was paid. On November 19, 2018, Cemex Polska filed before the Polish Supreme Court an extraordinary, narrow based cassation appeal against the Appeals Court of Warsaw’s judgment specifically seeking the reduction of the imposed fine. On July 29, 2020, the Polish Supreme Court rendered a judgment cancelling the Appeals Court of Warsaw’s decision with respect to the cement cartel process as it applied to Cemex Polska and four other cement producers. The cancelation was based on arguments raised in cassation regarding the calculation of penalties and the time at which the alleged agreement between the cement producers actually ended. Furthermore, the fine paid by Cemex Polska equal to Polish Zloty 69.4 million ($15.85 million as of December 31, 2022, based on an exchange rate of Polish Zloty 4.3795 to $1.00) was returned to Cemex Polska on January 7, 2021. On March 9, 2021, Cemex Polska requested the Protection Office to pay Cemex Polska interest over the amount of the fine returned to Cemex Polska, for the period going from April 9, 2018 (the date of payment of the fine) to January 7, 2021 (the date on which the fine was returned). The Protection Office has rejected to pay the interests in its response to Cemex Polska’s request.
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Following the judgment issued by the Polish Supreme Court, the proceeding was referred again to the Appeals Court of Warsaw. On July 29, 2020, the Appeals Court of Warsaw, due to procedural reasons, cancelled the judgment of the First Instance Court issued on December 13, 2013, against 5 producers, including Cemex Polska, and referred the case to re-examination by the District Court in Warsaw, which will now serve as the court of first instance. On January 10, 2022, an appeal with the Polish Supreme Court was filed by Cemex Polska against the May 21, 2021 judgment of the Appeals Court of Warsaw. The appeal of Cemex Polska concentrates on the wrongful appointment of judges of the Polish Supreme Court and selection of judges of the Appeals Court of Warsaw. The Protection Office has also filed an appeal with the Polish Supreme Court against the last judgment of the Appeals Court of Warsaw, demanding that it conduct further proceedings, instead of the District Court in Warsaw. The new trial case is expected to last three to five years, depending on the priority given to it by the courts adjudicating the case.
As of December 31, 2022, given that the case will be re-examined, at this stage we are not able to assess if Cemex Polska would receive an adverse resolution that could lead to any fines, penalties or remedies against our operations in Poland, but while we believe an adverse resolution is not probable, if adversely resolved, we do not expect that any fines, penalties or remedies would have a material adverse effect on our results of operations, liquidity or financial condition.
See “Item 5—Operating and Financial Review and Prospects—Recent Developments—Recent Developments Relating to Our Regulatory Matters and Legal Proceedings—Antitrust Proceedings—Polish Antitrust Investigation.”
Antitrust Cases in Georgia and South Carolina
On July 24, 2017, two ready-mix concrete producers filed a lawsuit in a U.S. Federal Court in the state of Georgia against certain subsidiaries of Cemex in the U.S. and other companies alleging customer allocation and price fixing in both the ready-mix concrete and cement markets in the coastal Georgia and southeastern coastal South Carolina areas. In addition, on January 22, 2020, new plaintiffs who were the prior owners of a ready-mix concrete producer, and the concrete producer, filed a lawsuit in the same court against the same subsidiaries of Cemex making substantially similar allegations as the suit filed on July 24, 2017. As Cemex does not participate in the ready-mix concrete market in these areas, the lawsuits do not allege any improper actions by Cemex with respect to ready-mix concrete. On October 2, 2017, Cemex filed a motion to dismiss the 2017 lawsuit. This motion to dismiss was denied on August 21, 2018, and, as a result, Cemex will continue to defend the allegations. In response to a request to stay the proceedings made in the first quarter of 2021 by the United States Department of Justice, the lawsuit filed on July 24, 2017, was administratively closed. On March 31, 2021, a motion to dismiss the lawsuit filed on January 22, 2020 was granted with leave to file an amended complaint by the concrete producer plaintiff within 21 days following entry of the order to dismiss. The claims of the prior owners were dismissed. In April 2021, the concrete producer in the January 2020 lawsuit voluntary dismissed its claims, which effectively terminated the lawsuit. On October 17, 2022, in respect to a motion by the plaintiffs, an order was entered in the July 2017 lawsuit, administratively reopening the July 2017 lawsuit to allow for limited discovery to proceed through February 17, 2023. As of December 31, 2022, at this stage of the July 2017 lawsuit, while we cannot assess with certainty the likelihood of an adverse result in this lawsuit, we believe a final adverse resolution to this lawsuit is not probable; and, if adversely resolved, we believe an adverse resolution should not have a material adverse impact on our results of operations, liquidity and financial condition.
Antitrust Investigation in Colombia
On September 5, 2013, Cemex Colombia was notified of Resolution No. 49141 dated August 21, 2013, issued by the Colombian Superintendency of Industry and Commerce (Superintendencia de Industria y Comercio) (“SIC”) pursuant to which the SIC opened an investigation and issued a statement of objections (pliego de cargos) against five cement companies and fourteen directors of those companies, including Cemex Colombia, for alleged anti-competitive practices. On December 11, 2017, the SIC’s Chief Superintendent decided to impose a sanction against Cemex Colombia, two other cement companies and six natural persons, for entering into an agreement to fix gray cement prices in Colombia. The fines imposed upon Cemex Colombia,
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which were paid on January 5, 2018, amounted to $73.77 billion Colombian Pesos ($15.23 million as of December 31, 2022, based on an exchange rate of 4,842.19 Colombian Pesos to $1.00). Cemex Colombia decided not to file a reconsideration request, and, instead, on June 7, 2018 it filed an annulment and reestablishment of right claim (acción de nulidad y restablecimiento de derecho) before the Administrative Court (Tribunal Contencioso Administrativo) requesting that the charges brought forth by the SIC be annulled and that the restitution is made to Cemex Colombia of the fine it had paid, with any applicable adjustments as provided by Colombian law. This claim could take up to six years to be resolved. As of December 31, 2022, we are not able to assess the likelihood of an adverse result of this matter, but if such matter is resolved adversely to us, and considering that the fines were paid in 2018, such adverse resolution should not have a material adverse impact on our results of operations, liquidity, and financial condition.
Colombian Class Action Lawsuit
On August 2020, a class action lawsuit (Acción Popular) (the “Colombian Class Action”) was filed with a Circuit Civil Court in Colombia against Cemex Colombia and other gray portland cement market participants (the “Colombian Class Action Defendants”). The lawsuit sought compensation for damages arising from alleged cartel actions for which the SIC fined the Colombian Class Action Defendants in December 2017. The lawsuit claimed that the Colombian Class Action Defendants caused damages to all consumers of gray portland cement in Colombia during the period of 2010 to 2012. The plaintiff’s lawsuit claimed that the Colombian Class Action Defendants should be ordered to pay damages due to the higher price set on gray portland cement. The plaintiff also claimed that this amount should be indexed since 2013. The plaintiff’s arbitrary calculation of the total alleged damages caused by the Colombian Class Action Defendants was $1.32 trillion Colombian Pesos ($272.6 million as of December 31, 2022, based on an exchange rate of 4,842.19 Colombian Pesos to $1.00). The Circuit Civil Court initially dismissed the Colombian Class Action, and the plaintiff filed an appeal, which, on April 9, 2021, was resolved by the Superior Court of Bogotá, reversing the decision by the Circuit Civil Court and ordering to review the admission of the claim again. On May 14, 2021, the Circuit Civil Court admitted the claim. Cemex Colombia subsequently filed an appeal against the admission of the claim, and on May 11, 2022, the Circuit Civil Court in Colombia issued a ruling in favor of Cemex Colombia, dismissing the proceeding. The plaintiff appealed this decision on May 16, 2022, and, on May 23, 2022, Cemex Colombia requested the Circuit Civil Court to ratify its decision to dismiss. Consequently, on July 11, 2022, the Circuit Civil Court ratified its decision to dismiss the case and subsequently sent the docket of the proceeding to the Superior Court of Bogota. The Superior Court of Bogota confirmed the dismissal on August 24, 2022. The plaintiff has six months since the confirmation of the dismissal to file a recourse (an Acción de Tutela) against the confirmation of the dismissal. As of December 31, 2022, we believe a final adverse resolution in this matter is not probable, but if such matter is resolved adversely to us, such adverse resolution should not have a material adverse impact on our results of operations, liquidity and financial condition.
Environmental Matters
In the ordinary course of business, we are subject to a broad range of environmental laws and regulations in each of the jurisdictions in which we operate. These laws and regulations impose increasingly stringent environmental protection standards regarding, among other things, air emissions, wastewater discharges, the use and handling of hazardous waste or materials, waste disposal practices and the remediation of environmental damage or contamination. These laws and regulations expose us to the risk of substantial environmental costs and liabilities, including liabilities associated with divested assets and past activities and, in some cases, the acts and omissions of the previous owners or operators of a property or facility that we own or operate. Furthermore, in some jurisdictions, certain environmental laws and regulations impose liability without regard to fault or the legality of the original activity at the time of the actions giving rise to liability. To prevent, control and remediate environmental problems and maintain compliance with regulatory requirements, in line with our global initiatives on environmental management, we maintain an environmental policy designed to monitor and control environmental matters. Our environmental policies require that each of our subsidiaries respect and comply with local laws and meet our own internal standards to minimize the use of non-renewable resources and the generation of hazardous and other wastes. We use processes that are designed to reduce the impact of our
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operations on the environment throughout all the production stages in all our operations worldwide. In addition, during 2012, we started the implementation of a global EMS at our operating sites that provides a framework to facilitate the consistent and systematic implementation of practical, risk-based environmental management at all sites. As of December 31, 2022, substantially all of our operating sites in Mexico, EMEAA, and SCA&C have completed the implementation of the EMS. The EMS is designed to be used to support sites and businesses across Cemex globally to document, maintain and continuously improve our environmental performance. We believe that, as of December 31, 2022, substantially all of our cement plants already have some kind of EMS (most of which have earned ISO 14000 certifications), with most of the remaining implementation efforts directed mainly towards our aggregates and ready-mix plants.
We regularly incur capital expenditures that have an environmental component or that are impacted by environmental regulations. However, we do not keep separate accounts for such mixed capital and environmental expenditures. Environmental expenditures that extend the life, increase the capacity, improve the safety or efficiency of assets, or are incurred to mitigate or prevent future environmental contamination may be capitalized. Other environmental costs are expensed when incurred. For the years ended December 31, 2020, 2021, and 2022, our sustainability-related capital expenditures (including our environmental expenditures and investments in alternative fuels and cementitious materials) were $78 million, $103 million, and $170.8 million, respectively.
The following is a discussion of environmental regulations and related matters in our major markets.
Mexico
We were one of the first industrial groups in Mexico to sign an agreement with the Mexican Ministry of Environment and Natural Resources (Secretaría del Medio Ambiente y Recursos Naturales) (“SEMARNAT”) to carry out voluntary environmental audits in our 15 Mexican cement plants under a government-run program. In 2001, the Mexican Environmental Protection Agency (Procuraduría Federal de Protección al Ambiente), which is part of SEMARNAT, completed the audit of our cement plants and awarded each of them a Clean Industry Certificate (Certificado de Industria Limpia) (“CICs”) certifying that our cement plants are in full compliance with applicable environmental laws. The CICs are subject to renewal every two years. As of December 31, 2022, our operating cement plants in Mexico had CICs or were in the process of renewing them.
For almost three decades, the technology for co-processing used alternative fuels into an energy source has been employed in our cement plants in Mexico. By the end of 2019, all our operating cement plants in Mexico were using alternative fuels. Overall, 25.8% of the total fuel used in our operating cement plants in Mexico during 2021 was comprised of alternative fuels. In January 2021, a modification to the General Waste Law was published in the Official Gazette to include co-processing as part of the industrial process, providing that authorizations granted by the SEMARNAT under federal licenses will remove the need for authorizations at the State level.
For the years ended December 31, 2020, 2021, and 2022 our operations in Mexico invested $7.58 million, $27.76 million, and $43.79 million, respectively, in the acquisition of environmental protection equipment and the implementation of the integrated management system (ISO 9001, 14001 and 4500), for a total of $228.03 million since 1999 as of December 31, 2022. The audit to obtain the renewal of the ISO 14001:2015 certification took place during 2020 and our then operating cement plants in Mexico obtained the renewal of the ISO 14001:2015 certification for environmental management systems, which is valid until February 2024. As of December 31, 2022, our cement plant in Hermosillo, Mexico has obtained its certification after having restarted production in 2021.
On June 6, 2012 the General Law on Climate Change (Ley General de Cambio Climático) (the “Climate Change Law”) was published in the Mexican Official Gazette. The Climate Change Law establishes a legal framework to regulate policies for climate change mitigation and adaptation. Important provisions of the Climate Change Law require the development of secondary legislation and depend on the publication of subsequent
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implementing regulations. For instance, the Climate Change Law provides, among other things, for (i) the elaboration of a registry of the emissions that are generated by fixed sources, (ii) companies to report their emissions, if required, and (iii) the application of fines to those companies that fail to report or that report false information. In this regard, on October 29, 2014, the regulations to the General Law on Climate Change Regarding the National Registry of Emissions (Reglamento de la Ley General de Cambio Climático en Materia del Registro Nacional de Emisiones) (the “Regulations”) became effective. As of December 31, 2022, Cemex has been granted the positive dictums on GHG emission by a certified and approved third party for all its required plants and has reported them to the Mexican environmental agency. The purpose of the Regulations is to govern the Climate Change Law regarding the National Registry of Emissions, identifying the sectors and subsectors, which include among others, the cement industry, that must file the corresponding reports before the National Registry of Emissions. We had previously reported our direct and indirect CO2 emissions to SEMARNAT under a voluntary scheme. The Climate Change Law also allows for the establishment of specific greenhouse gas reduction targets in accordance with the respective contribution of each economic sector to the national greenhouse gas emissions. A Special Tax on Production and Services (Impuesto Especial Sobre Producción y Servicios) on the sale and import of fossil fuels was included in the tax reform that became effective on January 1, 2014. As of December 31, 2022, petcoke, a primary fuel widely used in our kilns in Mexico is taxed at a rate of Ps21.8784 per ton ($1.12 per ton as of December 31, 2022, based on an exchange rate of Ps19.482 to $1.00). Effective as of January 1, 2023, petcoke will be taxed at a rate of Ps23.5827 per ton ($1.21 per ton as of December 31, 2022, based on an exchange rate of Ps19.482 to $1.00).
On August 12, 2014, a package of energy reform legislation became law in Mexico. The then newly enacted energy reform legislation, which included nine new laws, as well as amendments to existing laws, implemented the December 2013 constitutional energy reform and established a new legal framework for Mexico’s energy industry. One of the new laws that was enacted is the Electric Industry Law (Ley de la Industria Eléctrica) (the “Electric Industry Law”), which establishes a legal framework for electricity-related activities in Mexico and structurally changes the national electric industry, creating a wholesale energy market in which companies can acquire power and associated products, directly from privately owned suppliers, as opposed to only acquiring energy from the Federal Electricity Commission (Comisión Federal de Electricidad) (“CFE”). On October 31, 2014, certain rules and regulations related to the energy reform legislation, including the regulations of the Electric Industry Law, were published. As part of the Electric Industry Law, a system for tradable clean energy certificates was created and certain clean energy procurement obligations were imposed on consumers. The clean energy procurement obligations for 2018 to 2022 were announced by the Mexican Energy Regulatory Commission (Comisión Reguladora de Energía) (“CRE”) at 5%, 5.8%, 7.4%, 10.9% and 13.9%, respectively, and a requirement of 13.9% for 2023 was published on November 22, 2022. Further increases to this requirement are expected for future years. Cemex’s operations in Mexico have ongoing commitments to procure power from renewable projects operating under the “self-supply” framework of the former Electric Energy Public Service Law, and the energy supplied under these contracts is exempted from the clean energy obligation. Nonetheless, since 2018, we are required to acquire clean energy certificates to comply with the clean energy obligations for the fraction of energy supply that does not come from clean generators. Over time, according to the penalty levels set by the CRE, non-compliance with the clean energy procurement obligations could have a material adverse impact on our business or operations in Mexico, but as of December 31, 2022, we are not able to assess if any such impact would in turn have a material adverse impact on our liquidity and financial condition.
On September 8, 2015, the Electricity Market Rules (Bases del Mercado Eléctrico) (the “Rules”) were published in the Federal Official Gazette and became effective on September 9, 2015. The Rules, which are an important step forward in the implementation of the reforms enacted regarding Mexico’s energy industry, contain the design and operation principles of the different components of the wholesale electricity market (the “Electricity Market”) and, together with the Electric Industry Law and several administrative provisions and guidelines issued by CRE, regulate the possibility for consumers to enter into supply agreements with CFE or with private suppliers participating in the Electricity Market. As of December 31, 2022, we are authorized participants in the Electricity Market. Additionally, Cemex participated as a buyer in the third long-term power auction organized in 2017 by CENACE, the independent operator of Mexico’s national electric system (the
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“National Electic System”), through the clearinghouse in charge of the agreements awarded through the auctions, and was awarded a 20-year contract for 16,129 clean energy certificates per year for compliance starting in 2020 and 14.9 GWh/a of electric power.
During 2016, a new electrical standards code for the national grid’s operation was issued in Mexico (Código de Red) (the “Code”). The Code establishes new standards for electrical operation and safety that begun to be enforced in 2019 against consumers connected to the national grid, including Cemex and generators. On December 31, 2021, the CRE published a resolution in the Official Mexican Gazette (Diario Oficial de la Federación) through which it issued a revised version of the Code (the “2.0 Code”). The 2.0 Code came into force as of January 1, 2022 and, among other things, provides (i) the technical requirements applicable to load centers that are connected, or intend to connect, to the National Electric System at medium or high tension, in order to guarantee the efficiency, quality, reliability, continuity, safety and sustainability of the system, (ii) the obligation for renewable power plants to participate in primary frequency control, (iii) a procedure to execute
root cause assessments of disturbances in the National Electric System and (iv) a new procedure to reduce the generation of electric power upon the occurrence of extraordinary conditions in the National Electric System. As of December 31, 2022, we do not foresee that compliance with the 2.0 Code would require material investments across our operating assets in Mexico.
On October 2, 2019, SEMARNAT published the basis for a trial emissions trading program (Programa de prueba del sistema de comercio de emisiones). The trial program sets forth an initial 24-month pilot phase for the adoption of the program that started on January 1, 2020 and concluded on December 31, 2021, which is followed by a 12-month period to transition to the operative stage, which ended on December 31, 2022. The trial program will not have any economic consequences for the participants; but after December 2022, SEMARNAT should establish emission caps per industrial sector in line with Mexico’s greenhouse gas emissions reduction targets.
We will have to meet those caps through mitigation measures or acquire emission reduction certificates in the proposed market. As of December 31, 2022, we cannot anticipate the impact that this new cap-and-trade scheme and the mandatory emissions caps will have on our operations in Mexico, mainly due to the fact that the existing rules apply only to its current pilot phase, yet we are participating with various lobbying groups within different industrial sectors and chambers to address our concerns towards a fair and robust operative phase.
On April 29, 2020, CENACE issued a resolution providing for the implementation of several restrictive measures on output in privately-owned wind and photovoltaic plants, including, among other measures, the suspension of all tests required by such plants that were in construction at that moment, to reach commercial operation, among other measures to guarantee the efficiency, quality, reliability, continuity and security of the Mexican electrical system during the period of reduced power demand caused by the COVID-19 pandemic (the “NES Resolution”). Additionally, on May 15, 2020, the Mexican Ministry of Energy (Secretaría de Energía, the “SENER”) published in the Official Mexican Gazette a substantial revision to the Policy for the Reliability, Safety, Continuity and Quality of the Mexican Electrical System (the “SENER Policy,” and together with the NES Resolution, the “Energy Publications”). The Energy Publications entailed significant deviations from the current Rules, among other laws and regulations in Mexico.
The SENER Policy imposes additional restrictions and conditions on the issuance and modification of generation permits for solar and wind facilities. Additionally, among other changes, the SENER Policy expressly prioritizes reliability over economic efficiency in the dispatch of the electric grid, potentially affecting the production of solar and wind generation to the benefit of existing plants owned by CFE; transfers the value of the capacity recognized to the solar and wind plants to the load-serving entities; and mandates the creation of new ancillary services and infrastructure improvements, the costs of which are to be borne by wind and solar generators. Several private power generators and non-governmental organizations filed constitutional challenges against the Energy Publications claiming that such publications are unconstitutional and restrict constitutionally protected rights and interests, such as the right to a healthy environment. Moreover, on June 22, 2020, Mexico’s antitrust regulator (Comisión Federal de Competencia Económica) (“COFECE”) filed a legal controversy claim
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(controversia constitucional) with Mexico’s Supreme Court arguing that the SENER Policy violates several provisions of the Mexican Constitution and that it adversely affects the competitive nature of Mexico’s energy market. On February 3, 2021, Mexico’s Supreme Court issued a final ruling on the constitutional controversy claim filed by COFECE against the SENER Policy nullifying most of its provisions. Thereafter on March 4, 2021, SENER published in the Official Mexican Gazette a resolution abolishing the SENER Policy in its entirety. Additionally, a federal judge ruled the nonexistence of the NES Resolution, which was thereafter published by CENACE through its official information system on June 16, 2021, leaving the NES Resolution without effects.
Furthermore, on May 28, 2020, during an extraordinary meeting, the CRE approved two resolutions which call for increases to the transmission charges payable to the CFE by all electric power generators, with renewable and conventional power plants, operating under grandfathered interconnection agreements (“Grandfathered Generators”) which are subject to the laws and regulations that were applicable before the Mexican energy reform of 2013 to 2014 (the “CRE Resolutions”). Under the CRE Resolutions, these new wheeling charges for the transmission service constitute an exponential and immediate increase for Grandfathered Generators and were applied by CFE as of July 2020. While the entities legally obliged to pay for those transmission costs are Grandfathered Generators, the end-users must hold a minority participation in the Grandfathered Generators from whom they receive the power supply, thus depending on the structure agreed in the corresponding power supply agreements (which could consist of pass-through provisions for such transmission costs), end-users under the grandfathered “self-supply” scheme, including Cemex, may run the risk of transmission costs and be obligated to pay the relevant grandfathered projects for said incremental costs. In the case of the three wind farms in Mexico owned by Grandfathered Generators, in which Cemex has a minority participation and with which Cemex has entered into long-term arrangements to receive the power under the “self-supply” framework, the charges for transmission payable to CFE, in which Cemex has a minority participation, associated with the wind farms increased by four to six times. Furthermore, we expect the transmission charges to increase by about 80% in the case of the pet coke-fired self-supply thermal power plant in Tamuin, Mexico, owned by another Grandfathered Generator in which Cemex has a minority participation and with which Cemex has also entered into a long-term arrangement to receive power. As of December 31, 2022, the Grandfathered Generators that supply electric energy to our operations in Mexico have all obtained injunctions against the applicable CRE Resolutions and two of them have obtained favorable resolutions in their constitutional challenges, nullifying all the provisions and effects of the CRE Resolutions. These favorable resolutions are final and definitive as no further recourse is available. We are closely monitoring the progress of the remainder of the constitutional challenges filed by the other Grandfathered Generators that supply electric energy to our operations in Mexico, as certain arrangements with the Grandfathered Generators regarding wheeling charges are structured under a pass-through mechanism, which are typical of these types of “self-supply” projects, expose Cemex to the increases called for by the CRE Resolutions and would entail an increase in the electricity prices for our plants in Mexico. On August 28, 2020, we filed a constitutional challenge against the CRE resolution applicable to Grandfathered Generators operating conventional power plants and we were granted an injunction against such CRE Resolution, though as of December 31, 2022, no final ruling on the appeal filed by the CRE against such injunction had been issued. As of
December 31, 2022, we cannot assess with certainty the outcome of the legal challenges presented against the CRE Resolutions, or the impact that an adverse resolution on those could have on our business, operations and contractual obligations in Mexico.
On March 9, 2021, a decree amending several key provisions of the Electric Industry Law was published in the Official Mexican Gazette (the “Energy Industry Law Reform”). The Energy Industry Law Reform, among other consequences, (i) strengthens CFE’s powers in Mexico’s energy sector and grants its hydropower and conventional power plants preferential grid dispatch over privately-owned plants and priority on the use of transmission and distribution infrastructure over power plants owned by private parties relegating the current position private suppliers hold in the dispatch order; (ii) changes the economic dispatch in the Electricity Market from variable production costs to total unit costs; (iii) restricts the access to the national grid and general distribution network infrastructure by establishing new discretionary rules and restrictions on open access for interconnection requests to the national grid; (iv) subjects applications for power generation permits to new requirements for meeting certain planning criteria discretionarily established by SENER; (v) changes the
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methodology to determine the granting of clean energy certificates, allowing plants built before the publication of the Electric Industry Law to issue certificates; and (vi) allows the CRE to (x) unilaterally and retroactively revoke any power generation permits granted to Grandfathered Generators, if found to have been obtained fraudulently, and (y) allows CFE to renegotiate power purchase agreements entered with independent power producers, both of which are subject to the laws and regulations that were applicable before the Mexican energy reform of 2014. Shortly thereafter, federal judges granted injunctions under constitutional challenges filed by several private generators (including the Grandfathered Generators that supply electric energy to our operations in Mexico) and other participants in the Electricity Market affected by the amendments, temporarily suspending the effects of the Energy Industry Law Reform not only with respect to the parties that filed the constitutional challenges, but also on a general basis for all participants in the Electricity Market, though SENER filed appeals to challenge such rulings. By the end of the third quarter of 2021, several injunctions granted on a general basis had been revised by Federal Circuit Courts of Appeals to limit their protective effects exclusively to private generators that filed constitutional challenges against the Energy Industry Law Reform, including the Grandfathered Generators that supply electric energy to our operations in Mexico. On April 8, 2021, a group of Senators filed an unconstitutionality claim (acción de inconstitucionalidad) (the “Unconstitutionality Claim”) against the Energy Industry Law Reform. Moreover, on April 22, 2021, COFECE filed a legal controversy claim with Mexico’s Supreme Court arguing that the Energy Industry Law Reform adversely affects the competitive nature of Mexico’s energy market. Although on April 7, 2022, the Mexican Supreme Court dismissed the Unconstitutionality Claim as it did not reach the required votes to declare the unconstitutionality of any of the contested provisions of the Energy Industry Law Reform, it laid out several arguments in its decision that could form the basis for future resolutions to ongoing constitutional challenges in favor of declaring the unconstitutionality of the different provisions of such reforms. Additionally, COFECE’s controversy was dismissed by the Mexican Supreme Court on April 18, 2022. The Mexican Supreme Court’s dismissal of the Unconstitutionality Claim and COFECE’s controversy does not revoke the injunctions granted against the enforcement of the Energy Industry Law Reform (including those granted to Grandfathered Generators that supply electric energy to our operations in Mexico), and as of December 31, 2022, some of those injunctions are still in force, thus, the Energy Industry Law Reform will remain suspended until the last of those injunctions has been revoked or all claims have been resolved in favor of its constitutionality. As of December 31, 2022, we cannot anticipate the impact that the Energy Industry Law Reform could have on our business, operations, and contractual obligations in Mexico if the contested provisions contained in the Energy Industry Law Reform are deemed constitutional in final decisions to be issued on the injunctions granted to Grandfathered Generators that supply electric energy to our operations in Mexico, nor we can anticipate the impact that such reform could have on our business, operations and contractual obligations in Mexico. However, if the Energy Industry Law Reform were to limit the dispatch of renewable energy generators or impose new costs or charges to the renewable electric energy industry, and/or cause new regulatory burdens for participants in Mexico’s Wholesale Electricity Market, we could have an adverse effect on our business, operations and contractual obligations in Mexico, and our plans to reduce the use of fossil fuels and our CO2 reduction commitments could be affected.
On May 21, 2021, SENER published in the Federal Official Gazette the “Decree by means of which several provisions of the Hydrocarbons Law are added and amended” (Decreto por el que se reforman y adicionan diversas disposiciones de la Ley de Hidrocarburos or the “Hydrocarbons Law Reform”), imposing additional burdens to private parties who carry out activities related to petroleum, petroleum derivates and natural gas, to the benefit of CFE and PEMEX, and could potentially affect end-users, such as Cemex. The Hydrocarbons Law Reform entered into force on May 5, 2021, among other things, (i) increases requirements for obtaining new permits, (ii) imposes new conditions on existing permits and (iii) imposes new grounds for revocation of permits. We have not yet determined if the Hydrocarbons Law Reform could have a material adverse impact on our results of operations, liquidity or financial condition. Although several federal judges had originally issued injunctions against the Hydrocarbons Law Reform, which prevented its application on a general basis, as of December 31, 2022, some of the decisions of the federal judges granting such injunctions have been reversed by Federal Circuit Courts of Appeals, which have lifted some of the injunctions and dismissed some constitutional challenges filed by private parties against the Hydrocarbons Law Reform. However, the legal effects of the amendments introduced by the Hydrocarbons Law Reform will continue to be suspended until Federal Circuit Courts of Appeals revoke the last of the injunctions granted on a general basis.
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On September 30, 2021, a draft bill amending several articles of the Mexican Constitution in matters concerning the legal framework for Mexico’s energy industry (the “Energy Reform Bill”) was submitted by the Mexican federal executive branch to the House of Representatives of the Mexican congress. The Energy Reform Bill aimed to completely reverse the December 2013 constitutional energy reform in matters related to the electricity sector, although it also contemplates important changes for the oil & gas and the mining sectors, such as the disappearance of the National Hydrocarbons Commission (Comisión Nacional de Hidrocarburos), the elimination of all references to state productive enterprises conducting oil & gas exploration and production activities, and the prohibition to grant concessions for the exploitation of lithium. As for the regulatory
framework concerning the electricity sector, some of the main amendments proposed by the Energy Reform Bill were: (i) the generation, conduction, transformation, distribution, and supply of electric power, including the exploitation of natural resources and assets, would return to be a strategic area of the state; (ii) CENACE would be re-integrated back into CFE and the latter would operate as a single and autonomous governmental entity taking over the current functions of CENACE, and the responsibility of operating the electric grid, and would also be exclusively in charge of preserving energy security and sufficiency, as well as the supply of electric power to all the population; (iii) the CRE would disappear and SENER would assume the former’s functions; (iv) power generation permits, together with all power purchase agreements entered into with the private sector and all pending permit applications would be cancelled as of the date on which the amendments introduced by Energy Reform Bill become effective; (v) any new permits would have to be requested before SENER; and (vi) all clean energy certificates would be cancelled. As a result of the Energy Reform Bill, the existing legal framework on the sector, including the Electric Industry Law and the Hydrocarbons Law, would have to be amended or replaced. On April 17, 2022, the House of Representatives of the Mexican Congress voted on the Energy Reform Bill, which did not reach the two-thirds qualified majority necessary for its approval and was therefore dismissed.
See “Item 5—Operating and Financial Review and Prospects—Recent Developments—Recent Developments Relating to Our Regulatory Matters and Legal Proceedings—Environmental Matters—Mexico.”
United States
Our operating subsidiaries in the United States are subject to a wide range of U.S. federal, state and local laws, regulations and ordinances dealing with the protection of human health and the environment that are strictly enforced and can lead to significant monetary penalties for noncompliance. These laws and regulations expose us to the risk of substantial environmental costs and liabilities, including liabilities associated with divested assets and past activities and, in some cases, the acts and omissions of the previous owners or operators of a property or facility. These laws regulate, among other things, water discharges, noise, and air emissions, including dust, as well as the handling, use and disposal of hazardous and non-hazardous waste materials. Certain laws also create a shared liability scheme under which parties are held responsible for the cost of cleaning up releases to the environment of designated hazardous substances. We therefore may have to conduct environmental remediation associated with the disposal or release of hazardous substances at our various operating facilities, or at sites in the United States to which we sent hazardous waste for disposal. As of December 31, 2022, we believe that our current procedures and practices for handling and managing materials are generally consistent with industry standards and legal and regulatory requirements, and also believe that we take appropriate precautions designed to protect employees and others from harmful exposure to hazardous materials.
As of December 31, 2022, Cemex, Inc. and its subsidiaries had accrued liabilities specifically relating to environmental matters in the aggregate amount of $52.6 million. The environmental matters relate to (i) the disposal of various materials, in accordance with past industry practice, that might be categorized as hazardous substances or waste and (ii) the cleanup of hazardous substances or waste at sites used or operated by Cemex, Inc. and its subsidiaries including discontinued operations, either individually or jointly with other parties. Most of these matters are in the preliminary stages, and a final resolution might take several years. For purposes of recording the provision, Cemex, Inc. and its subsidiaries consider that it is probable that a liability has been incurred and the amount of the liability is reasonably estimable, whether or not claims have been asserted, and
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without giving effect to any possible future recoveries. Based on information developed as of December 31, 2022, Cemex, Inc. does not believe it will be required to spend significant sums on these matters, in excess of the amounts previously recorded. The ultimate cost that might be incurred to resolve these environmental issues cannot be assured until all environmental studies, investigations, remediation work, and negotiations with, or litigation against, potential sources of recovery have been completed.
In 2007, the EPA launched a CAA enforcement initiative against the U.S. cement industry. The primary goal of the initiative is to assess the industry’s historic compliance with the CAA’s New Source Review program and to reduce emissions from the industry through the installation of add-on controls. We have actively engaged with the EPA on its investigations, which involved multiple of our facilities in the United States, and have entered into four settlements involving a total of $6.1 million in civil penalties and a commitment to incur certain capital expenditures for pollution control equipment at our Victorville, California; Fairborn, Ohio (divested on February 10, 2017); Lyons, Colorado; Knoxville, Tennessee; Louisville, Kentucky (divested on March 6, 2020); Demopolis, Alabama; Odessa, Texas (divested on November 18, 2016); and New Braunfels, Texas plants. Based on our past experience with such matters and currently available information, as of December 31, 2022, we believe any further proceedings should not have a material adverse impact on our results of operations, liquidity and financial condition.
In 2002, Cemex Construction Materials Florida, LLC (formerly Rinker Materials of Florida, Inc.) (“Cemex Florida”), a subsidiary of Cemex, Inc., was granted a federal quarry permit and was the beneficiary of another federal quarry permit for the Lake Belt area in South Florida. The permit held by Cemex Florida covered Cemex Florida’s SCL and FEC quarries. Cemex Florida’s Kendall Krome quarry is operated under the permit of which it was a beneficiary. The FEC quarry is the largest of Cemex Florida’s quarries measured by volume of aggregates mined and sold. Cemex Florida’s Miami cement mill is located at the SCL quarry and is supplied by that quarry, while the FEC and Kendall Krome quarries have supplied aggregates to Cemex and third-party users. In response to litigation brought by environmental groups concerning the manner in which the federal quarry permits were granted, in January 2009, the U.S. District Court for the Southern District of Florida ordered the withdrawal of the federal quarry permits for Cemex Florida’s SCL, FEC and Kendall Krome quarries. The judge ruled that there were deficiencies in the procedures and analysis undertaken by the Army Corps of Engineers (“Corps”) in connection with the issuance of the permits. Upon appeal, on January 21, 2010, the Eleventh Circuit Court of Appeals affirmed the district court’s ruling withdrawing the federal quarry permits for the three Cemex Florida quarries as well as other third-party federal quarry permits subject to the litigation. On January 29, 2010, the Corps completed a multi-year review commenced as a result of this litigation and issued a Record of Decision (“ROD”) supporting the issuance of new federal quarry permits for the FEC and SCL quarries. Excavation of new aggregates was stopped at the FEC and SCL quarries from January 20, 2009 until new permits were issued. The FEC permit was issued on February 3, 2010, and the SCL permit on February 18, 2010. Furthermore, permits to extend the areas available to mine at the FEC and SCL quarries were received on May 7, 2020 and July 22, 2020, respectively. The ROD also indicated that a number of potential environmental impacts must be addressed at the wetlands located at the Kendall Krome site before a new federal quarry permit may be issued for mining at that quarry, meaning that no new aggregates would be quarried from wetland areas at Kendall Krome pending the resolution of the potential environmental issues, with the FEC and SCL quarries continuing to operate. On November 15, 2020, the Corps determined that the wetlands at the Kendall Krome quarry are not subject to the jurisdiction of the Clean Water Act. Therefore, Clean Water Act permits will not be required to resume mining at the Kendall Krome site. If Cemex Florida is unable to maintain the new Lake Belt permits, to the extent available, Cemex Florida would need to source aggregates from other locations in Florida or import aggregates. This would likely affect operating income from our operations in Florida. As of December 31, 2022, any adverse impacts on the Florida economy arising from the cessation or significant restriction of quarrying operations in the Lake Belt area could also have a material adverse impact on our results of operations, liquidity and financial condition.
In June 2010, the EPA proposed regulating Coal Combustion Residuals (“CCRs”) generated by electric utilities and independent power producers as a hazardous or special waste under the United States Resource Conservation and Recovery Act. On December 19, 2014, the EPA issued a final rule on the regulation of CCRs.
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In the United States, we no longer use CCRs as a raw material in our cement manufacturing process, nor as a supplemental cementitious material in our ready-mix concrete products.
Our operations in the United States are subject to a number of federal and state laws and regulations addressing climate change. On the federal side, EPA has promulgated a series of regulations pertaining to emissions of GHGs from industrial sources. EPA issued the Mandatory Reporting of Greenhouse Gases Rule, effective December 29, 2009, which requires certain covered sectors, including cement manufacturing, with GHG emissions above an established threshold to inventory and report their GHG emissions annually on a facility-by-facility basis. In 2010, EPA issued a final rule that establishes GHG thresholds for the New Source Review Prevention of Significant Deterioration (“PSD”) and Title V Operating Permit programs (“Title V”). The rule “tailors” the requirements of these CAA permitting programs to limit which facilities will be required to obtain PSD and Title V permits for GHG emissions. Cement production facilities are included within the categories of facilities required to obtain permits, provided that their GHG emissions exceed the thresholds in the tailoring rule. The PSD program requires new major sources of regulated pollutants and major modifications at existing major sources to secure pre-construction permits that establish, among other things, limits on pollutants based on Best Available Control Technology (“BACT”).
According to EPA’s rules, stationary sources, such as cement manufacturing, which are already regulated under the PSD program for non-GHG pollutants, need to apply for a PSD permit for any GHG emissions increases above 75,000 tons/year of CO2 equivalent (“CO2E”). Therefore, new cement plants and existing plants undergoing modification which are major sources for non-GHG pollutants regulated under the CAA need to acquire a PSD permit for construction or modification activities that increase CO2E by 75,000 or more tons/year, and would have to determine and install BACT controls for those emissions. Furthermore, any new source that emits 100,000 tons/year of CO2E or any existing source that emits 100,000 tons/year of CO2E and undergoes modifications that would increase CO2E emissions by at least 75,000 tons/year, must comply with PSD obligations. Complying with these PSD permitting requirements can involve significant costs and delay. As of December 31, 2022, the costs of future GHG-related regulation of our facilities through these efforts or others could have a material economic impact on our U.S. operations and the U.S. cement manufacturing industry, which in turn could have a material adverse impact in our results of operations, liquidity and financial condition.
With respect to state efforts to address climate change, in 2006, the State of California adopted the Global Warming Solutions Act (“AB32”) setting into law a goal to reduce the State’s CO2 emissions to 1990 levels by 2020. As part of the measures derived from AB32, the California Air Resources Board (“CARB”) developed a cap-and-trade program, enforced from 2013, that covers most industrial sources of greenhouse gas emissions in the State, including cement production facilities. The program involves allocating a number of allowances free of charge to covered installations, which must subsequently surrender back to the regulator a number of allowances or qualified offset credits matching their verified emissions during the compliance period. Based on the free allowances received, our Victorville cement plant met all of its compliance obligations for the second compliance period (2015 to 2017) without a material impact on its operating costs; and also met all of its compliance obligations for the third compliance period (2018 to 2020) without a material impact on its operating costs. Furthermore, as of December 31, 2022, for our operations in California, we are actively pursuing initiatives to substitute fossil fuels for lower carbon fuels, improve our energy efficiency and utilize renewable power in an effort to economically reduce our direct and indirect GHG emission intensities. However, even with these ongoing efforts and the expected distribution of free allowances, as of December 31, 2022, the measures corresponding to future compliance periods of AB32, which may eventually require us to purchase emission allowances at increased prices due to their reduced availability, and the resulting overall costs of complying with a cap-and-trade program, could have an impact on our operations in California, which in turn could have an adverse impact on the results of operations, liquidity and financial condition of our operations in the U.S., and consequently on us.
In 2007, CARB approved a regulation that requires California equipment owners/operators to reduce diesel particulate and nitrogen oxide emissions from in-use off-road diesel equipment and to meet progressively more restrictive emission targets. In 2008, CARB approved a similar regulation for in-use on-road diesel equipment. The emission targets require us to retrofit our California-based equipment with diesel emission control devices or replace equipment with new engine technology in accordance with certain deadlines. As of December 31, 2022,
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compliance with the CARB regulations has resulted in equipment related expenses or capital investments, including overhauling engines and purchases of new equipment related to the CARB regulations, in excess of $104.7 million. As of December 31, 2022, we estimate that we may continue to incur substantial expenditures to comply with these requirements.
In 2019, Colorado adopted the Climate Action Plan to Reduce Pollution (House Bill 19-1261) (“CCAP”). The CCAP sets into law a goal to reduce the state’s greenhouse gas pollution levels by 25% by 2025, 50% by 2030 and 90% by 2050 compared to 2005 levels. Rulemaking to implement CCAP is now ongoing by the Colorado Department of Public Health and Environment, Air Pollution Control Division, and the resulting rules and regulations might result in the requirement for additional emissions control technology and other changes in operating processes for cement manufacturers. Further, on October 22, 2021, the Colorado Air Quality Control Commission passed the Green Gas Emissions and Energy Management for Manufacturers in Colorado rule (the “GEMM”). The GEMM became effective on December 15, 2021. The GEMM intends to reduce air pollution, save energy, and improve air quality in communities near emitting facilities. It requires specific facilities in the state that produce 50,000 tons or more in GHG emissions, including our construction materials facility in Lyons, to, among other things, prepare and submit to the Air Pollution Control Division an energy and GHG audit demonstrating that they are using GHG BACT and energy best management practices. If the audit shows a facility is using GHG BACT and energy best management practices, it will still be required to reduce its GHG emissions by 5%. On the other hand, if a facility’s audit shows it is not using such best controls to save energy and reduce GHG emissions, it will need to reduce the same amount of emission that those best controls would achieve, plus reduce an additional 5% in total GHG emissions. Additionally, in July 2021, Colorado adopted the Environmental Justice Act (House Bill 21-1266) (the “EJA”), which requires Colorado’s manufacturing sector as a whole to reduce GHG emissions 20% by 2030, based on 2015 reported emissions. The regulations to implement the EJA are expected to be addresses in a second phase of the GEMM rulemaking in 2023. As of December 31, 2022, we were working to comply with the GEMM and following developments in any new regulations proposed to implement the EJA.
Europe
General overview of EU industrial regulation
As of December 31, 2022, the EU legal system operates differently compared to federal systems. The EU legal regime, referred to as supra-national law, sits above the legal systems of the different EU member states (“Member States”), which retain their independence subject to tight oversight from EU institutions, especially the Court of Justice and the European Commission. As such, EU law operates (in its many fields of application, including industrial regulation) in order to control and authoritatively interpret the legislation and implementation of law (EU and domestic) in those Member States. One of the key manifestations of this supra-national control are the inter-related doctrines of the supremacy of EU law and of conforming interpretation. Essentially, where an area of legal control in a Member State has its origin in EU legislation, the Member States must implement or transpose the EU law fully and effectively into their domestic law and every organ of the Member State, including its regulators and its courts, must interpret (and if necessary, change) domestic law in order to conform with the objectives and the letter of the relevant EU legislation. This is of relevance to the cement sector since almost every aspect of its environmental regulation has its origins in EU legislation.
In the EU, the cement sector is subject to a range of environmental laws at EU and national Member States levels. These laws can be very broadly categorized as (1) primary and direct controls placed upon their main operational activities and (2) more general legal regimes which protect different aspects of the environment across many sectors.
The primary examples of the first kind of control are the various laws governing the specific operational activities of the sector, through stringent permitting and emissions controls, which are further explained below; examples of the second, more general, legal controls are the EU Water Framework Directive (2000/60/EC) and the EU Waste Framework Directive (2008/98/EC) which impose various obligations in relation to protection of the surface and underground water environments and the recovery, disposal and overall management of waste. In practice, even these more general laws indirectly impact our industry through permitting emissions control systems.
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EU Industrial Permits and Emissions Controls
In the EU, the primary legal environmental controls applied to cement plants are those EU Directives which control operational activities and emissions from those activities. Initially, these controls were primarily derived from two EU Directives: (1) the so-called “IPPC Directives” (as described below) and (2) the Incineration Directive (as defined below).
The primary EU legislative control over the sector (until the transition to the IED, as described below) was the Directive on Integrated Pollution Prevention and Control (2008/1/EC) (“IPPC Directive”), which updated and consolidated an earlier Directive first promulgated in 1996. Since 1996, these IPPC Directives adopted an integrated approach to regulation of various sectors of industrial plants, including cement, by taking into account and controlling/regulating the whole environmental performance of the plant.
The second earlier Directive, which was applied in direct control of cement operations (until the transition to the IED, as described below), was the EU Waste Incineration Directive (2000/76/EC) (“Incineration Directive”) which regulated those parts of the cement operation that used recovered waste materials as substitute fuels in cement kilns. Its aim was to prevent or limit, as far as practicable, negative effects on the environment, in particular pollution by emissions in air, soil, surface water and groundwater and the resulting risks to human health, from incineration and co-incineration plants.
Cement and limestone kilns as a primary or secondary source of fuel fall within the definition of “co incineration plants.” The Incineration Directive sought to achieve its aim by setting and maintaining stringent operational conditions and technical requirements, as well as emission limit values for a range of pollutants including dust, nitrogen oxides, sulfur dioxide, hydrogen chloride, heavy metals and dioxins.
On January 6, 2011, the Industrial Emissions Directive (2010/75/EU) (“IED”) came into force. The IED recasts seven pieces of previously existing legislation into a single coherent legislative instrument, including the IPPC Directives and the Incineration Directive, both of which it repeals. With some exceptions, the IED retains the essential substance of the earlier Directives and tightens some of its provisions. The IED has applied to new industrial installations since January 7, 2013 and to existing industrial installations (other than large combustion plants) since January 7, 2014.
Since the adoption of the early IPPC Directives and under the IED, operators of industrial installations, including cement plants, are required to obtain an integrated permit from the relevant permitting authority in the Member States. Under the IED, as with the IPPC Directive, these permits contain emission limit values and other conditions based on the application of a legal and technical concept called “best available techniques” (“BAT”).
The concept of BAT is central to the system, and effectively imposes a legal obligation on plant operators to use and apply the best available techniques (as they develop from time to time) in order to prevent or, where this is not practicable, minimize emissions of pollutants likely to be emitted in significant quantities from the plant to air, water or land. Emission limit values, parameters or equivalent technical measures must be based on the best available techniques, without prescribing the use of one specific technique or technology and taking into consideration the technical characteristics of the installation concerned, their geographical location and local environmental conditions. In all cases, the permit conditions must procure a high level of protection for the environment as a whole and must address energy efficiency, waste minimization, prevention of accidental emissions and site restoration. Since the IPPC Directives were in effect, to assist the permitting authorities and companies in determining the BAT, the European Commission periodically organizes exchanges of information between experts from the Member States, industry and environmental organizations. This results in the adoption and publication by the European Commission of BAT Reference Documents (“BREFs”) for the industry sectors covered by the IED. A key element of the BREFs are the conclusions on BAT (“BAT conclusions”), which are used as a reference for setting permit conditions.
However, there is an important difference regarding BREFs between the IPPC Directive and the IED. Under the IPPC Directive, the BREFs were considered as guidance only. This is not the case under the IED. Where BAT conclusions specify emission levels, permitting authorities are required to set emission limit values that do not exceed these levels. They may derogate from this requirement only where the costs associated with the
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achievement of the emission levels associated with the BAT disproportionately outweigh the environmental benefits due to the geographical location, the local environmental conditions or the technical characteristics of the installation concerned. The permitting authorities must document the reasons for the derogation from the emission limit values in the permit, including the result of the cost-benefit assessment.
In April 2013, pursuant to European Commission Decision No. 2013/163/EU, the European Commission published new BAT conclusions under the IED for production of cement, lime and magnesium oxide, together with specific emission levels. This document sets out an extensive list of technical requirements for most aspects of the cement manufacturing process in the EU, with a view to prevention and minimization of all polluting emissions.
It is a new requirement under the IED that permitting authorities must review and, if necessary, update permit conditions within four years of the European Commission publishing decisions on BAT conclusions for a particular activity. The European Commission describes review of the BREFs as a continuing process due to ongoing technological advances and so updates may be expected. As of December 31, 2022, a total of 13 BREFs of the existing 32 are being rewritten, revised, or not published for the IED. As of December 31, 2022, this has the potential to require our operations in Europe to be adapted to conform to the latest BAT, which in turn could impact our operations.
As of December 31, 2022, we believe that our operations in Member States will be impacted given the change in regulatory approach heralded by the legislation and its ongoing revision and the fact that it will be key to the permitting of the cement industry in the EU. As of December 31, 2022, we are not able to assess the degree of impact that the future BAT conclusion requirements that come into effect under the IED will have on our operations in Member States.
EU Emissions Trading
In 1997, as part of the United Nations Framework Convention on Climate Change (the “UNFCCC”), the Kyoto Protocol was adopted to limit and reduce GHG emissions. The Kyoto Protocol set legally binding emission reduction targets for 37 industrialized countries and the EU. Under the Kyoto Protocol, industrialized countries agreed to reduce their collective GHG emissions by 5% against 1990 levels over the five-year period going from 2008 to 2012. In 2012, at the United Nations Climate Change Conference in Doha, Qatar, the Doha Amendment to the Kyoto Protocol was adopted. Certain parties, including the United Kingdom and the EU, committed to reduce GHG emissions by at least 18% below 1990 levels in the eight-year period going from 2013 to 2020 (“Second Commitment Period”). To compensate for the sting of binding targets, the Kyoto Protocol allowed three “flexibility” mechanisms to be used by parties in meeting their emission limitation commitments: The Clean Development Mechanism (“CDM”), Joint Implementation (“JI”) and International Emissions Trading.
In order to be able to maintain the international climate protection process after 2020, a new climate agreement was required. Negotiations were held in the framework of the yearly UNFCCC Climate Change Conferences on measures to be taken after the Second Commitment Period would end in 2020. This resulted in the adoption of an agreement known as the Paris Agreement in 2015, which is a separate instrument under the UNFCCC rather than an amendment of the Kyoto Protocol. Under the Paris Agreement, each country must determine, plan, and regularly report on the contribution that it undertakes to mitigate global warming (“Nationally Determined Contribution” or “NDC”). The Paris Agreement sets out a global framework to avoid dangerous climate change by limiting global warming to well below 2°C and pursuing efforts to limit it to 1.5°C. The EU’s NDC under the Paris Agreement is to reduce GHG emissions by at least 55% by 2030 compared to 1990.
Initially in order to implement the Kyoto Protocol, and now to implement the Paris Agreement, the EU established an emissions trading system (“ETS”) by means of Directive 2003/87/EC. Under the ETS, a cap or
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limit is set on the total amount of CO2 emissions that can be emitted by the power plants, energy-intensive installations (including cement plants) and commercial airlines that are covered by the system. As of December 31, 2022, our operations in the European Union are subject to the binding caps on CO2 emissions imposed pursuant to the ETS. The cap is reduced over time so that the total amount of emissions will decrease.
Within the cap, companies receive free allocation or buy emission allowances. These allowances are tradable so as to enable companies that manage to reduce their emissions, below their free allocation level, to sell their excess allowances to a secondary market or directly to other companies with allowance surrender obligations. After each year, a company must surrender enough carbon allowances to cover all its emissions. In general, failure to meet the emissions reporting and surrender obligations is subject to significant monetary penalties of €100 for each ton of CO2 emitted by the installation for which the operator has not surrendered allowances, whilst also having to surrender allowances to cover the initial under surrender.
The ETS consists of four trading phases: Phase I, which lasted from January 1, 2005 to December 31, 2007, Phase II, which lasted from January 1, 2007 to December 31, 2012, Phase III, which commenced on January 1, 2013 and ended on December 31, 2020, and Phase IV, which commenced on January 1, 2021 and will last until December 31, 2030. Prior to the commencement of each of ETS Phases I and II, each Member State was responsible for publishing its National Allocation Plan (“NAPs”), a document which set out a national cap on the total amount of carbon emissions by all installations during each relevant trading phase and the methodology by which the cap would be allocated to the different sectors in the ETS and their respective installations. Each Member State’s cap contributed to an overall EU cap on emissions, where one carbon allowance had to be surrendered to account for one metric ton of carbon emitted. The carbon allowances were mostly distributed for free by each Member State to its ETS installations, although some Member States also used a fraction of their material cap for auctioning, mainly to power generators. Under ETS Phase III, however, the system of NAPs was replaced by a single EU-wide, top-down, cap on CO2 emissions, with allocation for all installations made according to harmonized EU rules and set out in each Member State’s National Implementation Measures (“NIM”). Additional restrictions were introduced on the extent to which Kyoto Protocol units could be used to offset EU carbon emissions, and auctioning, not free allocation, became the default method for distributing allowances. During Phase IV of the ETS (2021 to 2030), the EU-wide overall cap on emission allowances will be reduced by 2.2% every year from 2021, benchmarks will be updated based on recent data twice during the 2021 to 2030 period, a more dynamic allocation based on recent production shall replace the “historical activity level” and less emission allowances will be available for auction due to their allocation to the EU’s Market Stability Reserve. As of December 31, 2022, it is not possible to predict with certainty how Cemex will be affected by the reform to the ETS in Phase IV and which regulations implementing the European Union’s NDC and Green Deal (as defined below) will be approved; however, we currently expect that the aggregate amount of allowances that will be annually allocated for free to Cemex in Phase IV, due to unused surplus from previous phases, should be sufficient for our operations in Europe until at least the end of 2025. If any emission allowances would need to be purchased, such emission allowances would likely be purchased at increased prices due to their reduced availability in auctions, since they would have been allocated to the Market Stability Reserve. If emission allowances for Phase IV were to be insufficient at some point which would trigger the need to purchase emission allowances, all of this could have a material impact on our results of operations, liquidity and financial condition.
EU policymakers have traditionally seen the free allocation of allowances as a principal way to reduce the risk of carbon leakage—that is either, increased imports from countries that do not have climate change control, or the risk that energy-intensive industries, facing higher costs because of the ETS, will move their facilities beyond the EU’s borders to these countries, thus resulting in a leakage of CO2 emissions without any environmental benefits.
A list of ETS sectors deemed to be at significant risk of carbon leakage is periodically adopted by the European Commission, following agreement by Member States and the European Parliament. The main factors taken into account in determining whether a sector is at significant risk of carbon leakage include the extent to which direct and indirect costs induced by the implementation of the ETS would increase production cost,
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calculated as a proportion of the gross value added and the sector’s trade intensity with non-EU countries (imports and exports). This list has historically included the cement production sector.
Sectors classified as deemed to be at significant risk of carbon leakage continued to receive 100% of their benchmark allocation of allowances free of charge during Phase III, adjusted by a cross-sectoral correction factor applied uniformly upon all participating facilities in Europe in order to reduce the amount of free allocation that each installation received so that the total sum would not exceed the authorized EU-wide cap for free allocation. By contrast, sectors not considered at risk of carbon leakage received 80% of their benchmark allowances for free in 2013, declining to 30% by 2020. The cement industry is included in the list of sectors at significant risk of carbon leakage for Phase IV of the ETS; and therefore receives, and should continue to receive, free allocation until at least 2025. Further to this, as of December 31, 2022, the EU Parliament’s environment committee is expected to vote on the revised ETS in February 2023. If progressed, a final vote in March 2023 will pave the way for the cement industry, among others, to have their free allocation period end over a nine-year period between 2026 and 2034. A future decision to end the free allocation period for the cement industry could have a material impact on our operations and our results of operations, liquidity and financial condition.
On April 27, 2011, the European Commission adopted Decision 2011/278/EU, which stated the rules, including the benchmarks of GHG emissions performance, to be used by the Member States in calculating the number of allowances to be annually allocated for free during Phase III of the ETS to industrial sectors (such as cement) deemed to be exposed to the risk of “carbon leakage.” The number of allowances to be allocated to installations for free was based on a combination of historic activity levels at that installation and an EU benchmark of carbon efficiency for the production of a particular product—for example, clinker. An installation’s historic activity level was calculated by taking the median of its annual production levels during the baseline period, either 2005 to 2008 or, where historic activity levels were higher, 2009 to 2010. The product benchmark was based on the average carbon emissions of the top 10% most “carbon efficient” EU installations for a particular product during 2007 and 2008, where carbon efficiency is measured by carbon intensity or carbon emission per metric ton of product. Preliminary allocation calculations based on the rules were carried out by each Member State and included in a NIM table which was sent for scrutiny to the European Commission. On September 5, 2013, the European Commission adopted Decision 2013/448/EU which approved the NIMs submitted by most Member States and which set the annual cross-sectoral correction factors for Phase III of the ETS. The cross-sectoral correction figure was used to adjust the levels of product benchmarks used to calculate the free allocation of allowances to each installation. This was so the total amount handed out for free did not exceed the maximum set in the ETS Directive. Each Member State was required to adjust its national allocation table of free allowances each year and submit this for approval to the European Commission prior to issuing allowances. The application of this cross-sectoral correction factor resulted in an important decrease in the quantity of allowances that our ETS-participant operations received for free in the 2013 to 2020 period. Also, during Phase III, if the activity level of a sub-installation and thus emissions therefrom decreased below a certain threshold than the activity level used to determine free allocation, rules known as the “partial cessation rules” would apply and the level of free allocation would be decreased. While the system for free allocation during Phase IV of the ETS doesn’t differ fundamentally from that of Phase III, free allocation during Phase IV of the ETS will focus on sectors at the highest risk of relocating their production outside of the EU, a considerable number of free allowances will be set aside in the Market Stability Reserve for new and growing installations, more flexible rules in place of the “partial cessation rules” have been set to better align the level of free allocation with actual production levels, allocation to individual installations may be adjusted annually to reflect relevant increases and decreases in production, the 54 benchmark values determining the level of free allocation to each installation will be updated twice in Phase IV to avoid windfall profits and reflect technological progress since 2008, and an annual reduction rate varying from 0.2% to 1.6% will be determined for each benchmark. Furthermore, the free allowance mechanism may be affected as a result of the potential adoption of certain measures as part of the CBAM (as defined below).
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In addition to carbon allowances, up to the end of its Phase III, the ETS allowed the use or exchange of Kyoto Protocol units by companies for compliance up to a certain limit to offset their carbon emissions in the EU: the Emission Reduction Unit, representing a metric ton of carbon saved by a project under the JI mechanism, and the Certified Emission Reduction unit (“CERs”) under the CDM. As of December 31, 2022, we have registered 19 CDM projects with a total potential to, according to our estimates, reduce 2.44 million tons of CO2E emissions per year. Since July 2014, we do not verify the actual reductions, so we do not generate CERs on an annual basis since then. As of December 31, 2022, we have already used the maximum allowed number of CERs in all EU operations. Under Phase IV, Emission Reduction Units and CERs will no longer be usable or exchangeable for compliance purposes.
Despite having sold a substantial amount of allowances during Phase II of the ETS, the aggregate amount of allowances that were annually allocated for free to Cemex in Phase III of the ETS (2013 to 2020) were sufficient to operate, which lead us to also sells a significant number of allowances that had been allocated to us in Phase III. This stems from various factors, notably our efforts to reduce emissions per unit of clinker produced and the stream of offset credits coming from our internal portfolio of CDM projects. As of December 31, 2022, we are taking measures intended to minimize our exposure to the ETS, while continuing to supply our products to our customers. As of December 31, 2022, it is not possible to predict with certainty how Cemex will be affected by the ETS in Phase IV; however, we currently expect that the aggregate amount of allowances that will be annually allocated for free to Cemex in Phase IV, due to unused surplus from previous phases, should be sufficient for our operations in Europe until at least the end of 2025. If purchasing any emission allowances is needed, such emission allowances would likely be purchased at increased prices due to their reduced availability in auctions, since they would have been allocated to the Market Stability Reserve. All of this could have a material impact on our results of operations, liquidity and financial condition. Also, although the cement industry is included in the list of leakage sectors which will receive free allocation of allowances during Phase IV of the ETS, a future decision that the cement industry should no longer be regarded at a significant risk of carbon leakage or the adoption of certain measures as part of the CBAM (as defined below) could have a material impact on our operations and our results of operations, liquidity and financial condition.
Furthermore, as a result of the 2019 United Nations Climate Change Conference, also known as “COP25” held in Madrid, Spain, the EU published its “Green Deal” setting out Europe’s strategy to achieve its current NDC and carbon neutrality by 2050. Among the measures that make up the European Union’s Green Deal, the following are expected to impact our industry in the coming years: (i) implementation of a carbon border adjustment to protect from imports, which may be an obstacle for our industry to preserve free allocation; (ii) stricter enforcement of the existing legislation on energy performance of buildings; (iii) extending the ETS to the maritime sector, and possibly also to other sectors, including those related to construction; (iv) implementation of measures to address pollution from industrial activities; (v) development of a new sustainable finance strategy; and (vi) a review of regulations that cover construction products, as well as other initiatives.
On July 14, 2021, the European Commission proposed the following in relation to the measures mentioned in the paragraph above to procure the fulfillment of the goals contained in its Green Deal, among others:
(i) The implementation of the Carbon Border Adjustment Mechanism (“CBAM”), which would equalize the price of carbon between EU domestic products and imports mainly by making EU importers buy carbon certificates corresponding to the carbon price that would have been paid, had the goods been produced under the EU’s carbon pricing rules. Conversely, once a non-EU producer can show that they have already paid a price for the carbon used in the production of the imported goods in a third country, the corresponding cost can be fully deducted for the EU importer. The CBAM should help reduce the risk of carbon leakage and is expected to eventually replace the ETS free allowances granted to EU producers. The initial CBAM proposal shortlisted clinker and portland cement, among others, as goods subject to the adjustment mechanism. According to the proposal, CBAM would be introduced progressively starting in 2023, having a transitional period consisting of data collection starting January 1, 2023, to and including December 31, 2025. The proposal envisions CBAM to be fully implemented in 2026 with the beginning of its definitive stage;
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(ii) A reduction of the overall emission cap and an increase in the overall annual rate of reduction of emissions under the ETS was proposed. The proposal also intends to reduce free allowances in the ETS for sectors covered by the CBAM at the rate of 10% per year from 2026 to 2035, when they would be completely eliminated;
(iii) The incorporation of the maritime sector, building sector relating to heating in buildings with outdated systems that use polluting fossil fuels, and road transport into the ETS;
(iv) The implementation of a separate emissions trading system for fuel distribution for road transport and buildings;
(v) The increase in the size of the EU’s Innovation and Modernization Funds, which are currently expected to be funded by the revenues from auctioning 450 million allowances from 2020 to 2030. If approved, this could potentially increase the amount of allowances to be auctioned, therefore reducing the price for such allowances; and
(vi) An increase in its target to produce the EU’s energy from renewable sources by 2030 from 32% to 40% of the total energy production.
As of December 31, 2022, none of the proposals described above has been approved, as they were still subject to consultation throughout the second half of 2022. As a result, as of December 31, 2022, we are not able to foresee the final form of these proposals or any future proposals to achieve the goals of the Green Deal; and, consequently, we are not able to assess if their approval and implementation would have a material adverse impact on our results of operations, liquidity, and financial condition.
As of January 1, 2021, an independent emissions trading system in the United Kingdom (the “UK ETS”) replaced the ETS in the United Kingdom. The United Kingdom has already issued regulations establishing the structure of the UK ETS, including a cap on emissions each year to 2030. With some exceptions, the UK ETS is similar to the ETS and provides continuity after the transition from the ETS. Among these exceptions are the following: (i) a tighter annual cap than under the ETS, at 5% below the Phase IV ETS cap; and (ii) greater fines to apply, as a charge of £100 would be imposed for each ton of emissions not covered by allowances, which is higher than the €100 fine under the ETS. The United Kingdom cap is set to be revised in 2024 to fully align with a net-zero trajectory. As of December 31, 2022, although the UK ETS provides continuity after the transition from the ETS, it is not possible to predict with certainty how Cemex will be affected by the UK ETS. As in Phase IV of the ETS and given the expected tighter caps and expected revision in 2024, the aggregate amount of allowances allocated to Cemex under the UK ETS could not be sufficient for our operations in the UK, and, therefore, Cemex could require to purchase emission allowances at some point in time. It could be necessary to purchase these emission allowances at increased prices due to potential insufficient liquidity and increased price volatility in the UK ETS compared to the ETS. All of this could have a material impact on our results of operations, liquidity and financial condition.
In furtherance of the Paris Agreement, countries are invited to deliver new NDCs every five years. During COP25, 41 countries, including the EU, representing 10.1% of global emissions committed to update their respective NDC during 2020. Furthermore, 80 countries signaled their intention to enhance ambition or action in an NDC by 2020, representing 10.5% of global emissions. Where satisfied, the aforementioned commitments and intentions were satisfied to varying degrees. All countries where Cemex has operations, except for the Mexico and the Philippines updated and/or enhanced their 2030 NDC targets during COP26 held in Glasgow in November 2021. In addition, more than 130 countries have now set or are considering a target of reducing emission to reaching carbon zero by 2050. As of December 31, 2022, it is uncertain if the delivery of new NDCs or these enhanced action plans for carbon reduction will lead to the implementation of any further regulations, and if any such implementation would have a material adverse impact on our results of operations, liquidity and financial condition.
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EU Taxonomy
Further to the European Union’s climate and energy targets and to reach the objectives of its Green Deal, the European Union has sought to establish a framework to facilitate sustainable development under a classification system that sets out a list of environmentally sustainable economic activities, which was published on March 9, 2020 (the “EU Taxonomy”) and Regulation (EU) 2020/852 (the “EU Taxonomy Regulation”), which was published in the Official Journal of the European Union on June 22, 2020 and entered into force on July 12, 2020. The EU Taxonomy Regulation established six environmental objectives: i) climate change mitigation, ii) climate change adaption, iii) sustainable use and protection of water and marine resources, iv) transition to a circular economy, v) pollution and prevention and control, and vi) protection and restoration of biodiversity and ecosystems.
Key provisions of the EU Taxonomy Regulation have been developed and adopted by delegated acts. A first delegated act on sustainable activities for climate change adaptation and mitigation was published in the Official Journal of the European Union on December 9, 2021 and entered into force on January 1, 2022 (the “EU Taxonomy Climate Delegated Act”). A second delegated act specifying the content and presentation of information to be disclosed by companies subject to Article 19a or 29a of Directive 2013/34/EU concerning environmentally sustainable economic activities was published in the Official Journal of the European Union on December 15, 2021 and also entered into force on January 1, 2022. A third delegated act on climate change mitigation and adaptation covering certain gas and nuclear activities was published in the Official Journal of the European Union on July 15, 2022 and entered into force on January 1, 2023 (the “Complementary Climate Delegated Act” and, together with the EU Taxonomy Climate Delegated Act, the “Climate Delegated Acts”).
As of December 31, 2022, only two of the six environmental objectives of the EU Taxonomy Regulation have been addressed by the Climate Delegated Acts. Further guidance on the remaining objectives of the EU Taxonomy Regulation and other related developments are expected to be issued during 2023 and 2024.
UK Taxonomy
Following the United Kingdom’s exit from the European Union Single Market and Customs Union in early 2021, the UK government is consulting on the adoption of a framework to facilitate sustainable development, which will be based on the EU Taxonomy Regulation to the extent that it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “UK Green Taxonomy”). The Green Technical Advisory Group is advising on the UK Green Taxonomy and the final report is yet to be published. In addition to imposing certain reporting obligations, the classification of a company’s activities under the UK Green Taxonomy could, among other things, influence a company’s ability to access funds for certain projects, the financial markets or financial products.
Great Britain Landfills
In Great Britain, future expenditure on closed and current landfill sites has been assessed and quantified over the period in which the sites are considered to have the potential to cause environmental harm, generally consistent with the regulatory view of up to 60 years from the date of closure. The assessed expenditure relates to the costs of monitoring the sites and the installation, repair and renewal of environmental infrastructure. The costs have been quantified on a net present value basis in the amount of £171,945,924.34 million ($208 million as of December 31, 2022, based on an exchange rate of £.8264 to $1.00) as of December 31, 2022, and we made an accounting provision for this amount.
Philippines Environmental Class Action
On September 20, 2018, a landslide occurred in Sitio Sindulan, Barangay Tina-an, Naga City, Cebu, Philippines (the “Landslide”), a site located within an area covered by mining rights of ALQC.
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We are an indirect minority shareholder in ALQC, the principal raw material supplier of one of our subsidiaries in the Philippines, APO.
On November 19, 2018, CHP and APO were served summons concerning an environmental class action lawsuit filed by 40 individuals and one legal entity (on behalf of 8,000 individuals allegedly affected by the Landslide) at the Regional Trial Court of Talisay, Cebu (the “Cebu Court”), against CHP, ALQC, APO, the Mines and Geosciences Bureau of the Department of Environment and Natural Resources, the City Government of Naga, and the Province of Cebu, for “Restitution of Damage of the Natural and Human Environment, Application for the Issuance of Environmental Protection Order against Quarry Operations in Cebu Island with Prayer for Temporary Protection Order, Writ of Continuing Mandamus for Determination of the Carrying Capacity of Cebu Island and Rehabilitation and Restoration of the Damaged Ecosystems.”
In the complaint, among other allegations, plaintiffs claim that the Landslide occurred as a result of the defendants’ gross negligence; and seek, among other relief, (i) monetary damages in the amount of 4.3 billion Philippine Pesos ($77.23 million as of December 31, 2022, based on an exchange rate of 55.67 Philippine Pesos to $1.00), (ii) the establishment of a 500 million Philippine Pesos ($8.98 million as of December 31, 2022, based on an exchange rate of 55.67 Philippine Pesos to $1.00) rehabilitation fund, and (iii) the issuance of a Temporary Environment Protection Order (“TEPO”) against ALQC aiming to prevent ALQC from performing further quarrying activities while the case is still pending.
As of December 31, 2022, among other defenses and based on a report by the Mines and Geosciences Bureau of the Department of Environment and Natural Resources, CHP, APO and ALQC (individually, each a “Private Defendant” and collectively, the “Private Defendants”) deny liability and hold the position that the Landslide occurred due to natural causes.
In an order dated August 16, 2019, the Cebu Court denied plaintiffs’ Application for a TEPO. Plaintiffs moved for reconsideration, but the Cebu Court also denied plaintiffs’ motion in an order dated September 30, 2019. Plaintiffs did not appeal this ruling, which became final as of December 5, 2020.
Likewise, in a separate order also dated September 30, 2019, the Cebu Court partially granted the affirmative defenses raised by Private Defendants in their respective answers, and ruled, among others, that the subject case against CHP and APO is dismissed for failure to state a cause of action. The Cebu Court also ruled that: (i) the 22 plaintiffs who failed to sign the verification and certification against forum shopping are dropped as party-plaintiffs; (ii) the subject case is not a proper class suit, and that the remaining 17 plaintiffs can only sue for their respective claims, but not as representatives of the more than 8,000 alleged victims of the landslide incident; (iii) plaintiffs’ cause of action against ALQC for violation of Section 19(a) of Republic Act No. 10121 is dismissed; (iv) there is a misjoinder of causes of action between the environmental suit and the damage suit; and (v) the damage suit of the remaining plaintiffs will proceed separately upon payment of the required docket fees within 30 days from receipt of order, otherwise, the case for damages will be dismissed. A motion for reconsideration was filed on November 26, 2019 by the plaintiffs. During the hearing of the plaintiff’s motion for reconsideration on September 11, 2020, the Province of Cebu was officially dropped as a defendant in the case. In another order dated November 17, 2021, the Cebu Court denied the plaintiff’s motion for reconsideration and also granted the motions of the Mines and Geosciences Bureau and the City Government of Naga, dismissing the case against them. On January 31, 2022, the plaintiffs appealed the Cebu Court’s latest order with the Court of Appeals. Defendants (including government defendants) opposed the plaintiff’s appeal, and, on April 28, 2022, the Court of Appeals rejected the plaintiff’s appeal and instructed the entry of judgment to issue the corresponding certificate of finality. As of December 31, 2022, the plaintiff has not filed a motion for reconsideration, and if the plaintiff fails to file a motion for reconsideration, the decision will become final, and the case would be closed. As of December 31, 2022, only ALQC remains as a private defendant of the case.
If the plaintiff files a motion for reconsideration and such motion is granted by the competent court, allowing the plaintiff’s appeal to proceed, and the other of September 30, 2019 is later on reversed on appeal by
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the Court of Appeals of the Philippines, and a final adverse resolution is issued in this matter after trial, plaintiffs will have the option to proceed against any one of ALQC, APO or CHP for satisfaction of the entirety of the potential judgment award, without the need to proceed against any other Private Defendant beforehand. Thus, ALQC’s, APO’s or CHP’s assets alone could be exposed to execution proceedings. As of December 31, 2022, at this stage of the overall proceedings and considering all possible defenses that could be available, while we cannot assess with certainty the likelihood of an adverse result in the overall proceedings, we believe a final adverse resolution in the overall proceeding is not probable, and, additionally, because we are not able to assess the outcome of the appeal filed by the plaintiffs to challenge the Cebu Court’s order of September 30, 2019, we are not able to determine if a final adverse resolution, if any, would have a material adverse impact on the Company’s consolidated results of operations, liquidity and financial condition.
See “Item 5—Operating and Financial Review and Prospects—Recent Developments—Recent Developments Relating to Our Regulatory Matters and Legal Proceedings—Environmental Matters—Philippines Environmental Class Action.”
Tariffs
The following is a discussion of tariffs on imported cement in some of the countries and regions in which we operate.
Mexico
Mexican tariffs on imported goods vary by product and have historically been as high as 100%. Over the years, import tariffs have been substantially reduced and currently range from none at all for raw materials to over 20% for finished products. As a result of North American Free Trade Agreement (“NAFTA”), starting January 1, 1998, the tariff on cement imported into Mexico from the United States or Canada was eliminated. A new agreement signed on November 30, 2019, called the United States-Mexico-Canada Agreement (“USMCA”), and which supersedes NAFTA, entered into force on July 1, 2020. The USMCA does not have any impact on tariffs on cement imported from the United States or Canada into Mexico.
While the lack of existence or reduction in tariffs could lead to increased competition from imports in the markets in Mexico in which we operate, it is possible that other factors, such as the cost of transportation incurred from most producers outside Mexico to central Mexico, traditionally the region of highest demand in Mexico, could be seen as a barrier to enter certain of the regions in Mexico in which we operate.
United States
In general, and aside from any other restrictions or prohibitions, as of December 31, 2022, any cement imported into the United States from Cuba and North Korea is subject to custom duties depending on the specific type of cement. Imports into the United States from Cuba and North Korea are generally prohibited due to the U.S. import/export controls and economic sanctions. In order to import cement and other products into the United States from Cuba or North Korea, an importer would be required to obtain a license from the U.S. government or otherwise establish the existence of a license exception.
On September 18, 2018, the United States Trade Representative released a list of $200 billion worth of Chinese imports that were to be subject to additional tariffs. This list included cement, clinker, slag cement, and granulated slag from the manufacture of iron or steel. These additional tariffs were effective starting September 24, 2018 and initially were in the amount of 10%. The U.S. was expected to increase the additional tariffs to 25% starting January 1, 2019, but this increase was postponed for 90 days starting on December 1, 2018, to allow time for the United States and China to negotiate their trade disputes. Accordingly, absent a resolution of the trade disputes, the rate of additional duty for the products covered by the September 2018 tariff action increased to 25% on May 10, 2019. On August 23, 2019, the United States announced that the current
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25% import tariff would be increased to 30% by October 1, 2019. On September 11, 2019, the United States announced that implementation of this increase would be delayed to October 15, 2019, however, the implementation of this increase has not yet occurred as of December 31, 2022, and the tariff remains at 25%.
Also, as of December 31, 2022, cement imports from countries other than Cuba, China and North Korea into the United States are currently duty free, however, certain individuals and entities on U.S. government lists of specially designated nationals and prohibited parties, may be subject to U.S. import/export controls and other sanctions that prohibit transactions (including import transactions) with such persons without a license.
Europe
Member countries of the EU are subject to the uniform EU commercial policy. There is no tariff on cement imported into a country that is a member of the EU from another member country or on cement exported from an EU country to another member country. As of December 31, 2022, for cement imported into a member country from a non-member country, the tariff was 1.7% of the customs value. Any country with preferential treatment with the EU is subject to the same tariffs as members of the EU. Most Eastern European producers exporting cement into EU countries currently pay no tariff.
United Kingdom
Following the United Kingdom’s exit from the European Union Single Market and Customs Union in early 2021, the United Kingdom is no longer required to abide by the European Union’s Common External Tariff and has introduced its own U.K. Global Tariff (“UKGT”) schedule, which determines duties and tariffs on goods on a “Most Favoured Nation” basis in line with World Trade Organization principles. Pursuant to the UKGT, tariffs of 1.7% to 2.7% have been removed on over 40 construction products, including portland cement, marble, granite, various other types of building stone and plaster boards.
The United Kingdom has also entered into a trade agreement with the European Union, known as the EU UK Trade and Cooperation Agreement, which provides for continued trade without the imposition of tariffs and quotas.
Asia
On August 27, 2019, the Department of Trade and Industry (“DTI”) of the Republic of the Philippines imposed a general safeguard measure on imported cement from various countries (Department Administrative Order 19-13 (“DAO”), Series of 2019) for a period of three years (October 2019 to October 2022). On December 5, 2020, this safeguard was updated in order to make cement imports of cement types 2523.29.90 and 2523.90.00 under ASEAN Harmonized Tariff Nomenclature from major exporting markets of China, Japan, Taiwan, Thailand and Vietnam, subject to a general safeguard duty of 245 Philippine Pesos per metric ton for the second year (i.e., from October 22, 2020 to October 21, 2021) of the aforementioned three-year period. On March 3, 2021, the DTI amended the DAO on cement safeguards, specifically removing certain countries from the list of developing countries and separate customs territories which are exempted from the safeguard measure that meet the de-minimis level of import volume share (less than 3%) to total cement importation. The countries that are no longer excluded from the imposition of the safeguard duty are Chile, Israel, Slovenia, Slovakia, Poland, Lithuania, Latvia, Hungary, Estonia, Czech Republic, Republic of Korea, and Indonesia. The general safeguard duty imposed under the DAO on cement safeguards for the final year of the aforementioned three-year period, which expired on October 20, 2022 was 200 Philippine Pesos per metric ton. The duty amount remains subject to regular review by the DTI.
Tax Matters
United States
As of December 31, 2022, the United States Internal Revenue Service (“IRS”) has concluded its audits for the years 2014 through 2018. The final findings did not alter the originally filed Cemex returns in the United
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States, which had no reserves set aside for any potential tax issues. On February 14, 2019, the IRS commenced its audits of the 2019 tax year under the compliance assurance process. As of December 31, 2022, we have not identified any material audit issues and, as such, no reserves are recorded for the 2019 tax year audit in our financial statements.
Colombia
On April 6, 2018, the Colombian Tax Authority (Dirección de Impuestos y Aduanas Nacionales) (“DIAN”) notified Cemex Colombia of a proceeding notice in which the DIAN rejected certain deductions taken by Cemex Colombia in its 2012 year-end income tax return. The DIAN assessed an increase in taxes to be paid by Cemex Colombia in the amount of 124.79 billion Colombian Pesos ($25.77 million as of December 31, 2022, based on an exchange rate of 4,842.19 Colombian Pesos to $1.00) and imposed a penalty in the amount of 124.79 billion Colombian Pesos ($25.77 million as of December 31, 2022, based on an exchange rate of 4,842.19 Colombian Pesos to $1.00). On June 22, 2018, Cemex Colombia responded to the proceeding notice; and, on December 28, 2018, Cemex Colombia was notified of the issuance of an official liquidation confirming the information in the proceeding notice. Cemex Colombia filed an appeal for reconsideration on February 21, 2019 within the legal term. On January 8, 2020, Cemex Colombia was notified that the DIAN had, in response to the appeal filed by Cemex Colombia, confirmed the DIAN’s assessment that Cemex Colombia is required to pay increased taxes and corresponding penalties, as previously notified on April 6, 2018. Cemex Colombia had four months to appeal this resolution in the corresponding administrative courts in Colombia; however, the terms for administrative and judicial proceedings were suspended as a result of the government’s measures in connection with the COVID-19 pandemic. On July 1, 2020, Cemex Colombia filed an appeal against the aforementioned resolution in the Administrative Court of Cundinamarca. The Administrative Court of Cundinamarca admitted the appeal on September 20, 2021. No amounts are required to be paid by Cemex Colombia until all available recourses have been filed and concluded. Additionally, on March 10, 2020, the DIAN issued a complementary administrative act “statement of objections” (pliego de cargos), in which the authority claims the payment of the credit balance that was originated in the tax declaration of the aforementioned year and that was offset by Cemex Colombia with taxes from subsequent years.
Cemex Colombia filed its response on June 2, 2020. On October 25, 2021, the DIAN issued a resolution in relation to the statement of objections confirming the imposed penalty due to inadmissible compensation. The aforementioned penalty comprises 56.82 billion Colombian Pesos ($11.74 million as of December 31, 2022, based on an exchange rate of 4,842.19 Colombian Pesos to $1.00) of the 124.79 billion Colombian Pesos ($25.77 million as of December 31, 2022, based on an exchange rate of 4,842.19 Colombian Pesos to $1.00) increase in taxes to be paid by Cemex Colombia assessed in 2018. Cemex Colombia filed the appeal before the Administrative Court of Cundinamarca on December 16, 2021. The Administrative Court of Cundinamarca has not responded to the filed appeal and it is estimated that the appeal procedure will last at least 2 years. Notwithstanding this resolution, as of December 31, 2022, Cemex considers that an adverse resolution after conclusion of all available defense procedures is not probable. However, it is difficult to assess with certainty the likelihood of an adverse result in the proceeding. If this proceeding is adversely resolved, Cemex believes this could have a material adverse impact on the operating results, liquidity, or financial position of Cemex.
On September 5, 2018, the DIAN notified Cemex Colombia of a proceeding notice in which the DIAN rejected certain deductions taken by Cemex Colombia in its 2011 year-end income tax return. The DIAN assessed an increase in taxes to be paid by Cemex Colombia in the amount of 85.17 billion Colombian Pesos ($17.59 million as of December 31, 2022, based on an exchange rate of 4,842.19 Colombian Pesos to $1.00) and imposed a penalty in the amount of 85.17 billion Colombian Pesos ($17.59 million as of December 31, 2022, based on an exchange rate of 4,842.19 Colombian Pesos to $1.00). On November 30, 2018, Cemex Colombia responded to the proceeding notice. On May 15, 2019, Cemex Colombia was notified of the issuance of a tax assessment maintaining the initial rejection of the deductions taken by Cemex Colombia in its 2011 year-end income tax return. Cemex Colombia filed an appeal on July 11, 2019. On July 6, 2020, Cemex Colombia was
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notified about a resolution confirming the official liquidation. On October 22, 2020, Cemex Colombia filed an appeal against such resolution in the Administrative Court of Cundinamarca. If a final adverse resolution to Cemex Colombia is reached in this matter, in addition to any amounts to be paid in confirmation of the official liquidation, Cemex Colombia would, as of the payment date, be required to pay interest on the amounts that would be declared due as of the dates they would have had to be paid. The Administrative Court of Cundinamarca admitted the appeal on September 13, 2021. Furthermore, on June 8, 2020, the DIAN issued a complementary administrative act statement of objections, in which the authority claims the payment of the credit balance that was originated in the tax declaration of the aforementioned year and that was offset by Cemex Colombia with taxes from subsequent years. On December 17, 2020, Cemex Colombia announced that the DIAN had archived such statement of objections, which means the DIAN issued an administrative act by which it closed the complementary statement of charges that had been issued within the income tax process for the fiscal year 2011 earlier in 2020. With the aforementioned administrative act, the complementary procedure within the income tax process for the fiscal year 2011 is concluded, since the amount claimed by the DIAN as credit balance under the 2011 year-end income tax return was included within the complementary process for the fiscal year 2012. As of December 31, 2022, the procedure relating to Cemex Colombia’s 2011 year-end income tax return is not yet resolved and at this stage of the proceeding and considering all possible defenses available, while we cannot assess with certainty the likelihood of an adverse result in this special proceeding, we believe a final adverse resolution to this special proceeding is not probable. However, if adversely resolved, we believe such adverse resolution could have a material adverse impact on our results of operations, liquidity and financial condition.
Spain
Tax Assessment for the years 2006 to 2009
On July 7, 2011, the tax authorities in Spain notified Cemex España of a tax audit process in Spain covering the tax years from and including 2006 to 2009. The tax authorities in Spain have challenged part of the tax losses reported by Cemex España for such years. Cemex España has been formally notified of fines in the aggregate amount of €456 million ($489 million as of December 31, 2022, based on an exchange rate of €0.9325 to $1.00) resulting from the July 7, 2011 tax audit process in Spain. The laws of Spain provide a number of appeals that can be filed against such fines without Cemex España having to make any payment until such appeals are finally resolved. On April 22, 2014, Cemex España filed appeals against such fines before the Tribunal Económico Administrativo Central (“TEAC”) of the Spanish tax authorities. On September 20, 2017, Cemex España was notified by the TEAC about an adverse resolution to such appeals. Cemex España filed a recourse against such resolution on November 6, 2017 before the National Court (Audiencia Nacional) and applied for the suspension of the payment of the fines. The National Court admitted the recourse; and, on January 31, 2018, it notified Cemex España of the granting of the suspension of the payment, subject to the provision of guarantees on or before April 2, 2018. In this regard, Cemex España provided the respective guarantees in the form of a combination of a liability insurance policy and a mortgage of several assets in Spain owned by its Spanish subsidiary Cemex España Operaciones, S.L.U. On November 6, 2018, the National Court confirmed the acceptance of the guarantees by the Spanish Tax Office, which suspends the obligation to effect the payment until the recourses are definitively resolved. On November 30, 2021, the National Court issued a judgment rejecting the appeal filed by Cemex España against the resolution of the TEAC, confirming the imposed fines. This adverse judgment was notified to Cemex España on November 30, 2021. On February 25, 2022, Cemex España filed with the Spanish Supreme Court a cassation appeal against the judgment issued by the National Court. On October 13, 2022, the Spanish Supreme Court determined not to admit the cassation appeal. Cemex España subsequently filed an appeal for the annulment of this determination. The appeal for the annulment of the Spanish Supreme Court’s decision was admitted in December 2022 and Cemex España currently awaits a decision on the appeal.
As of December 31, 2022, at this stage of the matter and considering all possible defenses available, while we cannot assess with certainty the likelihood of an adverse result in this matter, we believe a final adverse resolution to this matter is not probable. However, if adversely resolved, we believe such adverse resolution could have a material adverse impact on our results of operations, liquidity and financial condition.
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See “Item 5—Operating and Financial Review and Prospects—Recent Developments—Recent Developments Relating to Our Regulatory Matters and Legal Proceedings—Tax Matters—Spain—Tax Assessment for the years 2006 to 2009.”
Tax Assessment for the years 2010 to 2014
On March 26, 2021, the tax authorities in Spain notified Cemex España of an assessment for income taxes in an amount of €48 million ($51.47 million as of December 31, 2022, based on an exchange rate of €0.9325 to $1.00) plus late interest, derived from a tax audit process covering the tax years 2010 to 2014. This assessment was appealed before the TEAC on April 26, 2021. In order for the suspension of the payment of the tax assessment to be granted, Cemex España provided a payment guarantee which was approved by the Spanish tax authorities on May 12, 2021.
On November 30, 2021, the tax authorities in Spain notified Cemex España of a penalty for an amount of €68 million ($72.92 million as of December 31, 2022, based on an exchange rate of €0.9325 to $1.00) derived from the tax audit process covering the same period from 2010 to 2014. This assessment was appealed before the TEAC on December 31, 2021. Until this appeal is resolved, no payment will be due and Cemex España is not required to furnish a guarantee for the filing of the appeal.
As of December 31, 2022, at this stage of the matter and considering all possible defenses available, while we cannot assess with certainty the likelihood of an adverse result in this matter, we believe a final adverse resolution to this matter is not probable. However, if adversely resolved, we believe such adverse resolution should not have a material adverse impact on our results of operations, liquidity and financial condition.
Other Legal Proceedings
Colombian Construction Claims
On August 5, 2005, the Urban Development Institute (Instituto de Desarrollo Urbano) (“UDI”), and an individual filed a lawsuit in the Fourth Anti-Corruption Court of Bogotá (Fiscalía Cuarta Anticorrupción de Bogotá) against a subsidiary of Cemex Colombia claiming that it was liable, along with the other members of the Asociación Colombiana de Productores de Concreto (“ASOCRETO”), an association formed by the ready-mix concrete producers in Colombia, for the premature distress of the concrete slabs of the Autopista Norte trunk line of the TransMilenio bus rapid transit system of Bogotá in which ready-mix concrete and flowable fill supplied by Cemex Colombia and other ASOCRETO members was used. The plaintiffs alleged that the base material supplied for the road construction failed to meet the quality standards offered by Cemex Colombia and the other ASOCRETO members and/or that they provided insufficient or inaccurate information in connection with the product. The plaintiffs were seeking the repair of the concrete slabs in a manner which guarantees their service during the 20-year period for which they were originally designed, and estimate that the cost of such repair could have been 100 billion Colombian Pesos ($20.65 million as of December 31, 2022, based on an exchange rate of 4,842.19 Colombian Pesos to $1.00). The lawsuit was filed within the context of a criminal investigation against a former director and two officers of the UDI, the contractor, the inspector and two ASOCRETO officers. On January 21, 2008, a court issued an order, sequestering the El Tunjuelo quarry, as security for payment of a possible future money judgment against Cemex Colombia. The court determined that in order to lift this attachment and prevent further attachments, Cemex Colombia was required to deposit 337.8 billion Colombian Pesos ($69.76 million as of December 31, 2022, based on an exchange rate of 4,842.19 Colombian Pesos to $1.00) in cash instead of posting an insurance policy to secure such recovery. Cemex Colombia appealed this decision and the Superior Court of Bogotá (Tribunal Superior de Bogotá) allowed Cemex to present an insurance policy in the amount of 20 billion Colombian Pesos ($4.13 million as of December 31, 2022, based on an exchange rate of 4,842.19 Colombian Pesos to $1.00). Cemex gave the aforementioned security, and, on July 27, 2009, the court lifted the attachment on the quarry.
On October 10, 2012 the court issued a first instance judgment pursuant to which the accusation made against the ASOCRETO officers was nullified. The judgment also convicted a former UDI director, the
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contractor’s legal representatives and the inspector to a prison term of 85 months and a fine of 32 million Colombian Pesos ($6,608.58 as of December 31, 2022, based on an exchange rate of 4,842.19 Colombian Pesos to $1.00). As a consequence, of the nullification, the judge ordered a restart of the proceeding against the ASOCRETO officers. The UDI and other parties to the legal proceeding appealed the first instance judgment and on August 30, 2013 the Superior Court of Bogotá resolved to reduce the prison term imposed to the former UDI director and the UDI officers to 60 months and imposed a fine equivalent to 8.8 million Colombian Pesos ($1,817.36 as of December 31, 2022, based on an exchange rate of 4,842.19 Colombian Pesos to $1.00). Additionally, the UDI officers were sentenced to severally pay the amount of 108 billion Colombian Pesos ($22.30 million as of December 31, 2022, based on an exchange rate of 4,842.19 Colombian Pesos to $1.00) for the purported damages in the concrete slabs of the TransMilenio bus rapid transit system. Additionally, the Superior Court of Bogotá overturned the penalty imposed to the contractor’s legal representatives and inspector because the criminal action against them was barred due to the passage of time. Furthermore, the Superior Court of Bogotá revoked the annulment in favor of the ASOCRETO officers and ordered the first instance judge to render a judgment regarding the ASOCRETO officers’ liability or lack thereof. On June 25, 2014, the Supreme Court of Colombia’s Penal Cassation Chamber (Sala de Casación Penal de la Corte Suprema de Justicia de Colombia) dismissed the cassation claim filed by the former UDI director and the UDI officers against the Superior Court of Bogotá’s judgment. Dismissal of the cassation claim has no effect on Cemex Colombia’s or the ASOCRETO officers’ interests in these proceedings. On January 21, 2015, the Penal Circuit Court of Bogotá issued a resolution agreeing with the arguments presented by Cemex Colombia regarding the application of the statute of limitations to the criminal investigation against the ASOCRETO officers and acknowledging that the ASOCRETO officers were not public officers, and as a consequence, finalizing the process against the ASOCRETO officers and the civil responsibility claim against Cemex Colombia. On July 28, 2015, the Superior Court of Bogotá upheld this resolution and as such the action brought against Cemex Colombia for the premature distress of the concrete slabs of the Autopista Norte trunk line has ended.
Related to the premature distress of the concrete slabs of the Autopista Norte trunk line of the TransMilenio bus rapid transit system six legal actions were brought against Cemex Colombia. The Cundinamarca Administrative Court (Tribunal Administrativo de Cundinamarca) nullified five of these actions and, as of December 31, 2022, only one remains outstanding. On June 17, 2019, an administrative court, in the first instance, ruled against Cemex Colombia and other concrete producers, because the judge found that there was a violation of consumer rights, for alleged faults in the roads. Consequently, the judge ordered Cemex Colombia to issue a public statement acknowledging the alleged violation and a commit to not incur such violation in the future. This first instance decision did not contemplate any economic consequence for Cemex Colombia. Cemex Colombia jointly with thirteen of the defendants filed an appeal before the Administrative Tribunal of Cundinamarca. At this stage of the proceedings, as of December 31, 2022, regarding the remaining pending action filed before the Cundinamarca Administrative Court, if adversely resolved, we do not expect that such adverse resolution should have a material adverse impact on our results of operations, liquidity and financial condition.
Egypt Share Purchase Agreement
On April 7, 2011 and March 6, 2012, lawsuits seeking, among other things, the annulment of the share purchase agreement entered into by and between Cemex and state-owned Metallurgical Industries Company (the “Holding Company”) in November 1999 pursuant to which Cemex acquired a controlling interest in ACC (the “Share Purchase Agreement”), were filed by different plaintiffs, including 25 former employees of ACC, before the 7th and 8th Circuits of Cairo’s State Council Administrative Judiciary Court, respectively. In the 8th Circuit of Cairo’s State Council Administrative Judiciary Court’s session held on January 26, 2016, a ruling was issued for the dismissal of this case considering the plaintiff’s lack of standing. The plaintiff did not challenge this ruling; and, accordingly this ruling is final and definitive. At a session held on September 3, 2015, the 7th Circuit of Cairo’s State Council Administrative Judiciary Court ruled for staying the proceedings until the High Constitutional Court pronounces itself with regards to the challenges against the constitutionality of the Presidential Decree on Law 32 of 2014 (“Law 32/2014”). As of December 31, 2022, at this stage of the
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proceedings, we believe that the likelihood of an adverse result in this matter is not probable as we are not able to assess the likelihood of an adverse resolution regarding this lawsuit filed before the 7th Circuit of Cairo’s State Council Administrative Judiciary Court, but if adversely resolved, we do not believe the resolution in the first instance would have an immediate material adverse impact on our results of operations, liquidity and financial condition as there are different legal recourses that we could take. However, if we exhaust all legal recourses available to us, a final adverse resolution of this matter could have a material adverse impact on our operations, liquidity and financial condition.
Regarding a different lawsuit submitted to a First Instance Court in Assiut, Egypt and notified to ACC on May 23, 2011 (court case no. 670/2011), on September 13, 2012, the first instance court of Assiut, Egypt issued a judgment (the “First Instance Judgment”) to (i) annul the Share Purchase Agreement; and (ii) reinstate former employees to their former jobs at ACC. On October 18, 2012, ACC filed an appeal (appeal no. 1197/87) against the First Instance Judgment, which was followed by the Holding Company’s appeal filed on October 20, 2012 (appeal no. 1200/87) before the Appeal Court in Assiut, Egypt (the “Appeal Court”). At a November 17, 2013 hearing, the Appeal Court decided to join the appeals filed by ACC and the Holding Company and adjourned the session to January 20, 2014 to render judgment. On January 20, 2014, the Appeal Court issued a judgment (the “Appeal Judgment”) accepting both appeals, revoking the First Instance Judgment, ruling for non-qualitative jurisdiction of the first instance court to review the case and referred the matter to the administrative court in Assiut, Egypt (the “Assiut Administrative Court”) (registered at Assiut Administrative Court under case no. 11842/41).
On March 12, 2014, ACC filed a challenge before the Cassation Court against the Appeal Judgment invoking economic court’s jurisdiction and requested suspension of the Appeal Judgment execution until the Cassation Court renders its judgment (the “Cassation Challenge”). A hearing was held on April 12, 2016 in order to review the request to stay the execution the Appeal Judgment regarding the referral of the case to the Assiut Administrative Court. At this hearing, the Cassation Court rejected the summary request. ACC has been notified of a session before the Cassation Court, to be held on January 4, 2023, in order to rule on the subject matter of the Cassation Challenge.
On October 15, 2014, the Assiut Administrative Court ruled (in case no. 11842/41) for its non-jurisdiction to review the case and referred the case to the Assiut Administrative Judiciary Court (registered at administrative judiciary court under case no. 5580/26J). On December 11, 2014, ACC filed an appeal against the Assiut Administrative Court ruling (appeal no. 165/26—challenging the referral ruling in case 11842) (the “Appeal”), requesting that its enforcement be suspended until a judgment is issued on the Cassation Challenge. Additionally, another appeal substantially on the same terms as the Appeal was filed on March 10, 2014 by the Holding Company against the same ruling (administrative judiciary appeal no. 164/26—challenging the referral ruling in case 11842) (the “Parallel Appeal”).
In a session held on February 11, 2016 in order to review the Appeal, the Assiut Administrative Judiciary Court decided to refer the case to the First Circuit of Cairo’s State Council Administrative Judiciary Court, which in turn decided to refer the Appeal to the Assiut Administrative Judiciary Court. On August 27, 2018, the Assiut Administrative Judiciary Court decided to refer the Parallel Appeal to the Cairo Administrative Judiciary Court that decided lack of jurisdiction and to send the Parallel Appeal back to Assiut Administrative Judiciary Court.
On July 27, 2020, upon the request of ACC, Assiut Administrative Judiciary Court decided joinder of both the Appeal and the Parallel Appeal and to adjourn both to the hearing session of February 27, 2021, April 24, 2021, and then May 22, 2021, for submitting memos and documents.
The Assiut Administrative Judiciary Court held a hearing for the case (no. 5580/26) on February 24, 2016, in which it decided to refer the case to the First Circuit (formerly 7th Circuit) of “Economic and Investment Disputes” of Cairo’s State Council Administrative Judiciary Court (registered at Cairo’s State Council Administrative Judiciary under Case no. 16348/71J). On February 24, 2021, Cairo’s State Council
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Administrative Judiciary Court issued a judgment ruling for the dismissal of this case considering the plaintiff’s lack of standing. This judgment is final and definitive, as the plaintiff failed to challenge it within the legally prescribed term. On February 27, 2021, Assiut Administrative Judiciary Court adjourned the hearing (of joined Appeal and Parallel Appeal) to the session of March 27, 2021, and then to April 24, 2021, for the parties to submit an official copy of Cairo’s State Council Administrative Judiciary Court ruling of February 24, 2021, that dismissed the case considering the plaintiff’s lack of standing. On May 22, 2021, ACC submitted to the Assiut Administrative Judiciary Court a copy of Cairo’s State Council Administrative Judiciary Court ruling of February 24, 2021 (dismissing case no. 16348/71J). The court decided to set the joined Appeal and Parallel Appeal for adjudication at the session of June 29, 2021, but the session was adjourned for the sixth time to be held on February 28, 2022. On February 28, 2022, the court issued a judgment ruling for the dismissal of the Appeal and Parallel Appeal.
Also, on February 23, 2014, three plaintiffs filed a lawsuit before the Assiut Administrative Judiciary Court requesting the cancellation of the resolutions taken by the Holding Company’s shareholders during the extraordinary general shareholders’ meeting pursuant to which it was agreed to sell ACC’s shares and enter into the Share Purchase Agreement in 1999. A hearing held on May 17, 2014 was adjourned in order for the State Commissioner Authority (the “SCA”) to prepare a report to be submitted for the consideration of the Assiut Administrative Judiciary Court. On September 4, 2014, ACC received the report issued by the SCA which is non-binding to the Assiut Administrative Judiciary Court. On December 11, 2014, the Assiut Administrative Judiciary Court resolved to refer the case to the 7th Circuit of Cairo’s State Council Administrative Judiciary Court. The 7th Circuit of Cairo’s State Council Administrative Judiciary Court decided to adjourn to July 25, 2015 in order to review the parties’ pleadings. On this hearing held on July 25, 2015, the 7th Circuit of Cairo’s State Council Administrative Judiciary Court adjourned the case to September 3, 2015 for passing judgment. At the session held on September 3, 2015, the 7th Circuit of Cairo’s State Council Administrative Judiciary Court ruled for staying the proceedings until the High Constitutional Court pronounces itself with regards to the challenges against the constitutionality of Law 32/2014. As of December 31, 2022, we still do not have sufficient information to assess the likelihood of the 7th Circuit of Cairo’s State Council Administrative Judiciary Court cancelling the resolutions adopted by the Holding Company’s shareholders, or, if such shareholders’ resolutions are cancelled, how such cancellation would affect us. However, if adversely resolved, we do not believe the resolution in this first instance would have an immediate material adverse impact on our results of operations, liquidity and financial condition as there are different legal recourses that we could take. However, if we exhaust all legal recourses available to us, a final adverse resolution of this matter could have a material adverse impact on our operations, liquidity and financial condition.
On April 22, 2014, Law 32/2014, which regulates legal actions to challenge agreements entered into by the Egyptian State (including its ministries, departments, special budget entities, local administrative units, authorities and state-participated companies) and third parties, was published in the Official Gazette, becoming effective on April 23, 2014, subject to its presentation, discussion and approval by the House of Representatives 15 days after it holds its first session. As per the provisions of Law 32/2014, and considering certain exceptions, only the parties to these agreements have standing to challenge the validity of an agreement. During October and November 2015, parliamentary elections to the House of Representatives took place and the elected House of Representatives started to hold its sessions on January 10, 2016, as expected, and Law 32/2014 was discussed and ratified on January 20, 2016, as legally required. As of December 31, 2022, a constitutional challenge has been filed by a third party against Law 32/2014 before the High Constitutional Court. The High Constitutional Court scheduled a hearing for May 6, 2017 to proceed with the constitutional challenge that was filed against Law 32/2014 after the SCA had submitted its report with respect to the case. On May 6, 2017, the court decided to refer the case back to SCA to prepare and submit a complementary report on the merits. The SCA submitted its commentary report upholding the constitutionality of Law 32/2014 and a hearing was held before the High Constitutional Court on January 14, 2023. On January 14, 2023, the High Constitutional Court determined that Law 32/2014 is constitutionally compliant. This determination would allow Cemex to challenge the legal standing of all current lawsuits and protect Cemex’s investment in Egypt. As a result of the determination made by the High Constitutional Court, the two pending cases were resolved in favor of Cemex on February 23, 2023.
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The plaintiffs have 60 days from the date of the resolution to file an appeal. If the plaintiffs fail to appeal this resolution within the established deadline, these proceedings will be closed. If plaintiffs appeal and are successful in their appeal, this could adversely impact the ongoing matters regarding the Share Purchase Agreement, which could have a material adverse impact on our operations, liquidity and financial condition. See “Item 5—Operating and Financial Review and Prospects—Recent Developments—Recent Developments Relating to Our Regulatory Matters and Legal Proceedings—Other Legal Proceedings—Egypt Share Purchase Agreement.”
Maceo, Colombia—Legal Proceedings in Colombia
On August 28, 2012, Cemex Colombia entered into a memorandum of understanding (the “MOU”) with CI Calizas y Minerales S.A. (“CI Calizas”) to acquire land, a mining concession, an environmental license, free trade zone benefits and related assets necessary to carry out the construction by Cemex Colombia of a new integrated cement plant in the Antioquia department near the municipality of Maceo, Colombia (the “Maceo Project”). In connection with the MOU, CI Calizas was represented by a non-governmental individual (the “Representative”).
After the execution of the MOU, one of CI Calizas’ former shareholders was linked to a domain extinction by the Colombian Attorney General’s Office (the “Attorney General’s Office”) that, among other measures, suspended CI Calizas’ ability to transfer certain assets to Cemex Colombia as required by the MOU (the “Affected Assets”). To protect its interests in the Affected Assets, Cemex Colombia joined the domain extinction proceeding and cooperated with the Attorney General’s Office. Cemex Colombia also requested the dismissal of the domain extinction against the Affected Assets. On May 2, 2016, in order to collect further evidence, the Attorney General’s Office denied Cemex Colombia’s request for the dismissal of the domain extinction proceeding. The domain extinction is in its evidence stage and we expect that the Attorney General’s Office’s final decision as to whether it will proceed with the domain extinction with respect to the Affected Assets could take five to ten years.
In July 2013, Cemex Colombia entered into a five-year lease agreement (the “Lease Agreement”) with a depository that had been designated by the Colombian National Narcotics Directorate (Dirección Nacional de Estupefacientes) with respect to the Affected Assets. The Lease Agreement, along with an accompanying governmental mandate, authorized Cemex Colombia to continue the work necessary for the construction and operation of the Maceo Project during the domain extinction proceeding. The Lease Agreement expired on July 15, 2018. Notwithstanding the expiration of the Lease Agreement, Cemex Colombia was entitled to continue using the Affected Assets pursuant to the terms of the accompanying mandate.
On April 12, 2019, Cemex Colombia reached a conciliatory agreement with the Colombian Administrator of Special Assets (Sociedad de Activos Especiales S.A.S) (the “SAE”), CI Calizas and Zona Franca Especial Cementera Del Magdalena Medio SAS (“ZOMAM”) before the Public Prosecutor’s Office (Procuraduría General de la Nación) and signed a contract of Mining Operation, Manufacturing and Delivery Services and Leasing of Properties for Cement Production (the “New Lease Agreement”), allowing Cemex Colombia to operate the Maceo Plant. Cemex Colombia, under the terms of the New Lease Agreement, will lease the land portion of the Affected Assets for a term of 21 years, that can be extended by another 10 years. The New Lease Agreement will remain in full force and effect regardless of the outcome following the domain extinction proceeding over the Affected Assets unless the criminal judge grants Cemex Colombia (and one of its subsidiaries) the ownership rights related to the Affected Assets. In such case, the New Lease Agreement will be terminated given that Cemex Colombia and its subsidiary would be the owners of the Affected Assets and the New Lease Agreement would no longer be required to operate and manage them.
As of December 31, 2022, it is expected that the Maceo Plant will begin operating once the construction of the access road to the Maceo Plant is completed, for which certain permits are yet to be obtained.
Assuming that Cemex Colombia conducted itself in good faith and considering that its investments in the Maceo Project were incurred with the consent of the SAE and CI Calizas under the Lease Agreement and the
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accompanying mandate, we believe the value of such investments is protected by Colombian law. Colombian law provides that, if a person builds on another person’s property with the knowledge of such other person, the person that built on the property shall be compensated with the value of what was built or otherwise be transferred the property in the event the owner of the property decides to recover possession. We also believe that, during the term of the New Lease Agreement, Cemex Colombia may use the Affected Assets in order to operate the Maceo Project. In the event that Cemex Colombia’s right to the Affected Assets is extinguished in favor of the government of Colombia, which we believe is unlikely, the SAE may decide not to sell the Affected Assets to Cemex Colombia. In either case, under Colombian law, Cemex Colombia would be entitled to compensation for the value of the investments made in the Maceo Project. On November 18, 2021, Cemex filed a Letter of Intent requesting that the SAE commence the process of selling of ZOMAM, in which Cemex is interested in participating. If the SAE initiates the process, the sale will be carried out under objective parameters prescribed by law that apply to valuing entities undergoing domain extinction proceedings. As of December 31, 2022, the SAE has not responded to this request. As of December 31, 2022, at this stage of the proceedings, we believe that the likelihood of an adverse result in this matter is not probable, but we are not able to assess the likelihood of Cemex Colombia receiving an adverse decision relating to the domain extinction proceedings or if the ownership of the assets subject to the MOU will be extinguished in favor of the Republic of Colombia. However, as of December 31, 2022, we believe that an adverse resolution in which Cemex Colombia is not compensated for the value of its investments in the Maceo Project could have a material adverse effect on our results of operations, liquidity or financial condition.
On December 30, 2013, Cemex Colombia and the Representative entered into a different memorandum of understanding (the “Land MOU”), pursuant to which the Representative would represent Cemex Colombia in the acquisition of lands adjacent to the Maceo Project. In connection with the Maceo Project, Cemex Colombia conveyed to the Representative 43.8 billion Colombian Pesos, including cash payments and interest, ($9.04 million as of December 31, 2022, based on an exchange rate of 4,842.19 Colombian Pesos to $1.00). Due to the domain extinction proceeding against the Affected Assets described above, the acquisition of the Affected Assets was not finalized.
Also on September 23, 2016, CLH disclosed that it had identified irregularities in the process for the purchase of the land related to the Maceo Project and submitted a criminal complaint with the Attorney General’s Office. Further, on December 20, 2016, CLH enhanced such filing with additional information and findings obtained as of such date. On June 12, 2018, the Attorney General’s Office formally charged two former officers of CLH and Cemex Colombia and the Representative. One of the former officers of CLH and Cemex Colombia entered into a plea bargain and cooperation agreement with the Attorney General’s Office, which was approved by the Colombian criminal court in April of 2019. The hearings for the other two individuals continued during 2022. See “Item 5—Operating and Financial Review and Prospects—Recent Developments—Recent Developments Relating to Our Regulatory Matters and Legal Proceedings—Other Legal Proceedings—Maceo, Colombia—Legal Proceedings in Colombia.”
Also, on September 23, 2016, CLH and Cemex Colombia terminated the employment of the Vice President of Planning of CLH, who was also Cemex Colombia’s Director of Planning, and the Legal Counsel of CLH, who was also the General Counsel of Cemex Colombia. In addition, effective September 23, 2016, the Chief Executive Officer of CLH, who was also the President of Cemex Colombia, resigned from both positions. On October 4, 2016, in order to strengthen levels of leadership, management and corporate governance practices, the Board of Directors of CLH resolved to split the roles of Chairman of the Board of Directors of CLH, Chief Executive Officer of CLH and President of Cemex Colombia, and appointed a new Chairman of the Board of Directors of CLH, a new Chief Executive Officer of CLH, a new President of Cemex Colombia and a new Vice President of Planning of CLH and Cemex Colombia. A new legal counsel for CLH and Cemex Colombia was also appointed during the fourth quarter of 2016.
Additionally, pursuant to the requirements of Cemex, S.A.B. de C.V.’s and CLH’s audit committees, Cemex Colombia retained external counsel to assist CLH and Cemex Colombia to collaborate as necessary with the Attorney General’s Office, as well as to assist on other related matters. A forensic investigator in Colombia was also engaged.
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As of December 31, 2022, the Attorney General’s Office is investigating the irregularities in connection with the transactions conducted pursuant to the MOU and the Land MOU, as well as other matters regarding our business in Colombia. Such investigations are running their due course but have not been concluded, and, as such, we cannot predict what actions, if any, the Attorney General’s Office may implement. Any actions by the Attorney General’s Office and any actions taken by us in response to the aforementioned irregularities regarding the Maceo Project, including, but not limited to, the termination of employment and resignation of the aforementioned executives and further investigations in Colombia, could have a material adverse effect on our results of operations, liquidity or financial condition.
On December 7, 2020, CLH, acting as a shareholder of Cemex Colombia, filed a lawsuit before the Colombian Business Superintendency (Superintendencia de Sociedades de Colombia) requesting a determination of inefficacy and subsequent declaration of invalidity and nonexistence of the capitalization in kind made by Cemex Colombia to ZOMAM on December 11, 2015. The lawsuit is based on the argument that commercial law requirements applicable to a capitalization process were not complied with at the time of the capitalization. On December 6, 2022, the Colombian Business Superintendency denied the claims of the lawsuit, and therefore, on December 13, 2022, CLH filed an appeal for this decision to be reviewed. As of December 31, 2022, the decision on such appeal is pending. If a favorable final resolution is obtained, the aforementioned capitalization would be reversed, and the assets contributed to ZOMAM, which had a value of $43 million, would revert to Cemex Colombia in exchange for the shares in ZOMAM that had been issued as a result of this capitalization. These effects would only be reflected in Cemex Colombia’s financial statements if a final favorable resolution is obtained. Given ZOMAM’s consolidation, no effects in our consolidated financial statements would arise from a potential favorable resolution.
Investigations related to ongoing matters in Colombia and certain other countries
As discussed in “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings—Other Legal Proceedings—Maceo, Colombia—Legal Proceedings in Colombia,” internal audits and investigations by Cemex, S.A.B. de C.V. and CLH had raised questions about payments relating to the Maceo Project. The payments made to the Representative in connection with the Maceo Project did not adhere to Cemex, S.A.B. de C.V.’s and CLH’s internal controls. As announced on September 23, 2016, the CLH and Cemex Colombia officers responsible for the implementation and execution of the above-referenced payments were terminated and the then Chief Executive Officer of CLH resigned. In December 2016, Cemex, S.A.B. de C.V. received subpoenas from the SEC seeking information to determine whether there have been any violations of the U.S. Foreign Corrupt Practices Act stemming from the Maceo Project. We had previously disclosed that it was possible that the DOJ and other investigatory entities in other jurisdictions could also open investigations into this matter. In this regard, on March 12, 2018, the DOJ issued a grand jury subpoena to Cemex, S.A.B. de C.V. relating to its operations in Colombia and other jurisdictions. These subpoenas do not mean that the SEC or DOJ have concluded that Cemex, S.A.B. de C.V. or any of its affiliates violated the law. Cemex, S.A.B. de C.V. has cooperated fully, and during 2020 produced to the SEC and DOJ all requested information and documentation and intends to continue to cooperate fully with the SEC, the DOJ, the Attorney General’s Office and any other investigatory entity in Colombia or in any other country. As of December 31, 2022, Cemex, S.A.B. de C.V. is unable to predict the duration, scope, or outcome of the SEC or DOJ investigations, or any other investigation that may arise in Colombia or in any other country, or, because of the current status of the SEC and DOJ investigations, the potential sanctions which could be imposed on Cemex, S.A.B. de C.V., or if such sanctions, if any, would have a material adverse impact on Cemex, S.A.B. de C.V.’s consolidated results of operations, liquidity or financial position.
Maceo, Colombia—Operational Matters
On October 27, 2016, CLH decided to postpone the commencement of operations of the Maceo Plant. This decision was mainly due to the fact that Cemex Colombia had not received the permits required to finalize road access to such cement plant. The only existing access to the Maceo Plant cannot guarantee safety or operations and could limit the capacity to transport products from the cement plant. As of December 31, 2022, the process to
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obtain the permits required to finalize the road access to the Maceo Plant is ongoing. Cemex Colombia has provided all of the information the authorities have requested in order to grant such permits, but Cemex Colombia is not able to assess if and when such permits will be received.
On May 21, 2021, Cemex Colombia and ZOMAM submitted a new request to expand the free trade zone that covers the Maceo Project in order to commission a new clinker line at such cement plant. On June 15, 2022, the corresponding authority issued the resolution by means of which the requested extension was granted, expanding the zone by 144,712.24 m2, for a total of 336,438.24 m2.
Cemex Colombia determined that the area covered by the environmental license related to the Maceo Project partially overlapped with a District of Integrated Management (Distrito de Manejo Integrado) (“DIM”), which could limit the granting of the environmental license modification. On October 9, 2017, Cemex Colombia filed a petition with the Regional Autonomous Corporation of Antioquia (“Corantioquia”) to subtract from the DIM the zoning area covered by the environmental license related to the construction by Cemex Colombia of the Maceo Project, in order to avoid any overlap between them.
On September 3, 2019, Cemex Colombia was notified of a favorable decision issued by the Corantioquia Board of Directors to approve subtracting from the DIM an area of 169.2 hectares of the municipality of Maceo. Cemex Colombia will be responsible for managing the execution of the environmental compensations requested by the Corantioquia Board of Directors, reaffirming its commitment to generate development, employment and community welfare, by preserving the ecosystem and the environment.
The mining concession and the environmental license related to the Maceo Project were held by different legal entities, which is contrary to typical procedure in Colombia. CI Calizas assigned the mining concession and the environmental license to Central de Mezclas S.A. (“Central de Mezclas”), a subsidiary of Cemex Colombia, in October 2012 and December 2013, respectively. However, in December 2013, the mining concession was assigned back to CI Calizas as a result of the revocation of such mining concession by the Mining Secretariat (Secretaría de Minas) of Antioquia. During the second half of 2016, Corantioquia, the regional environmental agency with jurisdiction over the Maceo Project, requested authorization and consent from Central de Mezclas to reverse the assignment of the environmental license back to CI Calizas.
On February 22, 2018, Central de Mezclas granted such authorization. Cemex Colombia had previously requested a modification to the environmental license to 950,000 tons of cement per annum, which Corantioquia denied. On July 17, 2020, Cemex Colombia submitted a new request to modify the environmental license to expand its production to 950,000 tons of cement per annum as initially planned. On February 2, 2021, Corantioquia issued a resolution authorizing CI Calizas’ request to modify the environmental license and CI Calizas challenged such determination to further clarify the details and extent of the license. Following this challenge, on February 12, 2021, Corantioquia resolved to modify the environmental license, allowing the extraction of up to 990,000 tons of minerals (clay and limestone) and up to 1,500,000 metric tons of cement annually. On October 22, 2021, a request for amendment of the environmental license of Maceo Plant was filed, by means of which Cemex Colombia requested to increase the scope of the production of exploding annually up to 1,300,000 tons of clay and limestone, among other requests.
On August 29, 2020, Cemex Colombia received a favorable opinion from Corantioquia and the relevant municipality, which deems the industrial and mining use of the land where the Maceo Project is located as suitable. Further requirements are still in process of being fulfilled.
Regarding the permits to complete the construction of various sections of the access road: (i) on November 10, 2020, the Mayor’s Office of Maceo issued the Road Infrastructure Intervention authorization and (ii) on December 11, 2020, the Mayor´s Office issued a decree declaring that the road project is of public utility. Therefore, we can now seek the necessary approvals to obtain the permits to acquire the required properties and build the remainder of the road. Additionally, in accordance with the Colombian Infrastructure Law (Ley de Infraestructura), it is also necessary to obtain the authorization from each of the owners of the land adjacent to the road. As of December 31, 2022, Cemex Colombia cannot determine with certainty the date when the access road will be completed.
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Cemex Colombia and Central de Mezclas plan to continue to work on solving the issues causing the postponement of the commissioning of the Maceo Plant in order to capture, as soon as reasonably possible, the full operating benefits of this facility in Colombia. Cemex Colombia believes some of these issues could be related to the domain extinction proceeding against the Affected Assets. As of December 31, 2022, we do not expect to suffer a material adverse impact to our results of operations, liquidity, or financial condition as a result of the Maceo Plant not being commissioned to operate pending resolution of these issues.
Quarry matter in France
One of our subsidiaries in France, Cemex Granulats Rhône Méditerranée (“Cemex Granulats”), is a party to a contract executed in 1990 (the “Quarry Contract”) with SCI La Quinoniere (“SCI”), pursuant to which Cemex Granulats has drilling rights to extract reserves and conduct quarry remediation at a quarry in the Rhône region of France. In 2012, SCI filed a claim against Cemex Granulats for breach of the Quarry Contract, requesting the rescission of the Quarry Contract and damages plus interest, totaling an aggregate amount of €55 million ($58.98 million as of December 31, 2022, based on an exchange rate of €0.9325 to $1.00), resulting from Cemex Granulats having partially filled the quarry allegedly in breach of the terms of the Quarry Contract. On May 18, 2016, Cemex Granulats was notified about an adverse judgment in this matter by the corresponding court in Lyon, France, primarily ordering the rescission of the Quarry Contract and damages plus interest, totaling an aggregate amount of €55 million ($58.98 million as of December 31, 2022, based on an exchange rate of €0.9325 to $1.00). This judgment is not enforceable. Cemex Granulats filed the notice of appeal with the appeal court in Lyon, France. SCI updated its claim for damages to an aggregate amount of €67 million ($71.85 million as of December 31, 2022, based on an exchange rate of €0.9325 to $1.00). The judgment of the appeal court was notified to Cemex Granulats on March 13, 2018. It overrules the first instance judgment but orders the rescission of the Quarry Contract. It also appoints a judicial expert to (i) determine the volume of both excavated materials and backfilling materials and (ii) give their opinion on the potential damages suffered by SCI. This judgment is enforceable. Cemex Granulats has filed the notice of appeal with the Court of Cassation. The decision was handed down on May 23, 2019, our appeal was dismissed, and the Court of Cassation declared that Cemex Granulats breached the Quarry Contract. In connection with this matter, judicial experts were appointed by the Lyon Court of Appeals to (i) determine the volume of both excavated materials and backfilling materials at issue and (ii) provide their assessment of the potential damages suffered by SCI. On November 25, 2020, the judicial expert appointed by the Lyon Court of Appeals issued his final report, concluding that the volume of excavated materials and external backfilling materials were calculated at 3.04 million cubic meters and 1.41 million cubic meters, respectively. Based on these volumes, the expert calculated the loss of profits at €0.65 million ($0.70 million as of December 31, 2022, based on an exchange rate of €0.9325 to $1.00) and the cost of excavation of the external backfilling materials at €12.35 million ($13.24 million as of December 31, 2022, based on an exchange rate of €0.9325 to $1.00). However, the judicial expert clearly states that in his opinion the damages suffered by SCI can only be set based on the loss of profits. SCI, within the proceedings on the merits of this case that have resumed before the Lyon Court of Appeals following the end of the expertise phase, has updated the amount of its claims to €27 million ($28.95 million as of December 31, 2022, based on an exchange rate of €0.9325 to $1.00) on the grounds of the excavation of the external backfilling materials. The decision handed down by the Lyon Court of Appeals on November 23, 2022, is in favor of Cemex Granulats, since the court confirmed the final report of the expert, ruling that the damages of the SCI shall (i) be based on the loss of profits, and (ii) be set at €0.65 million ($0.70 million as of December 31, 2022, based on an exchange rate of €0.9325 to $1.00). The SCI may file a notice of appeal before the Court of Cassation within two months of the notification, which took place on December 22, 2022. At this stage of the proceedings, as of December 31, 2022, we are not able to determine the final amount that we would pay in relation to this matter, but we expect that any amounts to be paid should not have a material adverse impact on our results of operations, liquidity and financial condition.
General
As of December 31, 2022, we are involved in various legal and administrative proceedings as well as investigations in some of the jurisdictions where we operate, involving, but not limited to, product warranty
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claims, commercial claims, criminal claims, environmental claims, claims regarding the procurement and supply of products and services, patent and copyright infringement claims, claims and disputes regarding the transportation of goods and services, indemnification claims relating to divestments and acquisitions and similar types of claims brought against us that have arisen in the ordinary course of business, some of which we have determined do not merit disclosure based on the stage in which any such investigation is at the time of this report, and that we would disclose once the investigation has finalized and based on the results of any such investigation. In addition, the administrative authorities in the countries in which we operate perform periodic audits on our operations, at times, as a result of those audits, we may receive notices to remedy (i.e., pay a fine, pay an interest, modify tax returns, adjust social security payments, cover balances, etc.) certain discrepancies found in the audits, some of which we have determined do not merit disclosure based on either the stage in which any audit is at the time of this report and/or because we believe, as of the date of this annual report, the corresponding remedy would not have a material adverse effect on our operations, financial position, and results of operations, or that we would disclose once the audit has finalized and based on the results of any such audit, if the results would have a material adverse effect on our operations, financial position, and results of operations. Also, as of December 31, 2022, we have been made aware of claims that have been filed against us that have been either dismissed or rejected that lead to a recourse, appeal or legal action under the applicable legislation has been filed by the party that presented the claim, and in relation to which, consequently, we have not been formally notified, and that are not included in this report. We, and different organizations or associations to which we belong, also receive various information requests from various governmental and administrative authorities when such authorities are conducting periodic or general reviews of the markets in which we operate. We believe we have made adequate provisions to cover both current and contemplated general and specific litigation risks, and we believe these matters will be resolved without any significant effect on our operations, financial position, and results of operations. We are sometimes able to make and disclose reasonable estimates of the expected loss or range of possible loss, as well as disclose any provision accrued for such loss. However, for a limited number of ongoing legal proceedings, we may not be able to make a reasonable estimate of the expected loss or range of possible loss or may be able to do so but believe that disclosure of such information on a case-by-case basis would seriously prejudice our position in the ongoing legal proceedings or in any related settlement discussions. Accordingly, in these cases, we have disclosed qualitative information with respect to the nature and characteristics of the contingency but have not disclosed the estimate of the range of potential loss.
Item 4A—Unresolved Staff Comments
Not applicable.
Item 5—Operating and Financial Review and Prospects
Cautionary Statement Regarding Forward-Looking Statements
This annual report contains, and the reports we will file or furnish in the future may contain, forward-looking statements within the meaning of the U.S. federal securities laws and the Mexican federal securities laws, as applicable. We intend these forward-looking statements to be covered by the safe harbor provisions for forward-looking statements within the meaning of the U.S. federal securities laws. In some cases, these statements can be identified by the use of forward-looking words such as “may,” “assume,” “might,” “should,” “could,” “continue,” “would,” “can,” “consider,” “anticipate,” “estimate,” “expect,” “envision,” “plan,” “believe,” “foresee,” “predict,” “potential,” “target,” “strategy,” “intend,” “aimed” or other similar terms. These forward-looking statements reflect, as of the date such forward-looking statements are made, or unless otherwise indicated, our current expectations and projections about future events based on our knowledge of present facts and circumstances and assumptions about future events. These statements necessarily involve risks and uncertainties that could cause actual results to differ materially from our expectations.
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Some of the risks, uncertainties and other important factors that could cause results to differ, or that otherwise could have an impact on us or our consolidated entities, include, but are not limited to:
| • | the impact of pandemics, epidemics or outbreaks of infectious diseases and the response of governments and other third parties, which could adversely affect, among other matters, the ability of our operating facilities to operate at full or any capacity, supply chains, international operations, availability of liquidity, investor confidence and consumer spending, as well as the availability of, and demand for, our products and services; |
| • | the cyclical activity of the construction sector; |
| • | our exposure to other sectors that impact our and our clients’ businesses, such as, but not limited to, the energy sector; |
| • | availability of raw materials and related fluctuating prices of raw materials, as well as of goods and services in general, in particular increases in prices as a result of inflation; |
| • | volatility in pension plan asset values and liabilities, which may require cash contributions to the pension plans; |
| • | the impact of environmental cleanup costs and other remedial actions, and other liabilities relating to existing and/or divested businesses; |
| • | our ability to secure and permit aggregates reserves in strategically located areas; |
| • | the timing and amount of federal, state and local funding for infrastructure; |
| • | changes in the level of spending for private residential and private nonresidential construction; |
| • | changes in our effective tax rate; |
| • | competition in the markets in which we offer our products and services; |
| • | general political, social, health, economic and business conditions in the markets in which we operate or that affect our operations and any significant economic, health, political or social developments in those markets, as well as any inherent risks to international operations; |
| • | the regulatory environment, including environmental, energy, tax, labor, antitrust, and acquisition- related rules and regulations; |
| • | our ability to satisfy our obligations under our material debt agreements, the indentures that govern our outstanding Notes and our other debt instruments and financial obligations, including our subordinated notes with no fixed maturity and other financial obligations; |
| • | the availability of short-term credit lines or working capital facilities, which can assist us in connection with market cycles; |
| • | the impact of our below investment grade debt rating on our cost of capital and on the cost of the products and services we purchase; |
| • | loss of reputation of our brands; |
| • | our ability to consummate asset sales, fully integrate newly acquired businesses, achieve cost-savings from our cost-reduction initiatives, implement our pricing initiatives for our products and generally meet our business strategy goals; |
| • | the increasing reliance on information technology infrastructure for our sales invoicing, procurement, financial statements and other processes that can adversely affect our sales and operations in the event that the infrastructure does not work as intended, experiences technical difficulties or is subjected to cyber-attacks; |
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| • | changes in the economy that affect demand for consumer goods, consequently affecting demand for our products and services; |
| • | climate change, in particular reflected in weather conditions, including, but not limited to, excessive rain and snow, and disasters such as earthquakes and floods, that could affect our facilities or the markets in which we offer our products and services or from where we source our raw materials; |
| • | trade barriers, including tariffs or import taxes and changes in existing trade policies or changes to, or withdrawals from, free trade agreements, including the United States-Mexico-Canada Agreement; |
| • | availability and cost of trucks, railcars, barges and ships, as well as their licensed operators and drivers, for transport of our materials; |
| • | labor shortages and constraints; |
| • | terrorist and organized criminal activities as well as geopolitical events, such as war and armed conflicts, including the current war between Russia and Ukraine; |
| • | declarations of insolvency or bankruptcy, or becoming subject to similar proceedings; |
| • | natural disasters and other unforeseen events (including global health hazards such as COVID-19); and |
| • | the other risks and uncertainties described under “Item 3—Key Information—Risk Factors” and elsewhere in this annual report. |
Readers are urged to read this annual report and carefully consider the risks, uncertainties and other factors that affect our business and operations. The information contained in this annual report is subject to change without notice, and we are not obligated to publicly update or revise forward-looking statements after the date hereof or to reflect the occurrence of anticipated or unanticipated events or circumstances. Readers should review future reports filed or furnished by us to the SEC.
This annual report also includes statistical data regarding, but not limited to, the production, distribution, marketing and sale of cement, ready-mix concrete, clinker and aggregates. We generated some of this data internally, and some was obtained from independent industry publications and reports, available as of the date of this annual report, that we believe to be reliable sources. We have not independently verified this nor sought the consent of any organizations to refer to their reports in this annual report.
Overview
The following discussion and analysis should be read in conjunction with, and are qualified in their entirety by reference to, our audited consolidated financial statements as of December 31, 2021 and 2022, and for each of the three years ended December 31, 2020, 2021 and 2022, included elsewhere in this annual report. Our financial statements have been prepared in accordance with IFRS as issued by IASB.
As previously described, our audited consolidated financial statements as of December 31, 2021 and 2022, and for each of the three years ended December 31, 2020, 2021 and 2022 included elsewhere in this annual report include our presentation of several incurred and projected sales of assets as discontinued operations, as applicable. As of December 31, 2022, there are no significant assets held for sale.
The regulations of the SEC do not require foreign private issuers that prepare their financial statements based on IFRS (as issued by IASB) to reconcile such financial statements to U.S. GAAP.
The percentage changes in cement sales volumes described in this annual report for our operations in a particular country or region include the number of tons of cement and/or the number of cubic meters of ready-mix concrete sold to our operations in other countries and regions. Likewise, unless otherwise indicated, the revenues financial information presented in this annual report for our operations in each country or region
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includes the Dollar amount of revenues derived from sales of cement and ready-mix concrete to our operations in other countries and regions, which have been eliminated in the preparation of our audited consolidated financial statements as of and for the year ended December 31, 2022 included elsewhere in this annual report.
The following table sets forth selected consolidated financial information as of December 31, 2021 and 2022 and for each of the three years ended December 31, 2020, 2021 and 2022 by principal geographic reporting segment expressed as a percentage of our total consolidated group. We operate in countries and regions with economies in different stages of development and structural reform and with different levels of fluctuation in exchange rates, inflation and interest rates. These economic factors may affect our results of operations, liquidity and financial condition, depending upon the depreciation or appreciation of the exchange rate of each country and region in which we operate compared to the Dollar and the rate of inflation of each of these countries and regions.
| Revenues For the Year Ended December 31, |
Operating Earnings Before Other Expenses, Net For the Year Ended December 31, |
Total Assets at December 31, |
||||||||||||||||||||||||||||||||||
| 2020(1) | 2021(1) | 2022(1) | 2020(2) | 2021(2) | 2022(2) | 2020(2) | 2021(2) | 2022(2) | ||||||||||||||||||||||||||||
| Mexico |
21 | % | 22 | % | 21 | % | 61 | % | 58 | % | 62 | % | 14 | % | 14 | % | 15 | % | ||||||||||||||||||
| United States |
30 | % | 27 | % | 27 | % | 24 | % | 18 | % | 20 | % | 46 | % | 48 | % | 48 | % | ||||||||||||||||||
| EMEAA |
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| United Kingdom |
5 | % | 6 | % | 5 | % | 2 | % | 4 | % | 9 | % | 6 | % | 6 | % | 5 | % | ||||||||||||||||||
| France |
6 | % | 5 | % | 4 | % | 2 | % | 3 | % | 1 | % | 4 | % | 4 | % | 4 | % | ||||||||||||||||||
| Germany |
4 | % | 3 | % | 3 | % | 3 | % | 2 | % | 1 | % | 2 | % | 2 | % | 2 | % | ||||||||||||||||||
| Poland |
3 | % | 3 | % | 2 | % | 4 | % | 3 | % | 3 | % | 1 | % | 1 | % | 1 | % | ||||||||||||||||||
| Spain |
2 | % | 2 | % | 2 | % | (1 | )% | (2 | )% | (1 | )% | 4 | % | 3 | % | 2 | % | ||||||||||||||||||
| Philippines |
3 | % | 3 | % | 2 | % | 6 | % | 4 | % | 3 | % | 3 | % | 3 | % | 3 | % | ||||||||||||||||||
| Israel |
6 | % | 5 | % | 5 | % | 7 | % | 4 | % | 4 | % | 3 | % | 3 | % | 3 | % | ||||||||||||||||||
| Rest of EMEAA |
4 | % | 4 | % | 4 | % | 1 | % | 2 | % | 3 | % | 3 | % | 3 | % | 3 | % | ||||||||||||||||||
| SCA&C |
||||||||||||||||||||||||||||||||||||
| Colombia |
3 | % | 3 | % | 2 | % | 5 | % | 4 | % | 2 | % | 4 | % | 4 | % | 3 | % | ||||||||||||||||||
| Panama |
1 | % | 1 | % | 1 | % | — | 1 | % | 1 | % | 1 | % | 1 | % | 1 | % | |||||||||||||||||||
| Caribbean TCL |
2 | % | 2 | % | 2 | % | 3 | % | 3 | % | 4 | % | 2 | % | 2 | % | 2 | % | ||||||||||||||||||
| Dominican Republic |
2 | % | 2 | % | 2 | % | 6 | % | 7 | % | 8 | % | 1 | % | 1 | % | 1 | % | ||||||||||||||||||
| Rest of SCA&C |
3 | % | 3 | % | 2 | % | 7 | % | 6 | % | 5 | % | 1 | % | 1 | % | 1 | % | ||||||||||||||||||
| Corporate and Other Operations |
5 | % | 9 | % | 16 | % | (30 | )% | (17 | )% | (25 | )% | 5 | % | 4 | % | 6 | % | ||||||||||||||||||
| Continuing operations |
13,371 | 15,914 | 18,326 | 1,292 | 1,719 | 1,561 | 27,238 | 26,509 | 26,379 | |||||||||||||||||||||||||||
| Assets held for sale |
— | — | — | — | — | — | 187 | 141 | 68 | |||||||||||||||||||||||||||
| Eliminations |
(702 | ) | (1,535 | ) | (2,749 | ) | — | — | — | — | — | — | ||||||||||||||||||||||||
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| Consolidated information |
12,669 | 14,379 | 15,577 | 1,292 | 1,719 | 1,561 | 27,425 | 26,650 | 26,447 | |||||||||||||||||||||||||||
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| (1) | Percentages by reporting segment are determined from continuing operations before eliminations resulting from consolidation. |
| (2) | Percentages by reporting segment are determined from continuing operations after eliminations resulting from consolidation. |
Critical Accounting Estimates
The preparation of financial statements in accordance with IFRS requires our management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of
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contingent assets and liabilities at the date of the financial statements, as well as the reported amounts of revenues and expenses during the period. These assumptions are reviewed on an ongoing basis using available information. Actual results could differ from these estimates.
The main items subject to significant estimates and assumptions by our management include lease accounting, impairment tests of long-lived assets, recognition of deferred income tax assets, the measurement of financial instruments at fair value, the assets and liabilities related to employee benefits, as well as the analyses of contingent liabilities. Significant judgment by our management is required to appropriately assess the amounts of these assets and liabilities.
As of December 31, 2021 and 2022, and for the years ended December 31, 2020, 2021 and 2022, identified below are the accounting policies we have applied under IFRS that are critical to understanding our overall financial reporting.
Deferred Income Taxes
Our operations are subject to taxation in many different jurisdictions throughout the world. The effects reflected in the statement of operations for income taxes include the amounts incurred during the period and the amounts of deferred income taxes, determined according to the income tax law applicable to each subsidiary, reflecting uncertainty in income tax treatments, if any. Consolidated deferred income taxes represent the addition of the amounts determined in each subsidiary by applying the enacted statutory income tax rate to the total temporary differences resulting from comparing the book and taxable values of assets and liabilities, considering tax loss carryforwards and other recoverable tax credits, to the extent that it is probable that future taxable profits will be available against which they can be utilized. The measurement of deferred income taxes at the reporting period reflects the tax consequences that follow the manner in which we expect to recover or settle the carrying amount of its assets and liabilities. Deferred income taxes for the period represent the difference between balances of deferred income taxes at the beginning and the end of the period. Deferred income tax assets and liabilities relating to different tax jurisdictions are not offset. According to IFRS, all items charged or credited directly in stockholders’ equity or as part of other comprehensive income or loss for the period are recognized net of their current and deferred income tax effects. The effect of a change in enacted statutory tax rates is recognized in the period in which the change is officially enacted. Our worldwide tax position is highly complex and subject to numerous laws that require interpretation and application and that are not consistent among the countries in which we operate. Significant judgment is required to appropriately assess the amounts of tax assets and liabilities.
Deferred tax assets, mainly related to tax loss carryforwards, are reviewed at each reporting date and are reduced when it is not deemed probable that the related tax benefit will be realized, considering the aggregate amount of self-determined tax loss carryforwards that we believe will not be rejected by the tax authorities based on available evidence and the likelihood of recovering them prior to their expiration through an analysis of estimated future taxable income. If it is probable that the tax authorities would reject a self-determined deferred tax asset, we would decrease such asset. When it is considered that a deferred tax asset will not be recovered before its expiration, we would not recognize such deferred tax asset. Both situations would result in additional income tax expense for the period in which such determination is made. In order to determine whether it is probable that deferred tax assets will ultimately be recovered, we take into consideration all available positive and negative evidence, including factors such as market conditions, industry analysis, expansion plans, projected taxable income, carryforward periods, current tax structure, potential changes or adjustments in tax structure, tax planning strategies and future reversals of existing temporary differences. Likewise, we analyze our actual results versus our estimates, and adjust, as necessary, our tax asset valuations. If actual results vary from our estimates, the deferred tax asset and/or valuations may be affected, in which case, necessary adjustments will be made based on relevant information in our statement of operations for such period.
Based on IFRIC 23, Uncertainty over income tax treatments, the income tax effects from an uncertain tax position are recognized when it is probable that the position will be sustained based on its technical merits and
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assuming that the tax authorities will examine each position and have full knowledge of all relevant information. The probability of each position has been considered on its own, regardless of its relation to any other broader tax settlement. The probability threshold represents a positive assertion by management that we are entitled to the economic benefits of a tax position. If it is improbable for a tax position to be sustained, no benefits of the position are recognized. Our policy is to recognize interest and penalties related to unrecognized tax benefits as part of the income tax in the consolidated statements of operations.
Our overall tax strategy is to structure our worldwide operations to reduce or defer the payment of income taxes on a consolidated basis. Many of the activities we undertake in pursuing this tax reduction strategy are highly complex and involve interpretations of tax laws and regulations in multiple jurisdictions and are subject to review by the relevant taxing authorities. It is possible that the taxing authorities could challenge our application of these regulations to our operations and transactions. The taxing authorities in the past have challenged interpretations that we have made and have assessed additional taxes. Although we have, from time to time, paid some of these additional assessments, in general, we believe that these assessments have not been material and that we have been successful in sustaining our positions. No assurance can be given, however, that we will continue to be as successful as we have been in the past or that pending appeals of current tax assessments will be judged in our favor.
Our current and deferred income tax amounts included in our consolidated statements of operations are highly variable and are subject, among other factors, to the amounts of taxable income determined in each jurisdiction in which we operate. Such amounts of taxable income depend on factors such as sale volumes and prices, costs and expenses, exchange rates fluctuations and interest on debt, among others, as well as on the estimated tax assets at the end of the period due to the expected future generation of taxable gains in each jurisdiction. See our discussion of operations included in “—Operating and Financial Review and Prospects.”
Financial instruments
Financial assets are classified as “Held to collect” and measured at amortized cost when they are not designated as at fair value through profit or loss and meet both of the following conditions: (a) are held within a business model whose objective is to hold assets to collect contractual cash flows and (b) its contractual terms give rise on specified dates to cash flows that are solely payments of principal and interest on the principal amount outstanding. Amortized cost represents the net present value of the consideration receivable or payable as of the transaction date. This classification of financial assets comprises the following captions:
| • | Cash and cash equivalents; |
| • | Trade receivables, other current accounts receivable and other current assets. Due to their short-term nature, we initially recognize these assets at the original invoiced or transaction amount minus expected credit losses, as explained below; |
| • | Trade receivables sold under securitization programs, in which certain residual interest in the trade receivables sold in case of recovery failure and continued involvement in such assets is maintained, do not qualify for derecognition and are maintained in the statement of financial position; and |
| • | Investments and non-current accounts receivable. Subsequent changes in effects from amortized cost are recognized in the income statement as part of “Financial income and other items, net.” |
Certain strategic investments are measured at fair value through other comprehensive income within “Other equity reserves.” We do not maintain financial assets “Held to collect and sell” whose business model has the objective the collection of contractual cash flows and the sale of those financial assets.
The financial assets that are not classified as “Held to collect” or that do not have strategic characteristics fall into the residual category of held at fair value through the income statement as part of “Financial income and other items, net.”
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Debt instruments and other financial obligations are classified as “Loans” and measured at amortized cost. Interest accrued on financial instruments is recognized within “Other accounts payable and accrued expenses” against financial expense. During the reported periods, we did not have financial liabilities voluntarily recognized at fair value or associated with fair value hedge strategies with derivative financial instruments.
Derivative financial instruments are recognized as assets or liabilities in the statement of financial position at their estimated fair values, and the changes in such fair values are recognized in the income statement within “Financial income and other items, net” for the period in which they occur, except in the case of hedging instruments as described below.
(a) Derivative financial instruments
In compliance with the guidelines established by our Risk Management Committee and the restrictions in our debt agreements and our hedging strategy, we use derivative financial instruments with the objectives of: (i) changing the risk profile or fixing the price of fuels; (ii) foreign exchange hedging; (iii) hedging forecasted transactions; (iv) changing the risk of changes in market interest rates; and (v) accomplishing other corporate objectives.
Derivative financial instruments are recognized as assets or liabilities in the balance sheet at their estimated fair values, and changes in such fair values are recognized in the statements of operations within “Financial income and other items, net” for the period in which they occur, except for changes in the fair value of derivative instruments associated with cash flow hedges, in which case, such changes in fair value are recognized in stockholders’ equity, and are reclassified to earnings as the interest expense of the related debt is accrued, in the case of interest rate swaps, or when the underlying products are consumed in the case of contracts on the price of raw materials, fuel and commodities. Likewise, in hedges of the net investment in foreign subsidiaries, changes in fair value are recognized in stockholders’ equity as part of the foreign currency translation result, which reversal to earnings would take place upon disposal of the foreign investment. During the reported periods, we have not designated any derivative instruments in fair value hedges. Derivative instruments are negotiated with institutions with significant financial capacity; therefore, we believe the risk of non-performance of the obligations agreed to by such counterparties to be minimal. See note 17.4 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included herein.
The estimated fair value under IFRS represents the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date, considering the counterparty’s credit risk in the valuation, that is, an exit price or a market-based measurement.
In connection with hedge accounting under IFRS 9, Financial Instruments: classification and measurement (“IFRS 9”), among other changes, there is a relief for entities in performing: (a) the retrospective effectiveness test at inception of the hedging relationship and (b) the requirement to maintain a prospective effectiveness ratio between 0.8 and 1.25 at each reporting date for purposes of sustaining the hedging designation, both requirements under International Accounting Standard (“IAS”) 39, Financial instruments: recognition and measurement (“IAS 39”). Under IFRS 9, a hedging relationship can be established to the extent the entity considers, based on the analysis of the overall characteristics of the hedging and hedged items, that the hedge will be highly effective in the future and the hedge relationship at inception is aligned with the entity’s reported risk management strategy. IFRS 9 maintains the same hedge accounting categories of cash flow hedge, fair value hedge and hedge of a net investment established in IAS 39, as well as the requirement of recognizing the ineffective portion of a cash flow hedge immediately in the statement of operations.
The concept of exit value is premised on the existence of a market and market participants for the specific asset or liability. When there is no market and/or market participants willing to make a market, IFRS establishes a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (Level 1,
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as defined below, measurements) and the lowest priority to measurements involving significant unobservable inputs (Level 3, as defined below, measurements). The three levels of the fair value hierarchy are as follows:
| • | Level 1—represents quoted prices (unadjusted) in active markets for identical assets or liabilities that we can access at the measurement date. A quoted price in an active market provides the most reliable evidence of fair value and is used without adjustment to measure fair value whenever available. |
| • | Level 2—are inputs other than quoted prices in active markets that are observable for the asset or liability, either directly or indirectly, and are used mainly to determine the fair value of securities, investments or loans that are not actively traded. Level 2 inputs included equity prices, certain interest rates and yield curves, implied volatility and credit spreads, among others, as well as inputs extrapolated from other observable inputs. In the absence of Level 1 inputs, we determined fair values by iteration of the applicable Level 2 inputs, the number of securities and/or the other relevant terms of the contract, as applicable. |
| • | Level 3—inputs are unobservable inputs for the asset or liability. We use unobservable inputs to determine fair values, to the extent there are no Level 1 or Level 2 inputs, in valuation models such as Black-Scholes, binomial, discounted cash flows or multiples of Operating EBITDA, including risk assumptions consistent with what market participants would use to arrive at fair value. |
Critical judgment and estimates by management are required to appropriately identify the corresponding level of fair value applicable to each derivative financing transaction, as well as to assess the amounts of the resulting assets and liabilities, mainly in respect of Level 2 and Level 3 fair values, in order to account for the effects of derivative financial instruments in the financial statements. See note 17.4 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
(b) Impairment of financial assets
Impairment losses of financial assets, including trade accounts receivable, are recognized using the Expected Credit Loss model (“ECL”) for the entire lifetime of such financial assets on initial recognition, and at each subsequent reporting period, even in the absence of a credit event or if a loss has not yet been incurred, considering for their measurement past events and current conditions, as well as reasonable and supportable forecasts affecting collectability. For purposes of the ECL model, we segment our accounts receivable in a matrix by country, type of client or homogeneous credit risk and days past due and determine for each segment an average rate of ECL, considering actual credit loss experience generally over the last 12 months and analyses of future delinquency, that is applied to the balance of the accounts receivable. The average ECL rate increases in each segment of days past due until the rate is 100% for the segment of 365 days or more past due.
Impairment of long-lived assets and goodwill
Our statement of financial position reflects significant amounts of long-lived assets (including property, machinery and equipment, goodwill, intangible assets of definite life and other investments) associated with our operations throughout the world. Many of these amounts have resulted from past acquisitions, which have required us to reflect these assets at their fair market values at the dates of acquisition. According to their characteristics and the specific accounting rules related to them, we assess the recoverability of our long-lived assets at least once a year, normally during the fourth quarter, as is the case for goodwill, or whenever events or circumstances arise that we believe trigger a requirement to review such carrying values, as is the case with property, machinery and equipment and intangible assets of definite life.
Property, machinery and equipment, assets for the right-of-use, intangible assets of definite life and other investments are tested for impairment upon the occurrence of factors such as the occurrence of internal or external indicators of impairment, such as changes in our operating business model or in technology that affects the asset, as well as expectations of lower operating results for each cash generating unit, in order to determine
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whether their carrying amounts may not be recovered. In such cases, an impairment loss is recorded in the statements of operations for the period when such determination is made within “Other expenses, net.” The impairment loss of an asset results from the excess of the asset’s carrying amount over its recoverable amount, corresponding to the higher of the fair value of the asset, less costs to sell such asset, and the asset’s value in use, the latter represented by the net present value of estimated cash flows related to the use and eventual disposal of the asset.
During 2020, due to the COVID-19 pandemic, certain plants were closed. As a result of such closures, in relation to our estimated sales volumes and our ability to satisfy demand by achieving efficiencies in other operating assets, we recognized non-cash impairment losses for these assets for an aggregate amount of $306 million in 2020, of which $76 million relate to assets in the United States, mainly the North Brooksville plant, $189 million to assets in the EMEAA region, mainly the Lloseta and Gador plants in Spain and the South Ferriby plant in the United Kingdom and minor adjustments in other countries, and $39 million to assets in the SCA&C region mainly in connection with land in Puerto Rico and kiln 1 in Panama. During 2021 and 2022, we recognized non-cash impairment losses of fixed assets for an amount of $43 and $77 million, respectively, mainly in connection with reductions in estimated discounted future cash flows due to the increase in interest rates and assets held for sale. Moreover, during 2021 and 2022, there were no reversal of impairment charges of the COVID-19 pandemic related adjustments of 2020 as all related assets remain closed. Generally, for all reported periods, we conduct impairment tests on several CGUs considering certain triggering events, mainly: (a) the closing and/or reduction of operations of cement and ready-mix concrete plants resulting from adjusting the supply to current demand conditions; (b) change of operating model of certain assets or the transferring of installed capacity to more efficient plants; as well as (c) for certain equipment, remaining idle for several periods. Any resulting impairment losses are recognized within the line item of “Other expenses, net.” See note 15.1 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
During the years ended December 31, 2020, 2021 and 2022, the breakdown of impairment losses of fixed assets by country was as follows:
| For the Year Ended December 31, | ||||||||||||
| 2020 | 2021 | 2022 | ||||||||||
| (in millions of Dollars) | ||||||||||||
| United States |
$ | 76 | $ | 18 | $ | 26 | ||||||
| Spain |
135 | — | 23 | |||||||||
| Colombia |
2 | 10 | — | |||||||||
| Caribbean TCL |
— | — | 14 | |||||||||
| United Kingdom |
39 | 5 | 10 | |||||||||
| Puerto Rico |
20 | — | — | |||||||||
| Croatia |
13 | — | — | |||||||||
| Panama |
12 | — | — | |||||||||
| Others |
9 | 10 | 4 | |||||||||
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| $ | 306 | $ | 43 | $ | 77 | |||||||
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See note 15.1 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
We do not have intangible assets of indefinite life other than goodwill. As mentioned above, goodwill is tested for impairment when required due to significant adverse changes or at least once a year, during the last quarter of such year, by determining the recoverable amount of the group of CGUs to which goodwill balances have been allocated, which consists of the higher of such group of CGUs fair value, less cost to sell and its value in use, represented by the discounted amount of estimated future cash flows to be generated by such CGUs to which goodwill has been allocated. We determine discounted cash flows generally over periods of five years, plus a terminal value using risk-adjusted discount rates. If the value in use of a group of CGUs to which goodwill
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has been allocated is lower than its corresponding carrying amount, we determine the fair value of our reporting units using methodologies generally accepted in the market to determine the value of entities, such as multiples of Operating EBITDA and by reference to other market transactions, among others. We recognize an impairment loss of goodwill within other expenses, net, if the recoverable amount is lower than the net book value of the group of CGUs to which goodwill has been allocated. Impairment charges recognized on goodwill are not reversed in subsequent periods.
During 2022, as part of the mandatory impairment tests during the fourth quarter, we recognized within “Other expenses, net,” non-cash goodwill impairment losses for an aggregate amount of $365 million, of which $273 million corresponds to the operating segment in the United States and $92 million corresponds to the operating segment in Spain. See notes 7 and 16.2 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report. In both cases, the related book value of the operating segment exceeded the corresponding value-in-use. The impairment losses in 2022 are mainly related to the significant increase in the discount rates as compared to 2021 and the resulting significant decrease in our projected cash flows in these segments considering the global high inflationary environment, which increased the risk-free rates, and the material increase in the funding cost observed in the industry during the period. These negative effects more than offset the expected improvements in the estimated Operating EBITDA generation in both the United States and Spain.
In addition to the periodic goodwill impairment tests performed at year end 2020 and 2021, considering the negative effects on our operating results caused by the COVID-19 pandemic, as well as the high uncertainty and lack of visibility in relation to the duration and consequences in certain markets where we operate, management considered that impairment indicators occurred during the third quarter of 2021 and 2020 in our operating segments in Spain and UAE in 2021 and in the United States, Spain, Egypt and the UAE in 2020, and consequently carried out impairment analyses of goodwill as of September 30, 2021 and 2020, respectively.
As a result of these impairment analyses, in the third quarter of 2021 and 2020, we recognized within “Other expenses, net” in the statement of operations non-cash goodwill impairment losses for an amount of $440 million and $1,020 million, respectively, related, in 2021, to the operating segments in Spain of $317 million, UAE of $96 million, representing the entire goodwill allocated to UAE’s operating segment, as well as $27 million related to our information technology business, due to reorganization, and in 2020 in connection with our operating segment in the United States. See notes 7 and 16.2 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report. No other impairment test of goodwill as of September 30, 2021 and 2020 resulted in additional goodwill impairment losses. Moreover, we did not determine additional impairment losses in our goodwill impairment test as of December 31, 2020 and 2021 in any of the groups of CGUs to which goodwill balances have been allocated.
The impairment loss of 2021 in Spain and UAE referred, in both cases, in the aftermath of the COVID-19 pandemic, to disruptions in the supply chains that have generated increases in the estimated production and transportation costs that are considered will be sustained in the mid-term. These negative effects significantly reduced the value in use of the reporting segments in Spain and UAE as of September 30, 2021 as compared to the valuations determined as of December 31, 2020, entirely generated by reductions in the projected Operating EBITDA as a result of the aforementioned increases in costs, considering that discount rates and long-term growth rates remained unchanged, which were 7.7% and 1.5% in Spain, respectively, as well as 8.3% and 2.6% in UAE, respectively. Additionally, we recognized an impairment loss related to our information technology business due to reorganization.
The impairment loss in the United States in 2020 resulted from the high volatility, lack of visibility and reduced outlook associated with the effects of the COVID-19 pandemic which made us reduce our cash flows projections in the United States from seven to five years as well as reduce our long-term growth rate in the United States from 2.5% to 2%.
For the years ended December 31, 2020, 2021 and 2022, the reporting segments we presented in note 4.3 to our 2022 audited consolidated financial statements included elsewhere in this annual report represent our groups of CGUs to which goodwill has been allocated for purposes of testing goodwill for impairment. In arriving at this conclusion, we considered: (i) that after the acquisition, goodwill was allocated at the level of the reporting
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segment; (ii) that the operating components that comprise the reporting segment have similar economic characteristics; (iii) that the reporting segments are used by us to organize and evaluate its activities in its internal information system; (iv) the homogenous nature of the items produced and traded in each operative component, which are all used by the construction industry; (v) the vertical integration in the value chain of the products comprising each component; (vi) the type of clients, which are substantially similar in all components; (vii) the operative integration among components; and (viii) whether the compensation system of the specific country is based on the consolidated results of the reporting segment and not on the particular results of the components. In addition, the country level represents the lowest level within us at which goodwill is monitored for internal management purposes.
Significant judgment by management is required to appropriately assess the fair values and values in use of these assets. Impairment tests are significantly sensitive to, among other factors, the estimation of future prices of our products, the development of operating expenses, local and international economic trends in the construction industry, the long-term growth expectations in the different markets as well as the discount rates and the growth rates in perpetuity applied. For purposes of estimating future prices, we use, to the extent available, historical data plus the expected increase or decrease according to information issued by trusted external sources, such as national construction or cement producer chambers and/or in governmental economic expectations. Operating expenses are normally measured as a constant proportion of revenues, following past experience. However, such operating expenses are also reviewed considering external information sources in respect to inputs that behave according to international prices, such as gas and oil. We use specific pre-tax discount rates for each group of CGUs to which goodwill is allocated, which are applied to pre-tax cash flows. The discount rates are determined using the approach of the weighted average cost of capital (WACC formula). The amounts of estimated undiscounted cash flows are significantly sensitive to the growth rate in perpetuity applied. The higher the growth rate in perpetuity applied, the higher the amount obtained of undiscounted future cash flows by group of CGUs obtained. Moreover, the amounts of discounted estimated future cash flows are significantly sensitive to the weighted average cost of capital (discount rate) applied. The higher the discount rate applied, the lower the amount obtained of discounted estimated future cash flows by group of CGUs obtained. Additionally, we monitor the useful lives assigned to these long-lived assets for purposes of depreciation and amortization, when applicable. This determination is subjective and is integral to the determination of whether impairment has occurred.
Pre-tax discount rates and long-term growth rates used to determine the discounted cash flows in the group of CGUs with the main goodwill balances in 2020, 2021 and 2022 were as follows:
| Discount rates | Long-term growth rate | |||||||||||||||||||||||
| Groups of CGUs |
2020 | 2021 | 2022 | 2020 | 2021 | 2022 | ||||||||||||||||||
| United States |
7.3 | % | 7.2 | % | 9.1 | % | 2.0 | % | 2.0 | % | 2.0 | % | ||||||||||||
| Spain |
7.7 | % | 7.6 | % | 9.4 | % | 1.5 | % | 1.5 | % | 1.7 | % | ||||||||||||
| United Kingdom |
7.4 | % | 7.3 | % | 9.1 | % | 1.6 | % | 1.5 | % | 1.5 | % | ||||||||||||
| France |
7.4 | % | 7.3 | % | 9.2 | % | 1.7 | % | 1.4 | % | 1.4 | % | ||||||||||||
| Mexico |
8.3 | % | 8.4 | % | 10.3 | % | 1.1 | % | 1.0 | % | 1.1 | % | ||||||||||||
| Colombia |
8.4 | % | 8.5 | % | 10.9 | % | 2.5 | % | 3.5 | % | 3.3 | % | ||||||||||||
| United Arab Emirates |
8.3 | % | — | — | 2.6 | % | — | — | ||||||||||||||||
| Egypt |
10.2 | % | 10.7 | % | 13.6 | % | 5.6 | % | 3.0 | % | 3.0 | % | ||||||||||||
| Range of rates in other countries |
7.2% – 15.5 | % | 7.4% – 11.7 | % | 9.3% – 13.9 | % | (0.3)% – 6.5 | % | 1.7% – 6.0 | % | 1.5% – 6.0 | % | ||||||||||||
The discount rates used in our cash flows projections to determine the value in use of our operating segments as of December 31, 2022 increased as compared to 2021 by a weighted average of 2.0%, mainly considering the increase in the risk-free rate associated with us which changed from 1.82% in 2021 to 3.58% in 2022, as well as the increase in the funding cost observed in the industry which changed from 4.1% in 2021 to 6.7% in 2022, as well as the average increase of approximately 1.7% in 2022, in the cost of equity. The other variables remained relatively flat. In addition, as of December 31, 2022, we maintained certain reductions to the long-term growth rates used, mainly Mexico in 1.0% and Egypt in 2.85%.
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The discount rates used in our cash flows projections to determine the value in use of our operating segments as of December 31, 2021 changed slightly as compared to 2020 in a range of -0.1% up to 0.5%, mainly generated for the effect that significantly increases the discount rate of the weighing of debt in the calculation of the discount rates that decreased from 34.6% in 2020 to 26.9% in 2021, as well as the market risk premium which increased from 5.7% in 2020 to 5.8% in 2021. These increases were partially offset by the decrease in the risk-free rate associated with us changed from 2.2% in 2020 to 1.8% in 2021, as well by the decrease in the public comparable companies’ stock volatility (beta) that changed from 1.19 in 2020 to 1.12 in 2021. As of December 31, 2021, the funding cost observed in the industry of 4.1% remained flat against 2020, while the specific risk rates of each country experienced mixed non-significant changes in 2021 as compared to 2020 in the majority of the countries.
In addition, as preventive measure to consider the high uncertainty, volatility and reduced visibility related to the negative effects of the COVID-19 pandemic, we significantly reduced in certain countries our long-term growth rates used in their cash flows projections as of December 31, 2021 as compared to 2020 such as in Mexico in 1.0% and Egypt in 2.8%. These long-term growth rates will be revised upwards or downwards again in the future as new economic data is available.
As of December 31, 2022, except for the operating segments in the United States and Spain presented in the table below, none of the other sensitivity analyses indicated a potential impairment risk in our operating segments. We continually monitor the evolution of the group of CGUs to which goodwill has been allocated that have presented relative goodwill impairment risk in any of the reported periods and, if the relevant economic variables and the related value in use would be negatively affected, it may result in a goodwill impairment loss in the future. The table below shows the additional effects of the sensitivity analyses to the charges recognized from the changes in assumptions as of December 31, 2022.
| Operating segment |
Impairment losses recognized |
Discount rate +1% |
Long-term growth rate –1% |
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| United States |
$ | 273 | 1,243 | 986 | ||||||||
| Spain |
92 | 59 | 47 | |||||||||
Employee benefits
The costs associated with our employees’ benefits for: (i) defined benefit pension plans and (ii) other post- employment benefits, primarily comprised of health care benefits, life insurance and seniority premiums, granted by us and/or pursuant to applicable law, are recognized as services rendered, based on actuarial estimations of the benefits’ present value with the advice of external actuaries. For certain pension plans, we have created irrevocable trust funds to cover future benefit payments (“plan assets”). These plan assets are valued at their estimated fair value at the statement of financial position date. The actuarial assumptions and accounting policy consider: (i) the use of nominal rates; (ii) a single rate is used for the determination of the expected return on plan assets and the discount of the benefits obligation to present value; (iii) a net interest is recognized on the net defined benefit liability (liability minus plan assets); and (iv) all actuarial gains and losses for the period, related to differences between the projected and real actuarial assumptions at the end of the period, as well as the difference between the expected and real return on plan assets, are recognized as part of “Other items of comprehensive income (loss), net” within stockholders’ equity.
The service cost, corresponding to the increase in the obligation for additional benefits earned by employees during the period, is recognized within operating costs and expenses. The net interest cost, resulting from the increase in obligations for changes in net present value and the change during the period in the estimated fair value of plan assets, is recognized within “Financial income and other items, net.”
The effects from modifications to the pension plans that affect the cost of past services are recognized within operating costs and expenses in the period in which such modifications become effective to the employees
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or without delay if changes are effective immediately. Likewise, the effects from curtailments and/or settlements of obligations occurring during the period, associated with events that significantly reduce the cost of future services and/or significantly reduce the population subject to pension benefits, respectively, are recognized within operating costs and expenses.
Contingent liabilities
Obligations or losses resulting from past events are recognized as liabilities in the statement of financial position only when present legal or constructive obligations exist, are probable to result in an outflow of resources and the amount can be measured reliably. We do not recognize a provision when a loss is less than probable or when it is considered probable, but it is not possible to estimate the amount of the outflow. In such cases, the entity discloses a contingent liability in the notes to the financial statements, unless the possibility of an outflow of resources is remote.
We conduct significant activities in all the countries we operate, and we are exposed to events that may create possible obligations that must be analyzed at each reporting period, in order to conclude whether we have a present obligation that could lead to an outflow of resources embodying economic benefits; or present obligations that do not meet the recognition criteria, according to IAS 37, Provisions, Contingent Liabilities and Contingent Assets.
We are involved in various legal proceedings that have arisen in the ordinary course of business. These proceedings include (1) antitrust proceedings; (2) product warranty claims; (3) claims for environmental damages; (4) indemnification claims relating to acquisitions or divestitures; (5) claims to revoke permits and/or concessions; (6) tax matters; and (7) other diverse civil, administrative, commercial and legal actions. Some of the cases require significant judgment and estimates from management to appropriately assess the likelihood of the outcomes and whether a present obligation exists. We maintain regional, country and centralized in-house legal departments which follow up on each of these cases and assist with the evaluation of the likelihood of the outcomes. In certain circumstances, external legal advice is also engaged.
We are sometimes able to make and disclose reasonable estimates of the expected loss or range of possible loss, as well as disclose any provision accrued for such loss. However, for a limited number of ongoing legal proceedings, we may not be able to make a reasonable estimate of the expected loss or range of possible loss, or may be able to do so but believe that disclosure of such information on a case-by-case basis would seriously prejudice our position in the ongoing legal proceedings or in any related settlement discussions. Accordingly, in such cases, we disclose qualitative information with respect to the nature and characteristics of the contingency but do not disclose our estimate of the range of potential loss.
Results of Operations
Selected Consolidated Financial Information
The financial data set forth below as of December 31, 2021 and 2022, and for each of the three years ended December 31, 2020, 2021 and 2022 have been derived from, and should be read in conjunction with, and are qualified in their entirety by reference to, our 2022 audited consolidated financial statements included elsewhere in this annual report.
Our 2022 audited consolidated financial statements included elsewhere in this annual report have been prepared in accordance with IFRS, which differ in significant respects from U.S. GAAP. The regulations of the SEC do not require foreign private issuers that prepare their financial statements on the basis of IFRS (as issued by the IASB) to reconcile such financial statements to U.S. GAAP.
During 2022, we reported a controlling interest net income of $858 million, which was 14% higher than 2021. This increase was driven by 8% higher revenues in 2022 compared to 2021, which was mainly due to a
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positive net contribution of price over cost although we had lower volumes of cement and significant increases in costs of sales items such as energy, fuels, raw materials and freight costs, among others, due to the global inflationary pressures resulting from the aftermath of the COVID-19 pandemic and the war in Ukraine and other factors. Our price strategy in all regions was able to offset these negative impacts. Our other expenses, net increased from an expense of $82 million in 2021 to an expense of $467 million in 2022, which was mainly due to a positive effect of $600 million in 2021 for the gain on sale of emission allowances and, during the fourth quarter of 2022, the recognition of non-cash goodwill impairment losses for an aggregate amount of $365 million, of which $273 million corresponds to our operating segment in the United States and $92 million corresponds to our operating segment in Spain. The non-cash goodwill impairment losses in 2022 were mainly related to the significant increase in the discount rates as compared to 2021 and the resulting significant decrease in our projected cash flows in these operating segments, considering the global inflationary environment, which increased the risk-free rates and the material increase in the funding costs observed in the industry during this period. These negative effects offset the expected improvements in estimated Operating EBITDA generation in both the United States and Spain.
In comparison to 2021, our financial expenses in 2022 show a decrease of 39%, which was mainly driven by a reduction in our interest expenses and gains of $104 million from debt tender offers and other market transactions reducing debt during the year. In this respect, we partially repurchased different series of our notes for an aggregate principal amount of $1,172 million. Additionally, our financial income and other items, net improve from an expense of $79 million to an income of $47 million, mainly due to a favorable foreign exchange result.
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Selected Consolidated Financial Information
| As of and for the Year Ended December 31, |
||||||||||||
| 2020 | 2021 | 2022 | ||||||||||
| (in millions of Dollars, except ratios and share and per share amounts) |
||||||||||||
| Statement of Operations Information: |
||||||||||||
| Revenues |
$ | 12,669 | $ | 14,379 | $ | 15,577 | ||||||
| Cost of sales(1) |
(8,586 | ) | (9,743 | ) | (10,755 | ) | ||||||
| Gross profit |
4,083 | 4,636 | 4,822 | |||||||||
| Operating expenses |
(2,791 | ) | (2,917 | ) | (3,261 | ) | ||||||
| Operating earnings before other expenses, net(2) |
1,292 | 1,719 | 1,561 | |||||||||
| Other expenses, net |
(1,763 | ) | (82 | ) | (467 | ) | ||||||
| Operating earnings (loss)(2) |
(471 | ) | 1,637 | 1,094 | ||||||||
| Financial items(3) |
(888 | ) | (737 | ) | (354 | ) | ||||||
| Share of profit of equity accounted investees |
49 | 54 | 30 | |||||||||
| Earnings (loss) before income tax |
(1,310 | ) | 954 | 770 | ||||||||
| Discontinued operations(4) |
(100 | ) | (39 | ) | 324 | |||||||
| Non-controlling interest net income |
21 | 25 | 27 | |||||||||
| Controlling interest net income (loss) |
(1,467 | ) | 753 | 858 | ||||||||
| Basic earnings (loss) per share(5)(6) |
(0.0332 | ) | 0.0171 | 0.0197 | ||||||||
| Diluted earnings (loss) per share(5)(6) |
(0.0332 | ) | 0.0168 | 0.0193 | ||||||||
| Basic earnings (loss) per share from continuing operations(5)(6) |
(0.0309 | ) | 0.0180 | 0.0123 | ||||||||
| Diluted earnings (loss) per share from continuing operations(5)(6) |
(0.0309 | ) | 0.0177 | 0.0120 | ||||||||
| Number of shares outstanding(5)(7)(8) |
44,870 | 44,853 | 44,348 | |||||||||
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| As of and for the Year Ended December 31, |
||||||||||||
| 2020 | 2021 | 2022 | ||||||||||
| (in millions of Dollars, except ratios and share and per share amounts) |
||||||||||||
| Statement of Financial Position Information: |
||||||||||||
| Cash and cash equivalents |
950 | 613 | 495 | |||||||||
| Assets held for sale and other current assets(9) |
304 | 272 | 183 | |||||||||
| Property, machinery and equipment, net and assets for the right-of-use, net(13) |
11,413 | 11,322 | 11,284 | |||||||||
| Total assets |
27,425 | 26,650 | 26,447 | |||||||||
| Current debt |
179 | 73 | 51 | |||||||||
| Non-current debt |
9,160 | 7,306 | 6,920 | |||||||||
| Liabilities directly related to assets held for sale |
6 | 39 | — | |||||||||
| Non-controlling interest and Perpetual Debentures(10) |
877 | 444 | 408 | |||||||||
| Total controlling interest |
8,075 | 9,827 | 10,501 | |||||||||
| Other Financial Information: |
||||||||||||
| Book value per share(5)(8)(11) |
0.1800 | 0.2191 | 0.2368 | |||||||||
| Operating margin before other expenses, net(14) |
10.2 | % | 12.0 | % | 10.0 | % | ||||||
| Operating EBITDA(12) |
2,397 | 2,839 | 2,681 | |||||||||
| Capital expenditures |
795 | 1,094 | 1,362 | |||||||||
| Depreciation and amortization of assets |
1,105 | 1,120 | 1,120 | |||||||||
| Cash flows provided by operating activities from continuing operations |
2,348 | 2,500 | 2,150 | |||||||||
| Basic earnings (loss) per CPO from continuing operations(5)(6) |
(0.0927 | ) | 0.0540 | 0.0369 | ||||||||
| Basic earnings (loss) per CPO(5)(6) |
(0.0996 | ) | 0.0513 | 0.0591 | ||||||||
| Total debt plus other financial obligations(13) |
11,185 | 9,157 | 8,825 | |||||||||
| (1) | Cost of sales includes depreciation, amortization and depletion of assets involved in production, expenses related to storage in production plants, freight expenses of raw materials in plants and delivery expenses of our ready-mix concrete business. Our cost of sales excludes (i) expenses related to personnel and equipment comprising our selling network and those expenses related to warehousing at the points of sale and (ii) freight expenses of finished products from our producing plants to our points of sale and from our points of sale to our customers’ locations, which are all included as part of the line item titled “Operating expenses.” |
| (2) | In the statements of operations, we include the line item titled “Operating earnings before other expenses, net” considering that is a subtotal relevant for the determination of Cemex’s “Operating EBITDA” as explained in note 2.1 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report. Under IFRS, while there are line items that are customarily included in the statements of operations, such as revenues, operating costs and expenses and financial revenues and expenses, among others, the inclusion of certain subtotals such as “Operating earnings before other expenses, net” and the display of such statements of operations varies significantly by industry and company according to specific needs. |
| (3) | Financial items include our financial expense and our financial income and other items, net, which includes net interest cost of pension liabilities, financial income, results from financial instruments, net (derivatives, fixed-income investments and other securities), foreign exchange results and effects of amortized cost on assets and liabilities and others, net. See notes 8.1 and 8.2 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report. |
| (4) | Considering the disposal of entire reporting segments as well as the sale of significant businesses, our statements of operations present as part of the single line item of “Discontinued operations,” net of income tax, the results of: (a) the digital solution business Neoris for the years ended December 31, 2020 and 2021 and for the period from January 1 to October 25, 2022; (b) the operating segment in Costa Rica and El Salvador for the years 2020, 2021 and for the period from January 1 to August 31, 2022; (c) the white cement business held for sale in Spain for the year ended December 31, 2020 and for the period from January 1 to July 9, 2021; (d) France assets related to Rhône-Alpes region for the year ended December 31, |
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| 2020 and for the period from January 1 to March 31, 2021; (e) the assets sold in the United Kingdom for the period from January 1 to August 3, 2020 and (f) Kosmos’ assets sold in the United States for the period from January 1 to March 6, 2020. See note 4.2 in Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report. |
| (5) | Cemex, S.A.B. de C.V.’s capital stock consists of Series A shares and Series B shares. Each CPO represents two Series A shares and one Series B share. As of December 31, 2022, 99.88% of Cemex, S.A.B. de C.V.’s outstanding share capital was represented by CPOs, with each ADS representing ten CPOs. During 2022, under the repurchase programs authorized at Cemex, S.A.B. de C.V.’s Ordinary General Shareholders’ Meeting held on March 25, 2021, and March 24, 2022, Cemex, S.A.B. de C.V. repurchased 220.6 million CPOs, at a weighted average price in Mexican Pesos equivalent to $0.5026 per CPO, which was equivalent to an amount of $110.9 million. The shares repurchased under such repurchase programs were proposed and subsequently approved for cancellation at the Cemex, S.A.B. de C.V. Annual Ordinary General Shareholders’ Meeting held on March 23, 2023. Thus, as of March 23, 2023, 99.73% of Cemex, S.A.B. de C.V.’s outstanding share capital was represented by CPOs, with each ADS representing ten CPOs. No CPOs were repurchased from March 25, 2021 to December 31, 2021 under the repurchase program authorized at Cemex, S.A.B. de C.V.’s Ordinary General Shareholders’ Meeting held on March 25, 2021. No shares were repurchased from March 25, 2021 to December 31, 2021. |
| (6) | Earnings per share is calculated based upon the weighted-average number of shares outstanding during the year, as described in note 23 to our 2022 audited consolidated financial statements included elsewhere in this annual report. Basic earnings per CPO is determined by multiplying the basic earnings per share for each period by three (the number of shares underlying each CPO). Basic earnings per CPO is presented solely for the convenience of the reader and does not represent a measure under IFRS. As shown in notes 4.2 and 23 to our 2022 audited consolidated financial statements included elsewhere in this annual report, and in connection with our discontinued operations mentioned above, for the year ended December 31, 2020, “Basic loss per share” and “Diluted loss per share” include ($0.0309) from “Continuing operations,” for the year ended December 31, 2021, “Basic earnings per share” and “Diluted earnings per share” include $0.0180 and $0.0177, respectively from “Continuing operations” and for the year ended December 31, 2022, “Basic earnings per share” and “Diluted earnings per share” include $0.0123 and $0.0120, respectively from “Continued operations.” In addition, for the year ended December 31, 2020, “Basic loss per share” and “Diluted loss per share” include ($0.0023) from “Discontinued operations,” for the year ended December 31, 2021, “Basic earnings per share” and “Diluted earnings per share” include ($0.0009) from “Discontinued operations” and for the year ended December 31, 2022, “Basic earnings per share” and “Diluted earnings per share” include $0.0074 and $0.0073, respectively from “Discontinued operations.” See note 23 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report. |
| (7) | Cemex, S.A.B. de C.V. did not declare a dividend for fiscal years 2020, 2021 and 2022. No recapitalization of retained earnings or cash dividend was proposed for Cemex, S.A.B. de C.V.’s annual ordinary general shareholders’ meeting held on March 26, 2020, March 25, 2021 and March 23, 2022. |
| (8) | Represents the weighted average number of shares diluted included in note 23 to our 2022 audited consolidated financial statements included elsewhere in this annual report. |
| (9) | In 2020, includes assets held for sale in connection with the white cement assets in Spain of $107 million. In 2021, includes assets held for sale in connection with the operating segments in Costa Rica and El Salvador for $77 million. Additionally, as for the years ended December 31, 2020, 2021 and 2022, included other assets held for sale for $80 million, $64 million and $69 million, respectively. |
| (10) | As of December 31, 2020, the line item of “Non-controlling interest and perpetual debentures” included $449 million that represents the nominal amounts of Perpetual Debentures, denominated in Dollars and Euros, issued by consolidated entities. In June 2021, Cemex redeemed all series of its outstanding Perpetual Debentures. In accordance with IFRS, these securities qualify as equity due to their perpetual nature and the option to defer the coupons. |
| (11) | Book value per share is calculated by dividing the total controlling interest by the number of shares outstanding. |
| (12) | “Operating EBITDA” equals operating earnings before other expenses, net, plus depreciation and amortization expenses. Operating EBITDA is calculated and presented because it is an indicator used by our management to review operating performance and for decision-making purposes and it is included in our Credit Agreements) as a financial indicator of our ability to internally fund capital expenditures and service |
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| or incur debt. See note 17.1 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report. Operating EBITDA is a non-IFRS measure and should not be considered a measure of financial performance, an alternative to cash flows or a measure of liquidity under IFRS. Our Operating EBITDA may not be comparable to similarly titled measures reported by other companies due to potential differences in the method of calculation. Operating EBITDA is reconciled below to operating earnings before other expenses, net, as reported in the statements of operations, and to cash flows provided by operating activities from continuing operations before financial expense, coupons on the 5.125% Subordinated Notes and Perpetual Debentures and income taxes, as reported in the statement of cash flows. Financial expense under IFRS does not include aggregate coupon payments of the Perpetual Debentures issued by consolidated entities and the 5.125% Subordinated Notes of $24 million in 2020, $41 million in 2021 and $54 million in 2022, as described in notes 21.2 and 21.4 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report. |
| (13) | From 2020 through 2022, other financial obligations include: (a) lease contracts as per IFRS 16; and (b) liabilities secured with accounts receivable. See notes 15.2 and 17.2 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report. |
| (14) | Operating Margin before other expenses, net is calculated by dividing Operating earnings before other expenses, net by Revenues. |
| For the Year Ended December 31, | ||||||||||||
| 2020 | 2021 | 2022 | ||||||||||
| (in millions of Dollars) | ||||||||||||
| Reconciliation of cash flows provided by operating activities from continuing operations to Operating EBITDA |
||||||||||||
| Cash flow provided by operating activities from continuing operations |
$ | 2,348 | $ | 2,500 | $ | 2,150 | ||||||
|
|
|
|
|
|
|
|||||||
| Plus/minus: |
||||||||||||
| Changes in working capital excluding income taxes |
(199 | ) | 143 | 390 | ||||||||
| Depreciation and amortization of assets |
(1,105 | ) | (1,120 | ) | (1,120 | ) | ||||||
| Other items, net |
248 | 196 | 141 | |||||||||
|
|
|
|
|
|
|
|||||||
| Operating earnings before other expenses, net |
1,292 | 1,719 | 1,561 | |||||||||
| Plus: |
||||||||||||
| Depreciation and amortization of assets |
1,105 | 1,120 | 1,120 | |||||||||
|
|
|
|
|
|
|
|||||||
| Operating EBITDA |
$ | 2,397 | $ | 2,839 | $ | 2,681 | ||||||
|
|
|
|
|
|
|
|||||||
Consolidation of Our Results of Operations
Our 2022 audited consolidated financial statements included elsewhere in this annual report include those subsidiaries in which we hold a controlling interest or which we otherwise control. Control exists, and consolidation is required, only when we have all of the following: (a) the power, directly or indirectly, to direct the relevant activities of an entity; (b) the exposure to variable returns from our involvement with such entity; and (c) the ability to use our power over such entity to affect its returns.
Investments in associates when we have significant influence, which is generally presumed with a minimum equity interest of 20% and/or joint venture arrangements, in which we and other third-party investors have joint control and have rights to the net assets of the arrangements, are accounted for by the equity method. Under the equity method, after acquisition, the investment’s original cost is adjusted for the proportional interest in the associate’s equity and earnings.
All balances and transactions between the group subsidiaries have been eliminated in consolidation.
Discontinued Operations
Considering the disposal of entire reporting segments as well as the sale of significant businesses, our statements of operations present as part of the single line item of “Discontinued operations” the results of
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operations, net of income tax, of the following transactions (as further described below): (a) Neoris operations for the years ended 2020 and 2021 and for the period from January 1 to October 25, 2022; (b) Costa Rica and El Salvador operations for the years ended December 31, 2020 and 2021 and for the period from January 1 to August 31, 2022; (c) the white cement business sold in Spain for the year ended December 31, 2020 and for the period from January 1 to July 9, 2021; (d) the France assets related to the Rhône-Alpes region for the year ended December 31, 2020 and for the period from January 1 to March 31, 2021; (e) the assets sold in the United Kingdom for the period from January 1 to August 3, 2020; and (f) Kosmos’ assets sold in the United States for the period from January 1 to March 6, 2020. As a result, the financial data for the years ended December 31, 2020 and 2021 previously reported was restated. See note 4.2 in Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
Acquisition of Operations
The operating results of newly acquired businesses are consolidated in our financial statements beginning on the acquisition date. Therefore, all periods presented do not include operating results corresponding to newly acquired businesses before we assumed control.
Significant Transactions
For the years ended December 31, 2020, 2021 and 2022, our consolidated results reflect the following transactions:
| • | On October 25, 2022, we created a partnership with Advent. As part of the partnership, we sold to Advent a 65% stake in Neoris for a total consideration of $119 million. While surrendering control to Advent, we retain a 34.8% stake and remain as a key strategic partner and customer of Neoris. Our retained 34.8% stake in Neoris was remeasured at fair value at the date of loss of control and is subsequently accounted for under the equity method and presented in the line item “Investments in associates and joint ventures.” Neoris’ results for the years ended December 31, 2020 and 2021 and for the period from January 1 to October 25, 2022 are reported in the statements of operations, net of income tax, in the single line item “Discontinued operations,” including a gain on sale of $117 million in 2022, net of the reclassification of foreign currency translation effects accrued in equity until the date of loss of control. |
| • | On August 31, 2022, we announced that we, through certain of our subsidiaries, concluded the sale agreed in December 2021 of our operations in Costa Rica and El Salvador to affiliates of Cementos Progreso Holdings, S.L. for a total consideration of $325 million, related to our aggregate controlling interest. The divested assets consisted of one fully integrated cement plant, one grinding station, seven ready-mix plants, one aggregate quarry, as well as one distribution center in Costa Rica and one distribution center in El Salvador. As of December 31, 2021, the assets and liabilities related to our operations in Costa Rica and El Salvador were presented in the financial statements in the line items “Assets held for sale” and “Liabilities directly related to assets held for sale.” Our operations of these assets in Costa Rica and El Salvador for the years ended December 31, 2020 and 2021 and for the period from January 1, 2022 to August 31, 2022 are reported in the statements of operations, net of income tax, as part of the single line item “Discontinued operations,” including in 2022 a gain on sale of $240 million, which includes the reclassification of foreign currency translation effects accrued in equity until the disposal date. |
| • | On December 10, 2021, through a subsidiary in Mexico, we acquired Broquers Ambiental, a sustainable waste management company for a total consideration of $13 million. Broquers Ambiental assets include a plant for solid waste treatment for its use as alternate fuel. During 2022, considering the fair values of the assets acquired and liabilities assumed, we determined goodwill of $4 million. |
| • | On July 11, 2022, through a subsidiary in Germany, we completed the acquisition of a 53% stake in the German aggregates company ProStein for a total consideration of $21 million. The investment expands |
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| our aggregates business in the region and we estimate that it increases the life of the aggregates’ reserves for our operations in Central Europe for at least the next 25 years. The majority stake in ProStein’s assets adds a full range of fine and hard aggregates to our aggregates portfolio. In addition to supplying the greater Berlin area, the additional capacity can supply several urban centers in Poland and the Czech Republic. ProStein’s assets include six active hardstone plants and six CDEW recovery sites. As of December 31, 2022, based on the preliminary valuation of the fair values of the assets acquired and liabilities assumed, we have not recorded any goodwill. |
| • | On July 9, 2021, we announced that we concluded the sale agreed in March 2019 of our white cement business, except for Mexico and the U.S., to Çimsa Çimento Sanayi Ve Ticaret A.S¸ for a total consideration of $155 million. Assets sold included our Buñol cement plant in Spain and white cement customer list. Our operations of these assets in Spain for the year ended December 31, 2020 and the period from January 1, 2021 to July 9, 2021 are reported in the statements of operations, net of income tax, as part of the single line item “Discontinued operations,” including in 2021 a loss on sale of $67 million net of the proportional allocation of goodwill of $41 million. |
| • | On March 31, 2021, we sold 24 concrete plants and one aggregates quarry in France to Holcim for an amount in Euros equivalent to $44 million. These assets were located in the Rhône-Alpes region in the Southeast of France, east of our operations in Lyon. We will retain our business in Lyon. The operations related to these assets for the year ended December 31, 2020 and the three-month period ended March 31, 2021 are presented in our statements of operations, net of income tax, as part of the single line item “Discontinued operations.” |
| • | In January 2021, one of our subsidiaries in Israel acquired two ready-mix concrete plants from Kinneret and Beton-He’Emek for an amount in shekels equivalent to $6 million. After the conclusion of the purchase price allocation to the fair values of the assets acquired and liabilities assumed of this business, we determined goodwill of $5 million. |
| • | During 2020, Cemex España made the 2020 CLH Tender Offer. As of December 31, 2022, considering the effects of the 2020 CLH Tender Offer and additionally including shares of CLH purchased by us in the secondary market, we indirectly own 95.30% of all outstanding shares of CLH (which excludes shares of CLH owned by CLH). See “Item 5—Operating and Financial Review and Prospects—Recent Developments—Recent Developments Relating to Our Business and Operations.” |
| • | On August 3, 2020, through an affiliate in the United Kingdom, we closed the sale of certain assets to Breedon for an amount in Pounds equivalent to $230 million, including $30 million of debt. The assets included 49 ready-mix plants, 28 aggregate quarries, four depots, one cement terminal, 14 asphalt plants, four concrete products operations, as well as a portion of our paving solutions business in the United Kingdom. After completion of this divestiture, we maintain a significant footprint in key operating geographies in the United Kingdom related to the production and sale of cement, ready-mix, aggregates, asphalt and paving solutions, among others. Our operations of these assets in the United Kingdom for the period from January 1 to August 3, 2020, which includes a loss on sale of $57 million net of the proportional allocation of goodwill of $47 million, are presented in our statements of operations, net of tax, as part of the single line item “Discontinued operations.” |
| • | On March 6, 2020, we concluded the sale of our U.S. affiliate Kosmos, a partnership with a subsidiary of Buzzi Unicem S.p.A. in which we held a 75% interest, to Eagle Materials Inc. for $665 million. The share of proceeds to us from this transaction was $499 million before transactional and other costs and expenses. The assets that were divested consisted of Kosmos’ cement plant in Louisville, Kentucky, as well as related assets which include seven distribution terminals and raw material reserves. The operations of these assets in the United States for the period from January 1 to March 6, 2020, which includes a gain on sale of $14 million, net of the proportional allocation of goodwill of $291 million, and are presented in our statements of operations, net of income tax, as part of the single line item “Discontinued operations.” |
| • | During the first six months of 2020, one of our subsidiaries in Israel acquired Netivei Noy from Ashtrom Industries for an amount in shekels equivalent to $33 million. After the conclusion of the |
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| purchase price allocation to the fair values of the assets acquired and liabilities assumed of this business, we determined goodwill of $2 million. |
| • | On January 29, 2020, CHP announced the results of its stock rights offering pursuant to which 8,293,831,169 common shares of CHP were issued and listed on the Philippine Stock Exchange on March 4, 2020. As of December 31, 2022, after giving effect to the stock rights offering, and other repurchased in the market over the last few years, our indirect ownership of CHP’s outstanding common shares had further increased to 77.90%. See “Item 5—Operating and Financial Review and Prospects—Recent Developments—Recent Developments Relating to Our Business and Operations.” |
See notes 4.1 and 4.2 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
Consolidated Statements of Operations Data
The following table sets forth our selected consolidated statements of operations data for each of the years ended December 31, 2020, 2021 and 2022 expressed as a percentage of revenues.
| Year Ended December 31, | ||||||||||||
| 2020 | 2021 | 2022 | ||||||||||
| Revenues |
100 | % | 100 | % | 100 | % | ||||||
| Cost of sales |
(67.8 | ) | (67.8 | ) | (69.0 | ) | ||||||
| Gross profit |
32.2 | 32.2 | 31.0 | |||||||||
| Operating expenses |
(22.0 | ) | (20.3 | ) | (20.9 | ) | ||||||
| Operating earnings before other expenses, net |
10.2 | 12.0 | 10.0 | |||||||||
| Other expenses, net |
(13.9 | ) | (0.6 | ) | (3.0 | ) | ||||||
| Operating earnings |
(3.7 | ) | 11.4 | 7.0 | ||||||||
| Financial expense |
(6.1 | ) | (4.6 | ) | (2.6 | ) | ||||||
| Financial income and other items, net |
(0.9 | ) | (0.5 | ) | 0.3 | |||||||
| Share of profit on equity accounted investees |
0.4 | 0.4 | 0.2 | |||||||||
| Earnings (loss) before income tax |
(10.3 | ) | 6.6 | 4.9 | ||||||||
| Income tax |
(0.3 | ) | (1.0 | ) | (1.3 | ) | ||||||
| Net income (loss) from continuing operations |
(10.6 | ) | 5.7 | 3.6 | ||||||||
| Discontinued operations |
(0.8 | ) | (0.3 | ) | 2.1 | |||||||
| Consolidated net income (loss) |
(11.4 | ) | 5.4 | 5.7 | ||||||||
| Non-controlling interest net income |
0.2 | 0.2 | 0.2 | |||||||||
| Controlling interest net income (loss) |
(11.6 | ) | 5.2 | 5.5 | ||||||||
Key Components of Results of Operations
Revenues
Revenues are primarily comprised of cement, ready-mix concrete, aggregates, and Urbanization Solutions, which accounted for 94%, 90% and 86% of consolidated revenues before eliminations resulting from consolidation for the years ended December 31, 2020, 2021 and 2022, respectively. We recognized revenues at a point in time or overtime in the amount of the price, before tax on sales, expected to be received for goods and services supplied because of ordinary activities, as contractual performance obligations are fulfilled, and control of goods and services passes to the customer. Revenues are decreased by any trade discounts or volume rebates granted to customers. Transactions between related parties are eliminated in consolidation. Variable consideration is recognized when it is highly probable that a significant reversal in the amount of cumulative revenue recognized for the contract will not occur and is measured using the expected value or the most likely amount method, whichever is expected to better predict the amount based on the terms and conditions of the contract.
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Cost of Sales
Cost of sales represents the production cost of goods sold, including raw materials and goods for resale, payroll related to the production phase, electricity, fuels, and other services, depreciation and amortization of assets involved in the production, maintenance, repairs and supplies, freight expenses of raw material in plants and delivery expenses of our ready-mix concrete business, among other production costs. Cost of sales does not include (i) expenses related to personnel, equipment and services involved in sales activities and storage of product at points of sales, which are included in administrative and selling expenses and (iii) freight expenses of finished products between plants and points of sale and freight expenses between points of sales and the customers’ facilities, which are included as part of distribution expenses. Administrative and selling expenses and distribution expenses are included in operating expenses. As a percentage of revenues, cost of sales represented 67.8%, 67.8% and 69.0% for the years ended December 31, 2020, 2021 and 2022, respectively.
Operating Expenses
Operating expenses comprise administrative and selling expenses and distribution and logistics expenses. Administrative expenses represent the expenses associated with personnel, services and equipment, including depreciation and amortization, related to managerial activities and back-office for our management. Sales expenses represent the expenses associated with personnel, services and equipment, including depreciation and amortization, involved specifically in sales activities. Distribution and logistics expenses refer to storage expenses at points of sales, including depreciation and amortization, freight expenses of finished products between plants and points of sale and freight expenses between points of sales and the customers’ facilities. As a percentage of revenues, operating expenses represented 22.0%, 20.3% and 20.9% for the years ended December 31, 2020, 2021 and 2022, respectively. The main operating expenses are comprised of transportation cost, payroll of personnel, depreciation and amortization of assets related to the operating expenses, as well as professional legal, accounting and advisory services and maintenance, repairs and supplies accounted for 96.2%, 96.4% and 96.1% of consolidated operating expenses for the years ended December 31, 2020, 2021 and 2022, respectively.
Other Expenses, Net
The line item Other expenses, net consists primarily of revenues and expenses not directly related to our main activities or which are of non-recurring nature, including impairment losses of long-lived assets, non-recurring sales of emission allowances, results on disposal of assets, which relates to sales of property plant and equipment, and restructuring costs, losses in connection with property damages and natural disasters and incremental costs and expenses related to COVID-19 pandemic, among others. For the years ended December 31, 2020, 2021 and 2022, Other expenses, net, amounted to $1,763 million, $82 million and $467 million, respectively. In 2020, 2021 and 2022, include impairment losses of goodwill of $1,020 million, $440 million and $365 million, respectively, and in 2020 and 2021, it included impairment losses of other intangible assets of $194 million and $53 million, respectively. As a percentage of revenues, Other expenses, net, represented 13.9%, 0.6% and 3.0% for the years ended December 31, 2020, 2021 and 2022, respectively.
Financial income and other items, net
Financial income and other items, net, includes (i) effects of amortized cost on assets and liabilities and others, net; (ii) net interest cost of pension liabilities; (iii) results from financial instruments, net; (iv) foreign exchange results, comprising foreign exchange gains and losses in connection with the effects of foreign exchange fluctuations on our assets and liabilities denominated in currencies other than the Dollar; (v) financial income, which relates to income in connection with deposits and investments; and (vi) others. As a percentage of revenues, financial income, and other items, net, represented 0.9%, 0.5% and 0.3% for the years ended December 31, 2020, 2021 and 2022, respectively.
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Income Tax
Income tax comprises current income taxes net of deferred income taxes. For the years ended December 31, 2020, 2021 and 2022, our statutory income tax rate was 30%, 30% and 30%, respectively. Our average effective tax rate equals the net amount of income tax revenue or expense divided by income or loss before income taxes, as these line items are reported in the statement of operations, was (2.7%), 14.4% and 27.1%, for the years ended December 31, 2020, 2021 and 2022, respectively. The effects reflected in the statement of operations for income taxes include the amounts incurred during the period and the amounts of deferred income taxes, determined according to the income tax law applicable to each subsidiary, reflecting uncertainty in income tax treatments. Consolidated deferred income taxes represent the addition of the amounts determined in each subsidiary by applying the enacted statutory income tax rate or substantively enacted by the end of the reporting period to the total temporary differences resulting from comparing the book and taxable values of assets and liabilities, considering tax assets such as loss carryforwards and other recoverable taxes, to the extent that it is probable that future taxable profits will be available against which they can be utilized. The measurement of deferred income taxes at the reporting period reflects the tax consequences that follow how we expect to recover or settle the carrying amount of its assets and liabilities. Deferred income taxes for the period represent the difference between balances of deferred income taxes at the beginning and the end of the period. Deferred income tax assets and liabilities relating to different tax jurisdictions are not offset. The effect of a change in enacted statutory tax rates is recognized in the period in which the change is officially enacted.
Year Ended December 31, 2022 Compared to Year Ended December 31, 2021
Summarized in the table below are the percentage (%) increases (+) and decreases (-) for the year ended December 31, 2022 compared to the year ended December 31, 2021 in our domestic cement and ready-mix concrete sales volumes, as well as export sales volumes of cement and domestic cement and ready-mix concrete average sales prices for each of our reporting segments.
Reporting segments represent the components of Cemex that engage in business activities from which we may earn revenues and incur expenses, whose operating results are regularly reviewed by the entity’s top management to make decisions about resources to be allocated to the segments and assess their performance, and for which discrete financial information is available. We operate geographically and by line of business on a regional basis. For the reported periods, the Company’s operations were organized in four geographical regions, each under the supervision of a regional president, as follows: 1) Mexico, 2) United States, 3) EMEAA and 4) SCA&C. The accounting policies applied to determine the financial information by reporting segment are consistent with those described in note 2 to our 2022 audited consolidated financial statements included elsewhere in this annual report.
As of December 31, 2022, considering similar regional and economic characteristics and/or materiality, certain countries have been aggregated and presented as single line items as follows: (i) “Rest of EMEAA” refers mainly to Cemex’s operations and activities in the Czech Republic, Croatia, Egypt and the UAE; (ii) “Rest of SCA&C” refers mainly to Cemex’s operations and activities in Puerto Rico, Nicaragua, Jamaica, the Caribbean and Guatemala, excluding the operations of TCL; and (iii) “Caribbean TCL” refers to TCL’s operations mainly in Trinidad and Tobago, Jamaica, Guyana and Barbados. The segment “Others” refers to: (1) cement trade maritime operations, (2) Cemex, S.A.B. de C.V., (3) other corporate entities and finance subsidiaries and (4) other minor subsidiaries with different lines of business.
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The table below and the other volume data presented by reporting segment in this “Item 5—Operating and Financial Review and Prospects—Results of Operations—Year Ended December 31, 2022 Compared to Year Ended December 31, 2021” section are presented before eliminations resulting from consolidation (including those shown in note 4.3 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report).
| Domestic Sales Volumes | Export Sales Volumes |
Average Domestic Sales Prices in Local Currency(1) |
||||||||||||||||||
| Reporting Segment |
Cement | Ready-Mix Concrete |
Cement | Cement | Ready-Mix Concrete |
|||||||||||||||
| Mexico |
-8 | % | +10 | % | +17 | % | +16 | % | +15 | % | ||||||||||
| United States |
+1 | % | FLAT | — | +16 | % | +15 | % | ||||||||||||
| EMEAA |
||||||||||||||||||||
| United Kingdom |
-5 | % | -9 | % | — | +37 | % | +30 | % | |||||||||||
| France |
— | -4 | % | — | — | +7 | % | |||||||||||||
| Germany |
+8 | % | -6 | % | -32 | % | +17 | % | +9 | % | ||||||||||
| Poland |
-4 | % | -3 | % | -13 | % | +24 | % | +22 | % | ||||||||||
| Spain |
FLAT | -3 | % | +8 | % | +30 | % | +23 | % | |||||||||||
| Philippines |
-10 | % | — | -35 | % | +9 | % | — | ||||||||||||
| Israel |
— | +4 | % | — | — | +10 | % | |||||||||||||
| Rest of EMEAA |
+8 | % | +3 | % | -34 | % | +27 | % | +22 | % | ||||||||||
| SCA&C |
||||||||||||||||||||
| Colombia |
-1 | % | +14 | % | — | +8 | % | +4 | % | |||||||||||
| Panama |
+7 | % | +44 | % | +16 | % | -4 | % | +4 | % | ||||||||||
| Caribbean TCL |
-2 | % | -35 | % | -8 | % | +13 | % | +8 | % | ||||||||||
| Dominican Republic |
-7 | % | +10 | % | -48 | % | +18 | % | +12 | % | ||||||||||
| Rest of SCA&C |
-19 | % | -33 | % | -35 | % | +13 | % | -8 | % | ||||||||||
“—” = Not Applicable
| (1) | Represents the average change in domestic cement and ready-mix concrete prices in local currency terms. For purposes of a reporting segment consisting of a region, the average prices in local currency terms for each individual country within the region are first translated into Dollar terms (except for the Rest of EMEAA segment, in which they are translated first into Euros) at the exchange rates in effect as of the end of the reporting period. Variations for a region represent the weighted average change of prices in Dollar terms (except for the Rest of EMEAA segment, in which they represent the weighted average change of prices in Euros) based on total sales volumes in the region. |
On a consolidated basis, our cement sales volumes decreased 5%, from 67.0 million tons in 2021 to 63.4 million tons in 2022, and our ready-mix concrete sales volumes increased 2%, from 49.2 million cubic meters in 2021 to 50.1 cubic meters in 2022. Our revenues increased 8%, from $14,379 million in 2021 to $15,577 million in 2022, and our operating earnings before other expenses, net decreased 9%, from $1,719 million in 2021 to $1,561 million in 2022. See the table below for a breakdown according to reporting segment.
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The following tables present selected financial information for revenues, operating earnings before other expenses, net and Operating EBITDA for each of our reporting segments for the years ended December 31, 2021 and 2022. The revenues information in the table below are presented before eliminations resulting from consolidation (including those shown in note 4.3 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report). Variations in revenues determined on the basis of Dollars include the appreciation or depreciation which occurred during the period between the local currencies of the countries in the regions vis-à-vis the Dollar; therefore, such variations differ substantially from those based solely on the countries’ local currencies:
| Variation in Local Currency(1) |
Approximate Currency Fluctuations |
Variation in Dollars |
Revenues For the Year Ended |
|||||||||||||||||
| Reporting Segment |
2021 | 2022 | ||||||||||||||||||
| (in millions of Dollars) | ||||||||||||||||||||
| Mexico |
+9 | % | +2 | % | +11 | % | $ | 3,466 | $ | 3,842 | ||||||||||
| United States |
+16 | % | — | +16 | % | 4,359 | 5,038 | |||||||||||||
| EMEAA |
||||||||||||||||||||
| United Kingdom |
+17 | % | -13 | % | +4 | % | 940 | 982 | ||||||||||||
| France |
+2 | % | -12 | % | -10 | % | 863 | 781 | ||||||||||||
| Germany |
+16 | % | -13 | % | +3 | % | 472 | 485 | ||||||||||||
| Poland |
+17 | % | -14 | % | +3 | % | 405 | 419 | ||||||||||||
| Spain |
+20 | % | -14 | % | +6 | % | 359 | 382 | ||||||||||||
| Philippines |
-2 | % | -9 | % | -11 | % | 424 | 379 | ||||||||||||
| Israel |
+12 | % | -5 | % | +7 | % | 785 | 840 | ||||||||||||
| Rest of EMEAA |
+29 | % | -15 | % | +14 | % | 618 | 707 | ||||||||||||
| SCA&C |
||||||||||||||||||||
| Colombia |
+11 | % | -13 | % | -2 | % | 437 | 429 | ||||||||||||
| Panama |
+23 | % | — | +23 | % | 121 | 149 | |||||||||||||
| Caribbean TCL |
+8 | % | FLAT | +8 | % | 280 | 302 | |||||||||||||
| Dominican Republic |
+12 | % | +4 | % | +16 | % | 299 | 348 | ||||||||||||
| Rest of SCA&C |
-15 | % | — | -15 | % | 465 | 394 | |||||||||||||
| Others |
+76 | % | — | +76 | % | 1,621 | 2,849 | |||||||||||||
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| Revenues from continuing operations before eliminations resulting from consolidation |
+15 | % | $ | 15,914 | $ | 18,326 | ||||||||||||||
| Eliminations resulting from consolidation |
(1,535 | ) | (2,749 | ) | ||||||||||||||||
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| Revenues from continuing operations |
+8 | % | $ | 14,379 | $ | 15,577 | ||||||||||||||
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|
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| Variation in Local Currency(1) |
Approximate Currency Fluctuations |
Variation in Dollars |
Operating Earnings Before Other Expenses, Net For the Year Ended December 31, |
|||||||||||||||||
| Reporting Segment |
2021 | 2022 | ||||||||||||||||||
| (in millions of Dollars) | ||||||||||||||||||||
| Mexico |
-6 | % | +2 | % | -4 | % | $ | 1,003 | $ | 961 | ||||||||||
| United States |
-2 | % | — | -2 | % | 314 | 307 | |||||||||||||
| EMEAA |
||||||||||||||||||||
| United Kingdom |
+110 | % | -22 | % | +88 | % | 72 | 135 | ||||||||||||
| France |
-68 | % | -2 | % | -70 | % | 43 | 13 | ||||||||||||
| Germany |
-64 | % | -7 | % | -71 | % | 41 | 12 | ||||||||||||
| Poland |
-1 | % | -12 | % | -13 | % | 48 | 42 | ||||||||||||
| Spain |
+38 | % | +6 | % | +44 | % | (39 | ) | (22 | ) | ||||||||||
| Philippines |
-31 | % | -5 | % | -36 | % | 74 | 47 | ||||||||||||
| Israel |
+16 | % | -20 | % | -4 | % | 69 | 66 | ||||||||||||
| Rest of EMEAA |
+123 | % | -26 | % | +97 | % | 31 | 61 | ||||||||||||
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| Variation in Local Currency(1) |
Approximate Currency Fluctuations |
Variation in Dollars |
Operating Earnings Before Other Expenses, Net For the Year Ended December 31, |
|||||||||||||||||
| Reporting Segment |
2021 | 2022 | ||||||||||||||||||
| (in millions of Dollars) | ||||||||||||||||||||
| SCA&C |
||||||||||||||||||||
| Colombia |
-31 | % | -8 | % | -39 | % | 61 | 37 | ||||||||||||
| Panama |
-20 | % | — | -20 | % | 15 | 12 | |||||||||||||
| Caribbean TCL |
+25 | % | -1 | % | +24 | % | 46 | 57 | ||||||||||||
| Dominican Republic |
Flat | +3 | % | +3 | % | 121 | 125 | |||||||||||||
| Rest of SCA&C |
-21 | % | — | -21 | % | 97 | 77 | |||||||||||||
| Others |
+33 | % | — | +33 | % | (277 | ) | (369 | ) | |||||||||||
|
|
|
|
|
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| Operating earnings before other expenses, net from continuing operations |
-9 | % | $ | 1,719 | $ | 1,561 | ||||||||||||||
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|
|
|
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“—” = Not Applicable
| (1) | Represents the variation in local currency terms. For purposes of a reporting segment consisting of a region, the variation in local currency terms for each individual country within the region are first translated into Dollar terms (except for the Rest of EMEAA segment, in which they are translated first into Euros) at the exchange rates in effect as of the end of the reporting period. Variations for a region represent the change in Dollar terms (except for the Rest of EMEAA segment, in which they represent the change in Euros), net, in the region. |
| Operating Earnings Before Other Expenses, Net(1) For the Year Ended December 31, |
Plus: Depreciation and amortization |
Operating EBITDA(2) For the Year Ended December 31, |
||||||||||||||||||||||
| Reporting Segment |
2021 | 2022 | 2021 | 2022 | 2021 | 2022 | ||||||||||||||||||
| Mexico |
$ | 1,003 | $ | 961 | $ | 161 | $ | 172 | $ | 1,164 | $ | 1,133 | ||||||||||||
| United States |
314 | 307 | 464 | 455 | 778 | 762 | ||||||||||||||||||
| EMEAA |
||||||||||||||||||||||||
| United Kingdom |
72 | 135 | 69 | 60 | 141 | 195 | ||||||||||||||||||
| France |
43 | 13 | 50 | 50 | 93 | 63 | ||||||||||||||||||
| Germany |
41 | 12 | 28 | 28 | 69 | 40 | ||||||||||||||||||
| Poland |
48 | 42 | 25 | 22 | 73 | 64 | ||||||||||||||||||
| Spain |
(39 | ) | (22 | ) | 33 | 28 | (6 | ) | 6 | |||||||||||||||
| Philippines |
74 | 47 | 40 | 37 | 114 | 84 | ||||||||||||||||||
| Israel |
69 | 66 | 45 | 46 | 114 | 112 | ||||||||||||||||||
| Rest of EMEAA |
31 | 61 | 56 | 55 | 87 | 116 | ||||||||||||||||||
| SCA&C |
||||||||||||||||||||||||
| Colombia |
61 | 37 | 26 | 24 | 87 | 61 | ||||||||||||||||||
| Panama |
15 | 12 | 16 | 16 | 31 | 28 | ||||||||||||||||||
| Caribbean TCL |
46 | 57 | 19 | 17 | 65 | 74 | ||||||||||||||||||
| Dominican Republic |
121 | 125 | 7 | 8 | 128 | 133 | ||||||||||||||||||
| Rest of SCA&C |
97 | 77 | 13 | 13 | 110 | 90 | ||||||||||||||||||
| Others |
(277 | ) | (369 | ) | 68 | 89 | (209 | ) | (280 | ) | ||||||||||||||
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| Continuing operations |
$ | 1,719 | $ | 1,561 | $ | 1,120 | $ | 1,120 | $ | 2,839 | $ | 2,681 | ||||||||||||
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| (1) | We include the line item titled “Operating earnings before other expenses, net” in our Statements of Operations under IFRS considering that it is a subtotal relevant for the determination of Cemex’s “Operating EBITDA” (Operating earnings before other expenses, net plus depreciation and amortization) as described in note 2.1 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report. |
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| (2) | Operating EBITDA is a relevant measure used by Cemex’s management to review operating performance and for decision-making purposes, as well as an indicator used by our creditors of our ability to internally fund capital expenditures and to measure our ability to service or incur debt under our financing agreements, as described in notes 4.3 and 17 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report. Our Operating EBITDA is not a measure of financial performance, an alternative to cash flow or a measure of liquidity under IFRS. Moreover, Operating EBITDA may not be comparable to other similarly titled measures of other companies. |
Variances explained below in this section are based on Operating earnings before other expenses, net which are substantially the same variances as those shown in our Operating EBITDA.
Revenues. Our consolidated revenues increased 8%, from $14,379 million in 2021 to $15,577 million in 2022. The increase in our revenues was mainly attributable to the higher prices of our products in local currency across all regions and higher ready-mix and aggregates volumes. Set forth below is a quantitative and qualitative analysis of the various factors affecting our revenues on a reporting segment basis. The discussion of volume data and revenues information below is presented before eliminations resulting from consolidation as described in note 4.3 to our 2022 audited consolidated financial statements included elsewhere in this annual report.
Mexico
Our domestic cement sales volumes from our operations in Mexico decreased 8% in 2022 compared to 2021, and ready-mix concrete sales volumes increased 10% over the same period. Our revenues from our operations in Mexico represented 21% of our total revenues for the year ended December 31, 2022, in Dollar terms, before eliminations resulting from consolidation. During the year, bagged cement demand normalized from the pandemic peak related to home improvements and government social spending, as well as inflationary pressures impacting retail consumption. The country continues to experience a pickup in the formal economy, and bulk cement and ready-mix volumes benefited from nearshoring investments in border states and tourism construction. Our cement export volumes from our operations in Mexico, which represented 14% of our Mexican cement sales volumes for the year ended December 31, 2022, increased 17% in 2022 compared to 2021, mainly due to higher export volume to the United States. Of our total cement export volumes from our operations in Mexico during 2022, 92% was shipped to the United States and 8% to our SCA&C segment. Our average sales price of domestic cement from our operations in Mexico increased 16%, in Mexican Peso terms, in 2022 compared to 2021, and our average sales price of ready-mix concrete increased 15%, in Mexican Peso terms, over the same period.
The following chart indicates the breakdown of Mexico revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2022:
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As a result of increases in domestic cement and ready-mix concrete sales prices, an increase in ready-mix concrete sales volumes and ready-mix concrete sales volumes, and an increase in cement exports sales, partially offset by a decrease in domestic cement sales volumes, our revenues in Mexico, in Mexican Peso terms, increased 9% in 2022 compared to 2021.
United States
Our domestic cement sales volumes from our operations in the United States increased 1% in 2022 compared to 2021, and ready-mix concrete sales volumes remained flat over the same period. The increase in domestic cement sales volumes were primarily attributable to strong demand momentum in a largely sold-out domestic market. Our operations in the United States represented 27% of our total revenues for the year ended December 31, 2022, in Dollar terms, before eliminations resulting from consolidation. Our average domestic cement sales prices of our operations in the United States increased 16%, in Dollar terms, in 2022 compared to 2021, and our average ready-mix concrete sales price increased 15%, in Dollar terms, over the same period.
The following chart indicates the breakdown of United States revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2022:
As a result of increases in domestic cement sales volumes and sales prices and ready-mix concrete sales prices, revenues from our operations in the United States, in Dollar terms, increased 16% in 2022 compared to 2021.
EMEAA
In 2022, our operations in the EMEAA region consisted of our operations in the United Kingdom, France, Germany, Poland, Spain, Philippines and Israel, which represent the most significant operations in this region, in addition to the Rest of EMEAA segment. Our revenues from our operations in the EMEAA region represented 27% of our total revenues for the year ended December 31, 2022, in Dollar terms, before eliminations resulting from consolidation. As of December 31, 2022, our operations in the EMEAA region represented 23% of our total assets in Dollar terms. Set forth below is a quantitative and qualitative analysis of the effects of the various factors affecting our revenues for our main operations in the EMEAA region.
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The following chart indicates the geographic breakdown of EMEAA region revenues by reporting segment, before others and eliminations resulting from consolidation, for the year ended December 31, 2022:
United Kingdom
Our domestic cement sales volumes from our operations in the United Kingdom decreased 5% in 2022 compared to 2021, and ready-mix concrete sales volumes decreased 9% over the same period. The decreases in domestic cement and ready-mix concrete sales volumes reflected a decline in the market activity for the second half of the year, as the United Kingdom economy weakened and suffered severe weather for the months of November and December. Our operations in the United Kingdom represented 5% of our total revenues for the year ended December 31, 2022, in Dollar terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in the United Kingdom increased 37%, in Pound terms, in 2022 compared to 2021, and our average sales price of ready-mix concrete increased 30%, in Pound terms, over the same period.
The following chart indicates the breakdown of United Kingdom revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2022:
As a result of increases in domestic cement and ready-mix concrete sales prices, revenues from our operations in the United Kingdom, in Pound terms, increased 17% in 2022 compared to 2021.
France
Our ready-mix concrete sales volumes from our operations in France decreased 4% in 2022 compared to 2021. The decrease in volumes reflected a tight and dynamic supply and demand market. Our operations in
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France represented 4% of our total revenues for the year ended December 31, 2022, in Dollar terms, before eliminations resulting from consolidation. Our average sales price of ready-mix concrete of our operations in France increased 7%, in Euro terms, in 2022 compared to 2021.
The following chart indicates the breakdown of France revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2022:
As a result of an increase in ready-mix concrete sales prices, partially offset by a decrease in ready-mix concrete sales volumes, revenues from our operations in France, in Euro terms, increased 2% in 2022 compared to 2021.
Germany
Our domestic cement sales volumes from our operations in Germany increased 8% in 2022 compared to 2021, and ready-mix concrete sales volumes decreased 6% over the same period. The increase in domestic cement sales volumes was mainly originated by an unfavorable weather condition in 2021 and the decrease in ready-mix concrete was mainly due to slowing demand in all markets. Our operations in Germany represented 3% of our total revenues for the year ended December 31, 2022, in Dollar terms, before eliminations resulting from consolidation. Our cement export volumes from our operations in Germany, which represented 20% of our Germany cement sales volumes for the year ended December 31, 2022 decreased 32% in 2022 compared to 2021, mainly due to lower volumes exported to Poland and Norway. All of our total cement export volumes from our operations in Germany during 2022 were to our EMEAA region. Our average sales price of domestic cement from our operations in Germany increased 17%, in Euro terms, in 2022 compared to 2021, and our average sales price of ready-mix concrete increased 9%, in Euro terms, over the same period.
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The following chart indicates the breakdown of Germany revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2022:
As a result of increases in domestic cement sales volumes and increases in sales prices, partially compensated by a decrease in ready-mix concrete sales volumes, revenues from our operations in Germany, in Euro terms, increased 16% in 2022 compared to 2021.
Poland
Our domestic cement sales volumes from our operations in Poland decreased 4% in 2022 compared to 2021, and ready-mix concrete sales volumes decreased 3% over the same period. The decrease in domestic cement and ready-mix concrete sales volumes were mainly due to price increases and project delays. Our operations in Poland represented 2% of our total revenues for the year ended December 31, 2022, in Dollar terms, before eliminations resulting from consolidation. Our cement export volumes from our operations in Poland, which represented 1% of our Poland cement sales volumes for the year ended December 31, 2022 decreased 13% in 2022 compared to 2021. All of our total cement export volumes from our operations in Poland during 2022, were to our Rest of EMEAA segment. Our average sales price of domestic cement from our operations in Poland increased 24%, in Euro terms, in 2022 compared to 2021, and our average sales price of ready-mix concrete increased 22%, in Euro terms, over the same period.
The following chart indicates the breakdown of Poland revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2022:
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As a result of increases in domestic cement and ready-mix concrete sales prices, partially offset by decreases in domestic cement and ready-mix concrete sales volumes, revenues from our operations in Poland, in Euro terms, increased 17% in 2022 compared to 2021.
Spain
Our domestic cement sales volumes from our operations in Spain remained flat in 2022 compared to 2021, while ready-mix concrete sales volumes decreased 3% over the same period. The decreases in ready-mix concrete sales volumes were mainly driven by lower construction activity in all regions. Our operations in Spain represented 2% of our total revenues for the year ended December 31, 2022, in Dollar terms, before eliminations resulting from consolidation. Our cement export volumes from our operations in Spain, which represented 29% of our Spain cement sales volumes for the year ended December 31, 2022, increased 8% in 2022 compared to 2021, due to higher export volumes to United Kingdom. Of our total cement export volumes from our operations in Spain during 2022, 99% were to the United Kingdom and 1% were to Rest of EMEAA region. Our average sales price of domestic cement of our operations in Spain increased 30%, in Euro terms, in 2022 compared to 2021, and our average sales price of ready-mix concrete increased 23%, in Euro terms, over the same period.
The following chart indicates the breakdown of Spain revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2022:
As a result of increases in domestic cement and ready-mix concrete sales prices, partially offset by a decrease in ready-mix concrete sales volume, revenues from our operations in Spain, in Euro terms, increased 20% in 2022 compared to 2021.
The Philippines
Our domestic cement sales volumes from our operations in the Philippines decreased 10% in 2022 compared to 2021. The decrease in domestic cement volumes was mainly due to public and private projects experiencing financial constraints due to the increasing cost of materials. Delays in government releasing additional funds and approvals of new public projects, as well as loss of volumes related to price increase in July. Our cement export volumes from our operations in the Philippines, which represented less than 1% of our Philippines’ cement sales volumes for the year ended December 31, 2022, decreased 35% in 2022 compared to 2021. All of our total cement exports from our operations in Philippines during 2022 were to the Rest of EMEAA segment. Our revenues from our operations in the Philippines represented 2% of our total revenues for the year ended December 31, 2022, in Dollar terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in the Philippines increased 9%, in Philippine Peso terms, in 2022 compared to 2021.
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The following chart indicates the breakdown of Philippines revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2022:
As a result of a decrease in domestic cement sales volumes, partially compensated by an increase in sales prices, revenues of our operations in the Philippines, in Philippine Peso terms, decreased 2% in 2022 compared to 2021.
Israel
Our ready-mix concrete sales volumes from our operations in Israel increased 4% in 2022 compared to 2021. Our operations in Israel represented 5% of our total revenues for the year ended December 31, 2022, in Dollar terms, before eliminations resulting from consolidation. Our average sales price of ready-mix concrete of our operations in Israel increased 10%, in Israeli New Shekel terms, in 2022 compared to 2021.
The following chart indicates the breakdown of Israel revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2022:
As a result of increases in ready-mix concrete sales volumes and prices, revenues from our operations in Israel, in Israeli New Shekel terms, increased 12% in 2022 compared to 2021.
Rest of EMEAA
Our domestic cement sales volumes from our operations in the Rest of EMEAA segment increased 8% in 2022 compared to 2021, and ready-mix concrete sales volumes increased 3% over the same period. Our cement
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export volumes from our operations in the Rest of EMEAA segment, which represented 6% of our Rest of EMEAA segment cement sales volumes for the year ended December 31, 2022, decreased 34% in 2022 compared to 2021. Of our total cement export volumes from our operations in the Rest of EMEAA segment during 2022, 99% were to countries in the EMEAA region and 1% were to Poland. Our revenues from our operations in the Rest of EMEAA segment represented 4% of our total revenues for the year ended December 31, 2022, in Dollar terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in the Rest of EMEAA segment increased 27%, in Euro terms, in 2022 compared to 2021, and our average sales price of ready-mix concrete increased 22%, in Euro terms, over the same period.
The following chart indicates the breakdown of Rest of EMEAA revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2022:
As a result of increases in domestic cement and ready-mix concrete sales volumes, as well, as increases in domestic cement and ready-mix concrete sales prices, revenues in the Rest of EMEAA segment, in Euro terms, increased 29%, in 2022 compared to 2021.
SCA&C
In 2022, our operations in the SCA&C region consisted of our operations in Colombia, Panama, the Dominican Republic, our Caribbean TCL operations, which represent our most significant operations in this region, and the Rest of SCA&C segment. Our revenues from our operations in the SCA&C region represented 9% of our total revenues for the year ended December 31, 2022, in Dollar terms, before eliminations resulting from consolidation. As of December 31, 2022, our operations in the SCA&C region represented 8% of our total assets, in Dollar terms. Set forth below is a quantitative and qualitative analysis of the effects of the various factors affecting our revenues for our main operations in the SCA&C region.
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The following chart indicates the geographic breakdown of SCA&C region revenues by reporting segment, before others and eliminations resulting from consolidation, for the year ended December 31, 2022:
Colombia
Our domestic cement sales volumes from our operations in Colombia decreased 1% in 2022 compared to 2021, and ready-mix concrete sales volumes increased 14% over the same period. The decrease in cement sales volume in Colombia was mainly due to our prices increasing and our ready-mix concrete sales volume increasing in tandem due to the recovery of the concrete industry, mainly supported by formal sector demand, in industrial and residential. Our revenues from our operations in Colombia represented 2% of our total revenues for the year ended December 31, 2022, in Dollar terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in Colombia increased 8%, in Colombian Peso terms, in 2022 compared to 2021, and our average sales price of ready-mix concrete increased 4%, in Colombian Peso terms, over the same period.
The following chart indicates the breakdown of Colombia revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2022:
As a result of increases in ready-mix concrete sales volumes and increases in domestic cement and ready-mix concrete sales prices, partially offset by a decrease in domestic cement sales volume, revenues of our operations in Colombia, in Colombian Peso terms, increased 11% in 2022 compared to 2021.
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Panama
Our domestic cement sales volumes from our operations in Panama increased 7% in 2022 compared to 2021, and ready-mix concrete sales volumes increased 44% over the same period. The increases in domestic cement and ready-mix concrete sales volumes in Panama were mainly due to increased activity in the infrastructure sector, largely due to work related to a third metro line. Our cement export volumes from our operations in Panama, which represented 62% of our Panama cement sales volumes for the year ended December 31, 2022, increased 16% in 2022 compared to 2021. Our revenues from our operations in Panama represented 1% of our total revenues for the year ended December 31, 2022, in Dollar terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in Panama decreased 4% in Dollar terms, in 2022 compared to 2021, and our average sales price of ready-mix concrete increased 4%, in Dollar terms, over the same period.
The following chart indicates the breakdown of Panama revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2022:
As a result of increases in domestic cement sales volumes and ready-mix concrete sales volumes and sales price, partially offset by a decrease in domestic cement sales price, revenues of our operations in Panama, in Dollar terms, increased 23% in 2022 compared to 2021.
Caribbean TCL
Our domestic cement sales volumes from our operations in Caribbean TCL decreased 2% in 2022 compared to 2021, and ready-mix concrete sales volumes decreased 35% over the same period. The decreases in cement and ready-mix sales volume came from lower demand. Our revenues from our operations in Caribbean TCL represented 2% of our total revenues for the year ended December 31, 2022, in Dollar terms, before eliminations resulting from consolidation. Our cement export volumes from our operations in Caribbean TCL segment represented 19% of our Caribbean TCL cement sales volumes for the year ended December 31, 2022, decreased 8% in 2022 compared to 2021. All of our total cement exports from our operations in Caribbean TCL during 2022 were to the Rest of SCA&C segment. Our average sales price of domestic cement of our operations in Caribbean TCL increased 13%, in Trinidad and Tobago Dollar terms, in 2022 compared to 2021, and our average sales price of ready-mix concrete increased 8%, in Trinidad and Tobago Dollar terms, over the same period.
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The following chart indicates the breakdown of Caribbean TCL revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2022:
As a result of increases in domestic cement and ready-mix concrete sales prices, partially offset by decreases in domestic cement and ready-mix concrete sales volumes, revenues of our operations in Caribbean TCL, in Trinidad and Tobago Dollar terms, increased 8% in 2022 compared to 2021.
Dominican Republic
Our domestic cement sales volumes from our operations in the Dominican Republic decreased 7% in 2022 compared to 2021, while ready-mix concrete sales volumes increased 10% over the same period. The decrease in our domestic cement sales volumes in the Dominican Republic region was mainly due to a drop in retail cement demand, partially offset by higher bulk cement demand related to tourism projects. Domestic cement and ready-mix sales prices continued their positive trend. Our operations in the Dominican Republic represented 2% of our total revenues for the year ended December 31, 2022, in Dollar terms, before eliminations resulting from consolidation. Our cement export volumes from our operations in the Dominican Republic, which represented 3% of our Dominican Republic cement sales volumes for the year ended December 31, 2022, decreased 48% in 2022 compared to 2021. All of our total cement export volumes from our operations in the Dominican Republic during 2022, were to our Rest of SCA&C segment. Our average sales price of domestic cement of our operations in the Dominican Republic increased 18%, in Dominican Peso terms, in 2022 compared to 2021, and our average sales price of ready-mix concrete increased 12%, in Dominican Peso terms, over the same period.
The following chart indicates the breakdown of Dominican Republic revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2022:
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As a result of increases in ready-mix concrete sales volume and domestic cement and ready-mix concrete sales prices, partially offset by a decrease in domestic cement sales volume, revenues from our operations in the Dominican Republic, in Dominican Peso terms, increased 12% in 2022 compared to 2021.
Rest of SCA&C
Our domestic cement volumes from our operations in the Rest of SCA&C segment decreased 19% in 2022 compared to 2021, and ready-mix concrete sales volumes decreased 33% over the same period. Our cement export volumes from our operations in the Rest of SCA&C segment, which represented less than 1% of our Rest of SCA&C segment cement sales volumes for the year ended December 31, 2022, decreased 35% in 2022 compared to 2021. All of our total cement export volumes from our operations in the Rest of SCA&C segment during 2022, were within the same region. Our revenues from our operations in the Rest of SCA&C segment represented 2% of our total revenues for the year ended December 31, 2022, in Dollar terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in the Rest of SCA&C segment increased 13% in Dollar terms, in 2022 compared to 2021, and our average sales price of ready-mix concrete decreased 8%, in Dollar terms, over the same period.
The following chart indicates the breakdown of Rest of SCA&C revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2022:
As a result of decreases in domestic cement and ready-mix concrete sales volumes and ready-mix concrete sales price, revenues of our operations in the Rest of SCA&C segment, in Dollar terms, decreased 15% in 2022 compared to 2021.
Others (Revenues)
Revenues from our Others segment increased 76% before intra-sector eliminations within the segment and before eliminations resulting from consolidation, as applicable, in 2022 compared to 2021, in Dollar terms. The increase resulted mainly from higher revenues in our trading operations. Our revenues from our Others segment represented 16% of our total revenues for the year ended December 31, 2022, in Dollar terms, before eliminations resulting from consolidation. For the year ended December 31, 2022, our trading operations represented 69% of our revenues in our Others segment, in Dollar terms.
Cost of Sales
Our cost of sales, including depreciation, increased 10%, from $9,743 million in 2021 to $10,755 million in 2022. As a percentage of revenues, cost of sales increased from 68% in 2021 to 69% in in 2022. Our cost of sales includes freight expenses of raw materials used in our producing plants.
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Gross Profit
For the reasons described above, our gross profit increased 4% from $4,636 million in 2021 to $4,822 million in 2022. As a percentage of revenues, gross profit decreased from 32% in 2021 to 31% in 2022. In addition, our gross profit may not be directly comparable to those of other entities that include all their freight expenses in cost of sales. As described below, we include freight expenses of finished products from our producing plants to our points of sale and from our points of sale to our customers’ locations within operating expenses as part of distribution and logistics expenses.
Operating expenses
Our operating expenses, which are represented by administrative, selling and distribution and logistics expenses, increased 12%, from $2,917 million in 2021 to $3,261 million in 2022. As a percentage of revenues, operating expenses increased from 20% in 2021 to 21% in 2022. The increase as a percentage of revenues resulted primarily from higher logistic and distribution expenses due to higher fuel costs. Our operating expenses include expenses related to personnel, equipment and services involved in sales activities and storage of product at points of sale, which are included as part of the operating expenses, as well as freight expenses of finished products between plants and points of sale and freight expenses between points of sale and the customers’ facilities, which are included as part of the line item “Distribution and logistics expenses.” For the years ended December 31, 2021 and 2022, selling expenses included as part of the line item “Operating expenses” amounted to $322 million and $363 million, respectively. As discussed above, we include freight expenses of finished products from our producing plants to our points of sale and from our points of sale to our customers’ locations within distribution and logistics expenses, which in the aggregate represented costs of $1,637 million in 2021 and $1,824 million in 2022. As a percentage of revenues, distribution and logistics expenses increased from 11% in 2021 to 12% in 2022.
Operating Earnings Before Other Expenses, Net
For the reasons described above, our operating earnings before other expenses, net decreased 9% from $1,719 million in 2021 to $1,561 million in 2022. As a percentage of revenues, operating earnings before other expenses, net decreased 2%, from 12% in 2021 to 10% in 2022. Additionally, set forth below is a quantitative and qualitative analysis of the effects of the various factors affecting our operating earnings before other expenses, net on a reporting segment basis.
Mexico
Our operating earnings before other expenses, net, from our operations in Mexico decreased 6% in 2022 compared to 2021, in Mexican Peso terms. Our operating earnings before other expenses, net from our operations in Mexico represented 62% of our total operating earnings before other expenses, net for the year ended December 31, 2022, in Dollar terms. The decrease resulted primarily from the increase in our cost of sales and operating expenses due to inflation, partially offset by an increase in revenues driven by home improvements and governmental social spending.
United States
Our operating earnings before other expenses, net, from our operations in the United States decreased 2% in 2022 compared to 2021, in Dollar terms. Our operating earnings before other expenses, net from our operations in the United States represented 20% of our total operating earnings before other expenses, net for the year ended December 31, 2022, in Dollar terms. The decrease resulted primarily from the increase in our cost of sales due to higher imports and higher costs of fuel and raw material, partially offset by an increase in our revenues in the United States segment.
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EMEAA
United Kingdom. Our operating earnings before other expenses, net, from our operations in the United Kingdom increased 110%, in Pound terms, in 2022 compared to 2021. Our operating earnings before other expenses, net from our operations in the United Kingdom represented 9% of our total operating earnings before other expenses, net for the year ended December 31, 2022, in Dollar terms. The increase resulted primarily from the increase in our revenues in the United Kingdom, partially offset by higher costs of sale, due to increase in imported clinker, purchase cement and higher electricity, fuel and raw material costs.
France. Our operating earnings before other expenses, net, from our operations in France decreased 68%, in Euro terms, in 2022 compared to 2021. Our operating earnings before other expenses, net from our operations in France represented 1% of our total operating earnings before other expenses, net for the year ended December 31, 2022, in Dollar terms. The decrease resulted primarily from the increase in our cost of sales, due to higher energy and raw material costs and higher distribution and logistics expenses.
Germany. Our operating earnings before other expenses, net, from our operations in Germany decreased 64%, in Euro terms, in 2022 compared to 2021. Our operating earnings before other expenses, net from our operations in Germany represented 1% of our total operating earnings before other expenses, net for the year ended December 31, 2022, in Dollar terms. The decrease resulted primarily from our cost of sales increase, mainly in energy, raw material and freight costs.
Poland. Our operating earnings before other expenses, net, from our operations in Poland decreased 1% in 2022 compared to 2021, in Euro terms. Our operating earnings before other expenses, net from our operations in Poland represented 3% of our total operating earnings before other expenses, net for the year ended December 31, 2022, in Dollar terms. The decrease resulted primarily from higher operational costs, such as energy and raw material costs, purchase clinker costs and higher freight costs due to fuel price increases.
Spain. Our operating loss before other expenses, net, from our operations in Spain decreased 38% in 2022 compared to 2021, in Euro terms. Our operating loss before other expenses, net from our operations in Spain represented a loss of $22 million, which was a negative impact of 1% of our total operating earnings before other expenses, net for the year ended December 31, 2022, in Dollar terms. The decrease resulted primarily from higher revenues due to price increases, which were partially offset by the higher cost of sales, mainly higher electric power, raw material and fuel costs.
The Philippines. Our operating earnings before other expenses, net, from our operations in the Philippines decreased 31% in 2022 compared to 2021, in Philippine Peso terms. Our operating earnings before other expenses, net from our operations in the Philippines represented 3% of our total operating earnings before other expenses, net for the year ended December 31, 2022, in Dollar terms. The decrease resulted primarily from the decrease in our revenues, as well as the higher cost of sales.
Israel. Our operating earnings before other expenses, net, from our operations in Israel increased 16% in 2022 compared to 2021, in Israeli New Shekel terms. Our operating earnings before other expenses, net from our operations in Israel represented 4% of our total operating earnings before other expenses, net for the year ended December 31, 2022, in Dollar terms. The increase in Israel operating earnings resulted primarily from the increase in our revenues.
Rest of EMEAA. Our operating earnings before other expenses, net, from our operations in the Rest of EMEAA segment increased 123% in 2022 compared to 2021, in Euro terms. Our operating earnings before other expenses, net from our operations in the Rest of EMEAA segment represented 3% of our total operating earnings before other expenses, net for the year ended December 31, 2022, in Dollar terms. This increase relates primarily to an increase in our revenues.
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SCA&C
Colombia. Our operating earnings before other expenses, net, from our operations in Colombia decreased 31% in 2022 compared to 2021, in Colombian Peso terms. Our operating earnings before other expenses, net from our operations in Colombia represented 2% of our total operating earnings before other expenses, net for the year ended December 31, 2022, in Dollar terms. The decrease resulted primarily from the increase in our cost of sales, mainly due to higher energy, fuel and raw material costs.
Panama. Our operating earnings before other expenses, net, from our operations in Panama decreased 20% in 2022 compared to 2021. Our operating earnings before other expenses, net from our operations in Panama represented 1% of our total operating earnings before other expenses, net for the year ended December 31, 2022, in Dollar terms. The decrease resulted primarily from the increase in our cost of sales, such as fuel and raw materials.
Caribbean TCL. Our operating earnings before other expenses, net, from our operations in Caribbean TCL increased 25% in 2022 compared to 2021, in Trinidad and Tobago Dollar terms. Our operating earnings before other expenses, net from our Caribbean TCL operations represented 4% of our total operating earnings before other expenses, net for the year ended December 31, 2022, in Dollar terms. The increase resulted primarily from an increase in our revenues.
Dominican Republic. Our operating earnings before other expenses, net, from our operations in the Dominican Republic remained flat in 2022 compared to 2021, in Dominican Peso terms. Our operating earnings before other expenses, net from our operations in the Dominican Republic represented 8% of our total operating earnings before other expenses, net for the year ended December 31, 2022, in Dollar terms. The increase in our revenues was offset by higher operating expenses and costs of sales.
Rest of SCA&C. Our operating earnings before other expenses, net, from our operations in the Rest of SCA&C segment decreased 21% in 2022 compared to 2021, in Dollar terms. Our operating earnings before other expenses, net from our operations in the Rest of SCA&C segment represented 5% of our total operating earnings before other expenses, net for the year ended December 31, 2022, in Dollar terms. The decrease resulted primarily from lower revenues.
Others. Our operating loss before other expenses, net, from our operations in our Others segment increased 33% in 2022 compared to 2021, in Dollar terms. The increase in the operating loss before other expenses resulted primarily from an increase in cost of sales, partially offset by higher revenues.
Other Expenses, Net. Our other expenses, net, increased significantly, in Dollar terms, from an expense of $82 million in 2021 to an expense of $467 million in 2022. The increase in our other expenses, net, in 2022 resulted primarily from an income in 2021 for the sale of 12.3 million emission allowances for a total of $600 million. In 2022, we had a reduction of non-cash impairment losses from $513 million in 2021 to $442 million in 2022. In 2022, impairment losses includes aggregate impairment losses of goodwill of $365 million related to the operating segments in the United States and Spain, as well as impairment losses of fixed assets of $77 million, while the aggregate non-cash impairment losses of 2021 included impairment losses of goodwill of $440 million related to the operating segments in Spain, the United Arab Emirates and the information technology business, impairment losses of internally developed software capitalized in prior years and other intangible assets of $53 million, as well as impairment losses of fixed assets of $43 million. Moreover, we had an increase in our restructuring cost in the year ended December 31, 2022 compared to the same period in 2021. See notes 15.1, 16.1 and 16.2 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
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The most significant items included under this caption for the years ended December 31, 2021 and 2022, are as follows:
| For the Years Ended December 31, |
||||||||
| 2021 | 2022 | |||||||
| (in millions of Dollars) | ||||||||
| Impairment losses |
$ | (513 | ) | $ | (442 | ) | ||
| Results from the sale of assets and others, net |
(126 | ) | 9 | |||||
| Incremental costs and expenses related to the COVID-19 pandemic |
(26 | ) | (14 | ) | ||||
| Restructuring costs |
(17 | ) | (20 | ) | ||||
| Sale of CO2 Allowances |
600 | — | ||||||
|
|
|
|
|
|||||
| $ | (82 | ) | $ | (467 | ) | |||
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Financial expense. Our financial expense decreased 39%, from $658 million in 2021 to $401 million in 2022, primarily attributable to a decrease in our financial debt during 2022 compared to 2021 and gains of $104 million from debt tender offers and other market transactions reducing debt during the year. See note 17.1 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
Financial income and other items, net. Our financial income and other items, net, in Dollar terms, increased 159%, from an expense of $79 million in 2021 to an income of $47 million in 2022. The increase is mainly due to a gain in foreign exchange results in 2022 compared to a loss in 2021 that was mainly due to the fluctuation of the Mexican Peso against the Dollar and higher financial income, which was partially offset by an increase in effects of amortized cost of assets and liabilities. See notes 8.2 and 18.4 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
The most significant items included under this caption for the years ended December 31, 2021 and 2022 are as follows:
| For the Year Ended December 31, |
||||||||
| 2021 | 2022 | |||||||
| (in millions of Dollars) |
||||||||
| Financial income and other items, net: |
||||||||
| Effects of amortized cost on assets and liabilities and others, net |
$ | (28 | ) | $ | (32 | ) | ||
| Net interest cost of pension liabilities |
(25 | ) | (26 | ) | ||||
| Results from financial instruments, net |
(6 | ) | (5 | ) | ||||
| Foreign exchange results |
(35 | ) | 73 | |||||
| Financial income |
22 | 27 | ||||||
| Other |
(7 | ) | 10 | |||||
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|
|
|
|
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| $ | (79 | ) | $ | 47 | ||||
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Income Taxes. Our income tax effect in the statements of operations, which is comprised of current income taxes plus deferred income taxes, increased from an expense of $137 million in 2021 to $209 million in 2022. Our current income tax expense decreased from $172 million in 2021 to $170 million in 2022, mainly as a result of a decrease in taxes in Spain, partially offset by increases in taxes in Colombia and the Philippines. Our deferred income tax income increased from a deferred income tax income of $35 million in 2021 to a deferred income tax expense of $39 million in 2022, mainly associated with the amortization of tax losses in Mexico and the United States in 2022. See notes 20.1, 20.2, 20.3 and 20.4 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
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For each of the years ended December 31, 2021 and 2022, our statutory income tax rate in Mexico was 30%. Considering a decrease in our earnings before income tax from a gain of $954 million in 2021 to earnings before income tax of $770 million in 2022, as well as differences between accounting and tax expenses, our average effective income tax rate increased from an effective income tax rate of 14.4% in 2021 to an effective income tax rate of 27.1% in 2022. Our average effective tax rate equals the net amount of income tax expense divided by earnings before income taxes, as these line items are reported in our consolidated statements of operations. See “Item 3—Key Information—Risk Factors—Risks Relating to Regulatory and Legal Matters—Certain tax matters may have a material adverse effect on our cash flow, financial condition and net income, as well as on our reputation” and note 20.3 to our 2022 audited consolidated financial statements included elsewhere in this annual report.
Net Income from continuing operations. For the reasons described above, our net income from continuing operations for 2022 decreased from a net income from continuing operations of $817 million in 2021 to a net income from continuing operations of $561 million in 2022. As a percentage of revenues, net income from continuing operations represented 6% for the year ended as of December 31, 2021, and a net income from continuing operations represented 4% for the year ended as of December 31, 2022.
Discontinued operations. For the years ended December 31, 2021 and 2022, our discontinued operations included in our consolidated statements of operations amounted to a net loss from discontinued operations of $39 million and a net income from discontinued operations of $324 million, respectively. As a percentage of revenues, loss of discontinued operations, net of tax, represented 0.3% for the year ended as of December 31, 2021 and the income of discontinued operations, net of tax, represented 2% for the year ended as of December 31, 2022. See note 4.2 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
Consolidated Net Income. For the reasons described above, our consolidated net income (before deducting the portion allocable to non-controlling interest) for 2022 increased from a consolidated net income of $778 million in 2021 to a consolidated net income of $885 million in 2022. As a percentage of revenues, consolidated net income represented 5% for the year ended as of December 31, 2021 and consolidated net income represented 6% for the year ended as of December 31, 2022.
Non-controlling Interest Net Income. Changes in non-controlling interest net income in any period reflect changes in the percentage of the stock of our subsidiaries held by non-associated third parties as of the end of each month during the relevant period and the consolidated net income attributable to those subsidiaries.
Non-controlling interest net income increased 8%, from an income of $25 million in 2021 to an income of $27 million in 2022, primarily attributable to an increase in the net income of the consolidated entities in which others have a non-controlling interest. See note 21.4 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
Controlling Interest Net Income. Controlling interest net income represents the difference between our consolidated net income and non-controlling interest net income, which is the portion of our consolidated net income attributable to those of our subsidiaries in which non-associated third parties hold interests. For the reasons described above, our controlling interest net income increased from a controlling interest net income of $753 million in 2021 to a controlling interest net income of $858 million in 2022. As a percentage of revenues, controlling interest net income, represented 5% for the year ended as of December 31, 2021 and controlling interest net income, represented 6% for the year ended as of December 31, 2022
Year Ended December 31, 2021 Compared to Year Ended December 31, 2020
Summarized in the table below are the percentage (%) increases (+) and decreases (-) for the year ended December 31, 2021, compared to the year ended December 31, 2020, in our domestic cement and ready-mix
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concrete sales volumes, as well as export sales volumes of cement and domestic cement and ready-mix concrete average sales prices for each of our reporting segments.
Reporting segments represent the components of Cemex that engage in business activities from which we may earn revenues and incur expenses, whose operating results are regularly reviewed by the entity’s top management to make decisions about resources to be allocated to the segments and assess their performance, and for which discrete financial information is available. We operate geographically and by line of business on a regional basis. For the reported periods, the Company’s operations were organized in four geographical regions, each under the supervision of a regional president, as follows: 1) Mexico, 2) United States, 3) EMEAA and 4) SCA&C. The accounting policies applied to determine the financial information by reporting segment are consistent with those described in note 2 to our 2022 audited consolidated financial statements included elsewhere in this annual report.
As of December 31, 2021, considering similar regional and economic characteristics and/or materiality, certain countries have been aggregated and presented as single line items as follows: (i) “Rest of EMEAA” refers mainly to Cemex’s operations and activities in the Czech Republic, Croatia, Egypt and the UAE; (ii) “Rest of SCA&C” refers mainly to Cemex’s operations and activities in Puerto Rico, Nicaragua, Jamaica, the Caribbean and Guatemala, excluding the operations of TCL; and (iii) “Caribbean TCL” refers to TCL’s operations mainly in Trinidad and Tobago, Jamaica, Guyana and Barbados. The segment “Others” refers to: (1) cement trade maritime operations, (2) Cemex, S.A.B. de C.V., (3) other corporate entities and finance subsidiaries and (4) other minor subsidiaries with different lines of business.
The table below and the other volume data presented by reporting segment in this “Item 5—Operating and Financial Review and Prospects—Results of Operations—Year Ended December 31, 2021 Compared to Year Ended December 31, 2020” section are presented before eliminations resulting from consolidation (including those shown in note 4.3 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report).
| Domestic Sales Volumes | Export Sales Volumes |
Average Domestic Sales Prices in Local Currency(1) |
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| Reporting Segment |
Cement | Ready-Mix Concrete |
Cement | Cement | Ready-Mix Concrete |
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| Mexico |
+8 | % | +8 | % | -1 | % | +7 | % | +3 | % | ||||||||||
| United States |
+6 | % | +8 | % | — | +3 | % | +2 | % | |||||||||||
| EMEAA |
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| United Kingdom |
+19 | % | +3 | % | — | +7 | % | +7 | % | |||||||||||
| France |
— | +8 | % | — | — | +1 | % | |||||||||||||
| Germany |
-4 | % | -7 | % | +5 | % | +3 | % | +6 | % | ||||||||||
| Poland |
+5 | % | +9 | % | -54 | % | +5 | % | -1 | % | ||||||||||
| Spain |
+6 | % | +7 | % | +14 | % | -1 | % | +1 | % | ||||||||||
| Philippines |
+7 | % | — | -14 | % | -2 | % | — | ||||||||||||
| Israel |
— | FLAT | — | — | FLAT | |||||||||||||||
| Rest of EMEAA |
-11 | % | +2 | % | FLAT | +9 | % | FLAT | ||||||||||||
| SCA&C |
||||||||||||||||||||
| Colombia |
+8 | % | +11 | % | — | FLAT | +1 | % | ||||||||||||
| Panama |
+41 | % | +22 | % | >100 | % | -5 | % | -8 | % | ||||||||||
| Caribbean TCL |
+16 | % | -3 | % | -14 | % | FLAT | +1 | % | |||||||||||
| Dominican Republic |
+22 | % | -2 | % | -34 | % | +11 | % | +14 | % | ||||||||||
| Rest of SCA&C |
+9 | % | +3 | % | -42 | % | +4 | % | +17 | % | ||||||||||
“—” = Not Applicable
| (1) | Represents the average change in domestic cement and ready-mix concrete prices in local currency terms. For purposes of a reporting segment consisting of a region, the average prices in local currency terms for |
| each individual country within the region are first translated into Dollar terms (except for the Rest of EMEAA segment, in which they are translated first into Euros) at the exchange rates in effect as of the end |
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| of the reporting period. Variations for a region represent the weighted average change of prices in Dollar terms (except for the Rest of EMEAA segment, in which they represent the weighted average change of prices in Euros) based on total sales volumes in the region. |
On a consolidated basis, our cement sales volumes increased 6%, from 63.2 million tons in 2020 to 67.0 million tons in 2021, and our ready-mix concrete sales volumes increased 6%, from 46.7 million cubic meters in 2020 to 49.2 cubic meters in 2021. Our revenues increased 13% from $12,669 million in 2020 to $14,379 million in 2021, and our operating earnings before other expenses, net increased 33%, from $1,292 million in 2020 to $1,719 million in 2021. See the table below for a breakdown according to reporting segment.
The following tables present selected financial information for revenues, operating earnings before other expenses, net and Operating EBITDA for each of our reporting segments for the years ended December 31, 2020 and 2021. The revenues information in the table below are presented before eliminations resulting from consolidation (including those shown in note 4.3 to our 2022 audited consolidated financial statements included elsewhere in this annual report). Variations in revenues determined on the basis of Dollars include the appreciation or depreciation which occurred during the period between the local currencies of the countries in the regions vis-à-vis the Dollar; therefore, such variations differ substantially from those based solely on the countries’ local currencies:
| Reporting Segment |
Variation in Local Currency(1) |
Approximate Currency Fluctuations |
Variation in Dollars |
Revenues For the Year Ended |
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| 2020 | 2021 | |||||||||||||||||||
| (in millions of Dollars) | ||||||||||||||||||||
| Mexico |
+17 | % | +6 | % | +23 | % | $ | 2,812 | $ | 3,466 | ||||||||||
| United States |
+9 | % | — | +9 | % | 3,994 | 4,359 | |||||||||||||
| EMEAA |
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| United Kingdom |
+19 | % | +8 | % | +27 | % | 739 | 940 | ||||||||||||
| France |
+12 | % | +2 | % | +14 | % | 754 | 863 | ||||||||||||
| Germany |
-6 | % | +3 | % | -3 | % | 489 | 472 | ||||||||||||
| Poland |
+5 | % | +2 | % | +8 | % | 377 | 405 | ||||||||||||
| Spain |
+9 | % | +4 | % | +12 | % | 319 | 359 | ||||||||||||
| Philippines |
+6 | % | +1 | % | +7 | % | 398 | 424 | ||||||||||||
| Israel |
-2 | % | +6 | % | +4 | % | 754 | 785 | ||||||||||||
| Rest of EMEAA |
+3 | % | +3 | % | +6 | % | 582 | 618 | ||||||||||||
| SCA&C |
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| Colombia |
+11 | % | -3 | % | +8 | % | 404 | 437 | ||||||||||||
| Panama |
+51 | % | — | +51 | % | 80 | 121 | |||||||||||||
| Caribbean TCL |
+11 | % | +1 | % | +12 | % | 251 | 280 | ||||||||||||
| Dominican Republic |
+31 | % | -1 | % | +30 | % | 229 | 299 | ||||||||||||
| Rest of SCA&C |
+18 | % | — | +18 | % | 393 | 465 | |||||||||||||
| Others |
>+100 | % | — | >+100 | % | 796 | 1,621 | |||||||||||||
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| Revenues from continuing operations before eliminations resulting from consolidation |
+19 | % | $ | 13,371 | $ | 15,914 | ||||||||||||||
| Eliminations resulting from consolidation |
(702 | ) | (1,535 | ) | ||||||||||||||||
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| Revenues from continuing operations |
13 | % | $ | 12,669 | $ | 14,379 | ||||||||||||||
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| Reporting Segment |
Variation in Local Currency(1) |
Approximate Currency Fluctuations |
Variation in Dollars |
Operating Earnings Before Other Expenses, Net For the Year Ended December 31, |
||||||||||||||||
| 2020 | 2021 | |||||||||||||||||||
| (in millions of Dollars) | ||||||||||||||||||||
| Mexico |
+22 | % | +6 | % | +28 | % | $ | 783 | $ | 1,003 | ||||||||||
| United States |
+2 | % | — | +2 | % | 307 | 314 | |||||||||||||
| EMEAA |
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| United Kingdom |
+230 | % | +13 | % | +243 | % | 21 | 72 | ||||||||||||
| France |
+88 | % | -1 | % | +87 | % | 23 | 43 | ||||||||||||
| Germany |
+4 | % | +1 | % | +5 | % | 39 | 41 | ||||||||||||
| Poland |
-5 | % | +3 | % | -2 | % | 49 | 48 | ||||||||||||
| Spain |
-157 | % | -22 | % | -179 | % | (14 | ) | (39 | ) | ||||||||||
| Philippines |
+2 | % | +1 | % | +3 | % | 72 | 74 | ||||||||||||
| Israel |
-35 | % | +14 | % | -21 | % | 87 | 69 | ||||||||||||
| Rest of EMEAA |
+60 | % | +3 | % | +63 | % | 19 | 31 | ||||||||||||
| SCA&C |
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| Colombia |
+2 | % | -2 | % | FLAT | 61 | 61 | |||||||||||||
| Panama |
+504 | % | — | +504 | % | (4 | ) | 15 | ||||||||||||
| Caribbean TCL |
+6 | % | +1 | % | +7 | % | 43 | 46 | ||||||||||||
| Dominican Republic |
+59 | % | FLAT | +59 | % | 76 | 121 | |||||||||||||
| Rest of SCA&C |
+14 | % | — | +14 | % | 85 | 97 | |||||||||||||
| Others |
+22 | % | — | +22 | % | (355 | ) | (277 | ) | |||||||||||
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| Operating earnings before other expenses, net from continuing operations |
+33 | % | $ | 1,292 | $ | 1,719 | ||||||||||||||
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“—” = Not Applicable
| (1) | Represents the variation in local currency terms. For purposes of a reporting segment consisting of a region, the variation in local currency terms for each individual country within the region are first translated into Dollar terms (except for the Rest of EMEAA segment, in which they are translated first into Euros) at the exchange rates in effect as of the end of the reporting period. Variations for a region represent the change in Dollar terms (except for the Rest of EMEAA segment, in which they represent the change in Euros), net, in the region. |
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| Operating Earnings Before Other Expenses, Net(1) For the Year Ended December 31, |
Plus: Depreciation and amortization |
Operating EBITDA(2) For the Year Ended December 31, |
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| Reporting Segment |
2020 | 2021 | 2020 | 2021 | 2020 | 2021 | ||||||||||||||||||
| Mexico |
$ | 783 | $ | 1,003 | $ | 148 | $ | 161 | $ | 931 | $ | 1,164 | ||||||||||||
| United States |
307 | 314 | 440 | 464 | 747 | 778 | ||||||||||||||||||
| EMEAA |
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| United Kingdom |
21 | 72 | 67 | 69 | 88 | 141 | ||||||||||||||||||
| France |
23 | 43 | 48 | 50 | 71 | 93 | ||||||||||||||||||
| Germany |
39 | 41 | 28 | 28 | 67 | 69 | ||||||||||||||||||
| Poland |
49 | 48 | 25 | 25 | 74 | 73 | ||||||||||||||||||
| Spain |
(14 | ) | (39 | ) | 39 | 33 | 25 | (6 | ) | |||||||||||||||
| Philippines |
72 | 74 | 46 | 40 | 118 | 114 | ||||||||||||||||||
| Israel |
87 | 69 | 28 | 45 | 115 | 114 | ||||||||||||||||||
| Rest of EMEAA |
19 | 31 | 56 | 56 | 75 | 87 | ||||||||||||||||||
| SCA&C |
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| Colombia |
61 | 61 | 25 | 26 | 86 | 87 | ||||||||||||||||||
| Panama |
(4 | ) | 15 | 16 | 16 | 12 | 31 | |||||||||||||||||
| Caribbean TCL |
43 | 46 | 22 | 19 | 65 | 65 | ||||||||||||||||||
| Dominican Republic |
76 | 121 | 8 | 7 | 84 | 128 | ||||||||||||||||||
| Rest of SCA&C |
85 | 97 | 15 | 13 | 100 | 110 | ||||||||||||||||||
| Others |
(355 | ) | (277 | ) | 94 | 68 | (261 | ) | (209 | ) | ||||||||||||||
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| Continuing operations |
$ | 1,292 | $ | 1,719 | $ | 1,105 | $ | 1,120 | $ | 2,397 | $ | 2,839 | ||||||||||||
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| (1) | We include the line item titled “Operating earnings before other expenses, net” in our Statements of Operations under IFRS considering that it is a subtotal relevant for the determination of Cemex’s “Operating EBITDA” (Operating earnings before other expenses, net plus depreciation and amortization) as described in note 2.1 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report. |
| (2) | Operating EBITDA is a relevant measure used by Cemex’s management to review operating performance and for decision-making purposes, as well as an indicator used by our creditors of our ability to internally fund capital expenditures and to measure our ability to service or incur debt under our financing agreements, as described in notes 4.3 and 17 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report. Our Operating EBITDA is not a measure of financial performance, an alternative to cash flow or a measure of liquidity under IFRS. Moreover, Operating EBITDA may not be comparable to other similarly titled measures of other companies. |
Variances explained below in this section are based on Operating earnings before other expenses, net which are substantially the same variances as those shown in our Operating EBITDA.
Revenues. Our consolidated revenues increased 13% from $12,669 million in 2020 to $14,379 million in 2021. The increase in our revenues was mainly attributable to the higher volumes in most of our regions and higher prices of our products in local currency terms in all of our regions. Set forth below is a quantitative and qualitative analysis of the various factors affecting our revenues on a reporting segment basis. The discussion of volume data and revenues information below is presented before eliminations resulting from consolidation as described in note 4.3 to our 2022 audited consolidated financial statements included elsewhere in this annual report.
Mexico
Our domestic cement sales volumes from our operations in Mexico increased 8% in 2021 compared to 2020, and ready-mix concrete sales volumes increased 8% over the same period. Our revenues from our operations in
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Mexico represented 22% of our total revenues for the year ended December 31, 2021, in Dollar terms, before eliminations resulting from consolidation. During the year, bagged cement demand grew double digits supported by government social programs and record level remittances. The country continues to experience a pickup in the formal economy, and bulk cement and ready-mix volumes benefitted from higher formal housing and industrial activity. The latter was supported by growth in manufacturing and warehouses, onshoring, as well as the buildout of logistic networks. Our cement export volumes from our operations in Mexico, which represented 11% of our Mexican cement sales volumes for the year ended December 31, 2021, decreased 1% in 2021 compared to 2020, due to lower export volume. Of our total cement export volumes from our operations in Mexico during 2021, 83% was shipped to the United States and 17% to our SCA&C segment. Our average sales price of domestic cement from our operations in Mexico increased 7%, in Mexican Peso terms, in 2021 compared to 2020, and our average sales price of ready-mix concrete increased 3%, in Mexican Peso terms, over the same period.
The following chart indicates the breakdown of Mexico revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2021:
As a result of increases in domestic cement and ready-mix concrete sales volumes and sale prices, partially offset by a decrease in cement export sales, our revenues in Mexico, in Mexican Peso terms, increased 17% in 2021 compared to 2020.
United States
Our domestic cement sales volumes from our operations in the United States increased 6% in 2021 compared to 2020, and ready-mix concrete sales volumes increased 8% over the same period. The increase in domestic cement and ready-mix concrete sales volumes were primarily attributable to the strong demand momentum driven mainly by the residential sector. The region continued to enjoy strong demand across all products with most of our markets sold out. Our operations in the United States represented 27% of our total revenues for the year ended December 31, 2021, in Dollar terms, before eliminations resulting from consolidation. Our average domestic cement sales prices of our operations in the United States increased 3%, in Dollar terms, in 2021 compared to 2020, and our average ready-mix concrete sales price increased 2%, in Dollar terms, over the same period.
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The following chart indicates the breakdown of United States revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2021:
As a result of increases in domestic cement sales volumes and ready-mix concrete sales volumes and sales prices, revenues from our operations in the United States, in Dollar terms, increased 9% in 2021 compared to 2020.
EMEAA
In 2021, our operations in the EMEAA region consisted of our operations in the United Kingdom, France, Germany, Poland, Spain, Philippines and Israel, which represent the most significant operations in this region, in addition to the Rest of EMEAA segment. Our revenues from our operations in the EMEAA region represented 31% of our total revenues for the year ended December 31, 2021, in Dollar terms, before eliminations resulting from consolidation. As of December 31, 2021, our operations in the EMEAA region represented 25% of our total assets, in Dollar terms. Set forth below is a quantitative and qualitative analysis of the effects of the various factors affecting our revenues for our main operations in the EMEAA region.
The following chart indicates the geographic breakdown of EMEAA region revenues by reporting segment, before others and eliminations resulting from consolidation, for the year ended December 31, 2021:
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United Kingdom
Our domestic cement sales volumes from our operations in the United Kingdom increased 19% in 2021 compared to 2020, and ready-mix concrete sales volumes increased 3% over the same period. The increases in domestic cement and ready-mix concrete sales volumes reflected a return to normality in construction activity as a result of the implementation of stringent measures during 2020 as a response to the COVID-19 pandemic. Our operations in the United Kingdom represented 6% of our total revenues for the year ended December 31, 2021, in Dollar terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in the United Kingdom increased 7% in Pound terms, in 2021 compared to 2020, and our average sales price of ready-mix concrete increased 7%, in Pound terms, over the same period.
The following chart indicates the breakdown of United Kingdom revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2021:
As a result of increases in domestic cement and ready-mix concrete sales volumes and sales prices, revenues from our operations in the United Kingdom, in Pound terms, increased 19% in 2021 compared to 2020.
France
Our ready-mix concrete sales volumes from our operations in France increased 8% in 2021 compared to 2020. The increase in volumes reflected a return to normality in construction activity as a result of the implementation of stringent measures during 2020 as a response to the COVID-19 pandemic. Our operations in France represented 5% of our total revenues for the year ended December 31, 2021, in Dollar terms, before eliminations resulting from consolidation. Our average sales price of ready-mix concrete of our operations in France increased 1%, in Euro terms, in 2021 compared to 2020.
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The following chart indicates the breakdown of France revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2021:
As a result of an increase in ready-mix concrete sales volumes and by increases in ready-mix concrete sales prices, revenues from our operations in France, in Euro terms, increased 12% in 2021 compared to 2020.
Germany
Our domestic cement sales volumes from our operations in Germany decreased 4% in 2021 compared to 2020, and ready-mix concrete sales volumes decreased 7% over the same period. The decreases in domestic cement and ready-mix concrete sales volumes was mainly originated by unfavorable weather condition in 2021. Our operations in Germany represented 3% of our total revenues for the year ended December 31, 2021, in Dollar terms, before eliminations resulting from consolidation. Our cement export volumes from our operations in Germany, which represented 31% of our Germany cement sales volumes for the year ended December 31, 2021 increased 5% in 2021 compared to 2020, mainly due to higher volumes exported to Poland. All of our total cement export volumes from our operations in Germany during 2021 were to our EMEAA region. Our average sales price of domestic cement from our operations in Germany increased 3%, in Euro terms, in 2021 compared to 2020, and our average sales price of ready-mix concrete increased 6%, in Euro terms, over the same period.
The following chart indicates the breakdown of Germany revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2021:
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As a result of decreases in domestic cement and in ready-mix concrete sales volumes, partially compensated by increases in sales prices, revenues from our operations in Germany, in Euro terms, decreased 6% in 2021 compared to 2020.
Poland
Our domestic cement sales volumes from our operations in Poland increased 5% in 2021 compared to 2020, and ready-mix concrete sales volumes increased 9% over the same period. The increases in domestic cement and ready-mix concrete sales volumes were mainly driven by higher infrastructure and residential activity. Our operations in Poland represented 3% of our total revenues for the year ended December 31, 2021, in Dollar terms, before eliminations resulting from consolidation. Our cement export volumes from our operations in Poland, which represented less than 1% of our Poland cement sales volumes for the year ended December 31, 2021 decreased 54% in 2021 compared to 2020. All of our total cement export volumes from our operations in Poland during 2021, were to our Rest of EMEAA segment. Our average sales price of domestic cement from our operations in Poland increased 5%, in Euro terms, in 2021 compared to 2020, and our average sales price of ready-mix concrete decreased 1%, in Euro terms, over the same period.
The following chart indicates the breakdown of Poland revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2021:
As a result of increases in domestic cement sales volumes and sales prices, and an increase in ready-mix concrete sales volumes, revenues from our operations in Poland, in Euro terms, increased 5% in 2021 compared to 2020.
Spain
Our domestic cement sales volumes from our operations in Spain increased 6% in 2021 compared to 2020, while ready-mix concrete sales volumes increased 7% over the same period. The increases in domestic cement and ready-mix concrete sales volumes were mainly driven by higher infrastructure and residential activity. Our operations in Spain represented 2% of our total revenues for the year ended December 31, 2021, in Dollar terms, before eliminations resulting from consolidation. Our cement export volumes from our operations in Spain, which represented 27% of our Spain cement sales volumes for the year ended December 31, 2021, increased 14% in 2021 compared to 2020, due to higher export volumes to United Kingdom. Of our total cement export volumes from our operations in Spain during 2021, 98% were to the United Kingdom and 2% were to the United States. Our average sales price of domestic cement of our operations in Spain decreased 1%, in Euro terms, in 2021 compared to 2020, and our average sales price of ready-mix concrete increased 1%, in Euro terms, over the same period.
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The following chart indicates the breakdown of Spain revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2021:
As a result of increases in domestic cement and ready-mix concrete sales volumes, partially offset by decreases in domestic cement sales prices, revenues from our operations in Spain, in Euro terms, increased 9% in 2021 compared to 2020.
The Philippines
Our domestic cement sales volumes from our operations in the Philippines increased 7% in 2021 compared to 2020. The increase in domestic cement volumes was mainly due to the implementation of stringent lock-down measures during 2020 as a response to the COVID-19 pandemic imposed by the Philippines government and by the closure of our Solid Cement Plant in Luzon for two months in 2020 and resumption of operations without such measures during 2021. Our cement export volumes from our operations in the Philippines, which represented less than 1% of our Philippines’ cement sales volumes for the year ended December 31, 2021, decreased 14% in 2021 compared to 2020. All of our total cement exports from our operations in Philippines during 2021 were to the Rest of EMEAA segment. Our revenues from our operations in the Philippines represented 3% of our total revenues for the year ended December 31, 2021, in Dollar terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in the Philippines decreased 2%, in Philippine Peso terms, in 2021 compared to 2020.
The following chart indicates the breakdown of Philippines revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2021:
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As a result of an increase in domestic cement sales volumes, partially compensated by a decrease in sales prices, revenues of our operations in the Philippines, in Philippine Peso terms, increased 6% in 2021 compared to 2020.
Israel
Our ready-mix concrete sales volumes from our operations in Israel decreased slightly in 2021 compared to 2020. Our operations in Israel represented 5% of our total revenues for the year ended December 31, 2021, in Dollar terms, before eliminations resulting from consolidation. Our average sales price of ready-mix concrete of our operations in Israel decreased slightly, in Israeli New Shekel terms, in 2021 compared to 2020.
The following chart indicates the breakdown of Israel revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2021:
As a result of a small decrease in ready-mix concrete sales volumes and prices, revenues from our operations in Israel, in Israeli New Shekel terms, decreased 2% in 2021 compared to 2020.
Rest of EMEAA
Our domestic cement sales volumes from our operations in the Rest of EMEAA segment decreased 11% in 2021 compared to 2020, and ready-mix concrete sales volumes increased 2% over the same period. Our cement export volumes from our operations in the Rest of EMEAA segment, which represented 9% of our Rest of EMEAA segment cement sales volumes for the year ended December 31, 2021, remained flat in 2021 compared to 2020. Of our total cement export volumes from our operations in the Rest of EMEAA segment during 2021, 98% were to countries in the EMEAA region and 2% were to Poland. Our revenues from our operations in the Rest of EMEAA segment represented 4% of our total revenues for the year ended December 31, 2021, in Dollar terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in the Rest of EMEAA segment increased 9%, in Euro terms, in 2021 compared to 2020, and our average sales price of ready-mix concrete remained flat, in Euro terms, over the same period.
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The following chart indicates the breakdown of Rest of EMEAA revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2021:
As a result of increases in ready-mix concrete sales volumes and sales prices, as well as increases in domestic cement sales prices, partially offset by a decrease in domestic cement sales volumes, revenues in the Rest of EMEAA segment, increased 3%, in Euro terms, in 2021 compared to 2020.
SCA&C
In 2021, our operations in the SCA&C region consisted of our operations in Colombia, Panama, the Dominican Republic, our Caribbean TCL operations, which represent our most significant operations in this region, and the Rest of SCA&C segment. Our revenues from our operations in the SCA&C region represented 11% of our total revenues for the year ended December 31, 2021, in Dollar terms, before eliminations resulting from consolidation. As of December 31, 2021, our operations in the SCA&C region represented 9% of our total assets, in Dollar terms. Set forth below is a quantitative and qualitative analysis of the effects of the various factors affecting our revenues for our main operations in the SCA&C region.
The following chart indicates the geographic breakdown of SCA&C region revenues by reporting segment, before others and eliminations resulting from consolidation, for the year ended December 31, 2021:
Colombia
Our domestic cement sales volumes from our operations in Colombia increased 8% in 2021 compared to 2020, and ready-mix concrete sales volumes increased 11% over the same period. The cement sales volume
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increase in Colombia was supported by housing, self-construction and infrastructure projects. Our revenues from our operations in Colombia represented 3% of our total revenues for the year ended December 31, 2021, in Dollar terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in Colombia remained flat, in Colombian Peso terms, in 2021 compared to 2020, and our average sales price of ready-mix concrete increased 1%, in Colombian Peso terms, over the same period.
The following chart indicates the breakdown of Colombia revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2021:
As a result of increases in domestic cement and ready-mix concrete sales volumes and an increase in ready-mix concrete sales prices, revenues of our operations in Colombia, in Colombian Peso terms, increased 11% in 2021 compared to 2020.
Panama
Our domestic cement sales volumes from our operations in Panama increased 41% in 2021 compared to 2020, and ready-mix concrete sales volumes increased 22% over the same period. The increases in domestic cement and ready-mix concrete sales volumes in Panama were mainly due to the reopening of the construction industry, after suspension in 2020 due to the COVID-19 pandemic. Our cement export volumes from our operations in Panama, which represented 57% of our Panama cement sales volumes for the year ended December 31, 2021, increased more than 100% in 2021 compared to 2020, as exports began at the end of 2020. Our revenues from our operations in Panama represented 1% of our total revenues for the year ended December 31, 2021, in Dollar terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in Panama decreased 5% in Dollar terms, in 2021 compared to 2020, and our average sales price of ready-mix concrete decreased 8%, in Dollar terms, over the same period.
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The following chart indicates the breakdown of Panama revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2021:
As a result of increases in domestic cement sales volumes and ready-mix concrete sales volumes, partially offset by a decrease in sales prices, revenues of our operations in Panama, in Dollar terms, increased 51% in 2021 compared to 2020.
Caribbean TCL
Our domestic cement sales volumes from our operations in Caribbean TCL increased 16% in 2021 compared to 2020, and ready-mix concrete sales volumes decreased 3% over the same period. The increase in cement sales volume came from a higher demand. Our revenues from our operations in Caribbean TCL represented 2% of our total revenues for the year ended December 31, 2021, in Dollar terms, before eliminations resulting from consolidation. Our cement export volumes from our operations in Caribbean TCL segment represented 20% of our Caribbean TCL cement sales volumes for the year ended December 31, 2021, decreased 14% in 2021 compared to 2020. All of our total cement exports from our operations in Caribbean TCL during 2021 were to the Rest of SCA&C segment. Our average sales price of domestic cement of our operations in Caribbean TCL remained flat, in Trinidad and Tobago Dollar terms, in 2021 compared to 2020, and our average sales price of ready-mix concrete increased 1%, in Trinidad and Tobago Dollar terms, over the same period.
The following chart indicates the breakdown of Caribbean TCL revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2021:
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As a result of increases in domestic cement sales volumes, partially offset by decreases in ready-mix concrete sales volumes and sales prices, revenues of our operations in Caribbean TCL, in Trinidad and Tobago Dollar terms, increased 11% in 2021 compared to 2020.
Dominican Republic
Our domestic cement sales volumes from our operations in the Dominican Republic increased 22% in 2021 compared to 2020, while ready-mix concrete sales volumes decreased 2% over the same period. The increase in our domestic cement sales volumes in the Dominican Republic region was mainly driven by a recovery of a dynamic self-construction sector and the reactivation of delayed tourism projects. Our operations in the Dominican Republic represented 2% of our total revenues for the year ended December 31, 2021, in Dollar terms, before eliminations resulting from consolidation. Our cement export volumes from our operations in the Dominican Republic, which represented 5% of our Dominican Republic cement sales volumes for the year ended December 31, 2021, decreased 34% in 2021 compared to 2020. All of our total cement export volumes from our operations in the Dominican Republic during 2022, were to our Rest of SCA&C segment. Our average sales price of domestic cement of our operations in the Dominican Republic increased 11%, in Dominican Peso terms, in 2021 compared to 2020, and our average sales price of ready-mix concrete increased 14%, in Dominican Peso terms, over the same period.
The following chart indicates the breakdown of Dominican Republic revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2021:
As a result of increases in domestic cement sales volumes and sales prices and ready-mix concrete sales prices, partially offset by a decrease in ready-mix concrete sales volume, revenues from our operations in the Dominican Republic, in Dominican Peso terms, increased 31% in 2021 compared to 2020.
Rest of SCA&C
Our domestic cement volumes from our operations in the Rest of SCA&C segment increased 9% in 2021 compared to 2020, and ready-mix concrete sales volumes increased 3% over the same period. Our cement export volumes from our operations in the Rest of SCA&C segment, which represented less than 1% of our Rest of SCA&C segment cement sales volumes for the year ended December 31, 2021, decreased 42% in 2021 compared to 2020. All of our total cement export volumes from our operations in the Rest of SCA&C segment during 2021, were within the same region. Our revenues from our operations in the Rest of SCA&C segment represented 3% of our total revenues for the year ended December 31, 2021, in Dollar terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in the Rest of SCA&C segment increased 4% in Dollar terms, in 2021 compared to 2020, and our average sales price of ready-mix concrete increased 17%, in Dollar terms, over the same period.
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The following chart indicates the breakdown of Rest of SCA&C revenues by product, before others, intra sector eliminations within the segment and eliminations resulting from consolidation, as applicable for the year ended December 31, 2021:
As a result of increases in domestic cement and ready-mix concrete sales volumes and sales price, revenues of our operations in the Rest of SCA&C segment, in Dollar terms, increased 18% in 2021 compared to 2020.
Others (Revenues)
Revenues from our Others segment increased 104% before intra-sector eliminations within the segment and before eliminations resulting from consolidation, as applicable, in 2021 compared to 2020, in Dollar terms. The increase resulted mainly from higher revenues in our trading operations. Our revenues from our Others segment represented 9% of our total revenues for the year ended December 31, 2021, in Dollar terms, before eliminations resulting from consolidation. For the year ended December 31, 2021, our trading operations represented 64% of our revenues in our Others segment, in Dollar terms.
Cost of Sales
Our cost of sales, including depreciation, increased 13%, from $8,586 million in 2020 to $9,743 million in 2021. As a percentage of revenues, cost of sales remained flat at 68% in 2020 and in 2021. Our cost of sales includes freight expenses of raw materials used in our producing plants.
Gross Profit
For the reasons described above, our gross profit increased 14% from $4,083 million in 2020 to $4,636 million in 2021. As a percentage of revenues, gross profit remained flat at 32% in 2020 and in 2021. In addition, our gross profit may not be directly comparable to those of other entities that include all their freight expenses in cost of sales. As described below, we include freight expenses of finished products from our producing plants to our points of sale and from our points of sale to our customers’ locations within operating expenses as part of distribution and logistics expenses.
Operating expenses
Our operating expenses, which are represented by administrative, selling and distribution and logistics expenses, increased 5%, from $2,791 million in 2020 to $2,917 million in 2021. As a percentage of revenues, operating expenses decreased from 22% in 2020 to 20% in 2021. The decrease as a percentage of revenues resulted primarily from lower administrative, sales, and corporate expenses. Our operating expenses include expenses related to personnel, equipment and services involved in sales activities and storage of product at points of sale, which are included as part of the operating expenses, as well as freight expenses of finished products
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between plants and points of sale and freight expenses between points of sale and the customers’ facilities, which are included as part of the line item “Distribution and logistics expenses.” For the years ended December 31, 2020 and 2021, selling expenses included as part of the line item “Operating expenses” amounted to $329 million and $322 million, respectively. As discussed above, we include freight expenses of finished products from our producing plants to our points of sale and from our points of sale to our customers’ locations within distribution and logistics expenses, which in the aggregate represented costs of $1,413 million in 2020 and $1,637 million in 2021. As a percentage of revenues, distribution and logistics expenses remained flat at 11% in 2020 and in 2021.
Operating Earnings Before Other Expenses, Net
For the reasons described above, our operating earnings before other expenses, net increased 33% from $1,292 million in 2020 to $1,719 million in 2021. As a percentage of revenues, operating earnings before other expenses, net increased 2%, from 10% in 2020 to 12% in 2021. Additionally, set forth below is a quantitative and qualitative analysis of the effects of the various factors affecting our operating earnings before other expenses, net on a reporting segment basis.
Mexico
Our operating earnings before other expenses, net, from our operations in Mexico increased 22% in 2021 compared to 2020, in Mexican Peso terms. Our operating earnings before other expenses, net from our operations in Mexico represented 58% of our total operating earnings before other expenses, net for the year ended December 31, 2021, in Dollar terms. The increase resulted primarily from the increase in our formal construction activity.
United States
Our operating earnings before other expenses, net, from our operations in the United States increased 2% in 2021 compared to 2020, in Dollar terms. Our operating earnings before other expenses, net from our operations in the United States represented 18% of our total operating earnings before other expenses, net for the year ended December 31, 2021, in Dollar terms. The increase resulted primarily from the increase in our revenues in the United States segment, partially compensated by increases in our cost of sales due to higher costs of purchased clinker and fuels.
EMEAA
United Kingdom. Our operating earnings before other expenses, net, from our operations in the United Kingdom increased 230% in Pound terms, in 2021 compared to 2020. Our operating earnings before other expenses, net from our operations in the United Kingdom represented 4% of our total operating earnings before other expenses, net for the year ended December 31, 2021, in Dollar terms. The increase resulted primarily from the increase in our revenues in the United Kingdom.
France. Our operating earnings before other expenses, net, from our operations in France increased 88%, in Euro terms, in 2021 compared to 2020. Our operating earnings before other expenses, net from our operations in France represented 3% of our total operating earnings before other expenses, net for the year ended December 31, 2021, in Dollar terms. The increase resulted primarily from the increase in our revenues.
Germany. Our operating earnings before other expenses, net, from our operations in Germany increased 4%, in Euro terms, in 2021 compared to 2020. Our operating earnings before other expenses, net from our operations in Germany represented 2% of our total operating earnings before other expenses, net for the year ended December 31, 2021, in Dollar terms. The increase resulted primarily from our cost of sales containment effort.
Poland. Our operating earnings before other expenses, net, from our operations in Poland decreased 5% in 2021 compared to 2020, in Euro terms. Our operating earnings before other expenses, net from our operations in
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Poland represented 3% of our total operating earnings before other expenses, net for the year ended December 31, 2021, in Dollar terms. The decrease resulting primarily from higher operational costs.
Spain. Our operating loss before other expenses, net, from our operations in Spain increased 157% in 2021 compared to 2020, in Euro terms. Our operating loss before other expenses, net from our operations in Spain represented a loss of $39 million, which was a negative impact of 2% of our total operating earnings before other expenses, net for the year ended December 31, 2021, in Dollar terms. The increase in loss resulted primarily from higher cost of sales, mainly higher electric power and fuel costs.
The Philippines. Our operating earnings before other expenses, net, from our operations in the Philippines increased 2% in 2021 compared to 2020, in Philippine Peso terms. Our operating earnings before other expenses, net from our operations in the Philippines represented 4% of our total operating earnings before other expenses, net for the year ended December 31, 2021, in Dollar terms. The increase resulted primarily from the increase in our revenues.
Israel. Our operating earnings before other expenses, net, from our operations in Israel decreased 35% in 2021 compared to 2020, in Israeli New Shekel terms. Our operating earnings before other expenses, net from our operations in Israel represented 4% of our total operating earnings before other expenses, net for the year ended December 31, 2021, in Dollar terms. The decrease in Israel operating earnings resulted primarily from the decrease in our revenues.
Rest of EMEAA. Our operating earnings before other expenses, net, from our operations in the Rest of EMEAA segment increased 60% in 2021 compared to 2020, in Euro terms. Our operating earnings before other expenses, net from our operations in the Rest of EMEAA segment represented 2% of our total operating earnings before other expenses, net for the year ended December 31, 2021, in Dollar terms. This increase relates primarily to an increase in our revenues.
SCA&C
Colombia. Our operating earnings before other expenses, net, from our operations in Colombia increased 2% in 2021 compared to 2020, in Colombian Peso terms. Our operating earnings before other expenses, net from our operations in Colombia represented 4% of our total operating earnings before other expenses, net for the year ended December 31, 2021, in Dollar terms. The increase resulted primarily from the increase in our revenues.
Panama. Our operating earnings before other expenses, net, from our operations in Panama increased significantly in 2021 compared to 2020, from an operating loss before other expenses, net of $4 million to an operating earnings before other expenses, net of $15 million. Our operating earnings before other expenses, net from our operations in Panama represented 1% of our total operating earnings before other expenses, net for the year ended December 31, 2021, in Dollar terms. The increase resulted primarily from the increase in our revenues.
Caribbean TCL. Our operating earnings before other expenses, net, from our operations in Caribbean TCL increased 6% in 2021 compared to 2020, in Trinidad and Tobago Dollar terms. Our operating earnings before other expenses, net from our Caribbean TCL operations represented 3% of our total operating earnings before other expenses, net for the year ended December 31, 2021, in Dollar terms. The increase resulted primarily from an increase in our revenues.
Dominican Republic. Our operating earnings before other expenses, net, from our operations in the Dominican Republic increased 59% in 2021 compared to 2020, in Dominican Peso terms. Our operating earnings before other expenses, net from our operations in the Dominican Republic represented 7% of our total operating earnings before other expenses, net for the year ended December 31, 2021, in Dollar terms. The increase resulted primarily from an increase in our revenues.
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Rest of SCA&C. Our operating earnings before other expenses, net, from our operations in the Rest of SCA&C segment increased 14% in 2021 compared to 2020, in Dollar terms. Our operating earnings before other expenses, net from our operations in the Rest of SCA&C segment represented 6% of our total operating earnings before other expenses, net for the year ended December 31, 2021, in Dollar terms. The increase resulted primarily from a benefit in Guatemala and Nicaragua derived mainly from higher sales, partially offset by an increase in cost of sales.
Others. Our operating loss before other expenses, net, from our operations in our Others segment decreased 22% in 2021 compared to 2020, in Dollar terms. The decrease in the operating loss before other expenses resulted primarily from an increase in our revenues.
Other Expenses, Net. Our other expenses, net, decreased significantly, in Dollar terms, from an expense of $1,763 million in 2020 to an expense of $82 million in 2021. The decrease in our other expenses, net, in 2021 resulted primarily from an income in 2021 for the sale of 12.3 million emission allowances for a total of $600 million and a reduction of non-cash impairment losses from $1,520 million in 2020, to $513 million in 2021. In 2021, impairment losses includes aggregate impairment losses of goodwill of $440 million related to the operating segments in Spain, the United Arab Emirates and the information technology business, impairment losses of internally developed software capitalized in prior years and other intangible assets of $53 million, as well as impairment losses of fixed assets of $43 million, while the aggregate non-cash impairment losses of 2020 included $1,020 million related to goodwill and $194 million in impairment loss of other intangible assets in our operating segment in the United States. In addition, during 2020, we recognized non-cash impairment losses of idle fixed assets for an aggregate amount of $306 million, mainly related to assets in the United States, Spain and the United Kingdom. Moreover, we had a decrease in our restructuring costs in the year ended December 31, 2021 compared to the same period in 2020. See notes 15.1, 16.1 and 16.2 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
The most significant items included under this caption for the years ended December 31, 2020 and 2021, are as follows:
| For the Years Ended December 31, |
||||||||
| 2020 | 2021 | |||||||
| (in millions of Dollars) | ||||||||
| Impairment losses |
$ | (1,520 | ) | $ | (513 | ) | ||
| Results from the sale of assets and others, net |
(114 | ) | (126 | ) | ||||
| Incremental costs and expenses related to the COVID-19 pandemic |
(48 | ) | (26 | ) | ||||
| Restructuring costs |
(81 | ) | (17 | ) | ||||
| Sale of CO2 Allowances |
— | 600 | ||||||
|
|
|
|
|
|||||
| $ | (1,763 | ) | $ | (82 | ) | |||
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Financial expense. Our financial expense decreased 15%, from $773 million in 2020 to $658 million in 2021, primarily attributable to a decrease in our financial debt during 2021 compared to 2020 and lower interest rates on our financial debt. See note 17.1 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
Financial income and other items, net. Our financial income and other items, net, in Dollar terms, decreased 31%, from an expense of $115 million in 2020 to an expense of $79 million in 2021. The decrease was mainly due to a decrease in effects of amortized cost of assets and liabilities generated from a decrease in the discount rates utilized by us to determine its environmental remediation liabilities in the United Kingdom in 2020, which
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was partially offset by an increase in the loss due to the foreign exchange results, mainly due to the fluctuation of the Mexican Peso against the Dollar. See notes 8.2 and 17.4 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
The most significant items included under this caption for the years ended December 31, 2020 and 2021 are as follows:
| For the Year Ended December 31, |
||||||||
| 2020 | 2021 | |||||||
| (in millions of Dollars) |
||||||||
| Financial income and other items, net: |
||||||||
| Effects of amortized cost on assets and liabilities and others, net |
$ | (89 | ) | $ | (28 | ) | ||
| Net interest cost of pension liabilities |
(27 | ) | (25 | ) | ||||
| Results from financial instruments, net |
(17 | ) | (6 | ) | ||||
| Foreign exchange results |
(3 | ) | (35 | ) | ||||
| Financial income |
20 | 22 | ||||||
| Other |
1 | (7 | ) | |||||
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|
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|
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| $ | (115 | ) | $ | (79 | ) | |||
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Income Taxes. Our income tax effect in the statements of operations, which is comprised of current income taxes plus deferred income taxes, increased from an expense of $36 million in 2020 to $137 million in 2021. Our current income tax expense increased from $158 million in 2020 to $172 million in 2021, mainly as a result of increases in taxes in Spain and Mexico, partially offset by tax refunds received in Poland. Our deferred income tax income decreased from a deferred income tax income of $122 million in 2020 to a deferred income tax income of $35 million in 2021, mainly associated with the recognition of deferred tax assets in 2020 related to the impairments of fixed assets in the United States, the United Kingdom and Spain, among other countries, that generated an additional deferred income tax income in 2020 compared to 2021. See notes 20.1, 20.2, 20.3 and 20.4 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
For each of the years ended December 31, 2020 and 2021, our statutory income tax rate in Mexico was 30%. Considering an increase in our earnings before income tax from a loss of $1,310 million in 2020 to earnings before income tax of $954 million in 2021, as well as differences between accounting and tax expenses, our average effective income tax rate increased from a negative effective income tax rate of 2.7% in 2020 to an effective income tax rate of 14.4% in 2021. Our average effective tax rate equals the net amount of income tax expense divided by earnings before income taxes, as these line items are reported in our consolidated statements of operations. See “Item 3—Key Information—Risk Factors—Risks Relating to Regulatory and Legal Matters—Certain tax matters may have a material adverse effect on our cash flow, financial condition and net income, as well as on our reputation.” and note 20.3 to our 2022 audited consolidated financial statements included elsewhere in this annual report.
Net Income from continuing operations. For the reasons described above, our net income from continuing operations for 2021 increased from a net loss from continuing operations of $1,346 million in 2020 to a net income from continuing operations of $817 million in 2021. As a percentage of revenues, net loss from continuing operations represented 11% for the year ended as of December 31, 2020, and a net income from continuing operations represented 6% for the year ended as of December 31, 2021.
Discontinued operations. For the years ended December 31, 2020 and 2021, our discontinued operations included in our consolidated statements of operations amounted to a net loss from discontinued operations of $100 million and a net loss from discontinued operations of $39 million, respectively. As a percentage of
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revenues, loss of discontinued operations, net of tax, represented 0.8% for the year ended as of December 31, 2020, and the loss of discontinued operations, net of tax, represented 0.3% for the year ended as of December 31, 2021. See note 4.2 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
Consolidated Net Income. For the reasons described above, our consolidated net income (before deducting the portion allocable to non-controlling interest) for 2021 increased significantly from a consolidated net loss of $1,446 million in 2020 to a consolidated net income of $778 million in 2021. As a percentage of revenues, consolidated net loss represented 11% for the year ended as of December 31, 2020 and consolidated net income represented 5% for the year ended as of December 31, 2021.
Non-controlling Interest Net Income. Changes in non-controlling interest net income in any period reflect changes in the percentage of the stock of our subsidiaries held by non-associated third parties as of the end of each month during the relevant period and the consolidated net income attributable to those subsidiaries.
Non-controlling interest net income increased 19%, from an income of $21 million in 2020 to an income of $25 million in 2021, primarily attributable to an increase in the net income of the consolidated entities in which others have a non-controlling interest. See note 21.4 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
Controlling Interest Net Income. Controlling interest net income represents the difference between our consolidated net income and non-controlling interest net income, which is the portion of our consolidated net income attributable to those of our subsidiaries in which non-associated third parties hold interests. For the reasons described above, our controlling interest net income increased from a controlling interest net loss of $1,467 million in 2020 to a controlling interest net income of $753 million in 2021. As a percentage of revenues, controlling interest net loss, represented 12% for the year ended as of December 31, 2020 and controlling interest net income, represented 5% for the year ended as of December 31, 2021.
Liquidity and Capital Resources
Operating Activities
We have satisfied our operating liquidity needs primarily through the operation of our subsidiaries and expect to continue to do so for both the short and long-term. Although cash flow from our operations has historically met our overall liquidity needs for operations, servicing debt and funding capital expenditures and acquisitions, our subsidiaries are exposed to risks from changes in foreign currency exchange rates, price and currency controls, interest rates, inflation, governmental spending, social instability and other political, economic and/or social developments in the countries in which we operate, among other risks, any one of which may materially decrease our net income and cash from operations. Consequently, in order to meet our liquidity needs, we also rely on cost-cutting and operating improvements to optimize capacity utilization and maximize profitability, as well as borrowing under credit facilities, loans, proceeds of debt and equity offerings and proceeds from asset sales, including our account receivables securitizations. Our consolidated cash flows provided by operating activities from continuing operations were $2,348 million in 2020, $2,500 million in 2021 and $2,150 million in 2022. See our statements of cash flows included elsewhere in this annual report. Cemex management is of the opinion that working capital is sufficient for our current requirements.
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Sources and Uses of Cash
Our review of sources and uses of cash below refers to nominal amounts included in our consolidated statements of cash flows for years ended December 31, 2020, 2021 and 2022.
Our primary sources and uses of cash during the years ended December 31, 2020, 2021 and 2022 were as follows:
| Year Ended December 31, | ||||||||||||
| 2020 | 2021 | 2022 | ||||||||||
| (in millions of Dollars) | ||||||||||||
| Operating Activities |
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| Consolidated net income (loss) |
(1,446 | ) | 778 | 885 | ||||||||
| Discontinued operations |
(100 | ) | (39 | ) | 324 | |||||||
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| Net income (loss) from continuing operations |
(1,346 | ) | 817 | 561 | ||||||||
| Adjustments to the cash flow other than changes in working capital |
3,495 | 1,826 | 1,979 | |||||||||
| Changes in working capital, excluding income taxes |
199 | (143 | ) | (390 | ) | |||||||
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| Cash flows provided by operating activities from continuing operations |
2,348 | 2,500 | 2,150 | |||||||||
| Interest expense and income taxes paid |
(803 | ) | (694 | ) | (681 | ) | ||||||
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| Net cash flows provided by operating activities from continuing operations |
1,545 | 1,806 | 1,469 | |||||||||
| Net cash flows provided by operating activities from discontinued operations |
49 | 37 | 6 | |||||||||
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| Net cash flows provided by operating activities |
1,594 | 1,843 | 1,475 | |||||||||
| Investing Activities |
||||||||||||
| Purchase of property, machinery and equipment, net |
(538 | ) | (776 | ) | (909 | ) | ||||||
| Proceeds from disposal of subsidiaries and assets held for sale, net |
628 | 122 | 341 | |||||||||
| Proceed from the sale of emission allowances |
— | 600 | — | |||||||||
| Acquisition of intangible assets, net |
(53 | ) | (192 | ) | (151 | ) | ||||||
| Non-current assets and others, net |
50 | (10 | ) | (12 | ) | |||||||
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| Net cash flows provided by (used in) investing activities from continuing operations |
87 | (256 | ) | (731 | ) | |||||||
| Net cash flows provided by (used in) investing activities from discontinued operations |
— | (17 | ) | (1 | ) | |||||||
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| Net cash flows provided by (used in) investing activities |
87 | (273 | ) | (732 | ) | |||||||
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| Year Ended December 31, | ||||||||||||
| 2020 | 2021 | 2022 | ||||||||||
| (in millions of Dollars) | ||||||||||||
| Financing Activities |
||||||||||||
| Proceeds from new debt instruments |
4,210 | 3,960 | 2,006 | |||||||||
| Debt repayments |
(4,572 | ) | (5,897 | ) | (2,420 | ) | ||||||
| Issuance of 5.125% Subordinated Notes |
— | 994 | — | |||||||||
| Other financial obligations, net |
(820 | ) | (288 | ) | (197 | ) | ||||||
| Share repurchase program |
(83 | ) | — | (111 | ) | |||||||
| Share in trust for future deliveries under share-based compensation |
— | — | (36 | ) | ||||||||
| Changes in non-controlling interests and repayment of perpetual debentures |
(105 | ) | (447 | ) | (14 | ) | ||||||
| Derivative financial instruments |
12 | (41 | ) | 34 | ||||||||
| Coupons on perpetual debentures and subordinated notes |
(24 | ) | (24 | ) | (51 | ) | ||||||
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| Non-current liabilities, net |
(138 | ) | (109 | ) | (172 | ) | ||||||
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| Net cash flows used in financing activities |
(1,520 | ) | (1,852 | ) | (961 | ) | ||||||
| Increase (decrease) in cash and cash equivalents from continuing operations |
112 | (302 | ) | (223 | ) | |||||||
| Increase in cash and cash equivalents from discontinued operations |
49 | 20 | 5 | |||||||||
| Foreign currency translation effect on cash |
1 | (55 | ) | 100 | ||||||||
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| Cash and cash equivalents at beginning of period |
788 | 950 | 613 | |||||||||
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| Cash and cash equivalents at end of period |
950 | 613 | 495 | |||||||||
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Year ended December 31, 2022
During 2022, excluding the positive foreign currency effect of our balances of cash and cash equivalents generated during the period of $100 million, there was a decrease in cash and cash equivalents from continuing operations of $223 million. This decrease was the result of our net cash flows used in financing activities of $961 million and our net cash flows used in investing activities from continuing operations of $732 million, partially offset by our net cash flows provided by operating activities from continuing operations, which, after interest expense and income taxes paid in cash of $681 million, amounted to $1,469 million.
For the year ended December 31, 2022, our net cash flows provided by operating activities included cash flows applied in working capital, excluding income taxes, of $390 million, which was primarily comprised of trade receivables, inventories and other accounts receivables and other assets, for an aggregate amount of $695 million, partially offset by proceeds from trade payables and other accounts payables and accrued expenses for an aggregate amount of $305 million.
During 2022, the decrease in cash and cash equivalents was the result of (i) our net cash flows used in financing activities of $961 million, which include debt repayments, other financial obligations, net, changes in non-controlling interest, coupons on subordinated notes, share repurchase program, shares in trust for future deliveries under share-based compensation and non-current liabilities, net, for an aggregate amount of $3,001 million, partially offset by proceeds from new debt instruments and derivative financial instruments for an aggregate amount of $2,040 million; and (ii) our net cash flows used in investing activities from continuing activities of $731 million, which was primarily comprised of purchase of property, machinery and equipment, net, acquisition of intangible assets, and non-current assets and others, net, for an aggregate amount of $1,072 million partially offset by proceeds from disposal of subsidiaries and assets held for sale, net, for an amount of $341 million, partially offset by our net cash flows provided by operating activities from continuing operations after interest and income taxes paid in cash of $681 million, amounted to $1,469 million.
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Year ended December 31, 2021
During 2021, excluding the negative foreign currency effect of our balances of cash and cash equivalents generated during the period of $55 million, there was a decrease in cash and cash equivalents from continuing operations of $302 million. This decrease was the result of our net cash flows used in financing activities of $1,852 million and our net cash flows used in investing activities from continuing operations of $256 million, partially offset by our net cash flows provided by operating activities from continuing operations, which, after interest expense and income taxes paid in cash of $694 million, amounted to $1,806 million.
For the year ended December 31, 2021, our net cash flows provided by operating activities included cash flows applied in working capital, excluding income taxes, of $143 million, which was primarily comprised of trade receivables, inventories and other accounts payable and accrued expenses, for an aggregate amount of $527 million, partially offset by proceeds from other accounts receivable and other assets and trade payables for an aggregate amount of $384 million.
During 2021, the decrease in cash and cash equivalents was the result of (i) our net cash flows used in financing activities of $1,852 million, which include debt repayments, other financial obligations, net, changes in non-controlling interest and repayment of perpetual debentures, derivative financial instruments, coupons on Perpetual Debentures and subordinated notes, and non-current liabilities, net, for an aggregate amount of $6,806 million, partially offset by proceeds from new debt instruments and issuance of 5.125% Subordinated Notes for an aggregate amount of $4,954 million; and (ii) our net cash flows used in investing activities from continuing activities of $256 million, which was primarily comprised of purchase of property, machinery and equipment, net, acquisition of intangible assets, and non-current assets and others, net, for an aggregate amount of $978 million partially offset by proceeds from disposal of subsidiaries and assets held for sale, net, and sale of emission allowance for an aggregate amount of $722 million, partially offset by our net cash flows provided by operating activities from continuing operations after interest and income taxes paid in cash of $694 million, amounted to $1,806 million.
Year ended December 31, 2020
During 2020, excluding the positive foreign currency effect of our balances of cash and cash equivalents generated during the period of $1 million, there was an increase in cash and cash equivalents from continuing operations of $112 million. This increase was the result of our net cash flows provided by operating activities from continuing operations, which, after interest and income taxes paid in cash of $803 million, amounted to $1,545 million and by our net cash flows provided by investing activities of $87 million, partially offset by our net cash flows used in financing activities of $1,520 million.
For the year ended December 31, 2020, our net cash flows provided by operating activities included cash flows generated from changes in working capital, excluding income taxes, of $199 million, which was primarily comprised of trade receivables, inventories, trade payables and other accounts payable and accrued expenses, for an aggregate amount of $221 million, partially offset by other accounts receivable and other assets for an amount of $22 million.
During 2020, our net cash flows provided by (i) our operating activities from continuing operations after interest and income taxes paid in cash of $803 million, amounted to $1,545 million and (ii) our net cash flows provided by investing activities from continuing operations of $87 million, which was primarily comprised of proceeds from disposal of subsidiaries and assets held for sale, net and by non-current assets and others, net for an aggregate amount of $678 million, partially offset by purchase of property, machinery and equipment, net, and acquisition of intangible assets for an aggregate amount of $591 million, were disbursed in connection with our net cash flows used in financing activities of $1,520 million, which include debt repayments, other financial obligations, net, share repurchase program, changes in non-controlling interest, coupons on Perpetual Debentures and non-current liabilities, net, for an aggregate amount of $5,742 million, partially offset by proceeds from new debt instruments and derivative instruments for an aggregate amount of $4,222 million.
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As of December 31, 2022, we had the following lines of credit, of which the only committed portion refers to the revolving credit facility under the 2021 Credit Agreement, at annual interest rates ranging between 3.38% and 5.65%, depending on the negotiated currency:
| Lines of Credit |
Available | |||||||
| (in millions of Dollars) | ||||||||
| Other lines of credit in foreign subsidiaries |
364 | 204 | ||||||
| Other lines of credit from banks |
556 | 356 | ||||||
| Revolving credit facility 2021 Credit Agreement |
1,750 | 1,450 | ||||||
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|
|||||
| 2,670 | 2,010 | |||||||
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As of December 31, 2022, we had full availability in our committed revolving credit tranche under the 2021 Credit Agreement. In connection with other lines of credit from banks, such uncommitted amounts are subject to the lenders’ availability. We expect that this, in addition to our proven capacity to continually refinance and replace short-term obligations, will enable us to meet any liquidity risk in the short term.
We have in the past (see “Presentation of Financial Information,” Item 3—Key Information—Our General Evolution—Operation Resilience,” Item 5—Operating and Financial Review and Prospects—Results of Operations—Selected Consolidated Financial Information,” “Item 5—Operating and Financial Review and Prospects—Liquidity and Capital Resources—Relevant Transactions Related to Our Indebtedness in 2022,” and Item 5—Operating and Financial Review and Prospects—Recent Developments—Recent Developments Relating to Our Indebtedness”) and may from time to time in the future, subject to restrictions under our debt agreements and instruments, and depending upon market conditions and other factors our senior management deems relevant, refinance or repurchase our debt in privately negotiated or open market transactions, by tender offer or otherwise, at prices and on terms we deem appropriate (which may be at, above or below par), using cash generated from our operating activities or from the proceeds of asset sales or debt or capital transactions.
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Capital Expenditures
Our capital expenditures incurred for the years ended December 31, 2021 and 2022, and our expected capital expenditures during the year ended December 31, 2023, which include an allocation to 2023 of a portion of our total future committed amount, are as follows:
| Actual for the Year Ended December 31, Actual |
Estimated for the Year Ended December 31, 2023 |
|||||||||||
| 2021(1) | 2022 | |||||||||||
| (in millions of Dollars) | ||||||||||||
| Mexico |
190 | 265 | 186 | |||||||||
| United States |
373 | 551 | 492 | |||||||||
| EMEAA |
||||||||||||
| United Kingdom |
94 | 74 | 64 | |||||||||
| France |
44 | 57 | 40 | |||||||||
| Germany |
29 | 33 | 38 | |||||||||
| Poland |
29 | 33 | 41 | |||||||||
| Spain |
34 | 27 | 27 | |||||||||
| Philippines |
89 | 72 | 127 | |||||||||
| Israel |
45 | 37 | 29 | |||||||||
| Rest of EMEAA |
66 | 55 | 46 | |||||||||
| SCA&C |
||||||||||||
| Colombia |
27 | 45 | 77 | |||||||||
| Panama |
9 | 19 | 8 | |||||||||
| Caribbean TCL |
22 | 16 | 20 | |||||||||
| Dominican Republic |
15 | 18 | 15 | |||||||||
| Rest of SCA&C |
15 | 20 | 30 | |||||||||
| Others |
13 | 40 | 10 | |||||||||
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| Total consolidated |
1,094 | 1,362 | 1,250 | |||||||||
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| Of which: |
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| Expansion capital expenditures |
380 | 474 | 400 | |||||||||
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| Base capital expenditures |
714 | 888 | 850 | |||||||||
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| (1) | For the year ended as of December 31, 2021, the capital expenditures do not include our operations in Costa Rica and El Salvador, which are considered assets held for sale. See note 4.2 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report. |
For the years ended December 31, 2021 and 2022, we recognized $1,094 million and $1,362 million in capital expenditures from our continuing operations, respectively. As of December 31, 2022, in connection with our significant projects, we had capital expenditure commitments of $1,250 million, an amount that is expected to be incurred during 2023, based on the evolution of the related projects.
Our Indebtedness
As of December 31, 2022, we had $8,825 million (principal amount $8,870 million, excluding deferred issuance costs) of total debt plus other financial obligations in our statement of financial position, which does not include $1,000 million of 5.125% Subordinated Notes. Of our total debt plus other financial obligations, 11% was current (including current maturities of non-current debt) and 89% was non-current. As of December 31, 2022, 77% of our total debt plus other financial obligations was Dollar-denominated, 13% was Euro-denominated, 2% was Pound Sterling-denominated, 5% was Mexican Peso-denominated, 2% was Philippine Peso-denominated and 1% was denominated in other currencies. See notes 17.1 and 17.2 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
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On July 19, 2017, Cemex, S.A.B. de C.V. and certain of its subsidiaries entered into the 2017 Facilities Agreement for an amount in different currencies equivalent to $4.1 billion (in aggregate), the proceeds of which were used to refinance in full the indebtedness incurred under a credit agreement entered into with nine banks in 2014 and other debt repayment obligations, allowing us to increase the then average life of our syndicated bank debt to approximately 4.3 years with a final maturity in July 2022. The indebtedness incurred under the 2017 Facilities Agreement ranked equally in right of payment with certain of our other indebtedness, pursuant to the terms of an intercreditor agreement, dated September 17, 2012, among Cemex, S.A.B. de C.V. and certain of its subsidiaries named therein, Citibank Europe PLC, UK Branch (formerly Citibank International plc), as facility agent, the financial institutions, noteholders and other entities named therein and Wilmington Trust (London) Limited, as security agent (as amended and restated from time to time, the “Intercreditor Agreement”). At the time, Cemex, S.A.B. de C.V. and certain of its subsidiaries pledged collateral and all proceeds thereof to secure our payment obligations under the 2017 Facilities Agreement, our then-senior secured notes and under several other of our financing arrangements (the “Collateral”). The subsidiaries whose shares made up the Collateral collectively own, directly or indirectly, substantially all our operations worldwide. As of December 31, 2022, the Collateral has been released and the Intercreditor Agreement is no longer in effect, as described below.
On April 2, 2019, an amendment and restatement agreement to the 2017 Facilities Agreement was executed to, among other things, (i) extend the July 2020 and January 2021 repayment installments for a significant portion of the term loan tranches by three years; (ii) delay the scheduled tightening of the consolidated financial leverage ratio limit by one year; and (iii) make adjustments for the implementation of IFRS 16 and to compensate for its effects on certain financial ratios (together, the “April 2019 Facilities Agreement Amendments”).
On November 4, 2019, we amended and restated by an amendment and restatement agreement the 2017 Facilities Agreement. These amendments (together, the “November 2019 Facilities Agreement Amendments”) included: amendments providing for an additional basket of up to $500 million that can only be used for buy-backs of shares or securities that represent shares of Cemex, S.A.B. de C.V.; amendments providing for a new allowance for disposals of non-controlling interest in subsidiaries that are not obligors (as defined in the 2017 Facilities Agreement) under the 2017 Facilities Agreement of up to $100 million per calendar year; amendments relating to the implementation of corporate reorganizations in Mexico, Europe and in the Trinidad Cement Group (as defined in the 2017 Facilities Agreement); and amendments to the consolidated leverage ratio and the consolidated coverage ratio (as defined and calculated in the 2017 Facilities Agreement) to increase Cemex’s flexibility.
On May 22, 2020, we amended and restated by an amendment and restatement agreement the 2017 Facilities Agreement. These amendments (together, the “May 2020 Facilities Agreement Amendments”) included: (a) modifications to the limits of the consolidated coverage ratio and the consolidated leverage ratio; (b) modifications to the applicable margin over LIBOR, or EURIBOR in relation to any Euro loan, depending on the consolidated leverage ratio, to accommodate for the increased leverage limits; and (c) certain temporary or circumstance-based limitations on our ability to execute certain capital expenditures, acquisitions, share buybacks and the granting of loans to third parties.
On October 13, 2020, we further amended and restated by an amendment and restatement agreement the 2017 Facilities Agreement. As a result of these amendments (together, the “October 2020 Facilities Agreement Amendments”), we extended $1.1 billion of term loan maturities by three years, from 2022 to 2025, and $1.1 billion of commitments under the revolving credit facility by one year from 2022 to 2023. In addition, on October 15, 2020, we prepaid $530 million corresponding to the July 2021 amortization under the new term loan facilities created pursuant to the October 2020 Facilities Agreement Amendments.
Under the October 2020 Facilities Agreement Amendments, we also redenominated $313 million of previous Dollar exposure under the term loans that are part of the 2017 Facilities Agreement to Mexican Pesos, as well as $82 million to Euros. Aside from the new Mexican Pesos tranche that was created under the 2017 Facilities Agreement, which included a lower interest rate margin grid, pricing for all other tranches under the 2017 Facilities Agreement remained unchanged.
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Following the October 2020 Facilities Agreement Amendments, certain tranches under the 2017 Facilities Agreement amounting to $3.2 billion incorporated five sustainability-linked metrics, including reduction of net CO2 emissions and use of power from green energy, among other indicators. Annual performance with respect to these five metrics could result in a total adjustment of the interest rate margin under these tranches of up to plus or minus five basis points.
Along with other technical amendments, under the October 2020 Facilities Agreement Amendments, we also tightened our consolidated leverage ratio covenant under the 2017 Facilities Agreement from 7.00:1 to a limit of 6.25:1 for the periods ending on September 30, 2020, December 31, 2020 and March 31, 2021. In addition, on December 17, 2020, commitments were increased by $93 million and $43 million under the new term loan facilities and the new revolving credit facility created pursuant to the October 2020 Facilities Agreement Amendments, respectively. Subsequently, we cancelled commitments in those same amounts under the term loan facilities and the revolving credit facility already existing before the October 2020 Facilities Agreement Amendments. Following the aforementioned increase and cancellation, the amount of commitments under the 2017 Facilities Agreement remained effectively unchanged, but maturity of the aforementioned amounts were effectively extended from 2022 to 2025 (for the term loan facility commitments) and to 2023 (for the revolving credit facility commitments). Additionally, effective December 24, 2020, an additional $14 million of commitments under the revolving facility existing prior to the October 2020 Facilities Agreement Amendments were cancelled.
On October 5, 2021, we further amended by an amendment agreement the 2017 Facilities Agreement. As a result of these amendments (the “October 2021 Facilities Agreement Amendments” and, together with the October 2020 Facilities Agreement Amendments, the April 2019 Facilities Agreement Amendments, the November 2019 Facilities Agreement Amendments and the May 2020 Facilities Agreement Amendments, the “Facilities Agreement Amendments”), the 2017 Facilities Agreement was modified so that when at any time Cemex reported a Consolidated Leverage Ratio (as calculated pursuant to the Facilities Agreement Amendments) of 3.75x or less for two consecutive quarterly periods, the automatic release of the liens on the Collateral would be triggered. The terms of the indentures governing Cemex’s then-senior secured notes, which were also secured by liens on the Collateral, also contain an automatic release of such liens when the Collateral is released under the 2017 Facilities Agreement.
As Cemex reported a Consolidated Leverage Ratio of 3.75x or less for the quarterly periods ending on March 31, 2021 and June 30, 2021, Cemex complied with all requirements for the automatic release of the liens on the Collateral securing its indebtedness under the 2017 Facilities Agreement and, in turn, its then-senior secured notes that benefited from the same Collateral. The Collateral was released on October 6, 2021 and, at the time, consisted of the shares of COM, Cemex España and CIH. The then-senior secured notes that previously benefitted from the Collateral were the 2.750% Euro-denominated Notes due 2024, the March 2026 Euro Notes, the November 2029 Dollar Notes, the June 2027 Dollar Notes, the September 2030 Dollar Notes and the July 2031 Dollar Notes.
Additionally, the aforementioned Collateral release caused the automatic termination of the Intercreditor Agreement governing the rights of certain of Cemex and its subsidiaries’ creditors in accordance with its terms.
2021 Credit Agreement
On October 29, 2021, Cemex, S.A.B. de C.V. entered into the 2021 Credit Agreement for up to $3.25 billion to refinance indebtedness (including the 2017 Facilities Agreement) and general corporate purposes. On November 8, 2021, we fully repaid all outstanding indebtedness under the 2017 Facilities Agreement, which amounted to $1.9 billion in different currencies. Following this repayment, the 2017 Facilities Agreement is no longer in effect. The funds used to repay the 2017 Facilities Agreement were sourced from the 2021 Credit
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Agreement, which was closed with 21 financial institutions participating as lenders. The main terms and conditions of the 2021 Credit Agreement are summarized as follows:
| • | Final maturity in November 2026; |
| • | $1.5 billion in Term Loans (as defined in the 2021 Credit Agreement), amortizing in five equal semi-annual payments starting in November 2024; |
| • | $1.75 billion of commitments under a Revolving Facility (as defined in the 2021 Credit Agreement) maturing in November 2026; |
| • | All loans under the 2021 Credit Agreement bear interest at the same rate, including an applicable margin over the benchmark interest rate of between 100 and 175 basis points, depending on Cemex’s Consolidated Leverage Ratio (as defined in the 2021 Credit Agreement), with such margin being subject to positive or negative adjustments in an aggregate amount not to exceed five basis points, based on certain sustainability-linked performance metrics from the prior annual period; |
| • | Financial covenants consistent with an investment grade capital structure, with a maximum leverage ratio of 3.75x throughout the life of the loan, and a minimum interest coverage ratio of 2.75x; and |
| • | Guaranteed by Cemex Corp., Cemex Concretos, S.A. de C.V., COM and CIH, all of which are subsidiaries of Cemex (collectively, the “Refinancing Guarantors”). |
The 2021 Credit Agreement is denominated exclusively in Dollars and includes an interest rate margin grid that is about 25 basis points lower on average than that of the then existing 2017 Facilities Agreement. Furthermore, the 2021 Credit Agreement is the first debt to be issued under the Framework, which is aligned to the company’s Future in Action program and its ultimate vision of a carbon- neutral economy. The annual performance in respect of the three metrics referenced in the 2021 Credit Agreement, which are aligned with those provided for in the Framework, may result in an adjustment of the interest rate margin of up to plus or minus five basis points, in line with other sustainability-linked loans from investment grade rated borrowers.
As of December 31, 2022, we reported an aggregate amount of outstanding debt of $1,800 million under the 2021 Credit Agreement. As of December 31, 2022, we had $1,450 million of availability under the committed revolving credit tranche under the 2021 Credit Agreement.
Mexican Peso Banorte Agreement
On December 20, 2021, Cemex, S.A.B. de C.V. entered into the Mexican Peso Banorte Agreement under terms and conditions substantially similar to those of the 2021 Credit Agreement. As of December 31, 2022, we had drawn the entirety of the only term loan thereunder for the then Mexican Peso equivalent of $255 million. Furthermore, the borrowing under the Mexican Peso Banorte Agreement is also issued under the Framework.
2022 EUR Credit Agreement
On October 7, 2022, Cemex, S.A.B. de C.V. entered into the 2022 EUR Credit Agreement for €500 million under terms and conditions substantially similar to those of the 2021 Credit Agreement, for general corporate purposes (including to refinance indebtedness). The 2022 EUR Credit Agreement consists of a 3-year non-amortizing term loan facility. The 2022 EUR Credit Agreement has financial covenants consistent with an investment grade capital structure, with a maximum leverage ratio of 3.75x throughout the life of the facility, and a minimum interest coverage ratio of 2.75x. The 2022 EUR Credit Agreement is denominated exclusively in Euros, and the loans bear interest at a rate per annum equal to the EURIBOR rate plus a margin ranging from 115 basis points to 190 basis points, depending on our leverage ratio (subject to the sustainability-linked adjustments described below). Furthermore, the borrowing under the 2022 EUR Credit Agreement is also issued under the Framework. The annual performance in respect of the three metrics referenced in the 2022 EUR Credit Agreement, which are aligned with those provided for in the Framework, may result in an adjustment of the
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interest rate margin of up to plus or minus five basis points, in line with other sustainability-linked loans from investment grade rated borrowers. As of December 31, 2022, we had drawn the entirety of the only term loan under the 2022 EUR Credit Agreement for the then Euro equivalent of $498 million.
As of December 31, 2022, we reported an aggregate amount of outstanding debt of $535 million under the 2022 EUR Credit Agreement.
If we are unable to comply with our upcoming principal maturities under our indebtedness, or refinance or extend maturities of our indebtedness, our debt could be accelerated. Acceleration of our debt would have a material adverse effect on our financial condition. See “Item 3—Key Information—Risk Factors—Risks Relating to Our Indebtedness and Certain Other Obligations—We have a substantial amount of debt and other financial obligations. If we are unable to secure refinancing on favorable terms or at all, we may not be able to comply with our payment obligations upon their maturity. Our ability to comply with our principal maturities and financial covenants may depend on us implementing certain strategic initiatives, including, but not limited to, making asset sales, and there is no assurance that we will be able to implement any such initiatives or execute such sales, if needed, on terms favorable to us or at all.” Some of our subsidiaries have issued or provided guarantees of certain of our indebtedness, as indicated in the table below.
| The Notes | 2021 Credit Agreement |
2022 EUR Credit Agreement |
5.125% Subordinated Notes |
Mexican Peso Banorte Agreement |
||||||||||||||||
| $3,988 million (principal amount $4,006 million) |
$1,780 million (principal amount $1,800 million) |
$532 million (principal amount $535 million) |
$1,000 million (principal amount $1,000 million) |
$267 million (principal amount $268 million) |
||||||||||||||||
| Amount Outstanding as of December 31, 2022(1) |
||||||||||||||||||||
| Cemex, S.A.B. de C.V. |
✓ | ✓ | ✓ | ✓ | ✓ | |||||||||||||||
| Cemex Operaciones México, S.A. de C.V. |
✓ | ✓ | ✓ | ✓ | ||||||||||||||||
| Cemex Concretos, S.A. de C.V. |
✓ | ✓ | ✓ | ✓ | ||||||||||||||||
| Cemex Corp. |
✓ | ✓ | ✓ | ✓ | ||||||||||||||||
| Cemex Innovation Holding Ltd |
✓ | ✓ | ✓ | ✓ | ||||||||||||||||
| (1) | Includes Notes that have been repurchased and are held by Cemex. |
In addition, as of December 31, 2022, (i) Cemex Materials LLC was a borrower of $152 million (principal amount $152 million) under an indenture which is guaranteed by Cemex Corp. and (ii) several of our other operating subsidiaries were borrowers under debt facilities or debt arrangements aggregating $254 million.
Most of our current outstanding indebtedness was incurred to finance our acquisitions and to finance our capital expenditure programs. Historically, we have addressed our liquidity needs (including funds required to make scheduled principal and interest payments, refinance debt, and fund working capital and planned capital expenditures) with operating cash flow, securitizations, borrowings under credit facilities, proceeds of debt and equity offerings and proceeds from asset sales.
If (i) monetary policies to reduce inflation fail or induce a recession, (ii) policies in the largest economies diverge, resulting in Dollar appreciation with negative cross-border effects, (iii) energy and food price shocks cause inflation to persist for longer and weigh on investment and productivity growth, raising additional roadblocks in the recovery path, (iv) a global tightening of financial conditions triggers widespread emerging market debt distress, (v) a resurgence of the COVID-19 pandemic, or any related COVID-19 strain, or new pandemic or epidemic, hinders growth, further impacting financial institutions extending maturities to companies that have our credit rating or that are highly leveraged like us, which become more restrictive and our operating results worsen significantly, (vi) we are unable to complete debt or equity offerings, (vii) we are unable
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to consummate asset sales, (viii) the rapid growth of cryptocurrencies without clear regulation leads to financial instability with negative effects for the global economy, or (ix) the proceeds of any divestitures and/or our cash flow or capital resources prove inadequate, among other events, we could face liquidity problems and may not be able to comply with our upcoming principal payments under our indebtedness or refinance our indebtedness. If we are unable to comply with our upcoming principal maturities under our indebtedness, or refinance or extend maturities of our indebtedness, our debt could be accelerated. Acceleration of our debt would have a material adverse effect on our business and financial condition.
Historically, we and our subsidiaries have sought and obtained waivers and amendments to several of our debt instruments relating to a number of financial ratios. Our ability to comply with these ratios may be affected by current global economic conditions and volatility in foreign exchange rates and the financial and capital markets, including the effects of the COVID-19 pandemic and geopolitical risks, such as the conflict between Russia and Ukraine, on the financial sector and the ability of our lenders to grant waivers or amendments to companies that have our credit rating or that are highly leveraged like us. We may need to seek waivers or amendments in the future. However, we cannot assure you that any future waivers or amendments, if requested, will be obtained. If we or our subsidiaries are unable to comply with the provisions of our debt instruments and are unable to obtain a waiver or amendment, the indebtedness outstanding under such debt instruments could be accelerated. Acceleration of these debt instruments would have a material adverse effect on our financial condition.
Relevant Transactions Related to Our Indebtedness in 2022
The following is a description of our most important transactions related to our indebtedness in 2022:
| • | On April 13, 2022, we consummated a cash tender offer and purchased $163,762,000 aggregate principal amount of the outstanding September 2030 Dollar Notes, $108,648,000 aggregate principal amount of the outstanding November 2029 Dollar Notes and $156,178,000 aggregate principal amount of the outstanding July 2031 Dollar Notes validly tendered by holders of the tendered notes and made a total payment of $419,293,717.35 (which included an early tender premium and accrued and unpaid interest) for such tendered notes, pursuant to the terms of an offer to purchase governing the tender offer. |
| • | On April 27, 2022, we consummated a cash tender offer and purchased $4,160,000 aggregate principal amount of the outstanding September 2030 Dollar Notes, $3,000,000 aggregate principal amount of the outstanding November 2029 Dollar Notes and $3,075,000 aggregate principal amount of the outstanding July 2031 Dollar Notes validly tendered by holders of the tendered notes after the early tender date and at or prior to the expiration date and made a total payment of $9,789,319.41 (which included accrued and unpaid interest) for such tendered notes, pursuant to the terms of the offer to purchase governing the tender offer. |
| • | From May 2022 to August 2022, we repurchased $191,801,000 aggregate principal amount of the July 2031 Dollar Notes, $32,750,000 aggregate principal amount of the September 2030 Dollar Notes and $40,344,000 aggregate principal amount of the November 2029 Dollar Notes. |
| • | On September 30, 2022, we consummated a cash tender offer and purchased $291,177,000 aggregate principal amount of the outstanding July 2031 Dollar Notes, $81,944,000 aggregate principal amount of the outstanding September 2030 Dollar Notes and $94,955,000 of the outstanding November 2029 Dollar Notes validly tendered by holders of the tendered notes and made a total payment of $404,512,954.08 (which included an early tender premium and accrued and unpaid interest) for such tendered notes, pursuant to an offer to purchase governing the tender offer. |
| • | On October 7, 2022, we entered into the 2022 EUR Credit Agreement. |
During 2022, we borrowed the full amount of the 2022 EUR Credit Agreement. We used a substantial portion of the proceeds from these transactions to repay and refinance indebtedness, to improve our liquidity
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position and for general corporate purposes. For a description of the 2022 EUR Credit Agreement, see “Item 5—Operating and Financial Review and Prospects—Liquidity and Capital Resources—Our Indebtedness.”
Our Other Financial Obligations
Other financial obligations in the consolidated statement of financial position as of December 31, 2021 and 2022 are detailed as follows:
| 2021 | 2022 | |||||||||||||||||||||||
| Short- term |
Long- term |
Total | Short- term |
Long- term |
Total | |||||||||||||||||||
| (in millions of Dollars) | ||||||||||||||||||||||||
| Leases |
$ | 265 | $ | 911 | $ | 1,176 | $ | 258 | $ | 918 | $ | 1,176 | ||||||||||||
| Liabilities secured with accounts receivable |
602 | $ | — | 602 | 678 | — | 678 | |||||||||||||||||
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| $ | 867 | $ | 911 | $ | 1,778 | $ | 936 | $ | 918 | $ | 1,854 | |||||||||||||
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Leases
We have several operating and administrative assets under lease contracts. We apply the recognition exemption for short-term leases and leases of low-value assets. See notes 15.2 and 17.2 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
Changes in the balance of lease financial liabilities during 2020, 2021 and 2022 were as follows:
| (in millions of Dollars) | 2020 | 2021 | 2022 | |||||||||
| Lease financial liability at beginning of year |
$ | 1,306 | $ | 1,260 | $ | 1,176 | ||||||
| Additions from new leases |
213 | 227 | 296 | |||||||||
| Reductions from payments |
(276 | ) | (313 | ) | (276 | ) | ||||||
| Cancellations and liability remeasurements |
(9 | ) | 27 | 7 | ||||||||
| Foreign currency translation and accretion effects |
26 | (25 | ) | (27 | ) | |||||||
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| Lease financial liability at end of year |
$ | 1,260 | $ | 1,176 | $ | 1,176 | ||||||
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As of December 31, 2022, the maturities of non-current lease financial liabilities are as follows:
| (in millions of Dollars) | Total | |||
| 2024 |
$ | 194 | ||
| 2025 |
151 | |||
| 2026 |
109 | |||
| 2027 |
81 | |||
| 2028 and thereafter |
383 | |||
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| $ | 918 | |||
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Total cash outflows for leases including the interest expense portion as disclosed in note 8.1 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report in 2020, 2021 and 2022 were $350 million, $381 million and $342 million, respectively.
Our Receivables Financing Arrangements
Our subsidiaries in Mexico, the United States, France and the United Kingdom are parties to sales of trade accounts receivable programs with financial institutions, referred to as securitization programs. As of
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December 31, 2021 and 2022, trade accounts receivable included receivables of $727 million and $828 million, respectively. Under these programs, our subsidiaries effectively surrender control associated with the trade accounts receivable sold and there is no guarantee or obligation to reacquire the assets. Nonetheless, in such programs, our subsidiaries retain certain residual interest in the programs and/or maintain continuing involvement with the accounts receivable. Therefore, the trade accounts receivable sold were not removed from the statement of financial position, and the funded amounts were recognized within the line item “Other financial obligations” and the difference in each year against the trade receivables sold was maintained as reserves. Trade accounts receivable qualifying for sale exclude amounts over a certain number of days past due or concentrations over certain limits to any customer, according to the terms of the programs. The portion of the accounts receivable sold maintained as reserves amounted to $125 million and $150 million as of December 31, 2021 and 2022, respectively. Therefore, the funded amount to us was $602 million and $678 million as of December 31, 2021 and 2022, respectively. The discount granted to the acquirers of the trade accounts receivable is recorded as financial expense and amounted to $13 million in 2020, $11 million in 2021 and $24 million in 2022. Our securitization programs are usually negotiated for periods of one to two years and are usually renewed at their maturity. See notes 10 and 17.2 to our 2022 audited consolidated financial statements included elsewhere in this annual report. See “Item 5—Operating and Financial Review and Prospects—Recent Developments—Recent Developments Relating to Our Indebtedness.”
Perpetual Debentures
We defined the Perpetual Debentures, collectively, as the (i) Dollar-denominated 6.196% Fixed-to-Floating Rate Callable Perpetual Debentures issued by C5 Capital (SPV) Limited, (ii) Dollar-denominated 6.640% Fixed-to-Floating Rate Callable Perpetual Debentures issued by C8 Capital (SPV) Limited, (iii) Dollar- denominated 6.722% Fixed-to-Floating Rate Callable Perpetual Debentures issued by C10 Capital (SPV) Limited and (iv) Euro-denominated 6.277% Fixed-to-Floating Rate Callable Perpetual Debentures issued by C10-EUR Capital (SPV) Limited. Unless the context otherwise requires, when we refer to the Perpetual Debentures, we also include our dual-currency notes that underlie the Perpetual Debentures.
As of December 31, 2020, non-controlling interest stockholders’ equity included $449 million, representing the notional amount of Perpetual Debentures, which excluded any Perpetual Debentures held by our subsidiaries. The Perpetual Debentures had no fixed maturity date and there were no contractual obligations for us to exchange any series of its outstanding Perpetual Debentures for financial assets or financial liabilities. As a result, these debentures, issued by special purpose vehicles (“SPVs”), qualified as equity instruments under applicable IFRS and were classified within non-controlling interest as they were issued by consolidated entities. Subject to certain conditions, we had the unilateral right to defer indefinitely the payment of interest due on the debentures. The different SPVs were established solely for purposes of issuing the Perpetual Debentures and were included in Cemex’s consolidated financial statements.
In June 2021, considering the issuance of the 5.125% Subordinated Notes we redeemed all series of our outstanding Perpetual Debentures and, in each case, an equal aggregate amount of underlying dual-currency notes. See note 21.4 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
Issuance costs, as well as the interest expense, which is accrued based on the principal amount of the Perpetual Debentures, were included within “Other equity reserves” and represented expenses of $24 million and $11 million in 2020 and 2021, respectively.
Subordinated Notes
On June 8, 2021, we issued $1.0 billion aggregate principal amount of the 5.125% Subordinated Notes with no fixed maturity and subordinated to all senior obligations, and senior only to equity, in transactions exempt from registration pursuant to Rule 144A and Regulation S under the Securities Act. After issuance costs, we
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received $994 million. Considering that the 5.125% Subordinated Notes have no fixed maturity date, there is no contractual obligation for us to deliver cash or any other financial assets, the payment of principal and interest may be deferred indefinitely at the sole discretion of us and specific redemption events, are fully under our control, under applicable IFRS, the 5.125% Subordinated Notes qualify as equity instruments and are classified within controlling interest stockholders’ equity. We have a repurchase option on the fifth anniversary of the 5.125% Subordinated Notes. In the event of liquidation of us due to commercial bankruptcy, the 5.125% Subordinated Notes would come to the liquidation process according to their subordination after all liabilities. Coupon payments on the 5.125% Subordinated Notes for the years ended December 31, 2021 and 2022, were included within “Other equity reserves” and amounted to $30 million and $54 million, respectively.
Stock Repurchase Program
Under Mexican law, Cemex, S.A.B. de C.V.’s shareholders are the only ones authorized to approve the maximum amount of resources that can be allocated to the stock repurchase program at any annual ordinary general shareholders’ meeting. Unless otherwise instructed by Cemex, S.A.B. de C.V.’s shareholders, we are not required to purchase any minimum number of shares pursuant to any such program.
In connection with Cemex, S.A.B. de C.V.’s annual ordinary general shareholders’ meetings held on March 26, 2020, March 25, 2021 and March 24, 2022, proposals were approved to set the amount of $500 million or its equivalent in Mexican Pesos, each year and until the next ordinary shareholders’ meeting, as the maximum amount of resources that Cemex, S.A.B. de C.V. can use to repurchase its own shares or securities that represent such shares. Cemex, S.A.B. de C.V.’s Board of Directors approved the policy and procedures for the operation of any stock repurchase program, and is authorized to determine the basis on which the repurchase and placement of such shares is made, appoint the persons who will be authorized to make the decision of repurchasing or replacing such shares and appoint the persons responsible to make the transaction and furnish the corresponding notices to authorities. The Board of Directors of Cemex, S.A.B. de C.V. and/or attorneys-in-fact or delegates designated in turn, or the persons responsible for such transactions, will determine, in each case, if the repurchase is made with a charge to stockholders’ equity as long as the shares belong to Cemex, S.A.B. de C.V. or with a charge to share capital if it is resolved to convert the shares into non-subscribed shares to be held in treasury. See “Item 5—Operating and Financial Review and Prospects—Recent Developments—Recent Developments Relating to Cemex, S.A.B. de C.V.’s Shareholders’ Meetings.” We remain subject to certain restrictions regarding the repurchase of shares of our capital stock under the Credit Agreements and the indentures governing the outstanding Notes.
During 2019, we repurchased 157.7 million CPOs, which we cancelled at Cemex, S.A.B. de C.V.’s annual ordinary general shareholders’ meeting held on March 26, 2020.
From March 10, 2020 to March 24, 2020, under the repurchase program authorized at Cemex, S.A.B. de C.V.’s ordinary general shareholders’ meeting held on March 28, 2019, Cemex, S.A.B. de C.V. repurchased 378.2 million CPOs, at a weighted-average price in Mexican Pesos equivalent to $0.21 per CPO, which was equivalent to an amount of $83.2 million, excluding value-added tax. Cemex, S.A.B. de C.V. did not repurchase any additional CPOs after March 24, 2020. On April 8, 2020, Cemex, S.A.B. de C.V. announced that, to enhance our liquidity, it suspended its share repurchase program for the remainder of 2020. The shares repurchased during 2020 were cancelled at Cemex, S.A.B. de C.V.’s annual general ordinary shareholders’ meeting held on March 25, 2021.
During 2021, Cemex did not use the repurchase program authorized at Cemex, S.A.B. de C.V.’s ordinary general shareholders’ meeting held on March 26, 2020, and March 25, 2021. As a result, as no repurchases of CPOs took place during 2021, Cemex, S.A.B. de C.V.’s ordinary general shareholders’ meeting held on March 24, 2022, did not include on its agenda the cancellation of shares repurchased by Cemex, S.A.B. de C.V.
During 2022, under the repurchase programs authorized at Cemex, S.A.B. de C.V.’s ordinary general shareholders’ meeting held on March 25, 2021 and March 24, 2022, Cemex, S.A.B. de C.V. repurchased
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220.6 million CPOs, at a weighted average price in Mexican pesos equivalent to $0.5026 per CPO, which was equivalent to an amount of $110.9 million. The shares repurchased during 2022 under such repurchase programs were proposed and subsequently approved for cancellation at Cemex, S.A.B. de C.V.’s annual ordinary general shareholders’ meeting held on March 23, 2023.
Research and Development, Patents and Licenses, etc.
Headed by Cemex Global R&D, Research and Development is increasingly assuming a key role as it is recognized as an important element in creating value for our products, which is important to Cemex’s comprehensive pricing strategy for Cemex’s products. Through the development of innovative technologies, services, and commercial models, Cemex is leveraging its know-how-based assets to create an important differentiation in its offerings to customers in a broad range of markets with unique challenges. We focus on creating tangible value for our customers by creating products designed to make their business more profitable, but more importantly, as leaders in the industry, Cemex intends to elevate and accelerate the industry’s evolution in order to achieve greater sustainability, increase engagement in social responsibility and provoke an important leap in its technological advancement.
Cemex’s R&D initiatives are globally led, coordinated and managed by Cemex Global R&D, mainly based in Switzerland, which encompasses the areas of Global R&D, Intellectual Property Management, Cement Production Technology, Sustainability, Business Process & IT, Innovation, and Commercial & Logistics. We also have other laboratories and research locations in other parts of the world.
Cemex’s interaction and engagement with customers is growing and evolving through the exploration of novel interaction methodologies. Cemex’s R&D continues to develop and evolve in the area of customer centricity, but with complementary emphases on digitalization, development of digital-based business models, socio-urban dynamics, processes and technologies to mitigate CO2, and evaluating, adopting and proposing methodologies to engage specific types of customers who are the key decision makers in the very early stages of a construction project. Such methodologies are defining innovative approaches to involve and expose existing, potential, and future customers (e.g., Engineering & Architectural students) to our value-added products (cement, aggregates, ready-mix concrete, and admixtures) and constructions solutions. In other words, we aspire to create a unique customer experience in which the customer can see, touch, interact and even stimulate the modification of our technologies.
The areas of Global R&D, Cement Production Technology and Cemex Ventures are responsible for, among others, developing new products for our cement, ready-mix concrete, aggregate and admixture businesses as well as introduce novel and/or improved processing and manufacturing technology for all of Cemex’s core businesses. These areas also address energy efficiency of buildings, comfort, novel and more efficient construction systems. Additionally, the Global R&D and Sustainability areas collaborate to develop and propose construction solutions through consulting and the integration of the aforementioned technologies.
The Cement Production Technology and Sustainability areas are dedicated to, among others, operational efficiencies leading to cost reductions and enhancing our CO2 footprint and overall environmental impact through the usage of alternative or biomass fuels, the use of supplementary materials in substitution of clinker, as well as by managing our CO2 footprint, mitigating it and processing it in the context of a circular economy. For example, we have developed processes and products that allow us to reduce heat consumption in our kilns, which in turn reduces energy costs. Special emphasis is placed on defining parameters by which we communicate our efforts to preserve resources for the future, reduce our CO2 footprint and become more resilient with respect to our energy-related needs and potential supply constraints.
With respect to energy, the R&D team is focusing on energy storage, which represents the largest and most near-term opportunity to accelerate renewable energy deployments and bring us closer to replacing fossil fuels as
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the primary resource to meet the world’s continual growth in energy demand. Global products/brands have been conceptualized and engineered to positively impact the jobsite safety, promote efficient construction practices, sensibly preserve natural resources vital to life, lower carbon footprint and improve the quality of life in rapidly transforming cities.
Underlying Cemex’s R&D philosophy is a growing culture of global collaboration and coordination, where the innovation team identifies and promotes novel collaboration practices and mobilizes its adoption within Cemex. Getting closer and understanding our customers is a fundamental transformation within Cemex, and consequently the Commercial & Logistics area is carrying out research initiatives to better attend the needs of customers as well as identify key changes in our supply chain management that should enable us to bring products, solutions and services to our customers in the most cost-effective and efficient manner, using what we believe to be the best available technologies to design a new standard in digital commercial models. As of December 31, 2022, Cemex Global R&D actively participates in several research projects (ABSALT, LEILAC 2, DRIVE, FASTCARB, ECOCO2, REDOL, DESTINY, CO2OLHEAT and BIOFLEXGEN), funded by the EU under the H2020 program or other programs, to develop new technologies aimed at reducing Cemex’s carbon footprint in Europe and other countries in which Cemex operates.
There are nine laboratories supporting Cemex’s R&D efforts under a collaborative network. The laboratories are strategically located in close proximity to our plants and assist the operating subsidiaries with troubleshooting, optimization techniques and quality assurance methods. The laboratories located in Switzerland and Mexico are continually improving and consolidating our research and development efforts in the areas of cement, concrete, aggregates, admixtures, mortar and asphalt technology, sustainability and energy management. In addition, Cemex Global R&D actively generates and registers patents and pending applications in many of the countries in which Cemex operates. Patents and trade secrets are managed strategically to achieve important technology lock-ins associated with Cemex technology.
Our information technology divisions develop information management systems and software relating to cement and ready-mix concrete operational practices, automation and maintenance. These systems have helped us to better serve our clients with respect to purchasing, delivery and payment. More importantly, thanks to the activities of the Business Process and IT departments, Cemex is continuously improving and innovating its business processes to adapt them to the dynamically evolving markets to better serve Cemex’s needs. The launch of CEMEX Go and its deployment throughout our operations is a testament to our commitment to evolve our digital commercial model to better serve the market and our customers.
R&D activities comprise part of the daily routine of the aforementioned departments and divisions. Therefore, the costs associated with such activities are expensed as incurred. In 2020, 2021 and 2022, total combined expenses of these departments recognized within administrative expenses were $39 million, $44 million and $42 million, respectively. We capitalize the costs incurred in the development of software for internal use which are amortized in operating results over the estimated useful life of the software, which is approximately five years. Capitalized direct costs incurred in the development stage of internal-use software, such as professional fees, direct labor and related travel expenses amounted to $40 million in 2020, $132 million in 2021 and $136 million in 2022. See notes 6 and 16.1 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
Trend Information
Other than as disclosed elsewhere in this annual report, we are not aware of any trends, uncertainties, demands, commitments or events for the year ended December 31, 2022 that are reasonably likely to have a material and adverse effect on our revenues, income, profitability, liquidity or capital resources, or that would cause the disclosed financial information to be not necessarily indicative of future results of operations or financial conditions.
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Summary of Material Contractual Obligations and Commercial Commitments
2021 Credit Agreement
On October 29, 2021, Cemex, S.A.B. de C.V. entered into the 2021 Credit Agreement for up to $3.25 billion to refinance indebtedness (including the 2017 Facilities Agreement) and general corporate purposes. The 2021 Credit Agreement consists of a $1.5 billion 5-year amortizing term loan facility and a $1.75 billion 5-year committed revolving credit facility. The 2021 Credit Agreement has financial covenants consistent with an investment grade capital structure, with a maximum leverage ratio of 3.75x throughout the life of the facility, and a minimum interest coverage ratio of 2.75x. The 2021 Credit Agreement is denominated exclusively in Dollars and includes an interest rate margin grid that is about 25 basis points lower on average than that of the 2017 Facilities Agreement. Furthermore, the 2021 Credit Agreement is the first debt to be issued under the Framework, which is aligned to the company’s Future in Action program and its ultimate vision of a carbon-neutral economy. The annual performance in respect of the three metrics referenced in the 2021 Credit Agreement, which are aligned with those provided for in the Framework, may result in an adjustment of the interest rate margin of up to plus or minus five basis points, in line with other sustainability-linked loans from investment grade rated borrowers.
As of December 31, 2022, we reported an aggregate principal amount of outstanding debt of $1,800 million under the 2021 Credit Agreement. As of November 8, 2021, commitments initially available under the 2021 Credit Agreement included up to $3.25 billion, out of which $1,750 million were in the committed revolving credit tranche under the 2021 Credit Agreement. As of December 31, 2022, the Term Loans under the 2021 Credit Agreement had an amortization profile of $300 million in semi-annual principal payments (as such payments may be reduced as a result of prepayments) commencing in November 2024, plus any applicable interest, in accordance with the 2021 Credit Agreement. For a discussion of restrictions and covenants under the 2021 Credit Agreement, see “Item 3—Key Information—Risk Factors—Risks Relating to Our Indebtedness and Certain Other Obligations—The Credit Agreements, the indentures governing our Notes and our other debt agreements and/or instruments contain several restrictions and covenants. Our failure to comply with such restrictions and covenants or any inability to capitalize on business opportunities or refinance our debt resulting from them could have a material adverse effect on our business and financial conditions.”
Mexican Peso Banorte Agreement
On December 20, 2021, Cemex, S.A.B. de C.V. entered into the Mexican Peso Banorte Agreement under terms and conditions substantially similar to those of the 2021 Credit Agreement. As of December 31, 2022, we had drawn the entirety of the only term loan thereunder for the then-equivalent of $255 million Mexican Pesos. Furthermore, the borrowing under the Mexican Peso Banorte Agreement is also issued under the Sustainability-Linked Financing Framework.
2022 EUR Credit Agreement
On October 7, 2022, Cemex, S.A.B. de C.V. entered into the 2022 EUR Credit Agreement for €500 million under terms and conditions substantially similar to those of the 2021 Credit Agreement, for general corporate purposes (including to refinance indebtedness). The 2022 EUR Credit Agreement consists of a 3-year non-amortizing term loan facility. The 2022 EUR Credit Agreement has financial covenants consistent with an investment grade capital structure, with a maximum leverage ratio of 3.75x throughout the life of the facility, and a minimum interest coverage ratio of 2.75x. The 2022 EUR Credit Agreement is denominated exclusively in Euros, and the loans bear interest at a rate per annum equal to the EURIBOR rate plus a margin ranging from 115 basis points to 190 basis points, depending on our leverage ratio (subject to the sustainability-linked adjustments described below). Furthermore, the borrowing under the 2022 EUR Credit Agreement is also issued under the Framework. The annual performance in respect of the three metrics referenced in the 2022 EUR Credit Agreement, which are aligned with those provided for in the Framework, may result in an adjustment of the
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interest rate margin of up to plus or minus five basis points, in line with other sustainability-linked loans from investment grade rated borrowers. As of December 31, 2022 we had drawn the entirety of the only term loan under the 2022 EUR Credit Agreement for the then Euro equivalent of $498 million.
As of December 31, 2022, we reported an aggregate amount of outstanding debt of $535 million under the 2022 EUR Credit Agreement. For a discussion of restrictions and covenants under the 2022 EUR Credit Agreement, see “Item 3—Key Information—Risk Factors—Risks Relating to Our Indebtedness and Certain Other Obligations—The Credit Agreements, the indentures governing our Notes and our other debt agreements and/or instruments contain several restrictions and covenants. Our failure to comply with such restrictions and covenants or any inability to capitalize on business opportunities or refinance our debt resulting from them could have a material adverse effect on our business and financial conditions.”
Notes
The indentures governing our outstanding Notes impose operating and financial restrictions on us. These restrictions limit our ability, among other things, to: (i) incur debt, including restrictions on incurring debt at our subsidiaries, which are not parties to the indentures governing the Notes; (ii) pay dividends on stock; (iii) redeem stock or redeem subordinated debt; (iv) make investments; (v) guarantee indebtedness; and (vi) create or assume liens.
March 2026 Euro Notes. On March 19, 2019, Cemex, S.A.B. de C.V. issued €400 million aggregate principal amount of its March 2026 Euro Notes in transactions exempt from registration pursuant to Rule 144A and Regulation S under the Securities Act. The Refinancing Guarantors fully and unconditionally guarantee the performance of all obligations of Cemex, S.A.B. de C.V. under the March 2026 Euro Notes.
November 2029 Dollar Notes. On November 19, 2019, Cemex, S.A.B. de C.V. issued $1.0 billion aggregate principal amount of its November 2029 Dollar Notes in transactions exempt from registration pursuant to Rule 144A and Regulation S under the Securities Act. The Refinancing Guarantors fully and unconditionally guarantee the performance of all obligations of Cemex, S.A.B. de C.V. under the November 2029 Dollar Notes.
June 2027 Dollar Notes. On June 5, 2020, Cemex, S.A.B. de C.V. issued $1.0 billion aggregate principal amount of its June 2027 Dollar Notes in transactions exempt from registration pursuant to Rule 144A and Regulation S under the Securities Act. The Refinancing Guarantors fully and unconditionally guarantee the performance of all of our obligations under the June 2027 Dollar Notes.
September 2030 Dollar Notes. On September 17, 2020, Cemex, S.A.B. de C.V. issued $1.0 billion aggregate principal amount of its September 2030 Dollar Notes in transactions exempt from registration pursuant to Rule 144A and Regulation S under the Securities Act. The Refinancing Guarantors fully and unconditionally guarantee the performance of all of our obligations under the September 2030 Dollar Notes.
July 2031 Dollar Notes. On January 12, 2021, Cemex, S.A.B. de C.V. issued $1.75 billion aggregate principal amount of its July 2031 Dollar Notes in transactions exempt from registration pursuant to Rule 144A and Regulation S under the Securities Act. The Refinancing Guarantors fully and unconditionally guarantee the performance of all of our obligations under the July 2031 Dollar Notes.
On November 8, 2021, concurrently with funding under the 2021 Credit Agreement and in accordance with indentures that governed our then outstanding senior secured notes, Cemex entered into supplemental indentures to add COM and CIH as new guarantors to each of the Notes. Cemex Corp. and Cemex Concretos, S.A. de C.V. were already guarantors of the Notes. Also, concurrently with funding under the 2021 Credit Agreement and the full repayment of the 2017 Facilities Agreement, the provisions contained in the indentures governing the Notes that provide that any guarantor of the Notes shall be released of its guarantee obligations upon a refinancing of the 2017 Facilities Agreement with debt not guaranteed by the guarantor were triggered. As a result, both the Credit Agreements and the Notes are now guaranteed exclusively by the Refinancing Guarantors. The original
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note guarantors that are no longer guaranteeing the Notes are Cemex España, Cemex Asia B.V., Cemex Finance LLC, Cemex Africa & Middle East Investments B.V., Cemex France Gestion (S.A.S.), Cemex Research Group AG and Cemex UK.
Subordinated Notes
5.125% Subordinated Notes. On June 8, 2021, Cemex, S.A.B. de C.V. issued $1.0 billion aggregate principal amount of the 5.125% Subordinated Notes with no fixed maturity and subordinated to all senior obligations, and senior only to equity, in transactions exempt from registration pursuant to Rule 144A and Regulation S under the Securities Act.
Commercial Commitments
On July 27, 2012, we entered into a Master Professional Services Agreement with IBM (the “IBM 2012 MPSA”). The IBM 2012 MPSA provided the framework for certain ordinary course of business-related services on a global scale, including: information technology, application development and maintenance, finance and accounting services, and human resources administration. The term of the IBM 2012 MPSA expired on August 31, 2022.
On March 31, 2021, we signed an amendment to the IBM 2012 MPSA by which the finance and accounting services were removed from the scope of such agreement and, on the same date, we entered into a new Master Services Agreement with IBM for the provision of finance and accounting services previously provided under the IBM 2012 MPSA (the “IBM 2021 MSA”). On June 30, 2021, we signed an amendment to the IBM 2021 MSA by which advanced cybersecurity services were incorporated into the agreement. On September 30, 2021, we signed another amendment to the IBM 2021 MSA by which the finance and accounting services were modified to incorporate advanced order-to-cash services. The cybersecurity services under the IBM 2021 MSA will end on June 30, 2026 and the finance and accounting services under the IBM 2021 MSA will end on December 31, 2028, unless terminated earlier. In comparison with the IBM 2012 MPSA, the IBM 2021 MSA includes provisions for automation, as well as provisions for increased consumption flexibility and a reassessment of service level requirements. We may terminate the IBM 2021 MSA (or a portion of it) at our discretion and without cause at any time by providing at least six months’ notice to IBM and paying the corresponding termination charges. Other termination rights may be available to us for a termination charge that varies depending on the reason for termination. IBM may terminate the IBM 2021 MSA if we (i) fail to make payments when due or (ii) become bankrupt and do not pay in advance for the services. See note 24.2 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
On February 8, 2022, we announced that we renewed or entered into new agreements with six service providers in the fields of data processing services (back office) in finance, accounting and human resources; as well as IT infrastructure services, support and maintenance of IT applications in the countries in which we operate, for a tenure of five to seven years at an average annual cost of approximately $60 million. The services provided under these agreements replaced the services provided under the IBM 2012 MPSA which expired on August 31, 2022.
As of December 31, 2022, we did not depend on any single one of our suppliers of goods or services to conduct our business.
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Cash Requirements
As of December 31, 2022, we had material cash requirements as set forth in the table below.
| As of December 31, 2022 | ||||||||||||||||||||
| Obligations | Less than 1 year |
1-3 years | 3-5 years | More than 5 Years |
Total | |||||||||||||||
| Non-current debt |
$ | 45 | $ | 1,820 | $ | 2,567 | $ | 2,578 | $ | 7,010 | ||||||||||
| Leases(1) |
304 | 428 | 244 | 535 | 1,511 | |||||||||||||||
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| Total debt and other financial obligations(2) |
349 | 2,248 | 2,811 | 3,113 | 8,521 | |||||||||||||||
| Interest payments on debt(3) |
396 | 705 | 398 | 366 | 1,865 | |||||||||||||||
| Pension plans and other benefits(4) |
145 | 279 | 279 | 682 | 1,385 | |||||||||||||||
| Acquisition of property, plant and equipment(5) |
86 | 67 | 3 | — | 156 | |||||||||||||||
| Purchases of services, raw material, fuel and energy(6) |
785 | 837 | 695 | 645 | 2,962 | |||||||||||||||
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| Total cash requirements |
$ | 1,761 | $ | 4,136 | $ | 4,186 | $ | 4,806 | $ | 14,889 | ||||||||||
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| (1) | Represent nominal cash flows. As of December 31, 2022, the net present value of future payments under such leases was $1,075 million, of which, $368 million refers to payments from one to three years and $183 million refer to payments from three to five years. See note 24.1 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report. |
| (2) | The schedule of debt payments, which includes current maturities, does not consider the effect of any refinancing of debt that may occur during the following years. In the past, we have replaced our non-current obligations for others of a similar nature. |
| (3) | Estimated cash flows on floating rate denominated debt were determined using the floating interest rates in effect as of December 31, 2022. |
| (4) | Represents estimated annual payments under these benefits for the next 10 years (see note 19 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report), including the estimate of new retirees during such future years. |
| (5) | Refers mainly to the expansion of a cement-production line in the Philippines. |
| (6) | Future payments for the purchase of raw materials are presented on the basis of contractual nominal cash flows. Future nominal payments for energy were estimated for all contractual commitments on the basis of an aggregate average expected consumption per year using the future prices of energy established in the contracts for each period. Future payments also include our commitments for the purchase of fuel. In addition, this line item includes a contractual commitment with Neoris over a 5-year contract beginning in 2023 until 2027 for the acquisition of digitalization services and solutions for an annual amount of $55 million. Moreover, this line item includes our commitments with six vendors for back-office services for an average annual amount of $60 million. |
As of December 31, 2020, 2021 and 2022, in connection with the commitments for the purchase of fuel and energy included in the table above, a description of the most significant contracts is as follows:
On October 24, 2018, we entered into two fixed-for-floating energy financial hedge agreements in Mexico, for a period of 20 years starting in 2020 with the solar power plants Tuli Energía and Helios Generación.
Pursuant to these agreements, we fixed the megawatt-hour price (which increases at a fixed annual rate) over an electric energy volume per year and the differential between the agreed price and the market price is settled monthly. We consider these agreements to be a hedge for a portion of our aggregate consumption of electric energy in Mexico and recognize the result of the exchange of price differentials described previously in the statement of operations as a part of the costs of energy. During 2022, we received $3 million as a result of these hedges. We do not record these agreements at fair value because there is not a deep market for electric power in Mexico that would effectively allow for their valuation.
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In connection with the Ventikas, located in the Mexican state of Nuevo León with a combined generation capacity of 252 MW, we agreed to acquire a portion of the energy generated by Ventikas for our overall electricity needs in Mexico for a period of 20 years, which began in April 2016. As of December 31, 2022, the estimated annual cost of this agreement was $23 million, assuming energy generation at full capacity (energy supply from wind sources is variable in nature and final amounts can be determined only based on energy ultimately received at the agreed prices per unit).
Beginning in February 2010, for our overall electricity needs in Mexico, we reached an agreement with the EURUS Wind Farm (“EURUS”) for the purchase of a portion of the electric energy generated for a period of no less than 20 years. EURUS is a wind farm with an installed capacity of 250 MW operated by ACCIONA in the Mexican state of Oaxaca. The estimated annual cost of this agreement is $70 million assuming that we receive all our energy allocation. Energy supply from wind sources is variable in nature and final amounts can be determined only based on energy ultimately received at the agreed prices per unit.
We maintain a commitment initiated in April 2004 to purchase the energy generated by TEG until 2027 for our overall electricity needs in Mexico. The estimated annual cost of this agreement is $205 million assuming we receive all our energy allocation. Nonetheless, final amounts will be determined considering the final megawatt hour effectively received at the agreed prices per unit.
In connection with the above, we also committed to supply TEG and another third-party electrical energy generating plant adjacent to TEG all fuel necessary for their operations until the year 2027, equivalent to approximately 1.2 million tons of pet coke per year. We cover our commitments under this agreement by acquiring the aforementioned volume of fuel from sources in the international markets and Mexico.
Off-Balance Sheet Arrangements
We do not have any off-balance sheet arrangements that are reasonably likely to have a material effect on our financial condition, operating results and liquidity or capital resources.
Quantitative and Qualitative Market Disclosure
Our Derivative Financial Instruments
In the ordinary course of business, we are exposed to credit risk, interest rate risk, foreign exchange risk, equity risk, commodities risk and liquidity risk, considering the guidelines set forth by Cemex, S.A.B. de C.V.’s Board of Directors, which represent our risk management framework and are supervised by several of our committees. Our management establishes specific policies that determine strategies focused on obtaining natural hedges or risk diversification to the extent possible, such as avoiding customer concentration on a determined market or aligning the currencies portfolio in which we incur our debt with those in which we generate our cash flows. As of December 31, 2021 and 2022, these strategies were sometimes complemented by the use of derivative financial instruments. See notes 17.4 and 17.5 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
During the reported periods, in compliance with the guidelines established by our risk management committee, the restrictions set forth by our debt agreements and our hedging strategy, we held derivative instruments, with the objectives of, as the case may be: (a) changing the risk profile or fixing the price of fuels; (b) foreign exchange hedging; (c) hedge of forecasted transactions; and (d) other corporate purposes. See note 17.4 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
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As of December 31, 2021 and 2022 the notional amounts and fair values of our derivative instruments were as follows:
| At December 31, 2021 | At December 31, 2022 | |||||||||||||||||||
| (in millions of Dollars) | Notional Amount |
Estimated Fair value |
Notional Amount |
Estimated Fair value |
Maturity Date |
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| Net investment hedge |
1,511 | 3 | 837 | (48 | ) | June 2024 | ||||||||||||||
| Interest Rate Swaps |
1,005 | (18 | ) | 1,018 | 54 | November 2026 | ||||||||||||||
| Fuel price hedging |
145 | 30 | 136 | 8 | December 2023 | |||||||||||||||
| Foreign exchange options |
250 | 6 | 500 | 18 | December 2024 | |||||||||||||||
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| 2,911 | 21 | 2,491 | 32 | |||||||||||||||||
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The caption “Financial income and other items, net” in the statement of operations includes gains and losses related to the recognition of changes in fair values of the derivative financial instruments during the applicable period, which represented net losses of $17 million in 2020, $6 million in 2021 and $5 million in 2022. As described below, changes in fair value of our net investment hedge are recognized in other comprehensive income for the period as part of our currency translation results. In addition, changes in fair value of our outstanding interest rate swaps related to debt are recognized as part of our financial expense in the statement of operations. Changes in fair value of our fuel price hedging derivatives are temporarily recognized through other comprehensive income and are allocated to operating expenses as the related fuel volumes are consumed.
Our Net Investment Hedge. As of December 31, 2021 and 2022, there are Dollar/Peso foreign exchange forward contracts with target tenor ranging from 1 to 18 months for a notional amount of $761 million and $738 million, respectively. We have designated this program as a hedge of our net investment in Pesos, pursuant to which changes in fair market value of these instruments are recognized as part of other comprehensive income in equity. For the years 2020, 2021 and 2022, these contracts generated gains of $53 million, losses of $4 million and losses of $96 million, respectively, which partially offset currency translation results in each year recognized in equity generated from our net assets denominated in Pesos due to the depreciation of the Peso in 2020 and 2021 and the appreciation of the Peso in 2022.
In addition, as of December 31, 2022, as part of our Peso net investment hedge strategy, there are additional Dollar/Peso capped forwards, structured with option contracts, for a notional amount of $98 million. These capped forwards contain limits on the gain that the instrument may generate. Any changes in fair market value of such capped forward contracts are also recognized as part of other comprehensive income in equity. For the year 2022, these contracts generated losses of $2 million, which partially offset currency translation results recognized in equity generated from our net assets denominated in Pesos, due to the appreciation of the Peso in 2022.
Moreover, as of December 31, 2021, there was Dollar/Euro cross currency swap contracts for a notional amount of $750 million, which were entered into in November 2021. During the year 2022, we unwound these instruments, fixing a settlement gain of $80 million. We designated the foreign exchange forward component of these instruments as a hedge of our net investment in Euros, pursuant to which changes in fair market of such forward contracts were recognized as part of other comprehensive income in equity, while changes in fair value of the interest rate swap component were recognized within “Financial income and other items, net.” For the years ended December 31, 2021 and 2022, these contracts generated respective gains of $10 million and $70 million, recognized in equity, which partially offset currency translation results recognized in equity generated from our net assets denominated in Euros due to the depreciation of the Euro in 2021 and 2022 against the Dollar, as well as losses in 2021 of $1 million and gains in 2022 of $8 million related to the exchange of interest rates in the statement of operations.
See note 17.4 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
Our Interest Rate Swaps. For accounting purposes under IFRS, Cemex designates interest rate swaps as cash flow hedges, to fix interest rate payments in relation to an equivalent amount of floating interest rate debt;
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therefore, changes in fair value of these contracts are initially recognized as part of other comprehensive income in equity and are subsequently reclassified to financial expense as the interest expense of the related floating interest rate debt is accrued in the statement of operations.
As of December 31, 2021 and 2022, we held interest rate swaps for a notional amount of $750 million, in both periods, with a fair market value representing liabilities of $30 million in 2021 and assets of $39 million in 2022, negotiated in June 2018 to fix interest payments of existing bank loans bearing Dollar floating rates. During September 2020, we amended one of the interest rate swap contracts to reduce the weighted average fixed rate from 3.05% to 2.56% paying $14 million and, in November 2021, we partially unwound its interest rate swap paying $5 million, recognized within “Financial income and other items, net” in the statement of operations. In November 2021, these contracts were extended, and they will mature in November 2026. For the years ended in 2020, 2021 and 2022, changes in fair value of these contracts generated losses of $9 million, gains of $23 million and gains of $69 million, respectively, recognized in other comprehensive income. Moreover, during the same periods, we recycled results from equity to the line item of “Financial expenses” representing an expense of $20 million in 2020, $22 million in 2021 and $2 million in 2022.
In addition, as of December 31, 2021 and 2022, we held interest rate swaps for a notional of $255 million and $268 million, respectively, negotiated to fix interest payments of existing bank loans referenced to Peso floating rates maturing in November 2023, which fair value represented an asset of $12 million in 2021 and $15 million in 2022. During December 2021, we partially unwound this interest rate swap receiving $3 million recognized within “Financial income and other items, net” in the statement of operations. We designated these contracts as cash flow hedges, pursuant to which, changes in fair value are initially recognized as part of other comprehensive income in equity and are subsequently allocated through financial expense as interest expense on the related bank loans is accrued. For the years ended December 31, 2020, 2021 and 2022 changes in fair value of these contracts generated losses of $3 million, gains of $15 million and gains of $3 million, respectively, recognized in other comprehensive income. Moreover, during the same periods, we recycled results from equity to the line item of “Financial expenses” representing expenses of $0.1 million in 2020, expenses of $0.3 million in 2021 and gains of $7 million in 2022.
In addition, during March 2022, as part of a forecasted debt issuance expected by mid-2023, we entered into interest rate swap lock contracts for a notional of $300 million. We designated these interest rate swap lock contracts as a cash flow hedge of the forecasted debt transaction. During 2022, changes in fair value of these contracts generated gains of $33 million recognized in other comprehensive income. During September 2022, we early settled these interest rate swap lock contracts and fixed the gain of $33 million, which will decrease the financial expense commencing when the debt is issued; otherwise, the amount will remain in equity.
Our Fuel Price Hedging Derivatives. As of December 31, 2021 and 2022, we maintained swap and option contracts negotiated to hedge the price of certain fuels, primarily diesel and gas, in several operations for aggregate notional amounts of $145 million and $136 million, respectively, with an estimated aggregate fair value representing assets of $30 million in 2021 and of $8 million in 2022. By means of these contracts, for its own consumption only, we either fixed the price of these fuels, or entered into option contracts to limit the prices to be paid for these fuels, over certain volumes representing a portion of the estimated consumption of such fuels in several operations. These contracts have been designated as cash flow hedges of diesel or gas consumption, and as such, changes in fair value are recognized temporarily through other comprehensive income and are recycled to operating expenses as the related fuel volumes are consumed. For the years 2020, 2021 and 2022, changes in fair value of these contracts recognized in other comprehensive income represented gains of $7 million, gains of $22 million and losses of $25 million, respectively. Moreover, during the same periods, we recycled results from equity to the line items “Cost of sales” and “Operating expenses,” as applicable, representing expenses of $24 million in 2020, gains of $36 million in 2021 and gains of $88 million in 2022.
Foreign Exchange Options. As of December 31, 2021 and 2022, we held Dollar/Peso call spread option contracts for a notional amount of $250 million and $500 million, respectively. Such contracts mature between
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September 2024 and December 2024 and were negotiated to maintain the value in Dollars over such notional amount over revenues generated in Pesos. Changes in the fair value of these instruments, generated losses of $5 million in 2021 and losses of $13 million in 2022, recognized within “Financial income and other items, net” in the statement of operations.
Other Derivative Financial Instruments. During 2020, we negotiated Dollar/Peso, Dollar/Euro and Dollar/ British Pound foreign exchange forward contracts to sell Dollars and Pesos and buy Euro and Pounds Sterling, negotiated in connection with the voluntary prepayment and currency exchanges under the 2017 Facilities Agreement, for a combined notional amount of $397 million. For the year 2020, the aggregate results from positions entered and settled, generated losses of $15 million recognized within “Financial income and other items, net” in the statements of operation. Additionally, during 2020, we negotiated Dollar/Euro foreign exchange forward contracts to sell Dollars and buy Euro, negotiated in connection with the redemption of the 4.625% Senior Secured Notes due 2024 previously issued by Cemex, S.A.B. de C.V. For the year 2020, the aggregate results of these instruments from positions entered and settled, generated gains of $3 million, recognized within “Financial income and other items, net” in the statement of operations.
Moreover, in connection with the proceeds from the sale of certain assets in the United Kingdom, we negotiated British Pound/Euro foreign exchange forward contracts to sell Pounds Sterling and buy Euro for a notional amount of $186 million. We settled such derivatives on August 5, 2020. During the year 2020, changes in the fair value of these instruments and their settlement generated gains of $9 million recognized within “Financial income and other items, net” in the statement of operations. See notes 4.2 and 17.4 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
With respect to our existing financial derivatives, we may incur net losses and be subject to margin calls that will require cash. Likewise, if we enter into new derivative financial instruments, we may incur net losses and be subject to margin calls. The cash required to cover the margin calls may be substantial and may reduce the funds available to us for our operations or other capital needs.
As with any derivative financial instrument, we assume the creditworthiness risk of the counterparty, including the risk that the counterparty may not honor its obligations to us. Before entering into any derivative financial instrument, we evaluate, by reviewing credit ratings and our business relationship according to our policies, the creditworthiness of the financial institutions and corporations that are prospective counterparties to our derivative financial instruments. We select our counterparties to the extent we believe that they have the financial capacity to meet their obligations in relation to these instruments. Under current financial conditions and volatility, we cannot assure that risk of non-compliance with the obligations agreed to with such counterparties is minimal. See notes 17.4 and 17.5 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
The fair value of derivative financial instruments is based on estimated settlement costs or quoted market prices and supported by confirmations of these values received from the counterparties to these financial instruments. The notional amounts of derivative financial instrument agreements are used to measure interest to be paid or received and do not represent the amount of exposure to credit loss.
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Interest Rate Risk, Foreign Currency Risk and Equity Risk
Interest Rate Risk. The table below presents tabular information of our fixed and floating rate non-current foreign currency-denominated debt as of December 31, 2022. Average floating interest rates are calculated based on forward rates in the yield curve as of December 31, 2022. Future cash flows represent contractual principal payments. The fair value of our floating rate non-current debt is determined by discounting future cash flows using borrowing rates available to us as of December 31, 2022 and is summarized as follows:
| Expected maturity dates as of December 31, 2022 | ||||||||||||||||||||||||||||
| Non-Current Debt(1) | 2023 | 2024 | 2025 | 2026 | After 2027 |
Total | Fair Value |
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| (In millions of Dollars, except percentages) | ||||||||||||||||||||||||||||
| Variable rate |
0 | 174 | 878 | 653 | 45 | 1,750 | 1,788 | |||||||||||||||||||||
| Average interest rate |
3.17 | % | 4.96 | % | 4.00 | % | 5.24 | % | 5.40 | % | ||||||||||||||||||
| Fixed rate |
2 | 211 | 559 | 836 | 3,564 | 5,172 | 4,957 | |||||||||||||||||||||
| Average interest rate |
3.23 | % | 5.13 | % | 5.89 | % | 4.15 | % | 5.45 | % | ||||||||||||||||||
| (1) | The information above includes the current maturities of the non-current debt. Total non-current debt as of December 31, 2022 does not include our other financial obligations and the 5.125% Subordinated Notes for an aggregate amount of $2,854 million issued by consolidated entities. See notes 17.2 and 21.4 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report. |
As of December 31, 2022, we were subject to the volatility of floating interest rates, which, if such rates were to increase, may adversely affect our financing cost and our net income. As of December 31, 2020, 17% of our long-term debt bore floating rates at a weighted average interest rate of LIBOR plus 294 basis points. As of December 31, 2021, 10% of our long-term debt bore floating rates at a weighted average interest rate of LIBOR plus 150 basis points. As of December 31, 2022, 21% of our long-term debt bore floating rates at a weighted average interest rate of LIBOR plus 148 basis points. As of December 31, 2020, 2021 and 2022, if interest rates at that date had been 0.5% higher, with all other variables held constant, our net income for 2020, 2021 and 2022 would have been reduced by $17 million, $7 million and $13 million, respectively, as a result of higher interest expense on variable-rate debt. However, this analysis does not include the interest rate swaps held by us during 2020, 2021 and 2022. See notes 17.4 and 17.5 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
Foreign Currency Risk. Due to our geographic diversification, our revenues are generated in various countries and settled in different currencies. However, some of our production costs, including fuel and energy, and some of our cement prices, are periodically adjusted to take into account fluctuations between the Dollar and the other currencies in which we operate. For the year ended December 31, 2022, 21% of our revenues, before eliminations resulting from consolidation, were generated in Mexico, 27% in the United States, 5% in the United Kingdom, 4% in France, 3% in Germany, 2% in Poland, 2% in Spain, 2% in Philippines, 5% in Israel, 4% in the Rest of EMEAA segment, 2% in Colombia, 1% in Panama, 2% in Caribbean TCL, 2% in the Dominican Republic, 2% in the Rest of SCA&C segment and 16% from our Other operations.
Foreign exchange gains and losses occur by monetary assets or liabilities in a currency different from its functional currency and are recorded in the consolidated statements of operations, except for exchange fluctuations associated with foreign currency indebtedness directly related to the acquisition of foreign entities and related parties’ long-term balances denominated in foreign currency, for which the resulting gains or losses are reported in other comprehensive income. As of December 31, 2021 and 2022, excluding from the sensitivity analysis the impact of translating the net assets of foreign operations into our reporting currency and considering a hypothetical 10% strengthening of the Dollar against the Mexican Peso, with all other variables held constant, our net income for 2021 and 2022 would have decreased by $9 million and decreased $42 million, respectively, as a result of higher foreign exchange losses on our Dollar-denominated net monetary liabilities held in consolidated entities with other functional currencies. Conversely, a hypothetical 10% weakening of the Dollar against the Mexican Peso would have had the opposite effect.
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As of December 31, 2022, 77% of our total debt plus other financial obligations was Dollar-denominated, 13% was Euro-denominated, 2% was Pound Sterling-denominated, 5% was Mexican Peso-denominated, 2% was Philippine Peso-denominated, and 1% was denominated in other currencies. Therefore, we had a foreign currency exposure arising from the debt plus other financial obligations denominated in Dollars and the debt and other financial obligations denominated in Euros versus the currencies in which our revenues are settled in most countries in which we operate. We cannot guarantee that we will generate sufficient revenues in Dollars and Euros from our operations to service these obligations. As of December 31, 2022, we had implemented a derivative financing hedging strategy using foreign exchange options for a notional amount of $500 million to hedge the value in Dollar terms of revenues generated in Pesos to partially address this foreign currency risk. See notes 17.4 and 17.5 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report. Complementarily, we may negotiate other derivative financing hedging strategies in the future if either of our debt portfolio currency mix, interest rate mix, market conditions and/or expectations changes.
In addition, considering that Cemex S.A.B. de C.V.’s functional currency for all assets, liabilities and transactions associated with its financial and holding company activities is the Dollar, there is foreign currency risk associated with the translation of subsidiaries’ net assets denominated in different currencies (Mexican Peso, Euro, Pound Sterling and other currencies) into Dollars. When the Dollar appreciates, the value of Cemex S.A.B. de C.V.’s net assets denominated in other currencies decreases in terms of Dollars, generating negative foreign currency translation and reducing stockholders’ equity. Conversely, when the Dollar depreciates, the value of Cemex S.A.B. de C.V.’s net assets denominated in other currencies would increase in terms of Dollars generating the opposite effect. As mentioned above in our derivative financial instruments section, we have implemented a Dollar/Mexican Peso foreign exchange forward contract program to hedge foreign currency translation in connection with our net assets denominated in Mexican Pesos. See notes 2.5 and 17.5 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
Equity Risk. Equity risk represents the risk that the fair value of future cash flows of a financial instrument will fluctuate because of changes in the market price of Cemex, S.A.B. de C.V.’s and/or a third party’s shares.
Considering specific objectives, we have negotiated equity forward contracts on third-party shares. Under these equity derivative instruments, there is a direct relationship from the change in the fair value of the derivative with the change in price of the underlying share. All changes in fair value of such derivative instruments are recognized in the statement of operations as part of “Financial income and other items, net.” During the reported periods effects were not significant. As of December 31, 2022, we do not have derivative financial instruments based on the price of the parent company’s shares or any third-party’s shares. See notes 17.4 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
Liquidity Risk. Liquidity risk represents the risk that we will not have sufficient funds available to meet our obligations. In addition to cash flows provided by our operating activities, in order to meet our overall liquidity needs for operations, servicing debt and funding capital expenditures and acquisitions, we rely on cost-cutting and operating improvements to optimize capacity utilization and maximize profitability, as well as borrowing under credit facilities, proceeds of debt and equity offerings, and proceeds from asset sales. We are exposed to risks from changes in foreign currency exchange rates, prices and currency controls, interest rates, inflation, governmental spending, social instability and other political, economic and/or social developments in the countries in which we operate, any one of which may materially affect our results and reduce cash from operations. As of December 31, 2022, we had $1,450 million available under the committed revolving credit tranche under the 2021 Credit Agreement.
As of December 31, 2022, current liabilities, which included $987 million of current maturities of debt and other financial obligations, exceeded current assets by $1,020 million. It is noted that as part of our operating strategy implemented by our management, we operate with a negative working capital balance. For the year
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ended December 31, 2022, we generated net cash flows provided by operating activities of $1,475 million. In addition, as of December 31, 2022, we had $1,450 million available under the committed revolving credit facility under the 2021 Credit Agreement and had $560 million under other uncommitted lines of credit subject to the lenders’ availability. See notes 17.1, 17.2, 17.5 and 24.1 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
Investments, Acquisitions and Divestitures
The transactions described below represent our principal investments, acquisitions and divestitures completed during 2020, 2021 and 2022.
Investments and Acquisitions
On July 11, 2022, through a subsidiary in Germany, we completed the acquisition of a 53% stake in the German aggregates company ProStein for a total consideration of $21 million. The investment expands our aggregates business in the region and we estimate that it increases the life of the aggregates reserves for our operations in Central Europe for at least the next 25 years. The majority stake in ProStein’s assets adds a full range of fine and hard aggregates to our aggregates portfolio. In addition to supplying the greater Berlin area, the additional capacity can supply several urban centers in Poland the Czech Republic. ProStein’s assets include six active hardstone plants and six CDEW recovery sites. As of December 31, 2022, based on the preliminary valuation of the fair values of the assets acquired and liabilities assumed, we have not determined any goodwill.
On December 10, 2021, through a subsidiary in Mexico, we acquired Broquers Ambiental, a sustainable waste management company, for a total consideration of $13 million. Broquers Ambiental assets include a plant for solid waste treatment for its use as alternative fuel. During 2022, considering the fair values of the assets acquired and liabilities assumed, we determined goodwill of $4 million.
On October 4, 2021, we announced that we signed an agreement to acquire from HeidelbergCement a limestone quarry with a waste management operation near the Madrid metropolitan area and 3 concrete plants in the Balearic Islands.
On April 12, 2021, we announced that we signed an agreement to acquire from Eqiom Granulats two aggregates quarries and one rail-enabled platform in the North Paris Metropolitan area.
On February 16, 2021, we announced that we acquired the ready-mix assets of Beck Readymix Concrete Co. LTD., including three ready-mix concrete plants and one portable plant to service the San Antonio, Texas metropolitan area and surrounding areas.
In January 2021, one of our subsidiaries in Israel acquired two ready-mix concrete plants from Kinneret and Beton-He’Emek for an amount in shekels equivalent to $6 million. As of December 31, 2021, based on the preliminary valuation of the fair values of the assets acquired and liabilities assumed, we determined goodwill in the amount of $5 million.
During 2020, Cemex España made the 2020 CLH Tender Offer. As of December 31, 2022, considering the effects of the 2020 CLH Tender Offer and additionally including shares of CLH purchased by us in the secondary market, we indirectly own 95.30% of all outstanding shares of CLH (which excludes shares of CLH owned by CLH). See “Item 5—Operating and Financial Review and Prospects—Recent Developments—Recent Developments Relating to Our Business and Operations.”
From March 10, 2020 to March 24, 2020, under the repurchase program authorized at Cemex, S.A.B. de C.V.’s ordinary general shareholders’ meeting held on March 28, 2019, Cemex, S.A.B. de C.V. repurchased
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378.2 million CPOs, which represented 2.5% of Cemex, S.A.B. de C.V.’s outstanding share capital as of December 31, 2019, at a weighted-average price of 5.01 Mexican Pesos per CPO, which was equivalent to an amount of $83.2 million, excluding value-added tax. On April 8, 2020, we announced that, to enhance our liquidity, we suspended the Cemex, S.A.B. de C.V. share repurchase program for the remainder of 2020.
On January 29, 2020, CHP announced the results of its stock rights offering pursuant to which 8,293,831,169 common shares of CHP were issued and listed on the Philippine Stock Exchange on March 4, 2020. As of December 31, 2022, after giving effect to the stock rights offering, and other repurchased in the market over the last few years, our indirect ownership of CHP’s outstanding common shares had further increased to 77.90%. See “Item 5—Operating and Financial Review and Prospects—Recent Developments—Recent Developments Relating to Our Business and Operations.”
During the first six months of 2020, one of our subsidiaries in Israel acquired Netivei Noy from Ashtrom Industries for an amount in shekels equivalent to $33 million. After the conclusion of the purchase price allocation to the fair values of the assets acquired and liabilities assumed of this business, we determined goodwill of $2 million.
Divestitures
During 2020, 2021 and 2022, we made divestitures of $722 million, $211 million and $569 million, respectively (which included fixed assets of $44 million, $62 million and $155 million, respectively).
On October 25, 2022, we created a partnership with Advent. As part of the partnership we sold to Advent a 65% stake in Neoris for a total consideration of $119 million. While surrendering control to Advent, we retained a 34.8% stake and remained a key strategic partner and customer of Neoris. Our retained 34.8% stake in Neoris was remeasured at fair value at the date of loss of control, and is subsequently accounted for under the equity method and is presented in the line item “Investments in associates and joint ventures.” Neoris’ results for the years ended December 31, 2020 and 2021 and for the period from January 1 to October 25, 2022, and are reported in the statements of operations, net of income tax, in the single line item “Discontinued operations,” including in 2022 as a gain on sale of $117 million, net of the reclassification of foreign currency translation effects accrued in equity until the date of loss of control.
On August 31, 2022, we announced that we, through certain of our subsidiaries, concluded the sale agreed in December 2021 of our operations in Costa Rica and El Salvador to affiliates of Cementos Progreso Holdings, S.L. for a total consideration of $325 million, related to our aggregate controlling interest. The divested assets consisted of one fully integrated cement plant, one grinding station, seven ready-mix plants, one aggregate quarry, as well as one distribution center in Costa Rica and one distribution center in El Salvador. As of December 31, 2021, the assets and liabilities related to our operations in Costa Rica and El Salvador were presented in the financial statements in the line items “Assets held for sale” and “Liabilities directly related to assets held for sale.” Our operations of these assets in Costa Rica and El Salvador for the years ended December 31, 2020 and 2021 and for the period from January 1, 2022 to August 31, 2022 are reported in the statements of operations, net of income tax, as part of the single line item “Discontinued operations,” including in 2022 a gain on sale of $240 million, which includes the reclassification of foreign currency translation effects accrued in equity until the disposal date.
On July 9, 2021, we announced that we concluded the sale agreed in March 2019 of our white cement business, except for Mexico and the U.S., to Çimsa Çimento Sanayi Ve Ticaret A.S¸ for a total consideration of $155 million. Assets sold included our Buñol cement plant in Spain and white cement customer list. Our operations of these assets in Spain for the year ended December 31, 2020 and for the period from January 1, 2021 to July 9, 2021 are reported in the statements of operations, net of income tax, as part of the single line item “Discontinued operations,” including in 2021 a loss on sale of $67 million net of the proportional allocation of goodwill of $41 million.
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On March 31, 2021, we sold 24 concrete plants and one aggregates quarry in France to Holcim for an amount in Euros equivalent to $44 million. These assets are located in the Rhône-Alpes region in the Southeast of France, east of our operations in Lyon. We will retain our business in Lyon. The operations related to these assets for the year ended December 31, 2020 and for the three-month period ended March 31, 2021 are presented in our statements of operations, net of income tax, as part of the single line item “Discontinued operations.”
On August 3, 2020, through an affiliate in the United Kingdom, we closed the sale of certain assets to Breedon for an amount in Pounds equivalent to $230 million, including $30 million of debt. The assets included 49 ready-mix plants, 28 aggregate quarries, four depots, one cement terminal, 14 asphalt plants, four concrete products operations, as well as a portion of our paving solutions business in the United Kingdom. After completion of this divestiture, we maintain a significant footprint in key operating geographies in the United Kingdom related to the production and sale of cement, ready-mix concrete, aggregates, asphalt and paving solutions, among others. Our operations of these assets in the United Kingdom for the period from January 1, 2020 to August 3, 2020, which includes a loss on sale of $57 million net of the proportional allocation of goodwill of $47 million, is presented in our statements of operations, net of tax, as part of the single line item “Discontinued operations.”
On March 6, 2020, we concluded the sale of our U.S. affiliate Kosmos, a partnership with a subsidiary of Buzzi Unicem S.p.A. in which we held a 75% interest, to Eagle Materials Inc. for $665 million. The share of proceeds to us from this transaction was $499 million before transactional and other costs and expenses. The assets that were divested consisted of Kosmos’ cement plant in Louisville, Kentucky, as well as related assets which include seven distribution terminals and raw material reserves. The operations of these assets in the United States for the period from January 1, 2020 to March 6, 2020, which includes a gain on sale of $14 million, net of the proportional allocation of goodwill of $291 million, is presented in our statements of operations, net of income tax, as part of the single line item “Discontinued operations.”
Recent Developments
Recent Developments Relating to Our Indebtedness
| • | On April 21, 2023, Cemex, S.A.B. de C.V. informed the Mexican Stock Exchange (Bolsa Mexicana de Valores) (the “BMV” or “MSE”) that it issued a notice of full redemption with respect to the June 2027 Dollar Notes. The aggregate principal amount of the June 2027 Dollar Notes being redeemed is U.S. $933,260,000.00, which represents the total aggregate principal amount of the June 2027 Dollar Notes outstanding as of April 21, 2023. The June 2027 Dollar Notes are expected to be fully redeemed on June 5, 2023 (the “Redemption Date”) at a redemption price equal to 103.688% of the principal amount of the June 2027 Dollar Notes, plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date. |
| • | During April 2023, Cemex amended its Credit Agreement to trigger a fallback from Dollar LIBOR to the Benchmark Replacement, which is based on the Secured Overnight Finance Rate (the “SOFR”). |
| • | In March 2023, Cemex amended its Dollar interest rate swap contracts with a notional amount of $750 million to fix interest payments of existing bank loans bearing Dollar floating rates, to replace 3-month Dollar LIBOR with 3-month Term SOFR. |
| • | As part of the temporary use of proceeds of the 9.125% Subordinated Notes, on March 17, 2023, Cemex repaid in full the balance outstanding under the revolving credit facility of its 2021 Credit Agreement described in note 17.1 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report. As a result, the available committed revolving credit facility increased to $1,750. Also, during March 2023, we repurchased $66.74 million aggregate principal amount of our June 2027 Dollar Notes. The remaining amount was used for general corporate purposes. |
| • | On March 14, 2023, Cemex, S.A.B. de C.V. issued $1.0 billion aggregate principal amount of the 9.125% Subordinated Notes with no fixed maturity and subordinated to all senior obligations, and |
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| senior only to equity, in transactions exempt from registration pursuant to Rule 144A and Regulation S under the Securities Act (the “9.125% Subordinated Notes”). Cemex intends to allocate an amount equal to the net proceeds from the offering of the 9.125% Subordinated Notes to finance or refinance, in whole or in part, one or more new or existing eligible projects related to eligible green projects, which include capital, operating and research and development expenditures related to pollution prevention and control, renewable energy, energy efficiency, clean transportation, sustainable water and wastewater management, and eco-efficient and/or circular economy adapted products, production technologies and processes. |
| • | On February 8, 2023, Cemex announced that all our Receivables Financing Agreements are now linked to the Framework, which is aligned to our sustainability goals. The Framework references three climate action key performance indicators: (i) net CO2 emissions per ton of cementitious material; (ii) power consumption from clean energy sources in cement; and (iii) the alternative fuels rate. The annual performance in these metrics may result in an adjustment of the interest rate margin paid under these programs. |
Recent Developments Relating to Cemex, S.A.B. de C.V.’s Shareholders’ Meetings
On February 13, 2023, Cemex, S.A.B. de C.V. filed with the SEC and the BMV the notice and agenda, and supplemental information for its 2023 Ordinary General Shareholders’ Meeting (the “AGM”), which took place in the city of Monterrey, Nuevo Leon, Mexico on March 23, 2023. The aforementioned documents described the topics to be discussed and voted during the AGM, providing additional context for the items in the agenda.
On February 23, 2023, Cemex, S.A.B. de C.V. filed with the SEC and the BMV the list of documents to be proposed for approval by its shareholders at the AGM. The list of documents includes, among others: (i) the proposal for the appointment of the members of Cemex, S.A.B. de C.V.’s Board of Directors, which will be voted on an individual basis; (ii) the proposal for the appointment of the members of the Audit Committee, the Corporate Practices and Finance Committee and the Sustainability, Climate Action, Social Impact, and Diversity Committee, as well as their respective presidents and secretaries, which will be voted on an individual basis, as opposed to on a “group slate” basis as it occurred in previous meetings; (iii) the proposal to set, from March 23, 2023 to the date of the next Cemex, S.A.B. de C.V. ordinary general shareholders’ meeting, the compensation, as honoraria, for each appointed member of Cemex, S.A.B. de C.V.’s Board of Directors for each meeting they attend, and the compensation, as honoraria, for each member of the Audit Committee, the Corporate Practices and Finance Committee, and the Sustainability, Climate Action, Social Impact, and Diversity Committee, for each committee meeting they attend; and (iv) the proposal to set the amount of $500 million or its equivalent in Mexican Pesos as the maximum amount of resources that during fiscal year 2023 (until the next ordinary general shareholders’ meeting of Cemex, S.A.B. de C.V. is held in 2024), Cemex, S.A.B. de C.V. may use for the acquisition of its own shares directly or through securities that represent such shares. No declaration and payment of dividends by Cemex, S.A.B. de C.V. was included in the call notice and agenda for the AGM.
On March 24, 2023, Cemex, S.A.B. de C.V. filed with the SEC and the BMV the resolutions adopted at the AGM. The most significant items that were approved by the shareholders at the AGM were: (i) the appointment of the members of Cemex, S.A.B. de C.V.’s Board of Directors, on an individual basis; (ii) the appointment of the members of the Audit Committee, the Corporate Practices and Finance Committee and the Sustainability, Climate Action, Social Impact, and Diversity Committee, on an individual basis; (iii) setting the compensation, as honoraria, for each member of Cemex, S.A.B. de C.V.’s Board of Directors for each meeting they attend, and the compensation, as honoraria, for each member of the Audit Committee, the Corporate Practices and Finance Committee, and the Sustainability, Climate Action, Social Impact, and Diversity Committee, for each Committee meeting they attend, from March 23, 2023 to the date of the next Cemex, S.A.B. de C.V. ordinary general shareholders’ meeting in 2024; and (iv) setting the amount of $500 million, or its equivalent in Mexican Pesos, as the maximum amount of resources that Cemex, S.A.B. de C.V. may use for the acquisition of its own shares or securities that represent such shares, during fiscal year 2023 (until the next ordinary general shareholders’ meeting of Cemex, S.A.B. de C.V. is held in 2024).
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As a result of the AGM, as of March 23, 2023, (i) the Board of Directors is comprised of 13 members, with the addition of María de Lourdes Melgar Palacios to Cemex, S.A.B. de C.V.’s Board of Directors, resulting in the proportion of members of the Board of Directors considered independent under Mexican Securities Market Law (as defined below) criteria increasing to 77%; (ii) Rogelio Zambrano Lozano (Chairman), Fernando A. González Olivieri, Marcelo Zambrano Lozano, Armando J. García Segovia, Rodolfo García Muriel, Francisco Javier Fernández Carbajal, Armando Garza Sada, David Martínez Guzmán, Everardo Elizondo Almaguer, Ramiro Gerardo Villarreal Morales, Gabriel Jaramillo Sanint, Isabel María Aguilera Navarro, and María de Lourdes Melgar Palacios are the members of the Cemex, S.A.B. de C.V.’s Board of Directors; (iii) Everardo Elizondo Almaguer (President), Francisco Javier Fernández Carbajal, and Gabriel Jaramillo Sanint are the members of the Audit Committee of Cemex, S.A.B. de C.V.’s Board of Directors; (iv) Francisco Javier Fernández Carbajal (President), Armando Garza Sada, and Rodolfo García Muriel are the members of the Corporate Practices and Finance Committee of Cemex, S.A.B. de C.V.’s Board of Directors; (v) Armando J. García Segovia (President), Marcelo Zambrano Lozano, Isabel María Aguilera Navarro, and María de Lourdes Melgar Palacios are the members of the Sustainability, Climate Action, Social Impact, and Diversity Committee of Cemex, S.A.B. de C.V. Board of Directors; (vi) the compensation amount, as honoraria, for each of the 13 members of Cemex, S.A.B. de C.V.’s Board of Directors was set at Ps519,000.00 for each meeting they attend; (vii) the compensation amount, as honoraria, for each of the three members of the Audit Committee, each of the three members of the Corporate Practices and Finance Committee, and each of the four members of the Sustainability, Climate Action, Social Impact, and Diversity Committee was set at Ps125,000.00 for each Committee meeting they attend; and (viii) the 661.9 million shares repurchased during 2022 under the repurchase programs were proposed and subsequently approved for cancellation, thus, as of March 23, 2023, 99.73% of Cemex, S.A.B. de C.V.’s outstanding share capital was represented by CPOs, which consists of two Series A shares and one Series B share, and each ADS represented by ten CPOs.
Regarding item (i) of the resolutions adopted during the AGM held on March 23, 2023, the biography of Mrs. Melgar Palacios is as follows:
| Name: | Marĺa de Lourdes Melgar Palacios. | |
| Age as of December 31, 2022: | 60. | |
| Citizenship: | Mexican. | |
| Nationality: | Mexican and Spanish. | |
| Type of Board Member: | Independent. | |
| Tenure on CEMEX’s Board of Directors: | Since March 23, 2023. | |
| Board Memberships at Listed Entities: | She is a member of the Board of Directors of Smurfit Kappa Group PLC, an Irish conglomerate listed in Ireland, and Banco Santander México, S.A., Institución de Banca Múltiple, Grupo Financiero Santander México, which is currently listed in Mexico and expects to be delisted in 2023. | |
| Other Current Roles: | She is a researcher affiliated with the Center of Collective Intelligence at the Massachusetts Institute of Technology (MIT) and non-resident researcher at the Baker Institute Center for Energy Studies. She is a member of the board of directors of Mount Holyoke College (academic institution). Additionally, she is a member of the board of directors of the following non-profit organizations: Global Energy Alliance for People and Planet, the Natural Resource Governance Institute, Phius, and Chapter Zero Mexico, an organization focused on energy efficiency in buildings. Mrs. Melgar | |
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| Palacios is a member of the International Women’s Forum, having chaired the Mexican Local Forum from 2016 to 2018. | ||
| Experience: | From 1997 to 2005, Mrs. Melgar Palacios was part of the Mexican Foreign Service. From 1998 to 2002, she served as the General Director of the Office of International Affairs of the Ministry of Energy, having participated in the strategy and negotiation to stabilize the international oil market, and led the energy sector in the Continental Shelf Delimitation Treaty with the United States in the Western Gulf of Mexico (Doughnut Hole). From 2005 to 2007, she served as Minister at the Mexican permanent mission to the Organization for Economic Co-Operation and Development (OECD), being in charge of coordinating of various topics and representing Mexico in meetings regarding matters such as corporate governance, anticorruption, sustainable development, among others. Subsequently, she served as Undersecretary of Electricity from December 2012 to February 2014 and as Undersecretary of Hydrocarbons from February 2014 to July 2016, at the Ministry of Energy of Mexico. Mrs. Melgar Palacios also held the Robert E. Wilhelm chair at the Massachusetts Institute of Technology (MIT).
Her academic and professional experience, as well as her experience in non-profit organizations and matters related to energy, sustainability, climate action, and corporate governance, provides the Board of Directors with a unique perspective on said matters, all of which are key components in the Company’s future. | |
As of March 23, 2023, the composition of Cemex, S.A.B. de C.V.’s Board of Directors was as follows:
Snapshot of the Board of Directors as of March 23, 2023
| Name |
Director Since |
Independence | Committee Memberships | Participation in Boards of Other Public Companies |
||||||||||||||||||||
| AC | CPFC | SCASIDC | ||||||||||||||||||||||
|
|
1987 | — | 1 | |||||||||||||||||||||
| Fernando Ángel González Olivieri |
2015 | — | 2 | |||||||||||||||||||||
| Marcelo Zambrano Lozano |
2017 | — | • | 2 | ||||||||||||||||||||
| Armando J. García Segovia |
1983 | ✓ |
|
2 | ||||||||||||||||||||
| Rodolfo García Muriel |
1985 | ✓ | • | — | ||||||||||||||||||||
| Francisco Javier Fernández Carbajal |
2012 | ✓ | • |
|
3 | |||||||||||||||||||
| David Martínez Guzmán |
2015 | ✓ | 3 | |||||||||||||||||||||
| Armando Garza Sada |
2015 | ✓ | • | 6 | ||||||||||||||||||||
| Everardo Elizondo Almaguer |
2016 | ✓ |
|
3 | ||||||||||||||||||||
| Ramiro Villarreal Morales |
2017 | ✓ | 3 | |||||||||||||||||||||
| Gabriel Jaramillo Sanint |
2018 | ✓ | • | 1 | ||||||||||||||||||||
| Isabel María Aguilera Navarro |
2019 | ✓ | • | 4 | ||||||||||||||||||||
| María de Lourdes Melgar Palacios |
2023 | ✓ | • | 2 | ||||||||||||||||||||
| AC = Audit Committee |
Chairman of the Board of Directors |
|||||||||||||||||||||||
| CPFC = Corporate Practices and Finance Committee |
President of the Committee • Member |
|||||||||||||||||||||||
| SCASIDC = Sustainability, Climate Action, Social Impact, and Diversity Committee |
||||||||||||||||||||||||
Rogelio Zambrano Lozano
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Gender
As of March 23, 2023, Cemex, S.A.B. de C.V.’s Board of Directors was comprised of 13 members, of which 85% were men and 15% were women.
Tenure (in years as a member of the Board of Directors)
As of March 23, 2023, Cemex, S.A.B. de C.V.’s Board of Directors’ average tenure was 14 years.
Independence
As of March 23, 2023, Cemex, S.A.B. de C.V.’s Board of Directors was comprised of 13 members, of which 23% were considered to be non-independent and 77% were considered to be independent under Mexican Securities Market Law (as defined below).
Recent Developments Relating to our Stock Repurchase Program
From January 1, 2023 to March 31, 2023, Cemex, S.A.B. de C.V. did not repurchase any CPOs under any stock repurchase program. During 2022, under the repurchase programs authorized at Cemex, S.A.B. de C.V.’s ordinary general shareholders’ meetings held on March 25, 2021, and March 24, 2022, Cemex, S.A.B. de C.V. repurchased 220.6 million CPOs, at a weighted average price in Mexican pesos equivalent to $0.5026 per CPO, which was equivalent to an amount of $110.9 million. The shares repurchased under share buyback program in fiscal year 2022 were proposed and subsequently approved for cancellation at Cemex, S.A.B. de C.V.’s Annual Ordinary General Shareholders’ Meeting held on March 23, 2023. Thus, as of March 23, 2023, 99.73% of Cemex, S.A.B. de C.V.’s outstanding share capital was represented by CPOs, with each ADS representing ten CPOs. No shares were repurchased from March 25, 2021 to December 31, 2021.
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Recent Developments Relating to Our Business and Operations
| • | On January 24, 2023, through a subsidiary of ours, we signed a definitive agreement for the purchase of the assets of Atlantic Minerals Limited in Newfoundland, Canada, consisting of a construction and chemical aggregates quarry and port operations for a price of $75 million. Subject to the consummation of the asset purchase, with this investment, we intend to secure a new long-term aggregates reserve mainly for our extensive Florida operations and the U.S. east coast, as well as a source for chemical-grade stone serving a broader geographic footprint. The closing of this transaction is subject to the satisfaction of certain customary conditions, including consent from government agencies. We expect to finalize this acquisition at the end of the first quarter of 2023 or soon thereafter. |
| • | On January 25, 2023, in Manila, Philippines, CASEC, an indirect subsidiary of Cemex, filed a Tender Offer Report on Form 19-1 with the Securities and Exchange Commission of the Philippines and the Philippine Stock Exchange, pursuant to Rule 19 of the Securities Regulation Code of the Philippines, in connection with its intention to conduct a voluntary tender offer (the “CHP Tender Offer”) to acquire a minimum of one and a maximum of 1,614,000,000 common shares of CHP, which, if successful, would not cause CASEC to own 90% or more of CHP’s outstanding common shares. The tender offer period commenced on February 16, 2023 and lasted for a period of 20 business days, ending on March 16, 2023. Payment of the net proceeds of the validly tendered shares took place on March 30, 2023. As part of the CHP Tender Offer, CASEC acquired 1,614,000,000 common shares of CHP, resulting in CASEC owning 89.86% of the outstanding common shares of CHP, with a calculated paid consideration of 1.30 Philippine Pesos per share, an equivalent of 2,098.20 million Philippine Pesos ($38.65 million as of March 31, 2023, based on an exchange rate of 54.29 Philippine Pesos to $1.00) for all the acquired shares. |
| • | On January 30, 2023, through a subsidiary of ours, we acquired a 51% ownership interest in Israel-based SHTANG Recycle LTD, a CDEW recycling company, for $13 million. As of the date of this report, Cemex believes that the acquisition aligns with our strategy to strengthen our business in developed markets through bolt-on acquisitions in businesses with strong circular and sustainable attributes. SHTANG has been awarded a 13-year license to build and operate a state-of-the-art CDEW recycling facility that is expected to be capable of processing approximately 600,000 tons of waste per year. The CDEW will be used by our Regenera business as raw materials for aggregate production. |
| • | On February 3, 2023, the Colombian Financial Superintendency (Superintendencia Financiera de Colombia) authorized Cemex España to commence a public delisting tender offer (the “Delisting CLH Offer”) to acquire a minimum of one ordinary share and a maximum of 26,281,913 ordinary shares of CLH registered with the RNVE and the BVC. The period to tender CLH shares under the Delisting CLH Offer concluded on February 28, 2023, with the final results of the Delisting CLH Offer being confirmed on March 3, 2023. As a result of the Delisting CLH Offer, we increased our interest to 99.46% of CLH (excluding shares owned by CLH) and delisted CLH’s shares from the BVC. We currently expect the registry of CLH in the RNVE to be canceled during the first half of 2023. The total consideration that we paid as a result of the acquisition of the validly tendered shares amounted to 4,735 Colombian Pesos per share, totaling 110,007,999,310 Colombian Pesos ($23.64 million as of March 31, 2023, based on an exchange rate of 4,654.42 Colombian Pesos to $1.00). Additionally, we expect legal actions from minority shareholders of CLH that believe the Delisting CLH Offer breached their rights. However, as of the date of this report, Cemex believes any such legal actions would not be adversely resolved against us, but if adversely resolved, we believe this would not have a material adverse impact on our operating results, liquidity or financial position. For more information, see “Item 3—Key Information—Risk Factors—Risks Relating to Our Business and Operations—We are subject to restrictions and reputational risks resulting from non-controlling interests held by third parties in our consolidated subsidiaries. As of the date of this annual report, we control three publicly listed companies, where this risk is heightened.” |
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| • | On March 1, 2023, we announced that on February 28, 2023, Sustainalytics updated its second-party opinion to Cemex’s Green Financing Framework (as described herein), confirming that it aligns with Green Bond Principles 2021, the Green Loan Principles 2021, and the Transition Finance Handbook 2020. |
| • | On April 21, 2023, we announced that Juan Romero Torres, current Executive Vice President of Sustainability, Commercial and Operational Development of Cemex, S.A.B. de C.V. had decided to retire effective as of June 1, 2023. Mr. Romero’s current responsibilities will be allocated to other members of Cemex’s Executive Committee. |
Recent Developments Relating to Our Regulatory Matters and Legal Proceedings
Environmental Matters
Mexico
The trial period of the Emissions Trading System, in which Cemex participated, ended on December 31, 2022. During a conference on climate change, the Mexican government presented the contribution determinations, increasing the national greenhouse gas reduction goal from 22% to 35% in 2030, with respect to its baseline. The Emissions Trading System in Mexico is expected to begin as soon as 2024.
Tax Matters
Spain
Tax Assessment for the years 2006 to 2009
On January 18, 2023, the Spanish Supreme Court, considering the annulment recourse accepted in December 2022, reversed its decision and resolved to admit the filing of Cemex España’s cassation appeal. On March 27, 2023, Cemex España filed the cessation appeal before the Spanish Supreme Court. See “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings—Tax Matters—Spain—Tax Assessment for the years 2006 to 2009.”
Other Legal Proceedings
Egypt Share Purchase Agreement
On February 14, 2023, the High Constitutional Court determined that Law 32/2014 is constitutionally compliant. This determination would allow Cemex to challenge the legal standing of all current lawsuits and protect Cemex’s investment in Egypt. As a result of the determination made by the High Constitutional Court, the two pending cases were resolved in favor of Cemex on February 25, 2023. The plaintiffs have 60 days from the date of the resolution to file an appeal. If the plaintiffs fail to appeal this resolution within the established deadline, these proceedings will be closed. See “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings—Other Legal Proceedings—Egypt Share Purchase Agreement” for more information.
Maceo, Colombia – Legal Proceedings in Colombia
On March 29, 2023, the former Vice President of Planning of CLH, who was also Cemex Colombia’s Director of Planning, and the Representative were found guilty by the first instance judge. The former Vice President of Planning of CLH was found guilty of unfair administration, illicit enrichment, and forgery of private documents, and was sentenced to 15 years in prison and approximately $7.4 million. The Representative was found guilty of illicit enrichment, forgery of private documents, and money laundering, and was sentenced to 21 years in prison and approximately $7.6 million. Both individuals filed an appeal against the ruling on March 29, 2023. See “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings—Other Legal Proceedings—Maceo, Colombia—Legal Proceedings in Colombia” for more information.
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Recent Developments Relating to Our Major Shareholders
On February 9, 2023, Blackrock filed with the SEC Amendment No. 14 to a statement on Schedule 13G, stating that, as of their calculations made as of January 31, 2023, Blackrock beneficially owned 1,534,821,421 CPOs, representing 10.1% of Cemex, S.A.B. de C.V.’s outstanding capital stock. BlackRock does not have voting rights different from our other non-Mexican holders of CPOs. As required by Cemex, S.A.B. de C.V.’s by-laws, Cemex, S.A.B. de C.V.’s Board of Directors is required to approve BlackRock’s beneficial ownership of Cemex, S.A.B. de C.V.’s outstanding capital stock. Pursuant to the authorizations by Cemex, S.A.B. de C.V.’s Board of Directors, BlackRock is authorized to acquire up to 13% of Cemex, S.A.B. de C.V.’s capital stock with voting rights.
On March 3, 2023, Baillie Gifford filed with the SEC Amendment No. 1 to a statement on Schedule 13G, stating that, as of their calculations made as of February 28, 2023, Baillie Gifford beneficially owned 752,914,110 CPOs, representing 4.97% of Cemex, S.A.B. de C.V.’s outstanding capital stock. Baillie Gifford does not have voting rights different from our other non-Mexican holders of CPOs.
Item 6—Directors, Senior Management and Employees
Senior Management and Directors
Senior Management
Set forth below is the name, position, and experience of each member of our senior management team as of December 31, 2022. The terms of office of the senior managers are indefinite.
| Name: | Fernando A. González Olivieri. | |
| Age as of December 31, 2022: | 68. | |
| Citizenship: | Mexican. | |
| Nationality: | Mexican. | |
| Title: | Chief Executive Officer. | |
| Seniority: | Since 1989 | |
| Tenure as Cemex’s Chief Executive Officer: | Since 2014. | |
| Type of Board Member: | Non-Independent. | |
| Tenure on Cemex’s Board of Directors: | Since 2015. | |
| Tenure on Cemex’s Sustainability Committee: | Since 2022. | |
| Board Membership at Listed Entities: | Mr. González Olivieri is a member of the board of directors of GCC, S.A.B. de C.V. (formerly Grupo Cementos de Chihuahua, S.A.B. de C.V.), and of Axtel, S.A.B. de C.V. | |
| Experience at Cemex and Other Relevant Experience: | Mr. González Olivieri joined Cemex in 1989 and held various positions in the Strategic Planning, Business Development and Human Resources departments through 1998. From 1998 through 2009, Mr. González Olivieri led various regions of Cemex, including SCA&C, Europe, Asia and Oceania. He was appointed as Cemex’s Executive Vice President of Planning and Development in May 2009, and he was appointed Cemex’s Chief Financial Officer in 2011. Mr. González Olivieri held these positions until he was named Chief Executive Officer in 2014. | |
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| With his comprehensive knowledge of Cemex’s organization and the markets where the company operates around the world, Mr. González Olivieri brings to Cemex’s Board of Directors and Senior Management a unique global perspective and innovative leadership, that directly contributes to formulating and implementing a results-oriented business strategy. With over 30 years of direct involvement in top management positions, and a detailed understanding of Cemex’s four main businesses (cement production, ready-mix concrete, aggregates and Urbanization Solutions), he has given particular attention to constantly improving Cemex’s Health and Safety policies, and to implementing a sustainability strategy aimed at achieving Net Zero Carbon growth and development.
Mr. González Olivieri is a member of the Board of Trustees of Tecmilenio University, which forms part of the Instituto Tecnológico y de Estudios Superiores de Monterrey (a Mexican academic institution). | ||
| Education: | He holds a B.A. degree in Business Administration, and an M.B.A. from the Instituto Tecnológico y de Estudios Superiores de Monterrey. | |
| Name: | Jaime Muguiro Domínguez. | |
| Age as of December 31, 2022: | 54. | |
| Citizenship: | Spanish. | |
| Nationality: | Spanish. | |
| Title: | President of Cemex USA. | |
| Seniority: | Since 1996. | |
| Tenure as President of Cemex USA: | Since 2019. | |
| Experience at Cemex and Other Relevant Experience: | Mr. Muguiro Domínguez has held several executive positions in the Strategic Planning, Business Development, Ready-Mix Concrete, Aggregates and Human Resources areas. He headed Cemex’s operations in Egypt, our former Mediterranean Region operations, and more recently, our operations in the South, Central America, and the Caribbean region. | |
| Education: | He holds a B.A. degree in Management from San Pablo CEU University in Spain, a Law degree from the Universidad Complutense de Madrid, and an MBA from the Massachusetts Institute of Technology. | |
| Name: | Ricardo Naya Barba. | |
| Age as of December 31, 2022: | 50. | |
| Citizenship: | Mexican. | |
| Nationality: | Mexican. | |
| Title: | President of Cemex Mexico. | |
| Seniority: | Since 1996. | |
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| Tenure as President of Cemex México: | Since 2019. | |
| Experience at Cemex and Other Relevant Experience: | Mr. Naya Barba has held several executive positions, including Vice President of Strategic Planning for the South, Central America and the Caribbean region, Vice President of Strategic Planning for the Europe, Middle East, Africa and Asia region, President of Cemex Poland and the Czech Republic, Vice President of Strategic Planning for the United States, Vice President of Commercial and Marketing in Mexico, Vice President of Distribution Segment Sales in Mexico, and most recently, President of Cemex Colombia. | |
| Education: | He holds a B.A. degree in Economics from the Instituto Tecnológico y de Estudios Superiores de Monterrey and an M.B.A. from the Massachusetts Institute of Technology. | |
| Name: | Sergio Mauricio Menéndez Medina. | |
| Age as of December 31, 2022: | 52. | |
| Citizenship: | Mexican. | |
| Nationality: | Mexican. | |
| Title: | President of Cemex Europe, Middle East, Africa & Asia. | |
| Seniority: | Since 1993. | |
| Tenure as President of Cemex Europe, Middle East, Africa & Asia: | Since 2020. | |
| Experience at Cemex and Other Relevant Experience: | Mr. Menéndez Medina has held several executive positions, including Director of Planning and Logistics in Asia, Corporate Director of Commercial Development, President of Cemex Philippines, Vice President of Strategic Planning for the Europe, Middle East, Africa and Asia region, President of Cemex Egypt, Vice President of Infrastructure Segment and Government Sales in Mexico, and most recently, as Vice President of Distribution Segment Sales in Mexico. | |
| Education: | He holds a B.S. degree in Industrial Engineering from the Instituto Tecnológico y de Estudios Superiores de Monterrey and an M.B.A. from Stanford University. | |
| Name: | José Antonio González Flores. | |
| Age as of December 31, 2022: | 52. | |
| Citizenship: | Mexican and Spanish. | |
| Nationality: | Mexican. | |
| Title: | Executive Vice President of Strategic Planning and Business Development. | |
| Seniority: | Since 1998. | |
| Tenure as Executive Vice President of Strategic Planning and Business Development: | Since 2020. | |
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| Experience at Cemex and Other Relevant Experience: | Mr. González Flores has held executive positions in the Finance, Strategic Planning, and Corporate Communications and Public Affairs areas, and, prior to his current role, was our Executive Vice President of Finance and Administration (CFO). | |
| Additionally, Mr. González Flores is a member of the board of directors of GCC (formerly Grupo Cementos de Chihuahua, S.A.B. de C.V.) and is an alternate director of the board of directors of Axtel, S.A.B. de C.V. | ||
| Education: | He holds a B.S. degree in Industrial Engineering from the Instituto Tecnológico y de Estudios Superiores de Monterrey and an M.B.A. from Stanford University. | |
| Name: | Luis Hernández Echávez. | |
| Age as of December 31, 2022: | 59. | |
| Citizenship: | Mexican. | |
| Nationality: | Mexican. | |
| Title: | Executive Vice President of Digital and Organization Development. | |
| Seniority: | Since 1996. | |
| Tenure as Executive Vice President of Digital and Organization Development: | Since 2020. | |
| Experience at Cemex and Other Relevant Experience: | Mr. Hernández Echávez has held senior management positions in Strategic Planning and Human Resources. In his current position, he heads the areas of Organization and Human Resources, Information Technology, Digital Innovation, as well as Cemex Ventures. | |
| Education: | He holds a B.S. degree in Civil Engineering from the Instituto Tecnológico y de Estudios Superiores de Monterrey, a Master’s degree in Civil Engineering, and an MBA from the University of Texas at Austin.
| |
| Name: | Maher Al-Haffar. | |
| Age as of December 31, 2022: | 64. | |
| Citizenship: | American. | |
| Nationality: | American. | |
| Title: | Executive Vice President of Finance and Administration and Chief Financial Officer. | |
| Seniority: | Since 2000. | |
| Tenure as Executive Vice President of Finance and Administration and Chief Financial Officer: | Since 2020. | |
| Experience at Cemex and Other Relevant Experience: | Mr. Al-Haffar has held several executive positions, including Managing Director of Finance, Head of Investor Relations, and most recently, Executive Vice President of Investor Relations, Corporate Communications and Public Affairs. | |
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| Additionally, he is a member of the UN Global Compact CFO Coalition for the SDGs. Mr. Al-Haffar was a member of the NYSE Advisory Board and, before joining Cemex, he spent nineteen years with Citicorp Securities Inc. and with Santander Investment Securities as an investment banker and capital markets professional. | ||
| Education: | He holds a B.S. degree in Economics from the University of Texas and a Master’s degree in International Relations and Finance from Georgetown University. | |
| Name: | Mauricio Doehner Cobián. | |
| Age as of December 31, 2022: | 48. | |
| Citizenship: | Mexican and German. | |
| Nationality: | Mexican. | |
| Title: | Executive Vice President of Corporate Affairs, Enterprise Risk Management and Social Impact. | |
| Seniority: | Since 1996. | |
| Tenure as Executive Vice President of Corporate Affairs, Enterprise Risk Management and Social Impact: | Since 2021. | |
| Experience at Cemex and Other Relevant Experience: | Mr. Doehner Cobián has held several executive positions in areas such as Strategic Planning and Enterprise Risk Management for Europe, Asia, the Middle East, South America and Mexico, and most recently Executive Vice President of Corporate Affairs and Enterprise Risk Management. | |
| Additionally, he has also worked in the public sector within the office of the Mexican Presidency. Mr. Doehner was president of the Mexican National Cement Chamber (Cámara Nacional del Cemento) between 2017 and 2019, Vice President of the Transformation Industry Chamber (CAINTRA – Cámara de la Industria de Transformación) between 2012 and 2013. He’s currently Vice President of Social Responsibility and Vertebration of the Mexican Employers Confederation (COPARMEX – Confederación Patronal de la República Mexicana), and member of the board of directors of Vista Oil & Gas, S.A.B. de C.V., Trust for the Americas and Museo de Arte Contemporáneo de Monterrey, A.C. | ||
| Education: | He holds a B.A. degree in Economics from the Instituto Tecnológico y de Estudios Superiores de Monterrey, an M.B.A. from Instituto Panamericano de Alta Dirección de Empresas (IPADE) and IESE Business School of the University of Navarra in Madrid, and a Master’s in Public Administration from Harvard University. | |
| Name: | Juan Romero Torres. | |
| Age as of December 31, 2022: | 65. | |
| Citizenship: | Spanish. | |
| Nationality: | Spanish. | |
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| Title: | Executive Vice President of Sustainability, Commercial and Operations Development. | |
| Seniority: | Since 1989. | |
| Tenure as Executive Vice President of Sustainability, Commercial and Operations Development: | Since 2019. | |
| Experience at Cemex and Other Relevant Experience: | Mr. Romero Torres has held several senior positions, including head of operations in Colombia and Mexico, President of Cemex’s South America and the Caribbean Region, President of our Europe, Middle East, Africa and Asia Region, and, most recently, President of Cemex México. He also assumed the Global Supply Chain Development functions at Cemex effective as of October 1, 2020, and currently leads our Digital Marketing function as well. | |
| Additionally, Mr. Romero was appointed Vice President and representative of the board of directors of the National Chamber of Cement (Cámara Nacional del Cemento) in June 2011 and is also a member of the board of directors of GCC, S.A.B. de C.V. (formerly Grupo Cementos de Chihuahua, S.A.B. de C.V.). | ||
| Education: | He holds a Law degree and a B.S. degree in Economics and Business Administration, both from the University of Comillas in Spain. | |
| Name: | Jesús Vicente González Herrera. | |
| Age as of December 31, 2022: | 57. | |
| Citizenship: | American. | |
| Nationality: | Spanish. | |
| Title: | President of Cemex South, Central America and the Caribbean. | |
| Seniority: | Since 1998. | |
| Tenure as President of Cemex South, Central America and the Caribbean: | Since 2019. | |
| Experience at Cemex and Other Relevant Experience: | Mr. González Herrera has held several senior positions, including Corporate Director of Strategic Planning, Vice President of Strategic Planning in Cemex USA, President of Cemex Central America, President of Cemex UK and, more recently, Executive Vice President of Sustainability and Operations Development.
Additionally, he is Cemex Latam Holdings, S.A.’s Chairman and member of the board of directors, as well as its Chief Executive Officer. | |
| Education: | He holds a B.S. and an M.Sc. in Naval Engineering, both from the Polytechnic University of Madrid and an M.B.A. from IESE—University of Navarra, Barcelona. | |
| Name: | Louisa (Lucy) P. Rodriguez. | |
| Age as of December 31, 2022: | 63. | |
| Citizenship: | American. | |
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| Nationality: | American. | |
| Title: | Executive Vice President of Investor Relations, Corporate Communications and Public Affairs. | |
| Seniority: | Since 2006. | |
| Tenure as Executive Vice President of Investor Relations, Corporate Communications and Public Affairs: | Since 2021. | |
| Experience at Cemex and Other Relevant Experience: | Ms. Rodriguez has held several executive positions including Head of Investor Relations. She has over 25 years of experience in international finance and capital markets. | |
| Prior to Cemex, Ms. Rodríguez spent 15 years at Citibank and Santander where she was a capital markets professional in Emerging Markets and held various senior management roles. In her early career, she also worked for KPMG, and she was previously a Certified Public Accountant. | ||
| Education: | She holds a B.A. degree in Economics from Trinity College (Hartford, CT.), an M.B.A. from New York University, and a Master’s from Columbia University School of International and Public Affairs. | |
| Name: | Rafael Garza Lozano. | |
| Age as of December 31, 2022: | 59. | |
| Citizenship: | Mexican. | |
| Nationality: | Mexican. | |
| Title: | Vice President of Comptrollership. | |
| Seniority: | Since 1985. | |
| Tenure as Vice President of Comptrollership: | Since 1999. | |
| Experience at Cemex and Other Relevant Experience: | Mr. Garza Lozano is a member of the board of directors of the Mexican Council for Research and Development of Financial Reporting Standards (Consejo Mexicano para la Investigación y Desarrollo de Normas de Información Financiera) and an alternate member of the board of directors of GCC, S.A.B. de C.V. (formerly Grupo Cementos de Chihuahua, S.A.B. de C.V.) | |
| Mr. Garza Lozano is a certified public accountant. | ||
| Education: | He has a Master’s degree in Administration and Finance from the Instituto Tecnológico y de Estudios Superiores de Monterrey. He also attended executive programs at Instituto Tecnológico Autónomo de México (ITAM), Instituto Panamericano de Alta Dirección de Empresas (IPADE) and Harvard University. | |
| Name: | Roger Saldaña Madero. | |
| Age as of December 31, 2022: | 54. | |
| Citizenship: | Mexican. | |
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| Nationality: | Mexican. | |
| Title: | Senior Vice President of Legal. | |
| Seniority: | Since 2000. | |
| Tenure as Senior Vice President of Legal: | Since 2017. | |
| Experience at Cemex and Other Relevant Experience: | Mr. Saldaña joined Cemex in 2000 and served as Legal Counsel of Cemex and, from 2001 to 2011, as General Counsel of NEORIS, a Cemex subsidiary specialized in providing information technology services. From 2005 and until 2017, Mr. Saldaña was Senior Corporate Counsel of Cemex, and was responsible for, among other matters, corporate finance legal affairs and, since June 1, 2017, has served as Cemex’s Senior Vice President of Legal. On March 30, 2017, Mr. Saldaña was appointed Secretary of the Board of Directors of Cemex, S.A.B. de C.V. and the committees to such Board of Directors. Prior to joining Cemex, he served as Legal Counsel in Cydsa, S.A.B. de C.V. from 1995 to 2000 in the city of Monterrey, Nuevo León, Mexico, was a foreign associate in the law firm Fried, Frank, Harris, Shriver & Jacobson, in New York, N.Y., USA from 1994 until 1995 and previously was Chief of the Double Taxation Department in Mexico’s Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) in Mexico City, Mexico. | |
| Education: | Mr. Saldaña is a graduate of the Universidad de Monterrey, A.C. (UDEM) with a degree in Law, holds a Master’s degree in Law (LL.M.) from Harvard University, and a diploma from Harvard University’s International Tax Program. | |
Senior Management Skill Matrix
| (1) | M = Male, F = Female |
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Snapshot of the Board of Directors as of December 31, 2022
| Name |
Director Since |
Independence | Committee Memberships | Participation in Boards of Other Public Companies |
||||||||||||||||||
| AC | CPFC | SC | ||||||||||||||||||||
|
|
1987 | — | 1 | |||||||||||||||||||
| Fernando Ángel González Olivieri |
2015 | — | • | 2 | ||||||||||||||||||
| Marcelo Zambrano Lozano |
2017 | — | • | 2 | ||||||||||||||||||
| Armando J. García Segovia |
1983 | ✓ |
|
2 | ||||||||||||||||||
| Rodolfo García Muriel |
1985 | ✓ | • | • | — | |||||||||||||||||
| Francisco Javier Fernández Carbajal |
2012 | ✓ | • |
|
• | 3 | ||||||||||||||||
| David Martínez Guzmán |
2015 | ✓ | 3 | |||||||||||||||||||
| Armando Garza Sada |
2015 | ✓ | • | 6 | ||||||||||||||||||
| Everardo Elizondo Almaguer |
2016 | ✓ |
|
3 | ||||||||||||||||||
| Ramiro Villarreal Morales |
2017 | ✓ | 3 | |||||||||||||||||||
| Gabriel Jaramillo Sanint |
2018 | ✓ | 1 | |||||||||||||||||||
| Isabel María Aguilera Navarro |
2019 | ✓ | 4 | |||||||||||||||||||
| AC = Audit Committee |
Chairman of the Board of Directors |
|||||||||||||||||||||
| CPFC = Corporate Practices and Finance Committee |
President of the Committee • Member |
|||||||||||||||||||||
| SC = Sustainability Committee |
||||||||||||||||||||||
Board of Directors
Set forth below are the names, positions, and experiences of the members of Cemex, S.A.B. de C.V.’s Board of Directors as of December 31, 2022. For information regarding the individuals that were appointed as members of Cemex, S.A.B. de C.V.’s Board of Directors at Cemex, S.A.B. de C.V.’s annual ordinary general shareholders’ meeting held on March 24, 2023, see “Item 5—Operating and Financial Review and Prospects—Recent Developments Relating to Cemex, S.A.B. de C.V.’s Shareholders’ Meetings.”
No alternate directors were elected at Cemex, S.A.B. de C.V.’s annual ordinary general shareholders’ meeting that took place on March 23, 2022. Members of Cemex, S.A.B. de C.V.’s Board of Directors serve for one-year terms.
| Name: | Rogelio Zambrano Lozano. | |
| Age as of December 31, 2022: | 66. | |
| Citizenship: | Mexican. | |
| Nationality: | Mexican. | |
| Type of Board Member: | Non-Independent. | |
| Role within Cemex’s Board of Directors: | Chairman. | |
| Tenure on Cemex’s Board of Directors: | Member since 1987, and Chairman since 2014. | |
| Board Memberships at Listed Entities: | Mr. Zambrano Lozano is an alternate member of the Board of Directors of Banco Santander México, S.A. (a Mexican financial institution listed in Mexico and on the New York Stock Exchange), which is expected to be delisted from both exchanges in 2023. | |
| Other Current Roles: | He is a member of the Regional Council of Banco de México (Mexico’s central bank), a member of the Mexican Business Council (Consejo Mexicano de Negocios) and he is also a member of the Board of Trustees of the Instituto Tecnológico y de Estudios | |
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| Superiores de Monterrey, as well as a visiting professor at this same University. | ||
| Experience: | He was President of Cemex’s Finance Committee from 2009 until March 2015. | |
| Mr. Zambrano Lozano has been involved in the construction and building materials industries for over 40 years, as well as in various entrepreneurship matters in Mexico and the United States, after founding and serving as Chief Executive Officer of Carza, S.A.P.I. de C.V., a leading real estate development company. With his vast experience and proven leadership, since his appointment as Chairman, Mr. Zambrano Lozano has been responsible for guiding the company’s global business strategy, particularly focusing on strengthening best corporate governance practices, based on a commitment to create lasting value for all Cemex’s stakeholders. | ||
| Education: | He holds a B.S. degree in Industrial and Systems Engineering from the Instituto Tecnológico y de Estudios Superiores de Monterrey, and an M.B.A. from the Wharton Business School of the University of Pennsylvania. | |
| Name: | Fernando A. González Olivieri. | |
| Age as of December 31, 2022: | 68. | |
| Citizenship: | Mexican. | |
| Nationality: | Mexican. | |
| Type of Board Member: | Non-Independent. | |
| Tenure on Cemex’s Board of Directors: | Since 2015. | |
| Tenure on Cemex’s Sustainability Committee: | Since 2022. | |
| Board Membership at Listed Entities: | Mr. González Olivieri is a member of the board of directors of GCC, S.A.B. de C.V. (formerly Grupo Cementos de Chihuahua, S.A.B. de C.V.), and of Axtel, S.A.B. de C.V. (both Mexican corporations listed in Mexico). | |
| Experience and Education: | See “Item 6—Directors, Senior Management and Employees—Senior Management and Directors—Senior Management.” | |
| Name: | Marcelo Zambrano Lozano. | |
| Age as of December 31, 2022: | 67. | |
| Citizenship: | Mexican. | |
| Nationality: | Mexican. | |
| Type of Board Member: | Non-Independent. | |
| Tenure on Cemex’s Board of Directors: | Since 2017. | |
| Tenure on Cemex’s Sustainability Committee: | Since 2017. | |
| Board Memberships at Listed Entities: | He is a member of the Technical Committee of one of Go Proyectos, S.A. de C.V.’s development trusts, known by its ticker | |
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| symbol as CARZACK 18, which is listed in Mexico. He is a member of Technical Committee of Fibra Inn, a Real Estate Investment Trust listed in Mexico. | ||
| Other Current Roles: | He is a founding partner and Executive Chairman of the board of directors of Carza, S.A.P.I. de C.V., a recognized real estate development non-public corporation in the residential, commercial and industrial sectors. He is a member of the board of directors of Grupo Vigia, S.A. de C.V. (a Mexican non-public corporation dedicated to distribution of gas, fuel, and other oil derivatives), and of GreenPaper (Productora de Papel, S.A. de C.V.) (a Mexican non-public corporation dedicated to the fabrication and distribution of paper). He is also a member of the General Board of Universidad de Monterrey, A.C., a Mexican academic institution (UDEM), and of the General Board of Teléfonos de México, S.A.B. de C.V. (a Mexican non-public corporation). | |
| Experience: | His ample knowledge of the real estate and construction industries in Mexico and the United States provides the Board of Directors with an insightful view of major trends shaping the sector globally, particularly in key areas such as logistics and supply-chain development, thus helping Cemex to anticipate the evolving needs of its customers in the aforementioned markets. | |
| Education: | He holds a B.A. degree in Marketing from the Instituto Tecnológico y de Estudios Superiores de Monterrey. | |
| Name: | Armando J. García Segovia. | |
| Age as of December 31, 2022: | 70. | |
| Citizenship: | Mexican. | |
| Nationality: | Mexican and Spanish. | |
| Type of Board Member: | Independent. | |
| Tenure on Cemex’s Board of Directors: | Since 1983. | |
| Tenure on Cemex’s Sustainability Committee: | Member since 2014 and President since 2014. | |
| Board Memberships at Listed Entities: | He is a member of the board of directors of Hoteles City Express, S.A.B. de C.V., and an independent member of the board of directors of GCC, S.A.B. de C.V. (formerly Grupo Cementos de Chihuahua, S.A.B. de C.V.), both of which are listed corporations in Mexico. | |
| Other Current Roles: | He is a member of the board of directors of Innovación y Conveniencia, S.A. de C.V. (a Mexican non-public corporation) and of the board of directors of Universidad de Monterrey, A.C. (UDEM). He serves as Vice President of the Patronato del Museo de la Fauna y Ciencias Naturales, A.B.P. and he is a member of the Consejo de Participación Ciudadana de Parques y Vida Silvestre de Nuevo León, two not-for-profit entities with a sustainability agenda. Mr. García Segovia is the founder and Chairman of the board of directors of Comenzar de Nuevo, A.C., a non-profit organization focused on the treatment, education, prevention, and research of eating behavior disorders and related diseases. Mr. García Segovia also serves as honorary consul in Monterrey of the Kingdom of Denmark. | |
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| Experience: | He worked at Cydsa, S.A.B. de C.V. (a Mexican listed corporation) and Conek, S.A. de C.V. (a Mexican non-public corporation). From 1985 to 2010, he held several positions at Cemex, including Director of Operations and Strategic Planning, Corporate Services, and Business Development, as well as Executive Vice President of Development, Technology, Energy and Sustainability. He was also Vice President of the Mexican Employers’ Association (COPARMEX), Chairman of the Private Sector Center for Sustainable Development Studies (CESPEDES), and a member of the board of directors of the World Environmental Center (a non-profit organization). | |
| He brings to the Board of Directors a broad knowledge of the technical and production aspects of the global building-materials industry, along with a deep commitment to sustainability, climate action and nature conservancy, that provides valuable leadership to Cemex’s sustainability and climate action strategy, a core component to the company’s long-term value creation objective. | ||
| Education: | He holds a B.S. degree in Mechanical Engineering and Administration from the Instituto Tecnológico y de Estudios Superiores de Monterrey, and an M.B.A. from the University of Texas. | |
| Name: | Rodolfo García Muriel. | |
| Age as of December 31, 2022: | 77. | |
| Citizenship: | Mexican. | |
| Nationality: | Mexican. | |
| Type of Board Member: | Independent. | |
| Tenure on Cemex’s Board of Directors: | Since 1985. | |
| Tenure on Cemex’s Corporate Practices and Finance Committee: | Since 2015. | |
| Tenure on Cemex’s Audit Committee: | Since 2016. | |
| Board Memberships at Listed Entities: | N/A | |
| Other Current Roles: | He is the chief executive officer of Compañía Industrial de Parras, S.A. de C.V., chairman of the board of directors of Grupo Romacarel, S.A.P.I de C.V., (both are non-public corporations) and a member of the regional board of directors of Grupo Financiero Citibanamex (a non-public corporation). | |
| Experience: | He was a member of Cemex’s Finance Committee from 2009 until March 2015. | |
| Mr. García Muriel is a Mexican business leader with decades of experience and an outstanding record as founder, director and president of major companies in the manufacturing, construction, transport and communications industries. His vast business experience brings to the Board of Directors useful knowledge in critical areas such as logistics and manufacturing as well as macroeconomic and market trends. | ||
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| Education: | He holds a B.S. degree in Electric Mechanical Engineering from the Universidad Iberoamericana and completed specialized programs in Business Administration at both Harvard University, and the Anderson School of the University of California in Los Angeles (UCLA). | |
| Name: | Francisco Javier Fernández Carbajal. | |
| Age as of December 31, 2022: | 67. | |
| Citizenship: | Mexican. | |
| Nationality: | Mexican. | |
| Type of Board Member: | Independent. | |
| Tenure on Cemex’s Board of Directors: | Since 2012. | |
| Tenure on Cemex’s Audit Committee: | Since 2015. | |
| Tenure on Cemex’s Sustainability Committee: | Since 2016. | |
| Tenure on Cemex’s Corporate Practices and Finance Committee: | Member since 2015 and President since 2019. | |
| Board Memberships at Listed Entities: | He is a member of the board of directors of Alfa, S.A.B. de C.V., a listed corporation in Mexico and of two public corporations listed on the New York Stock Exchange: Fomento Económico Mexicano, S.A.B. de C.V. (also a listed corporation in Mexico), and VISA, Inc. | |
| Other Current Roles: | Mr. Fernández Carbajal is the Chief Executive Officer of Servicios Administrativos Country, S.A. de C.V. (a Mexican non-public corporation). | |
| Experience: | Previously, he held positions at Grupo Financiero BBVA Bancomer, including Deputy President of Strategic Planning, President of Systems and Operations, Chief Financial Officer, and Chief Executive Officer. | |
| With a 40-year business career and in-depth knowledge of specialized areas like payment systems and complex financial services worldwide, Mr. Fernández Carbajal brings to the Board of Directors relevant insights in strategic planning and risk management, as well as in essential business functions, including financial reporting and competitive compensation mechanisms, which are central to attracting and retaining talent. | ||
| Education: | He holds a B.S. degree in Electric Mechanical Engineering from the Instituto Tecnológico y de Estudios Superiores de Monterrey, and an M.B.A. from the Harvard Business School. | |
| Name: | Armando Garza Sada. | |
| Age as of December 31, 2022: | 65. | |
| Citizenship: | Mexican. | |
| Nationality: | Mexican. | |
| Type of Board Member: | Independent. | |
| Tenure on Cemex’s Board of Directors: | Since 2015. | |
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| Tenure on Cemex’s Corporate Practices and Finance Committee: | Since 2015. | |
| Board Memberships at Listed Entities: | Mr. Garza Sada is the Chairman of the board of directors of Alfa, S.A.B. de C.V., a listed corporation in Mexico with operations in 23 countries, and a business portfolio that includes petrochemicals, refrigerated food, telecommunications, IT and energy. He is also Chairman of the board of directors of Alpek, S.A.B. de C.V., and of Nemak, S.A.B. de C.V., a member of the board of directors of Axtel, S.A.B. de C.V., El Puerto de Liverpool, S.A.B. de C.V., and Grupo Lamosa, S.A.B. de C.V., all of which are listed corporations in Mexico. | |
| Other Current Roles: | He is an alternate member of the board of directors of Grupo Financiero BBVA México, S.A. de C.V. (a non-public corporation). He is also a member of the Board of Trustees of the Instituto Tecnológico y de Estudios Superiores de Monterrey. | |
| Experience: | Mr. Garza Sada’s decades of experience at the highest corporate level in top-ranked companies provides the Board of Directors with a unique insight on the global economic landscape, and a hands-on experience to best align the company’s business strategy with its day-to-day operations. | |
| Education: | Mr. Garza Sada holds a B.S. degree in Industrial Engineering from the Massachusetts Institute of Technology and an M.B.A. from Stanford University. | |
| Name: | David Martínez Guzmán. | |
| Age as of December 31, 2022: | 65. | |
| Citizenship: | British. | |
| Nationality: | British. | |
| Type of Board Member: | Independent. | |
| Tenure on Cemex’s Board of Directors: | Since 2015. | |
| Board Memberships at Listed Entities: | He serves on the board of directors of Alfa, S.A.B. de C.V. and of Vitro, S.A.B. de C.V., both of which are listed corporations in Mexico, and of Sabadell Bank, a listed corporation in Spain. | |
| Other Current Roles: | He is the founder and Principal of Fintech Advisory Inc., as well as Managing Director of its London subsidiary, Fintech Advisory, Ltd., and member of the board of directors of ICA Tenedora, S.A. de C.V. | |
| Experience: | Mr. Martínez Guzmán is the Principal of Fintech Advisory Inc., which he founded in 1987. From 1984 to 1986, Mr. Martínez worked as Vice-President, Latin America Sovereign Restructuring unit of Citibank, N.A. in New York, where he helped coordinate the 1984 Argentina Financing Plan. Since founding Fintech, Mr. Martínez Guzmán has participated, at times as the largest creditor, in most of the sovereign debt restructurings around the world, historically approaching sovereign restructurings with a collaborative approach to governments. Mr. Martínez Guzman also has a strong track record of successful involvement in corporate restructurings and debt exchanges, most often working with companies to ensure long-term viability and business continuity as | |
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| a value-recovering proposition. More recently, Mr. Martínez Guzmán has allocated a significant portion of Fintech’s position to private equity investments, successfully investing across multiple jurisdictions in Latin America, Asia, and Europe, and across a wide range of sectors, including telecom and media, utilities, industrials, infrastructure, construction, oil and gas, and financial institutions.
Mr. Martínez Guzmán brings a renowned worldwide expertise in the financial sector and global markets to the Board of Directors, providing significant guidance on Cemex’s proactive financial management for deleveraging and achieving an investment grade credit rating, as well as the company’s sustainable growth strategy. | ||
| Education: | He holds a B.S. degree in Mechanical and Electrical Engineering from the Universidad Nacional Autónoma de México (UNAM), a B.A. degree in Philosophy from the Universitas Gregoriana in Rome, Italy, and an M.B.A. from Harvard Business School. | |
| Name: | Everardo Elizondo Almaguer. | |
| Age as of December 31, 2022: | 79. | |
| Citizenship: | Mexican. | |
| Nationality: | Mexican. | |
| Type of Board Member: | Independent. | |
| Tenure on Cemex’s Board of Directors: | Since 2016. | |
| Tenure on Cemex’s Audit Committee: | Member since 2018 and President since 2019. | |
| Board Memberships at Listed Entities: | He is a member of the board of directors of Grupo Financiero Banorte, S.A.B. de C.V., of Compañía Minera Autlán, S.A.B. de C.V., and of Gruma, S.A.B. de C.V., all of which are listed corporations in Mexico. | |
| Other Current Roles: | Mr. Elizondo is a professor of Macroeconomics at EGADE Business School of the Instituto Tecnológico y de Estudios Superiores de Monterrey, and at the School of Economics of the Universidad Autónoma de Nuevo León (UANL). He is also a member of the board of directors of Afore XXI-Banorte, S.A., and of Rassini, S.A.B. de C.V. (these two are non-public corporations). | |
| Experience: | Mr. Elizondo Almaguer qualifies as a “financial expert” for purposes related to the Sarbanes-Oxley Act. | |
| He served as deputy governor of the Banco de México (Mexico’s central bank) from 1998 to 2008. Before that, he was the director for Economic Studies at Alfa, S.A.B. de C.V. (a Mexican listed company), and at Grupo Financiero BBVA Bancomer, S.A. de C.V. (a listed financial institution). He founded and was the director of the Graduate School of Economics of the UANL. | ||
| With a distinguished professional career as a financial analyst, exemplary public official and academic scholar, Mr. Elizondo Almaguer brings to the Board of Directors extensive knowledge of the financial system and the international macroeconomic environment, providing insights to ensure the Company’s full observance of best corporate practices, and identify new business opportunities. | ||
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| Education: | Mr. Elizondo Almaguer holds a B.A. degree in Economics from the Universidad Autónoma de Nuevo León, a Master’s in Economics from the University of Wisconsin-Madison, a certificate from Harvard University’s International Tax Program and a Honoris Causa Doctorate from the Universidad Autónoma de Nuevo León. | |
| Name: | Ramiro Gerardo Villarreal Morales. | |
| Age as of December 31, 2022: | 75. | |
| Citizenship: | Mexican. | |
| Nationality: | Mexican and Spanish. | |
| Type of Board Member: | Independent. | |
| Tenure on Cemex’s Board of Directors: | Since 2017. | |
| Board Memberships at Listed Entities: | He is a member of the board of directors of Andean Precious Metals, which is a company listed on the Toronto Stock Exchange, and of two public corporations listed on the Mexican Stock Exchange: GCC, S.A.B. de C.V. (formerly Grupo Cementos de Chihuahua, S.A.B. de C.V.) and Vinte Viviendas Integrales, S.A.B. de C.V. | |
| Other Current Roles: | Mr. Villarreal Morales is a member of the advisory board of Arendal (a non-public corporation in the construction industry). | |
| Experience: | He joined Cemex in 1987 as General Legal Director, and subsequently served in various positions, including Executive Vice President of Legal and Advisor to the Chairman of the Board of Directors and the Chief Executive Officer until December 2017. Previously, he served as General Director of the regional bank division of Banpaís, where he was responsible for the operation of the bank’s 121 branches, and, until February 2012, he was the Secretary of the board of directors of Enseñanza e Investigación Superior, A.C., a non-profit managed by the Instituto Tecnológico y de Estudios Superiores de Monterrey. | |
| He served as Secretary of Cemex’s Board of Directors from 1995 to March 30, 2017. | ||
| With over 50 years of professional experience in different countries where Cemex has operations, Mr. Villarreal Morales provides the Board of Directors with key guidance around regulatory and legal matters, as well as international financial transactions, helping to ensure strict observance of all applicable laws. | ||
| Education: | He holds a B.A. degree in Law from the Universidad Autónoma de Nuevo León, and a Master’s in Finance from the University of Wisconsin-Madison. | |
| Name: | Gabriel Jaramillo Sanint. | |
| Age as of December 31, 2022: | 73. | |
| Citizenship: | Brazilian. | |
| Nationality: | Colombian. | |
| Type of Board Member: | Independent. | |
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| Tenure on Cemex’s Board of Directors: | Since 2018. | |
| Board Memberships at Listed Entities: | He is a member of the board of directors of Minerva Foods, a listed corporation in Brazil. | |
| Other Current Roles: | Mr. Jaramillo Sanint is the founder and director of a sustainable economic development program in the Orinoco Basin in Colombia. He is also a member of the board of directors of Centro Hospitalario Tatama (Colombia) (a non-profit organization), Medicines For Malaria Ventures (a non-profit organization) based in Geneva, Switzerland and the Colombian branch of BTG Pactual Bank. | |
| Experience: | Previously, he served as Chairman of the board of directors and chief executive officer of Santander USA (formerly Sovereign Bank), Banco Santander Brasil, and Banco Santander Colombia, and as CEO of Citibank Mexico, and Citibank Colombia. Since retiring, he has focused on health-related philanthropic work, leading the transformation of the Global Fund to Fight AIDS, Tuberculosis and Malaria, which raised $13 billion from 2017 to 2020. | |
| From October 2012 to April 2018, he was a member of the board of directors and president of the audit committee of Cemex Latam Holdings, S.A., a company listed on the Colombian Securities Exchange.
With an outstanding 35-year career in South America, Mexico and the United States, Mr. Jaramillo Sanint not only brings to Cemex’s Board of Directors extensive experience in complex financial matters, but also in sustainability, health and safety, as well as corporate social responsibility, a pillar of Cemex’s global strategy to achieve sustainable growth and create lasting value. | ||
| Education: | Mr. Jaramillo Sanint holds a B.A. degree in Marketing and an M.B.A. from California State University. In 2015, Mr. Jaramillo Sanint received honorary degrees from the Universidad Autónoma de Manizales in Colombia and Northeastern University. | |
| Name: | Isabel María Aguilera Navarro. | |
| Age as of December 31, 2022: | 62. | |
| Citizenship: | Spanish. | |
| Nationality: | Spanish. | |
| Type of Board Member: | Independent. | |
| Tenure on Cemex’s Board of Directors: | Since 2019. | |
| Board Memberships at Listed Entities: | She is a member of the board of directors of Oryzon Genomics, S.A., Lar España Real Estate SOCIMI, S.A., and Clínica Baviera, all of which are listed corporations in Spain. | |
| Other Current Roles: | She is an independent consultant and an associate professor at the ESADE Business School in Barcelona. She is a member of the board of directors of the Spanish multinational state-owned entity Canal de Isabel II, which manages the water supply infrastructure of Madrid, Spain and has operations in South America. She is also a member of the board of directors of Making Science, a company listed on the BME Growth market. | |
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| Experience: | Mrs. Aguilera Navarro was President of General Electric Spain and Portugal from 2008 to 2009, General Manager of Google Inc. (now Alphabet) Spain and Portugal from 2006 to 2008, Operations Director of NH Hotel Group SA from May 2002 to June 2005, and General Director of Dell Computer Corporation for Spain, Italy and Portugal from March 1997 to May 2002. She has also served as an adviser to various Spanish non-profit organizations, including the Companies Institute (Instituto de Empresa), and the Association for Management Progress (Asociación para el Progreso de la Gestión). She was a member of the Advisory Board of Farmaindustria, Ikor, and Pelayo Mutua de Seguros, and a business entrepreneur from 2009 to 2012 at Twindocs International. Previously, she was a board member of Banca Farmafactoring S.p.A. and Hightech Payment System SA. | |
| With her experience in multinational corporations in Europe, Mrs. Aguilera Navarro brings to the Board of Directors guidance on the overall global business landscape and an informed view on innovation, entrepreneurship, technological and digitalization issues, from customer-centric platforms to organizational processes and essential corporate functions, a key element of the Company’s digital strategy. In addition, she brings important insights in urban planning and a critical customer influencer, architects. | ||
| Education: | Mrs. Aguilera Navarro holds a B.A. degree in Architecture and Urban Planning from the Escuela Técnica Superior de Arquitectura de Sevilla (ETSA), an M.B.A. from the IE Business School, and has a Specialization Diploma in the Metaverse from The Valley Digital Business School in Madrid. | |
Board of Directors Skill Matrix
| (1) | M = Male, F = Female |
| (2) | N = Non-independent, I = Independent |
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Familial relationships among members of Cemex, S.A.B. de C.V.’s Board of Directors
| • | Rogelio Zambrano Lozano |
Mr. Rogelio Zambrano Lozano (Chairman of Cemex’s Board of Directors) has a familial relationship with Mr. Marcelo Zambrano Lozano.
| • | Marcelo Zambrano Lozano |
Mr. Marcelo Zambrano Lozano has a familial relationship with Mr. Rogelio Zambrano Lozano (Chairman of Cemex’s Board of Directors).
| • | Armando J. García Segovia |
Mr. Armando J. García Segovia has a familial relationship with Mr. Rodolfo García Muriel.
| • | Rodolfo García Muriel |
Mr. Rodolfo García Muriel has a familial relationship with Mr. Armando J. García Segovia.
Senior Management and Board Composition
The composition of our Senior Management and Board of Directors, as well as certain information regarding the areas of expertise and seniority of their members as of December 31, 2022, is addressed in this section.
Senior Management
Gender
As of December 31, 2022, our senior management was comprised of 13 members, of which 92% were men and 8% were women.
Seniority (in years at the Company)
As of December 31, 2022, our senior management’s average years at the Company was 27 years.
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Board of Directors
Gender
As of December 31, 2022, our Board of Directors was comprised of 12 members, of which 92% were men and 8% were women.
Tenure (in years as a member of the Board of Directors)
As of December 31, 2022, our Board of Directors’ average tenure was 14 years.
Independence
As of December 31, 2022, our Board of Directors was comprised of 12 members, of which 25% were considered to be non-independent and 75% were considered to be independent.
As of December 31, 2022, there were no alternate members of Cemex, S.A.B. de C.V.’s Board of Directors.
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Board Practices
Pursuant to the Mexican securities market law (Ley del Mercado de Valores) (the “Mexican Securities Market Law”), Cemex, S.A.B. de C.V.’s management is the responsibility of its Board of Directors and its chief executive officer. The Mexican Securities Market Law and Cemex, S.A.B. de C.V.’s by-laws (estatutos sociales) together set forth the fiduciary duties of the members of Cemex, S.A.B. de C.V.’s Board of Directors, who are required:
| • | to perform their duties in a value-creating manner for the benefit of Cemex without favoring a specific shareholder or group of shareholders; |
| • | to act diligently and in good faith by adopting informed decisions; |
| • | to maintain the confidentiality of the information and matters of which they become aware in their capacity as directors, when such information or matters are not of public knowledge; |
| • | to abstain from discussions and voting relating to matters in which they have an interest; and |
| • | to abstain from engaging in illicit acts or activities; and to act in a manner consistent with the duty of care and the duty of loyalty. |
The Mexican Securities Market Law also specifies that the duties of surveillance over our business are the responsibility of the board of directors, which are fulfilled by the Corporate Practices and Finance Committee and the Audit Committee, as well as through the external auditor who audits the entity’s financial statements, each within its professional role.
Pursuant to the Mexican Securities Market Law and Cemex, S.A.B. de C.V.’s by-laws, at least 25% of its directors must qualify as independent directors. As of December 31, 2022, Cemex, S.A.B. de C.V.’s Board of Directors was comprised of 12 members, of which 9 were independent and 3 were non-independent under the standards of the Mexican Securities Market Law.
Other than any contractual arrangements entered into with any member of Cemex, S.A.B. de C.V.’s Board of Directors while employed by us, which provide or may provide for retirement and pension benefits or other compensation upon termination of employment, Cemex, S.A.B. de C.V. has not entered into any contracts with its directors that provide for benefits upon termination of their directorship.
The Audit Committee, the Corporate Practices and Finance Committee and Other Committees
The Mexican Securities Market Law requires Cemex, S.A.B. de C.V.’s Board of Directors to have an audit committee and a corporate practices committee comprised entirely of independent directors. In compliance with such requirement, Cemex, S.A.B. de C.V. has an Audit Committee and a Corporate Practices and Finance Committee.
Cemex, S.A.B. de C.V.’s Audit Committee is responsible for:
| • | Evaluating internal controls and procedures and identifying deficiencies; |
| • | Following up with corrective and preventive measures in response to any non-compliance with operation and accounting guidelines and policies; |
| • | Evaluating the performance of external auditors and analyzing the reports, opinions and other information issued by such external auditors; |
| • | Describing and valuing non-audit services performed by external auditors; |
| • | Reviewing financial statements and determining if their approval should be recommended to the Board of Directors; |
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| • | Informing the Board of Directors of the state of the company’s internal controls, internal audit and accounting systems, including any breaches detected; |
| • | Supporting the Board of Directors in producing different reports submitted to the shareholders; |
| • | Assessing the effects of any modifications to the accounting policies approved during any fiscal year; |
| • | Overseeing measures adopted as a result of any observations made by shareholders, directors, executive officers, employees or any third parties with respect to accounting, internal controls and internal and external audit, as well as any complaints regarding management irregularities; |
| • | Supervising complaints raised by employees, third parties and other stakeholders to report ethical, corruption, and/or compliance matters utilizing confidential methods and other whistleblowing mechanisms; |
| • | Ensuring compliance by the Chief Executive Officer with the resolutions adopted by the shareholders and Board of Directors; and |
| • | Analyzing the risks identified by independent auditors, accounting, internal control and process assessment areas. |
Cemex, S.A.B. de C.V.’s Corporate Practices and Finance Committee is responsible for:
| • | Performing the role of a nomination and compensation committee, mainly by: |
| • | Evaluating the employment and compensation of the Chief Executive Officer and the Chairman of the Board; |
| • | Reviewing the hiring and compensation policies for executive officers; |
| • | Reviewing related party transactions and any conflicts of interest; |
| • | Reviewing policies regarding use of corporate assets; |
| • | Reviewing unusual or material transactions; |
| • | Evaluating waivers granted to directors or executive officers regarding participation and benefiting of corporate opportunities; |
| • | Identification, evaluation and follow up on the main risks affecting the company and its subsidiaries; |
| • | Evaluating financial plans; |
| • | Reviewing the financial strategy and its implementation; and |
| • | Evaluating merger and acquisitions opportunities as well as asset sales, including financial and related transactions. |
Under Cemex, S.A.B. de C.V.’s by-laws and the Mexican Securities Market Law, all members of the Audit Committee and the Corporate Practices and Finance Committee, including their respective presidents, are required to be independent directors. The President of the Audit Committee and the Corporate Practices and Finance Committee shall be appointed and removed from his or her position only by a resolution of the shareholders adopted at a duly convened general shareholders’ meeting, and the rest of the members may only be appointed or removed by a resolution of the shareholders adopted at a duly convened general shareholders’ meeting or by resolution of the Board of Directors, following a recommendation from the President of the respective committee.
Set forth below are the names of the members of Cemex, S.A.B. de C.V.’s Audit Committee and Corporate Practices and Finance Committee as of December 31, 2022. For information regarding the individuals that were appointed as members of Cemex’ S.A.B. de C.V.’s Audit Committee and Corporate Practices and Finance Committee at Cemex, S.A.B. de C.V.’s annual ordinary general shareholders’ meeting held on March 24, 2022,
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see “Item 5—Operating and Financial Review and Prospects—Recent Developments Relating to Cemex, S.A.B. de C.V.’s Shareholders’ Meetings.” Each member of the committees is an independent director. The terms of the members of the Committees are indefinite. Everardo Elizondo Almaguer qualifies, as an “audit committee financial expert” for purposes of the Sarbanes Oxley Act of 2002. See “Item 16A—Audit Committee Financial Expert.”
AUDIT COMMITTEE:
| Everardo Elizondo Almaguer |
President |
|||
| Rodolfo García Muriel |
Member |
|||
| Francisco Javier Fernández Carbajal |
Member |
|
CORPORATE PRACTICES AND FINANCE COMMITTEE:
| Francisco Javier Fernández Carbajal |
President | |||
| Rodolfo García Muriel |
Member | |||
| Armando Garza Sada |
Member |
In addition, Cemex, S.A.B. de C.V. has had a Sustainability Committee since 2014. On March 26, 2020, Cemex, S.A.B. de C.V. held an ordinary general shareholders’ meeting in which the shareholders for the first time approved the appointment of the members of the Sustainability Committee. Since then, the appointment of the members of the Sustainability Committee (now the Sustainability, Climate Action, Social Impact, and Diversity Committee) has been approved annually at Cemex, S.A.B. de C.V.’s ordinary general shareholders’ meeting.
Cemex, S.A.B. de C.V.’s Sustainability, Climate Action, Social Impact, and Diversity Committee is responsible for:
| • | Overseeing sustainability and social responsibility policies, strategies and programs; |
| • | Overseeing climate action goals and evaluating progress against those goals; |
| • | Evaluating the effectiveness of sustainability programs and initiatives; |
| • | Providing assistance to the Chief Executive Officer and senior management team regarding the strategic direction on sustainability and social responsibilities model; |
| • | Identifying the main risks concerning sustainability-related matters and overseeing mitigating actions; and |
| • | Endorsing a model of sustainability, priorities, and key indicators. |
Set forth below are the names of the members of Cemex, S.A.B. de C.V.’s Sustainability, Climate Action, Social Impact, and Diversity Committee as of December 31, 2022. For information regarding the individuals that were appointed as members of Cemex, S.A.B. de C.V.’s Sustainability, Climate Action, Social Impact, and Diversity Committee at Cemex, S.A.B. de C.V.’s annual ordinary general shareholders’ meeting held on March 24, 2022, see “Item 5—Operating and Financial Review and Prospects—Recent Developments Relating to Cemex, S.A.B. de C.V.’s Shareholders’ Meetings.” The terms of the members of the Committee are indefinite.
SUSTAINABILITY COMMITTEE:
| Armando J. García Segovia |
President |
| ||
| Francisco Javier Fernández Carbajal |
Member |
|||
| Marcelo Zambrano Lozano |
Member |
|||
| Fernando A. González Olivieri |
Member |
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Compensation of Cemex, S.A.B. de C.V.’s Directors and Members of Our Senior Management
For the year ended December 31, 2022, the aggregate amount of compensation we paid, or our subsidiaries paid, to all members of Cemex, S.A.B. de C.V.’s management was $44 million, which amount includes the salaries paid to the members of our Board of Directors, including its Chairman, and the salaries of our senior management, including of our Chief Executive Officer. Of the $44 million that we paid to members of Cemex, S.A.B. de C.V.’s management, $29 million was paid as base compensation and cash-based performance bonuses, including pension and post-employment benefits, and $15 million corresponds to stock-based long-term compensation. During 2022, we purchased 101 million CPOs to fund current and future requirements of the Restricted Stock Incentive Plan (“RSIP”) described below under “Item 6—Directors, Senior Management and Employees—Compensation of Cemex, S.A.B. de C.V.’s Directors and Members of Our Senior Management—Restricted Stock Incentive Plan.”
The following table discloses the amount of compensation paid to our Senior Management for the years ended December 31, 2022, 2021 and 2020:
| Year |
Average Total Compensation paid to our Senior Management(1)(2) |
Average Adjusted Compensation paid to our Senior Management(1)(3) |
Consolidated Net Income (Loss) (Millions of Dollars) |
Most significant financial measure | ||||
| 2022 |
3.1 million | 3.4 million | 885 | CVA | ||||
| 2021 |
3.5 million | 5.1 million | 778 | CVA | ||||
| 2020 |
2.5 million | 4.3 million | (1,446) | CVA |
| (1) | Our Senior Management includes our Executive Committee members, our Vice President of Comptrollership and our Senior Vice President of Legal. |
| (2) | The amount of “Average Total Compensation” paid to our Senior Management, either by us or our subsidiaries, includes paid salary, bonuses, stock awards, (including, but not limited to, our Key Value Positions Plan (“KVP Plan”) and the Performance Plan, as defined below), our Variable Compensation Plan (“VCP”), and other compensation benefits. |
| (3) | The “Average Adjusted Compensation” paid to our Senior Management is the Average Total Compensation paid to our Senior Management, adjusted to consider the addition or subtraction, as applicable, of equity award value as follows: (i) for awards granted in the covered fiscal year which are outstanding and unvested at year end, the fair value as of the end of the applicable year; (ii) for awards granted in prior fiscal years that are outstanding and unvested at the end of the applicable year, the amount equal to the change in fair value as of the end of the applicable year (from the end of the prior year); (iii) for awards granted in the applicable year that vest in the year of the grant, the fair value as of the vesting date; and (iv) for awards granted in prior years that vest during the applicable year, the amount equal to the change in fair value as of the vesting date (from the end of the year). |
To calculate the correlation between the compensation paid to our Senior Management and Cemex, S.A.B. de C.V.’s performance for the year ended December 31, 2022, we used the following financial and other measures: (i) cash value added (“CVA”); (ii) total shareholder return (“TSR”); and (iii) our CO2 Emissions Component (as defined below). For the years ended December 31, 2022, 2021, and 2020, CVA was the most significant financial measure that we used to determine the compensation paid to our Senior Management. For more information on our CVA and CO2 Emissions Component, see “Item 6—Directors, Senior Management and Employees—Compensation of Cemex, S.A.B. de C.V.’s Directors and Members of Our Senior Management—Variable Compensation Plan (“VCP”).”
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Variable Compensation Plan (“VCP”)
Our VCP is a non-equity incentive compensation plan available to our senior management. The terms of the VCP are based on CVA, which is calculated by subtracting depreciation and capital charge from our operating cash flow. A positive CVA means that revenues were greater than costs, including our cost of capital, whereas a negative CVA means that revenues were not sufficient to cover such costs. Members of Senior Management who achieve a positive CVA result with respect to our specific annual target goals will generally receive higher compensation under the VCP.
Additionally, the terms of our VCP consider performance metrics that include a combination of the employee’s business unit, regional and consolidated global results as compared to our specific annual target goals, including certain health and safety and sustainability-related factors. Moreover, the evaluation process considers each member of senior management’s individual performance assessment, along with his or her supervisor’s input. Since 2022, our VCP includes a new variable related to carbon reduction goals that could have an impact ranging from -10% to +10% in the total cash payout of the annual VCP (the “CO2 Emissions Component”). Furthermore, in March 2022 we expanded our VCP to cover more than 4,500 executives.
Each senior management position has a target variable compensation payout of his or her budgeted compensation, which is expressed as a percentage of such executive’s annual base pay. This target variable compensation amount varies according to the executive’s level in the Company.
Every year, specific annual target goals are set after considering local business expectations and the volatility of each of our operations. This allows us to maintain an objective criteria across our operations. Depending on our results and executives’ performance as compared to our objectives and specific annual target goals, the annual target variable compensation incentive can range from 0% for poor results and performance to up to a maximum of 200% for exceptional results and performance.
In 2022, Consolidated CVA resulted in a VCP payout of 164%.
Restricted Stock Incentive Plan
Under the terms of the RSIP, eligible employees are allocated a specific number of restricted CPOs as variable compensation to be vested over a four-year period. CPOs to cover the RSIP are issued or purchased in the secondary market, in each case, pursuant to the corresponding approvals from the Cemex, S.A.B. de C.V. ordinary general shareholders’ meetings. The CPOs are held in an individual account with a third-party supplier. At the end of each year during such four-year period, the restrictions lapse with respect to 25% of the allocated CPOs and such CPOs become freely transferable and subject to withdrawal from the trust. The RSIP has been applied to applicable participants since 2009, and it constitutes a further development to the variable remuneration plan that we implemented in 2005.
As of the date of this annual report, we have four compensation programs that conform the RSIP: the “Ordinary Plan,” the “KVP Plan,” the “Performance Plan,” and the “Extraordinary Management Grant.” Only our most senior executives in key value positions participate in the KVP Plan and the Performance Plan.
As of the date of this annual report, approximately 500 of our employees participate in the Ordinary Plan. The annual award under the Ordinary Plan is calculated based on the result of the gross annual guaranteed compensation of the participants in Dollars as of May 31 of each calendar year, times a management factor, that, depending on the level of the participant, ranges from 12% to 28% and divided by the last 90-day average closing price, converted into Dollars, of CPOs as of June 30 of such calendar year. No member of our senior management participated in the Ordinary Plan.
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Our KVP Plan establishes nonqualified deferred compensation earnings. As of December 31, 2022, the KVP Plan included approximately 60 participants, all of which are executives in key value positions. The annual award under the KVP Plan is based on the result of the cash variable compensation bonus in Dollars paid in April 2022 to these participants and divided by the last 90-day average closing price, converted into Dollars, of CPOs as of April 15 of each calendar year. As of December 31, 2022, all members of our senior management participated in the KVP Plan.
The total number of CPOs granted for the Ordinary Plan and the KVP Plan during 2022 were 46 million and 47 million, respectively, of which 28 million were related to our senior management. In 2022, 30 million net CPOs of the Ordinary Plan and 22 million net CPOs of the KVP Plan were purchased in the secondary market, representing the first 25% of the 2022 compensation program, the second 25% of the 2021 compensation program, the third 25% of the 2020 compensation program and the final 25% of the 2019 compensation program. Of these 52 million CPOs, 13 million CPOs corresponded to our senior management.
As of December 31, 2022, 48 employees participate in the Extraordinary Management Grant. The Extraordinary Management Grant entails granting a specific number of CPOs for each of the participants. The CPOs awarded under the Extraordinary Management Grant were calculated based on the result of the gross annual guaranteed compensation of the participants in Dollars as of May 31, 2022, times a management factor, and divided by the last 90-day average closing price, converted into Dollars, of CPOs as of June 30, 2022.
Our Extraordinary Management Grant is a retention program offered at the Company’s sole discretion to a selected number of employees that do not participate in the Ordinary Plan, KVP Plan or the Performance Plan. Under the Extraordinary Management Grant vesting occurs at the end of three years in a single 100% block, at which time the resulting number of CPOs become unrestricted immediately. Since the Extraordinary Management Grant came into effect in 2022 and there is a three-year vesting period, there have not been any CPOs awarded under the Extraordinary Management Grant, as of December 31, 2022.
Finally, our executives in key value positions participate in an additional RSIP program known as the Performance Plan. The Performance Plan replaced the Ordinary Plan in 2017 in order to align long-term compensation of our most senior executives with those of our investors. The Performance Plan entails granting a specific target of CPOs for each plan participant. The final payout can range from 0% to 200% of the target of CPOs based on Cemex, S.A.B. de C.V.’s three-year total shareholder return relative to two market references. The first market reference is comprised of seven public companies from the global construction and materials industry. The second market reference is the Morgan Stanley Capital International (MSCI) of Emerging Markets—LATAM Industry Index, which is compromised of 100 companies.
Under the Performance Plan, the vesting period occurs at the end of three years in a single 100% block, at which time the resultant number of CPOs become unrestricted immediately. Approximately 24 million CPOs were granted during 2022 under the Performance Plan, out of which 13 million CPOs were granted to our senior management, with an estimated fair value of 148.60%, which are expected to vest on July 1, 2025. During 2021 and 2022, 12 million and 16 million CPOs, respectively, were vested to our senior management. Since the Performance Plan only came into effect in 2017 and there is a three-year vesting period, prior to 2020 there were no CPOs awarded under the Performance Plan. As of December 31, 2022, the Performance Plan had 54 participants.
For further information, see note 22 to Cemex, S.A.B. de C.V.’s 2022 audited consolidated financial statements included elsewhere in this annual report.
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CLH Employee Stock-Ownership Plan
To better align CLH’s executives’ interests with those of its stockholders, on January 16, 2013, CLH’s board of directors approved, effective as of January 1, 2013, a long-term incentive plan available to eligible executives of CLH, which consists of an annual compensation plan based on CLH shares. The underlying shares in this long-term incentive plan, which are held in CLH’s treasury and subject to certain restrictions, are delivered fully vested under each annual program over a service period of four years. During 2022, 2021 and 2020, CLH delivered 813,980 shares, 713,927 shares and 1,383,518 shares, respectively, corresponding to the vested portion of prior years’ grants, which were subscribed and held in CLH’s treasury. As of December 31, 2022, there are 2,662,885 shares of CLH associated with these annual programs that are expected to be delivered in the following years as the executives render services.
Cemex Holdings Philippines Employee Restricted Stock Incentive Plan
Starting in 2018, a CHP compensation plan was granted to Philippines eligible participants. While this plan replaced their ordinary CPO plan, the mechanics of the plan remain the same. As of December 31, 2022 and 2021, there were eight eligible participants with a total award of 22 million and 16 million CHP shares, respectively.
Compensation of Cemex, S.A.B. de C.V.’s Chief Executive Officer and Senior Management
| Full Year 2022—Chief Executive Officer | % | |||
| Salary |
20 | % | ||
| Short-Term Performance Bonus (Cash) |
20 | % | ||
| Long-Term Performance Bonus (Restricted Stock) |
40 | % | ||
| Long-Term Performance Shares |
20 | % | ||
|
|
|
|||
| 100 | % | |||
| Full Year 2022—Senior Management | % | |||
| Salary |
42 | % | ||
| Short-Term Performance Bonus (Cash) |
22 | % | ||
| Long-Term Performance Bonus (Restricted Stock) |
22 | % | ||
| Long-Term Performance Shares |
14 | % | ||
|
|
|
|||
| 100 | % | |||
For our Chief Executive Officer and our senior management, the short-term variable performance bonus is paid in cash. Long-term restricted shares and the long-term variable performance bonus are paid in the form of restricted shares. As mentioned above, we use CVA to measure short-term performance bonus.
Additionally, all members of our Executive Committee have entered into change of control agreements that have been previously approved by the Corporate Practices and Finance Committee and the Board of Directors. Under these agreements, if during the term of the change of control agreement and while the executive remains an employee of Cemex, we shall be subject to a change in control and (i) within one (1) year following such change in control Cemex terminates the employment of the executive involuntarily and without business reasons or (ii) within six (6) months following such change in control the executive provides notice of intent to resign from employment with Cemex, then the executive should receive the executive’s salary and vacation accrued unpaid through his or her termination date, a lump sum equal to two times the executive’s annual salary, a lump sum equal to the executive’s target cash payout opportunity under the annual incentive bonus plan for which the executive is eligible, and vesting of all outstanding restricted stock plans and other equity arrangements subject to vesting and held by the executive through his or her termination date.
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The post-employment benefits that our senior management receive are aligned to the local practices in the countries where they are based.
The competitiveness of our executive compensation structure, as well as the mix between base and variable, as well as short- and long-term compensation, is reviewed every two years. This analysis measures competitiveness versus similar size firms in both U.S. and European markets. The most recent review was performed in October 2021 by WTW (formerly Willis, Towers, Watson), a firm specialized in multinational risk management, insurance brokerage and company advisory.
Cemex, S.A.B. de C.V.’s Board of Directors, other than its Chairman, is compensated in a fixed manner based on participation in board meetings. The compensation of the board of directors is approved each year at Cemex, S.A.B. de C.V.’s general ordinary shareholders’ meeting. In 2022, the amount approved by our shareholders was $24,600 per each board meeting attended and $6,000 per each committee meeting attended, and the actual amount paid for attendance to these meetings was approximately $1.7 million.
The Chairman of Cemex, S.A.B. de C.V.’s Board of Directors is compensated in a similar manner as Cemex, S.A.B. de C.V.’s senior management, including through the long-term performance plan based on Cemex’s total shareholder return versus peer groups. The base salary of the Chairman of Cemex, S.A.B. de C.V.’s board of directors is 27% fixed and the remaining 73% is variable compensation.
The total compensation (including fixed and variable compensation) of the Chairman of Cemex, S.A.B. de C.V.’s Board of Directors and the Chief Executive Officer is approved every year by the Corporate Practices and Finance Committee of the Board of Directors, which is integrated by three independent directors. The Corporate Practices and Finance Committee of the Board of Directors also reviews and approves the annual variable compensation of all members of senior management, key value position participants, and corporate and regional executives who are entitled to this benefit.
Employees
As of December 31, 2022, we had 43,853 employees worldwide, which represented a decrease of approximately 5% from the total number of employees we had as of December 31, 2021. The following table sets forth the number of our employees and a breakdown of their geographic location as of December 31, 2020, 2021 and 2022:
| Location |
2020 | 2021 | 2022 | |||||||||
| Mexico |
14,248 | 18,166 | 17,671 | |||||||||
| United States |
8,555 | 9,031 | 8,968 | |||||||||
| EMEAA |
12,679 | 12,483 | 11,877 | |||||||||
| United Kingdom |
1,961 | 1,933 | 1,901 | |||||||||
| France |
1,813 | 1,768 | 1,784 | |||||||||
| Germany |
1,117 | 1,117 | 1,237 | |||||||||
| Spain |
1,823 | 1,774 | 1,155 | |||||||||
| Poland |
1,066 | 1,070 | 1,092 | |||||||||
| Egypt |
509 | 505 | 513 | |||||||||
| Philippines |
777 | 775 | 757 | |||||||||
| Rest of EMEAA |
3,613 | 3,541 | 3,438 | |||||||||
| SCA&C |
6,181 | 6,530 | 5,337 | |||||||||
| Colombia |
2,675 | 2,974 | 2,850 | |||||||||
| Panama |
395 | 389 | 456 | |||||||||
| Costa Rica |
295 | 325 | 0 | |||||||||
| Caribbean TCL |
766 | 707 | 870 | |||||||||
| Rest of SCA&C |
2,050 | 2,135 | 1,161 | |||||||||
|
|
|
|
|
|
|
|||||||
| Total |
41,663 | 46,210 | 43,853 | |||||||||
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In Mexico, as of December 31, 2022, we have entered into collective bargaining agreements on a plant-by-plant basis, and such collective bargaining agreements are renewable on an annual basis with respect to salaries and on a biannual basis with respect to benefits. During 2022, we renewed approximately 102 contracts with different labor unions in Mexico. Our labor unions have taken important actions to implement the new labor laws, including, but not limited to, voting collective contracts in Mexico and informing employees about the terms and conditions of the collective agreements.
In the United States, as of December 31, 2022, approximately 27% of our employees were represented by unions, with the largest number being members of the International Brotherhood of Teamsters, the Laborers’ International Union of North America, United Steelworkers, International Union of Operating Engineers, and the International Brotherhood of Boilermakers. We have entered into or are in the process of negotiating various collective bargaining agreements at many of our U.S. plants, which collective bargaining agreements have various expiration dates through July 1, 2027.
As of December 31, 2022, our subsidiaries in Spain had 1,162 employees with collective bargaining agreements. Additionally, 682 of them, corresponding to employees in the cement business, had a company- specific collective bargaining agreement that has been renewed until December 31, 2023. The remaining 480, corresponding to the ready-mix concrete, mortar, aggregates and transport sectors, as well as non-cement office- based employees, have industry-specific collective bargaining agreements and are employees of different subsidiaries of ours in the country.
In the United Kingdom, as of December 31, 2022, our cement manufacturing and cement supply chain operations had collective bargaining agreements with Unite the Union. The rest of our operations in the United Kingdom are not part of collective bargaining agreements. However, there are local agreements for consultations and employees can be represented by a trade union official at specific types of meetings.
In Germany, as of December 31, 2022, most of our employees are working under collective bargaining agreements with the Industriegewerkschaft Bauen Agrar Umwelt—IG B.A.U. union. Most employees are subject to the in-house bargaining agreement with the IG B.A.U., which means salaries are negotiated between the applicable company and the trade union IG B.A.U. Collective bargaining agreement negotiations for cement operations employees occurred between employers’ associations Arbeitgeberverband Zement e.V. and IG B.A.U. during the third quarter of 2021. Both negotiations led to the execution of agreements. The period of both agreements will end in 2023. Agreed salary increases are in line with our budget assumptions. In addition, there are internal company agreements, negotiated between the works council and the company itself. The next works council elections for most areas will take place during 2026.
In France, as of December 31, 2022, less than 1% of our employees were members of four of the five main unions. At least one representative from one of the five main unions was represented in the following legal entities: Cemex Granulats (one representative), Cemex Bétons Ile de France (two representatives), Cemex Bétons Sud-Ouest (one representative), and Cemex Granulats Sud-Ouest (one representative). All agreements are negotiated with unions and non-union representatives elected in the local workers council (Comité social et économique) for periods of four years. The current agreements will expire on December 31, 2025.
In Israel, as of December 31, 2022, our aggregates manufacturing and lime manufacturing operations had existing special collective bargaining agreements with the Histadrut—the largest employee organization in Israel (“Histadrut”). In addition, our concrete product landscape plant, Netivei Noy, has an existing special collective bargaining agreement with Histadrut that applies to the plant’s employees and will expire on December 31, 2026. The rest of our operations in Israel are not part of collective bargaining agreements.
In the Philippines, as of December 31, 2022, approximately 62% and 23.5% of the non-managerial employees of our cement business were members of, and were represented by, labor unions in Solid Cement and APO, respectively. Their labor conditions including wages and benefits are governed by collective bargaining
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agreements negotiated at the plant level. The Solid Cement Plant has two unions and the collective bargaining agreements for these unions will expire on December 31, 2027 and February 28, 2023, respectively. APO Cement Plant also has two unions and the collective bargaining agreements for both these unions will expire on December 31, 2026.
In Egypt, as of December 31, 2022, the majority of our eligible employees were represented by the Assiut Cement Labor Union and the General Building Materials Union. The collective bargaining agreement, of which our employees are party to, governs annual profit share and productivity bonus payments. Such agreement will expire on December 31, 2024.
In Panama, as of December 31, 2022, approximately 59% of our workforce were members of the Sindicato de Trabajadores de Cemento Bayano, a union which is a legal entity registered before the Panamanian Ministry of Labor. The union’s board of directors is elected every two to four years through a general voting process. The collective bargaining agreement that is in full force and effect since January 2020 expires in December 2023.
In Colombia, as of December 31, 2022, there were 5 regional sectionals of a single industry union that represents our employees at the Caracolito, Clemencia, Bucaramanga, Cúcuta and Maceo cement plants and mills, and a minority part of the logistics operations at the national level. As of the date of this annual report, the Bucaramanga and Clemencia regional sectionals are undergoing a dissolution process. Another two unions represented a minority of the employees in the ready-mix concrete operations. There were also collective agreements with non-union workers at the Santa Rosa cement plant, all aggregates operations and the majority of the logistics and ready-mix concrete operations in Colombia. We consider our relationships with labor unions representing our employees in Colombia to be satisfactory.
In Caribbean TCL, as of December 31, 2022, the majority of our employees are party to collective bargaining agreements with the exception of those in the Guyana operations. Collective bargaining agreements in Trinidad have expired, however negotiations are currently ongoing with the Oilfields Workers’ Trade Union. In Barbados, during 2022, new agreements were executed with the Barbados’ Workers Union and the National Union of Public Workers. These new agreements will expire on December 31, 2023. In Jamaica, as of December 31, 2022, approximately 55% of our employees were represented by unions, with the largest number being members of the Union of Clerical And Supervisory Employees (“UCASE”) representing the hourly paid employees (46%), UCASE representing the monthly paid technicians and operators (28%) and STAFF Association representing the coordinators and administrative assistants (26%). Negotiations were finalized with the UCASE representing the hourly and monthly paid employees and STAFF Association, and the collective bargaining agreement with these groups will end in June and December 2024, respectively.
Share Ownership
As of December 31, 2022, to the best of our knowledge, the members of the Board of Directors of Cemex, S.A.B. de C.V. and our Senior Management, including their immediate families, owned, collectively, approximately 1.457% of Cemex, S.A.B. de C.V.’s outstanding shares, including shares underlying stock options and restricted CPOs under our RSIP. This percentage does not include shares held by the extended families of members of our senior management and directors, since, to the best of our knowledge, no voting arrangements or other agreements exist with respect to those shares. As of December 31, 2022, to the best of our knowledge, no individual member of the Board of Directors of Cemex, S.A.B. de C.V. or individual member of our senior management beneficially owned one percent or more of any class of Cemex, S.A.B. de C.V.’s outstanding capital stock and each such individual’s share ownership has not been previously disclosed to shareholders or otherwise made public.
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Item 7—Major Shareholders and Related Party Transactions
Major Shareholders
The information contained in Amendment No. 13 to a statement on Schedule 13G, filed with the SEC on February 1, 2023, stated that as of their calculations made as of January 31, 2023, BlackRock, Inc. (“Blackock”) beneficially owned 1,480,156,672 CPOs, representing 9.8% of Cemex, S.A.B. de C.V.’s outstanding capital stock. BlackRock does not have voting rights different from our other non-Mexican holders of CPOs. As required by Cemex, S.A.B. de C.V.’s by-laws, Cemex, S.A.B. de C.V.’s Board of Directors is required to approve BlackRock’s beneficial ownership of Cemex, S.A.B. de C.V.’s outstanding capital stock. Pursuant to the authorizations by Cemex, S.A.B. de C.V.’s Board of Directors, BlackRock is authorized to acquire up to 13% of Cemex, S.A.B. de C.V.’s capital stock with voting rights.
The information contained in Schedule 13G, filed with the SEC on January 30, 2023, stated that as of their calculations made as of February 28, 2023, Baillie Gifford & Co (“Baillie Gifford”) beneficially owned 805,408,010 CPOs, representing 5.32% of Cemex, S.A.B. de C.V.’s outstanding capital stock. Baillie Gifford does not have voting rights different from our other non-Mexican holders of CPOs.
The information contained in Schedule 13G, filed with the SEC on February 9, 2023, stated that as of their calculations made as of December 30, 2022, FMR beneficially owned 2,211,385,650 CPOs, representing 5.087% of Cemex, S.A.B. de C.V.’s outstanding capital stock. FMR does not have voting rights different from our other non-Mexican holders of CPOs.
As of December 31, 2022, Cemex, S.A.B. de C.V.’s outstanding capital stock consisted of 29,457,941,452 Series A shares and 14,728,970,726 Series B shares, in each case including shares held by our subsidiaries. These numbers are based on our records, which may differ from those recorded by Indeval (as defined below).
As of December 31, 2022, 99.88% of Series A shares and 99.88% of Series B shares outstanding were held by the CPO trust. Each CPO represents two Series A shares and one Series B share. A portion of the CPOs is represented by ADSs. As set forth in the Deposit Agreement, holders of ADSs do not have the right to instruct the depositary as to the exercise of voting rights in respect of Series A shares underlying CPOs held in the CPO trust. Under the terms of the CPO trust agreement, Series A shares underlying CPOs held by non-Mexican nationals, including all Series A shares underlying CPOs represented by ADSs, will be voted by the trustee according to the majority of all Series A shares held by Mexican nationals and Series B shares voted at the meeting. However, holders of ADSs will have the right to instruct the depositary to exercise the voting rights of the Series B shares underlying the CPOs represented by ADSs. Voting instructions may be given only with respect to ADSs representing an integral number of Series B shares. If the depositary shall not have received voting instructions from a holder of ADSs on or prior to the ADS voting instructions deadline, such holder shall be deemed, and the depositary and Cemex, S.A.B. de C.V. shall deem such holder, subject to the terms of the Deposit Agreement, to have instructed the depositary to give a discretionary proxy to a person designated by Cemex, S.A.B. de C.V. (or, if requested by Cemex, S.A.B. de C.V., a person designated by the technical committee appointed pursuant to the CPO trust agreement) to vote the Series B shares underlying the CPOs represented by such holder’s ADSs in his or her discretion. The Series B shares underlying the CPOs represented by ADSs for which no actual or deemed voting instructions have been received will be voted by the trustee for the CPO trust in cooperation with, and under the direction of, a technical committee appointed pursuant to the terms of the CPO trust agreement.
Other than BlackRock, Baillie Gifford, FMR and the CPO trust, we are not aware of any person that is the beneficial owner of five percent or more of any class of Cemex, S.A.B. de C.V.’s voting securities.
As of December 31, 2022, through Cemex, S.A.B. de C.V.’s subsidiaries, we owned approximately 20.5 million CPOs, representing approximately 0.0142% of Cemex, S.A.B. de C.V.’s outstanding voting stock. These CPOs are voted at the direction of our management. Cemex, S.A.B. de C.V.’s voting rights, through our subsidiaries that own
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those CPOs, over those CPOs are the same as those of any other CPO holder. As of the same date, we did not hold any CPOs in derivative instruments hedging expected cash flows of stock options exercises.
Cemex, S.A.B. de C.V.’s by-laws provide that its Board of Directors must authorize in advance any transfer of voting shares of its capital stock that would result in any persons, or groups acting in concert, becoming a holder of 2% or more of Cemex, S.A.B. de C.V.’s voting shares. In the event this requirement is not met, the persons acquiring such shares will not be entitled to any corporate rights with respect to such shares, such shares will not be taken into account for purposes of determining a quorum for shareholders’ meetings, Cemex, S.A.B. de C.V. will not record such persons as holders of such shares in its share registry and the registry undertaken by Indeval (as defined below) shall not have any effect.
Mexican securities regulations provide that our majority-owned subsidiaries may neither directly nor indirectly invest in Cemex, S.A.B. de C.V.’s CPOs nor other securities representing Cemex, S.A.B. de C.V.’s capital stock. The Mexican securities authority could require any disposition of the CPOs or of other securities representing our capital stock so owned and/or impose fines on us if it were to determine that the ownership of Cemex, S.A.B. de C.V.’s CPOs or of other securities representing Cemex, S.A.B. de C.V.’s capital stock by Cemex, S.A.B. de C.V.’s subsidiaries, in most cases, negatively affects the interests of Cemex, S.A.B. de C.V.’s shareholders. Notwithstanding the foregoing, the exercise of all rights pertaining to Cemex, S.A.B. de C.V.’s CPOs or to other securities representing our capital stock in accordance with the instructions of Cemex, S.A.B. de C.V.’s subsidiaries does not violate any provisions of Cemex, S.A.B. de C.V.’s by-laws or the by-laws of its subsidiaries. The holders of these CPOs or of other securities representing Cemex, S.A.B. de C.V.’s capital stock are entitled to exercise the same rights relating to their CPOs or their other securities representing Cemex, S.A.B. de C.V.’s capital stock, including all voting rights, as any other holder of the same series.
As of December 31, 2022, we had 494 ADS holders of record, holding 538,983,750 ADRs, representing 5,389,837,500 CPOs, or approximately 36.63% of Cemex, S.A.B. de C.V.’s outstanding capital stock as of such date.
Related Party Transactions
From January 1, 2022 through December 31, 2022, there were no transactions or proposed transactions that were material to either Cemex, S.A.B. de C.V. or, to the best of our knowledge, any related party, nor were there any transactions with any related party that were unusual in their nature or conditions. During the same period, we did not have any outstanding loans to any of Cemex, S.A.B. de C.V.’s Directors or members of Senior Management. For the purposes of this report, particularly for this analysis, the following transactions were excluded: (i) the sale and purchase of goods between subsidiaries of Cemex, S.A.B. de C.V.; (ii) the sale and/or acquisition of subsidiaries’ shares within subsidiaries of Cemex, S.A.B. de C.V.; (iii) the invoicing of administrative services, rentals, trademarks, and commercial name rights, royalties and other services rendered between two subsidiaries; and (iv) loans between related parties. When market prices and/or market conditions are not readily available, we conduct transfer pricing studies in the countries in which we operate, aiming to comply with regulations applicable to transactions between related parties.
The term “related parties” includes entities or individuals not affiliated with, or under the control of, Cemex, which, due to their relationship with Cemex, may take advantage of being in a privileged situation. Likewise, this applies to cases in which Cemex may take advantage of such relationships and obtain benefits in its financial position or operating results.
For the years ended December 31, 2022, 2021 and 2020, in the ordinary course of business, Cemex has entered into transactions with related parties for the sale and/or purchase of products, sale and/or purchase of services, or the lease of assets, all of which are not significant for Cemex and, to the best of Cemex’s knowledge, are not significant to the related party, and are incurred for non-significant amounts for Cemex and are executed
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under conditions following the same authorizations applied to other third parties. These identified transactions, which involved members of Cemex, S.A.B. de C.V.’s Board of Directors and Senior Management, as applicable, are reviewed by Cemex, S.A.B. de C.V.’s Board of Directors Corporate Practices and Finance Committee, and approved or ratified at least annually by Cemex, S.A.B. de C.V.’s Board of Directors. Cemex also enters into transactions with affiliates it controls, such as Trinidad Cement Limited, Caribbean Cement Company Limited, CLH, and CLH’s consolidated companies, and CHP and CHP’s consolidated entities; with other companies in which Cemex has a non-controlling position, such as GCC, Lehigh White Cement Company, and Neoris; with companies in which Cemex, S.A.B. de C.V.’s Board of Director members are members of such company’s board of directors, like FEMSA, S.A.B. de C.V., Carza, S.A.P.I. de C.V., Nemak, S.A.B. de C.V., NEG Natural, S.A. de C.V.; and with companies at which members of Cemex’s Senior Management have family members, such as HSBC México, S.A. Institución de Banca Múltiple, Grupo Financiero HSBC, and Cementos Españoles de Bombeo, S. de R.L. de C.V., all of which are also reviewed by Cemex, S.A.B. de C.V.’s Board of Directors Corporate Practices and Finance Committee, and approved or ratified at least annually by Cemex, S.A.B. de C.V.’s Board of Directors. For Cemex, none of these transactions are material to be disclosed separately.
Item 8—Financial Information
Consolidated Financial Statements and Other Financial Information
See “Item 18—Financial Statements.”
Legal Proceedings
See “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings.”
Dividends
A declaration of any dividend can be made by Cemex, S.A.B. de C.V.’s shareholders at any ordinary general shareholders’ meeting. Any dividend declaration is usually based upon the recommendation of Cemex, S.A.B. de C.V.’s Board of Directors. However, Cemex, S.A.B. de C.V.’s shareholders are not obligated to approve the board’s recommendation. Cemex, S.A.B. de C.V. may only pay dividends from retained earnings included in financial statements that have been approved by Cemex, S.A.B. de C.V.’s shareholders and after all losses have been paid for, at least 5% of annual earnings have been set aside in a legal reserve until such reserve equals 20% of its paid-in capital and Cemex, S.A.B. de C.V.’s shareholders have approved the relevant dividend payment. See “Item 10—Additional Information—Taxation—Mexican Tax Considerations—General.” Since Cemex, S.A.B. de C.V. conducts its operations mainly through its subsidiaries, its most significant assets are its investments in those subsidiaries. Consequently, Cemex, S.A.B. de C.V.’s ability to pay dividends to its shareholders is largely dependent upon its ability to receive funds from its subsidiaries in the form of dividends, management fees or otherwise. The Credit Agreements and the indentures governing our outstanding Notes effectively limit Cemex, S.A.B. de C.V.’s ability to declare and pay cash dividends or make other cash distributions to its shareholders. See “Item 3—Key Information—Risk Factors—Risks Relating to Our Indebtedness and Certain Other Obligations—Cemex, S.A.B. de C.V.’s ability to repay debt and pay dividends is highly dependent on our subsidiaries’ ability to transfer income and dividends to us. As of the date of this annual report, we control three publicly listed companies, where this risk is heightened.”
The recommendation of Cemex, S.A.B. de C.V.’s Board of Directors as to whether to pay and the amount of any annual dividends has been, and will continue to be, in absence of contractual restrictions to pay or declare dividends, based upon, among other things, earnings, cash flow, capital requirements, contractual restrictions, and our financial condition and other relevant factors.
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Owners of ADSs on the applicable record date will be entitled to receive any dividends payable in respect of the Series A shares and the Series B shares underlying the CPOs represented by those ADSs. However, as permitted by the Deposit Agreement, Cemex, S.A.B. de C.V. may instruct the ADS depositary not to extend the option to elect to receive cash in lieu of the stock dividend to the holders of ADSs. The ADS depositary will fix a record date for the holders of ADSs with respect to each dividend distribution. Unless otherwise stated, the ADS depositary has agreed to convert cash dividends received by it with respect to the Series A shares and the Series B shares underlying the CPOs represented by ADSs from Mexican Pesos into Dollars and, after deduction or after payment of expenses of the ADS depositary, to pay those dividends to holders of ADSs in Dollars. Cemex, S.A.B. de C.V. cannot assure holders of its ADSs that the ADS depositary will be able to convert dividends received in Mexican Pesos into Dollars or that any such conversion would be made using any particular exchange rate.
Cemex, S.A.B. de C.V. did not declare a dividend for fiscal years 2020, 2021 or 2022.
Significant Changes
Except as described herein, no significant change has occurred since the date of our 2022 consolidated financial statements included elsewhere in this annual report.
Item 9—Offer and Listing
Listing Details
Cemex, S.A.B. de C.V.’s CPOs are listed on the MSE and trade under the symbol “CEMEX.CPO.” Cemex, S.A.B. de C.V.’s ADSs, each of which currently represents ten CPOs, are listed on the NYSE and trade under the symbol “CX.”
Other Securities: Regarding our reporting obligations, we present quarterly and annual financial reports, as well as corporate information and events relevant to the regulatory authorities of Mexico and the United States simultaneously and with the periodicity and comparisons established in the applicable legislation. Throughout the last three fiscal years, we have presented reports on relevant events in a complete and timely manner, as well as other financial and legal information that we are obliged to present periodically in accordance with the applicable laws in Mexico and the United States.
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Stock Performance in the Securities Market
The following table sets forth, for the periods indicated, the reported high and low market quotations in Pesos for the CPOs on the Mexican Stock Exchange and the Mexican Institutional Stock Exchange (“BIVA”), and the high and low sales prices in Dollars for the ADSs on the NYSE.
| CPOs(1)(2) | ADSs | |||||||||||||||||||||||
| Calendar Period |
High | Low | Closing | High | Low | Closing | ||||||||||||||||||
| Annual |
||||||||||||||||||||||||
| 2018 |
15.80 | 8.94 | 9.49 | 8.51 | 4.47 | 4.82 | ||||||||||||||||||
| 2019 |
10.78 | 5.53 | 7.08 | 5.63 | 2.82 | 3.78 | ||||||||||||||||||
| 2020 |
11.6 | 4.21 | 10.27 | 5.63 | 1.63 | 5.17 | ||||||||||||||||||
| 2021 |
17.64 | 10.39 | 13.99 | 8.89 | 5.16 | 6.78 | ||||||||||||||||||
| 2022 |
13.96 | 6.52 | 7.88 | 6.82 | 3.20 | 4.05 | ||||||||||||||||||
| Quarterly |
||||||||||||||||||||||||
| 2021 |
||||||||||||||||||||||||
| First quarter |
15.20 | 10.39 | 14.42 | 7.38 | 5.16 | 6.97 | ||||||||||||||||||
| Second quarter |
17.64 | 13.96 | 16.82 | 8.89 | 6.85 | 8.40 | ||||||||||||||||||
| Third quarter |
16.97 | 14.19 | 14.89 | 8.55 | 7.03 | 7.17 | ||||||||||||||||||
| Fourth quarter |
14.72 | 12.64 | 13.99 | 7.17 | 5.85 | 6.78 | ||||||||||||||||||
| 2022 |
||||||||||||||||||||||||
| First quarter |
13.96 | 9.54 | 10.69 | 6.82 | 4.43 | 5.29 | ||||||||||||||||||
| Second quarter |
10.58 | 6.82 | 7.83 | 5.29 | 3.32 | 3.92 | ||||||||||||||||||
| Third quarter |
9.21 | 6.74 | 6.94 | 4.66 | 3.28 | 3.43 | ||||||||||||||||||
| Fourth quarter |
8.98 | 6.52 | 7.88 | 4.59 | 3.2 | 4.05 | ||||||||||||||||||
| Monthly |
||||||||||||||||||||||||
| 2023 |
||||||||||||||||||||||||
| January |
10.06 | 7.96 | 10.04 | 5.37 | 4.12 | 5.34 | ||||||||||||||||||
| February |
10.28 | 8.89 | 9.16 | 5.52 | 4.85 | 4.98 | ||||||||||||||||||
| March |
10.13 | 9.18 | 9.89 | 5.67 | 4.83 | 5.53 | ||||||||||||||||||
| April(3) |
10.84 | 9.58 | 10.65 | 6.02 | 5.24 | 5.93 | ||||||||||||||||||
Source: Based on information from the BMV, BIVA, and NYSE.
| (1) | As of December 31, 2022, the 99.88% of Cemex, S.A.B. de C.V.’s outstanding share capital was represented by CPOs. |
| (2) | Takes into consideration the highest and lowest market quotations either on the BMV or the BIVA, as applicable. |
| (3) | CPO and ADS prices are as of April 18, 2023. |
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The following table sets forth, for the periods indicated, the total traded volume of CPOs on the BMV and the BIVA and ADSs on the NYSE.
| Calendar Period |
CPOs(1)(2) | ADSs(1) | ||||||
| Annual |
||||||||
| 2018 |
8,562 | 2,214 | ||||||
| 2019 |
9,022 | 1,749 | ||||||
| 2020 |
9,342 | 2,301 | ||||||
| 2021 |
8,231 | 2,203 | ||||||
| 2022 |
8,987 | 1,587 | ||||||
| Quarterly |
||||||||
| 2021 |
||||||||
| First quarter |
2,465 | 723 | ||||||
| Second quarter |
1,788 | 523 | ||||||
| Third quarter |
1,780 | 436 | ||||||
| Fourth quarter |
2,198 | 520 | ||||||
| 2022 |
||||||||
| First quarter |
2,738 | 582 | ||||||
| Second quarter |
2,551 | 500 | ||||||
| Third quarter |
1,767 | 237 | ||||||
| Fourth quarter |
1,932 | 268 | ||||||
| Monthly |
||||||||
| 2023 |
||||||||
| January |
616 | 111 | ||||||
| February |
788 | 120 | ||||||
| March |
1,051 | 179 | ||||||
| April(3) |
344 | 74 | ||||||
Source: Based on information from the BMV, BIVA, and NYSE.
| (1) | Amounts in millions. |
| (2) | Amounts include trading volumes on the BMV and on the BIVA |
| (3) | CPO and ADS prices are as of April 18, 2023. |
Item 10—Additional Information
Articles of Association and By-laws
General
Pursuant to the requirements of Mexican corporation law, Cemex, S.A.B. de C.V.’s articles of association and by-laws (estatutos sociales) have been registered with the Mercantile Section of the Public Registry of Property and Commerce in Monterrey, Nuevo León, Mexico, under entry number 21, since June 11, 1920.
Cemex, S.A.B. de C.V. is an operating and a holding company engaged directly or indirectly, through its operating subsidiaries, primarily in the production, distribution, marketing and sale of cement, ready-mix concrete, aggregates, clinker and other construction materials, and Urbanization Solutions throughout the world. Cemex, S.A.B. de C.V.’s corporate purpose can be found in Article 2 of Cemex, S.A.B. de C.V.’s by-laws.
Cemex, S.A.B. de C.V. has two series of common stock, the Series A common stock, with no par value (“Series A shares”), which can only be owned by Mexican nationals, and the Series B common stock, with no par value (“Series B shares”), which can be owned by both Mexican and non-Mexican nationals. Cemex, S.A.B. de
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C.V.’s by-laws state that the Series A shares may not be held by non-Mexican individuals, corporations, groups, units, trusts, associations or governments that are foreign or have participation by foreign governments or their agencies. Cemex, S.A.B. de C.V.’s by-laws also state that the Series A shares shall at all times account for a minimum of 64% of Cemex, S.A.B. de C.V.’s total outstanding voting stock and that the Series B shares shall at all times account for a minimum of 36% of Cemex, S.A.B. de C.V.’s total outstanding voting stock. Other than as described herein, holders of the Series A shares and the Series B shares have the same rights and obligations.
On March 28, 2019, Cemex, S.A.B. de C.V. held an extraordinary shareholders’ meeting, at which its shareholders approved, among other items, changes to Articles 2 and 28 of Cemex, S.A.B. de C.V.’s by-laws, incorporating additional provisions and removing some restrictions. The changes, among other items, are the following: broadening Cemex, S.A.B. de C.V.’s corporate purpose, which would permit Cemex to transport goods; amending the provision regarding seaport related services for its marine terminals; the manufacture and commercialization of cement bags, etc.; and clarifying that Cemex, S.A.B. de C.V.’s Relevant Executives (as defined under the laws of Mexico) are entitled to indemnification and liability protection only for liability arising from the lack of diligence when acting in good faith and pursuant to our best interests.
On March 25, 2021, Cemex, S.A.B. de C.V. held an extraordinary shareholders’ meeting, at which its shareholders approved changes to Article 2 of Cemex, S.A.B. de C.V.’s by-laws to further broaden Cemex, S.A.B. de C.V.’s corporate purpose. The changes, among other things, adjust our written corporate purpose in order to allow us to conduct certain activities, directly or indirectly through third parties, in line with our current needs and corporate vision.
Lastly, on March 24, 2022, Cemex, S.A.B. de C.V. held an extraordinary shareholders’ meeting, in which its shareholders approved changes to Article 2 of Cemex, S.A.B. de C.V.’s by-laws to detail Cemex, S.A.B. de C.V.’s corporate purpose so that it will list only those activities it currently carries out, and cease contemplating those activities it does not perform or that are already included in another part of the by-laws. For more information, see “Item 5—Operating and Financial Review and Prospects—Recent Developments—Recent Developments Relating to Cemex, S.A.B. de C.V.’s Shareholders’ Meetings.”
Changes in Capital Stock and Preemptive Rights
Subject to certain exceptions discussed below, Cemex, S.A.B. de C.V.’s by-laws allow for a decrease or increase in its capital stock if it is approved by its shareholders at a shareholders’ meeting. Additional shares of Cemex, S.A.B. de C.V.’s capital stock, having no voting rights or limited voting rights, are authorized by its by-laws and may be issued upon the approval of its shareholders at a shareholders’ meeting, with the prior approval of the Mexican securities authority. Cemex, S.A.B. de C.V.’s by-laws provide that, subject to certain exceptions, shareholders have preemptive rights with respect to the class and in proportion to the number of shares of our capital stock they hold, in connection with any capital increase in the number of outstanding Series A shares, Series B shares or any other existing series of shares, as the case may be. Subject to certain requirements: (i) under article 53 of the Mexican Securities Market Law, this preemptive right to subscribe is not applicable to increases of Cemex, S.A.B. de C.V.’s capital through public offers and (ii) under article 210-bis of the General Law of Negotiable Instruments and Credit Operations (Ley General de Títulos y Operaciones de Crédito), this preemptive right to subscribe is not applicable when issuing shares under convertible notes. Preemptive rights give shareholders the right, upon any issuance of shares by us, to purchase a sufficient number of shares to maintain their existing ownership percentages. Preemptive rights must be exercised within the period and under the conditions established for that purpose by the shareholders, and Cemex, S.A.B. de C.V.’s by-laws and applicable law provide that this period must be 15 days following the publication of the notice of the capital increase through the electronic system established by the Ministry of Economy (Secretaría de Economía) or, in its absence, in the Official Gazette of the State of Nuevo León (Periódico Oficial del Estado de Nuevo León) or in any major newspaper published and distributed in the city of Monterrey, Nuevo León, Mexico.
Holders of ADSs that are U.S. persons or are located in the United States may be restricted in their ability to participate in the exercise of such preemptive rights. See “Item 3—Key Information—Risk Factors—Risks Relating to
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Ownership of our Securities—Preemptive rights generally available under Mexican law may be unavailable to ADS holders.”
Pursuant to Cemex, S.A.B. de C.V.’s by-laws, significant acquisitions of shares of Cemex, S.A.B. de C.V.’s capital stock and changes of control of Cemex, S.A.B. de C.V. require prior approval from Cemex, S.A.B. de C.V.’s Board of Directors. Cemex, S.A.B. de C.V.’s Board of Directors must authorize in advance any transfer of, or creation of any encumbrance or lien on, voting shares of Cemex, S.A.B. de C.V.’s capital stock that would result in any person or group becoming a holder of 2% or more of Cemex, S.A.B. de C.V.´s shares. Cemex, S.A.B. de C.V.’s Board of Directors shall consider the following when determining whether to authorize such transfer of voting shares: a) the type of investors involved; b) if stock prices may be affected or if the number of Cemex, S.A.B. de C.V.’s shares outstanding would be reduced in such way that marketability may be affected; c) whether the acquisition would result in the potential acquirer exercising a significant influence or being able to obtain control; d) whether all applicable rules and Cemex, S.A.B. de C.V.’s by-laws have been observed by the potential acquirer; e) whether the potential acquirers are our competitors or are persons or legal entities participating in companies, entities or persons that are our competitors and whether there is a risk of affecting market competition, or the potential acquirers could have access to confidential and privileged information; f) the morality and economic solvency of the potential acquirers; g) the protection of minority rights and the rights of our employees; and h) whether an adequate base of investors would be maintained. If Cemex, S.A.B. de C.V.’s Board of Directors denies the authorization, or the transfer had been authorized on the basis of false or incorrect information or information had been withheld or the requirements established in Cemex, S.A.B. de C.V.’s by-laws are not complied with, the persons involved in the transfer shall not be entitled to exercise the voting rights corresponding to the transferred shares, such shares shall not be taken into account for the determination of the quorums of attendance and voting at shareholders’ meetings and the transfers shall not be recorded or have any effect in our share registry and the registry undertaken by S.D. Indeval, Institución para el Depósito de Valores, S.A. de C.V. (“Indeval”), the Mexican securities depositary.
Any acquisition of shares of Cemex, S.A.B. de C.V.’s capital stock representing 30% or more of its capital stock by a person or group of persons requires prior approval from Cemex, S.A.B. de C.V.’s Board of Directors and, in the event approval is granted, the acquirer has an obligation to make a public offer to purchase all of the outstanding shares of Cemex, S.A.B. de C.V.’s capital stock.
In the event the requirements for significant acquisitions of shares of Cemex, S.A.B. de C.V.’s capital stock are not met, the persons acquiring such shares will not be entitled to any corporate rights with respect to such shares, such shares will not be taken into account for purposes of determining a quorum for shareholders’ meetings, Cemex, S.A.B. de C.V. will not record such persons as holders of such shares in its share registry and the registry undertaken by Indeval shall not have any effect. Cemex, S.A.B. de C.V.’s by-laws require the stock certificates representing shares of its capital stock to make reference to the provisions in its by-laws relating to the prior approval of the Cemex, S.A.B. de C.V. Board of Directors for significant share transfers and the requirements for recording share transfers in its share registry. In addition, shareholders are responsible for informing Cemex, S.A.B. de C.V. within five business days whenever their shareholdings exceed 5%, 10%, 15%, 20%, 25% and 30% of Cemex, S.A.B. de C.V.’s capital stock. If a person acquires beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC under the U.S. Securities Exchange Act of 1934 (“Exchange Act”)) of 20% or more in voting power of the outstanding voting stock of Cemex, S.A.B. de C.V., a change of control will be deemed to have occurred under the Credit Agreements and other debt agreements of Cemex.
Cemex, S.A.B. de C.V. is required to maintain a share registry to record the names, nationalities and domiciles of all significant shareholders, and any shareholder that meets or exceeds these thresholds must be recorded in this registry if such shareholder is to be recognized or represented at any shareholders’ meeting. If a shareholder fails to inform Cemex, S.A.B. de C.V. of its shareholdings reaching a threshold as described above, we will not record the transactions that cause such threshold to be met or exceeded in Cemex, S.A.B. de C.V.’s share registry, and such transaction will have no legal effect and will not be binding on us.
Cemex, S.A.B. de C.V.’s by-laws also require that its shareholders comply with legal provisions regarding acquisitions of securities and certain shareholders’ agreements that require disclosure to the public.
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Repurchase Obligation
In accordance with Mexican securities regulations, Cemex, S.A.B. de C.V. is obligated to make a public offer for the purchase of stock to its shareholders if Cemex, S.A.B. de C.V.’s registration with the Mexican securities registry is canceled, either by resolution of its shareholders or by an order of the Mexican securities authority. The minimum price at which we must purchase the stock is the higher of:
| • | the weighted average price per share based on the weighted average trading price of Cemex, S.A.B. de C.V.’s CPOs on the MSE during the latest period of 30 trading days preceding the date of the offer, for a period not to exceed six months; or |
| • | the book value per share, as reflected in the last quarterly report filed with the Mexican securities authority and the MSE before the date of the offer. |
Cemex, S.A.B. de C.V.’s Board of Directors shall prepare and disclose to the public through the MSE, within ten business days after the day the public offer begins, and after consulting the Corporate Practices and Finance Committee, its opinion regarding the price of the offer and any conflicts of interests that each of its members may have regarding such offer. This opinion may be accompanied by an additional opinion issued by an independent expert that we may hire.
Following the cancelation of Cemex, S.A.B. de C.V.’s registration with the Mexican securities registry, it must place in a trust set up for that purpose for a six-month period an amount equal to that required to purchase the remaining shares held by investors who did not participate in the offer.
Shareholders’ Meetings and Voting Rights
Shareholders’ meetings may be called by:
| • | Cemex, S.A.B. de C.V.’s Board of Directors or the Corporate Practices and Finance Committee and Audit Committee; |
| • | shareholders representing at least 10% of outstanding and fully paid shares, by making a request to the Chairman of Cemex, S.A.B. de C.V.’s Board of Directors or Cemex, S.A.B. de C.V.’s Corporate Practices and Finance Committee and Audit Committee; or |
| • | any shareholder (i) if no meeting has been held for two consecutive years or when the matters referred to in Article 181 of the Mexican corporations law have not been dealt with or (ii) when, for any reason, the required quorum for valid sessions of the Corporate Practices and Finance Committee and Audit Committee was not reached and the board of directors failed to make the appropriate provisional appointments; or a Mexican court of competent jurisdiction, in the event Cemex, S.A.B. de C.V.’s Board of Directors or the Corporate Practices and Finance Committee and Audit Committee do not comply with the valid shareholders’ request described above. |
Notice of shareholders’ meetings must be published through the electronic system established by the Ministry of Economy (Secretaría de Economía) or, in its absence, in the Official Gazette of the State of Nuevo León (Periódico Oficial del Estado de Nuevo León), Mexico or in any major newspaper published and distributed in the city of Monterrey, Nuevo León, Mexico. The notice must be published at least 15 days prior to the date of any shareholders’ meeting. Consistent with Mexican law, Cemex, S.A.B. de C.V.’s by-laws further require that all information and documents relating to the shareholders’ meeting be available to shareholders from the date the notice of the meeting is published.
General shareholders’ meetings can be ordinary or extraordinary. At every general shareholders’ meeting, each qualified holder of Series A shares and Series B shares is entitled to one vote per share. Shareholders may vote by proxy duly appointed in writing. Under the CPO trust agreement, holders of CPOs who are not Mexican nationals cannot exercise voting rights corresponding to the Series A shares represented by their CPOs, in which case, the CPO trustee will vote the underlying Series A shares in the same manner as the holders of the majority of the voting shares.
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An annual ordinary general shareholders’ meeting must be held during the first four months after the end of each of Cemex, S.A.B. de C.V.’s fiscal year to consider the approval of a report of its Board of Directors regarding Cemex, S.A.B. de C.V.’s performance and its financial statements for the preceding fiscal year and to determine the allocation of profits from the preceding year. In addition, Cemex, S.A.B. de C.V.’s annual ordinary general shareholders’ meeting must:
| • | review the annual reports of Cemex, S.A.B. de C.V.’s Corporate Practices and Finance Committee and Audit Committee, its Chief Executive Officer, and its Board of Directors; |
| • | elect, remove, or substitute the members of Cemex, S.A.B. de C.V.’s Board of Directors, which are voted on an individual basis; |
| • | determine the level of independence of the members of Cemex, S.A.B. de C.V.’s Board of Directors; |
| • | elect or remove the Chairman of Cemex, S.A.B. de C.V.’s Corporate Practices and Finance Committee and the Audit Committee; |
| • | approve any transaction that represents 20% or more of Cemex, S.A.B. de C.V.’s consolidated assets; and |
| • | resolve any issues not reserved for extraordinary shareholders’ meetings. |
A general extraordinary shareholders’ meeting may be called at any time to deal with any of the matters specified by Article 182 of the Mexican corporations law, which include, among other things:
| • | extending Cemex, S.A.B. de C.V.’s corporate existence; |
| • | Cemex, S.A.B. de C.V.’s voluntary dissolution; |
| • | increasing or reducing Cemex, S.A.B. de C.V.’s fixed capital stock; |
| • | changing Cemex, S.A.B. de C.V.’s corporate purpose; |
| • | changing Cemex, S.A.B. de C.V.’s country of incorporation; |
| • | changing Cemex, S.A.B. de C.V.’s form of organization; |
| • | a proposed merger; |
| • | issuing preferred shares; |
| • | redeeming Cemex, S.A.B. de C.V.’s own shares; |
| • | any amendment to Cemex, S.A.B. de C.V.’s by-laws; and |
| • | issuing bonds to be registered in the Mexican National Securities Registry; and any other matter for which a special quorum is required by law or by Cemex, S.A.B. de C.V.’s by-laws. |
In order to vote at a meeting of shareholders, shareholders must (i) appear on the list that Indeval and Indeval participants holding shares on behalf of the shareholders prepare prior to the meeting, or (ii) prior to the meeting, deposit the certificates representing their shares at Cemex, S.A.B. de C.V.’s offices or in a Mexican credit institution or brokerage house that operates in accordance with applicable laws in Mexico. The certificate of deposit with respect to the share certificates must be presented to Cemex, S.A.B. de C.V.’s company secretary at least 48 hours before a meeting of shareholders. Cemex, S.A.B. de C.V.’s company secretary verifies that the person in whose favor any certificate of deposit was issued is named in Cemex, S.A.B. de C.V.’s share registry and issues an admission pass authorizing that person’s attendance at the meeting of shareholders.
Cemex, S.A.B. de C.V.’s by-laws provide that a shareholder may only be represented by proxy in a shareholders’ meeting with a duly completed form provided by Cemex, S.A.B. de C.V. authorizing the proxy’s presence. In addition, Cemex, S.A.B. de C.V.’s by-laws require that the secretary acting at the shareholders’ meeting publicly affirm the compliance by all proxies with this requirement. A shareholders’ resolution is required to take action on any matter presented at a shareholders’ meeting.
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At an ordinary shareholders’ meeting, the affirmative vote of the holders of a majority of the shares present at the meeting is required to adopt a shareholders’ resolution. At an extraordinary meeting of shareholders, the affirmative vote of at least 50% of the capital stock is required to adopt a shareholders’ resolution, except that when amending Article 7 (with respect to measures limiting shareholding ownership), Article 10 (relating to the register of shares and significant participations) or Article 22 (specifying the impediments to being appointed a member of Cemex, S.A.B. de C.V.’s Board of Directors) of Cemex, S.A.B. de C.V.’s by-laws, the affirmative vote of at least 75% of the voting stock is required.
The attendance quorum for an ordinary general shareholders’ meeting upon the first call is 50% of Cemex, S.A.B. de C.V.’s outstanding and fully paid shares and, for the second call, is any number of Cemex, S.A.B. de C.V.’s outstanding and fully paid shares. If the quorum is not met upon the first call, a subsequent meeting may be called and the quorum for the second ordinary shareholders’ meeting is any number of Cemex, S.A.B. de C.V.’s outstanding and fully paid shares represented at the meeting. The attendance quorum for the extraordinary shareholders’ meeting upon the first call is 75% of Cemex, S.A.B. de C.V.’s outstanding and fully paid shares and, upon the second and subsequent calls, is 50% of Cemex, S.A.B. de C.V.’s outstanding and fully paid shares.
Rights of Minority Shareholders
At Cemex, S.A.B. de C.V.’s annual ordinary general shareholders’ meeting, any shareholder or group of shareholders representing 10% or more of its voting stock has the right to appoint or remove one member of Cemex, S.A.B. de C.V.’s Board of Directors, in addition to the directors appointed by the majority. Such appointment may only be revoked by other shareholders when the appointment of all other directors is also revoked. Cemex, S.A.B. de C.V.’s by-laws provide that holders of at least 10% of its outstanding capital stock are entitled to demand the postponement of the voting on any resolution of which they deem they have not been sufficiently informed.
Under Mexican law, holders of at least 20% of Cemex, S.A.B. de C.V.’s outstanding capital stock entitled to vote on a particular matter may oppose any resolution reached at a shareholders’ meeting by filing a petition with a court of law for a court order to suspend the resolution temporarily within 15 days after the adjournment of the meeting at which that action was taken and showing that the challenged action violates Mexican law or Cemex, S.A.B. de C.V.’s by-laws, provided the opposing shareholders deliver a bond to the court to secure payment of any damages that we suffer as a result of suspending the resolution in the event that the court ultimately rules against the opposing shareholders. Relief under these provisions is only available to holders who were entitled to vote on, or whose rights as shareholders were adversely affected by, the challenged shareholder action and whose shares were not represented when the action was taken or, if represented, voted against it.
Under Mexican law, an action for civil liabilities against directors may be initiated by a shareholders’ resolution for violation of their duty of loyalty to shareholders. In the event shareholders decide to bring an action of this type, the persons against whom that action is brought will immediately cease to be directors. Additionally, shareholders representing not less than 33% of the outstanding shares may directly exercise that action against the directors; provided that:
| • | those shareholders shall not have voted against exercising such action at the relevant shareholders’ meeting; and |
| • | the claim covers all of the damage alleged to have been caused to us and not merely the damage suffered by the plaintiffs. |
Under Cemex, S.A.B. de C.V.’s by-laws, shareholders representing 5% or more of its outstanding capital stock may initiate actions exclusively on behalf of Cemex, S.A.B. de C.V. against members of its Board of Directors, its Corporate Practices and Finance Committee and Audit Committee, its Chief Executive Officer, or any relevant executives, for breach of their duty of care or duty of loyalty to shareholders or for committing illicit acts or activities. The only requirement is that the claim covers all of the damage alleged to have been caused to
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us or any entities on which we have a significant influence and not merely the damage suffered by the plaintiffs. Actions initiated on these grounds have a five-year statute of limitations from the day of the act or action that caused the damage.
Any recovery of damages with respect to these actions will be for Cemex, S.A.B. de C.V.’s benefit and not that of the shareholders bringing the action.
Registration and Transfer
Cemex, S.A.B. de C.V.’s common stock is evidenced by share certificates in registered form with registered dividend coupons attached. Shareholders who have not deposited their shares into the CPO trust may hold their shares in the form of physical certificates or through institutions that have accounts with Indeval. Accounts may be maintained at Indeval by brokers, banks and other entities approved by the Mexican securities authority. Cemex, S.A.B. de C.V. maintains a stock registry, and, in accordance with Mexican law, only those holders listed in Cemex, S.A.B. de C.V.’s stock registry and those holding certificates issued by Indeval and by Indeval participants indicating ownership are recognized as Cemex, S.A.B. de C.V. shareholders.
Pursuant to Mexican law, any transfer of shares must be registered in Cemex, S.A.B. de C.V.’s stock registry, if effected physically, or through book entries that may be tracked back from Cemex, S.A.B. de C.V.’s stock registry to the records of Indeval.
Redemption
Cemex, S.A.B. de C.V.’s capital stock is subject to redemption upon approval of our shareholders at an extraordinary shareholders’ meeting.
Share Repurchases
If approved by Cemex, S.A.B. de C.V.’s shareholders at a general shareholders’ meeting, we may purchase Cemex, S.A.B. de C.V.’s outstanding shares. The economic and voting rights corresponding to repurchased shares cannot be exercised during the period the shares are owned by us and the shares will be deemed outstanding for purposes of calculating any quorum or vote at any shareholders’ meeting. We may also repurchase our equity securities on the MSE at the then prevailing market prices in accordance with Mexican Securities Market Law. If we intend to repurchase shares representing more than 1% of Cemex, S.A.B. de C.V.’s outstanding shares at a single trading session, we must inform the public of such intention at least ten minutes before submitting our bid. If we intend to repurchase shares representing 3% or more of Cemex, S.A.B. de C.V.’s outstanding shares during a period of 20 trading days, we are required to conduct a public tender offer for such shares. We must conduct share repurchases as per the framework authorized by Cemex, S.A.B. de C.V.’s Board of Directors and through the person or persons approved by Cemex, S.A.B. de C.V.’s Board of Directors, through a single broker dealer during the relevant trading session and without submitting bids during the first and the last 30 minutes of each trading session. We must inform the MSE of the results of any share repurchase no later than the business day following any such share repurchase.
Directors’ and Shareholders’ Conflict of Interest
Under Mexican law, any shareholder who has a conflict of interest with Cemex, S.A.B. de C.V. with respect to any transaction is obligated to disclose such conflict and is prohibited from voting on that transaction. A shareholder who violates this prohibition may be liable for damages if the relevant transaction would not have been approved without that shareholder’s vote.
Under Mexican law, any director who has a conflict of interest with Cemex, S.A.B. de C.V. in any transaction must disclose that fact to the other directors and is prohibited from participating and being present
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during the deliberations and voting on that transaction. A director who violates this prohibition will be liable for damages and lost profits. Additionally, Cemex, S.A.B. de C.V.’s directors may not represent shareholders in our shareholders’ meetings.
Withdrawal Rights
Whenever Cemex, S.A.B. de C.V.’s shareholders approve a change of corporate purpose, change of nationality or transformation from one form of corporate organization to another, Mexican law provides that any shareholder entitled to vote on that change who has voted against it may withdraw from Cemex, S.A.B. de C.V. and receive an amount equal to the book value (in accordance with the latest statement of financial position approved by the annual ordinary general shareholders’ meeting) attributable to such shareholder’s shares; provided that such shareholder exercises that right within 15 days following the meeting at which the change was approved.
Dividends
At each annual ordinary general shareholders’ meeting, Cemex, S.A.B. de C.V.’s Board of Directors submits, for approval by its shareholders, its financial statements together with a report on them prepared by its Board of Directors and the statutory auditors. Cemex, S.A.B. de C.V.’s shareholders, once they have approved the financial statements, determine the allocation of our net income, after provision for income taxes, legal reserve and statutory employee profit sharing payments, for the preceding year. All shares of Cemex, S.A.B. de C.V.’s capital stock outstanding at the time a dividend or other distribution is declared are entitled to share equally in that dividend or other distribution.
Liquidation Rights
In the event Cemex, S.A.B. de C.V. is liquidated, the surplus assets remaining after payment of all its creditors will be divided among Cemex, S.A.B. de C.V.’s shareholders in proportion to the respective shares held by them. The liquidator may, with the approval of Cemex, S.A.B. de C.V.’s shareholders, distribute the surplus assets in kind among Cemex, S.A.B. de C.V.’s shareholders, sell the surplus assets and divide the proceeds among Cemex, S.A.B. de C.V.’s shareholders or put the surplus assets to any other uses agreed to by a majority of Cemex, S.A.B. de C.V.’s shareholders voting at an extraordinary shareholders’ meeting.
Differences Between Our Corporate Governance Practices and NYSE Standards for Domestic
Companies
For a description of significant ways in which Cemex, S.A.B. de C.V.’s corporate governance practices differ from those required of domestic companies under NYSE standards, see “Item 16G—Corporate Governance.”
You may find additional information in the corporate governance section of our website www.cemex.com, or you may contact our investment relations team, by writing to or telephoning us as follows:
Cemex, S.A.B. de C.V. Avenida Ricardo Margáin Zozaya #325
Colonia Valle del Campestre
San Pedro Garza García, Nuevo León, 66265, México
Attn: Louisa P. Rodriguez–Investor Relations
Telephone: +1 (212) 317-6011
Email: ir@cemex.com
The information on our website is not, and is not intended to be, part of this annual report and is not incorporated into this annual report by reference.
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Capital Stock
On April 5, 2018, we approved (a) an increase of our capital stock, in its variable part, for the amount of Ps2,082,457.50 through the issuance of up to 750,000,000 ordinary shares, nominative and without par value, of which up to 500,000,000 would be Series A shares, and up to 250,000,000 would be Series B shares, with the same characteristics and with the same rights as those currently outstanding, and which shares would be kept in treasury to be subscribed and exhibited under the terms and conditions of the RSIP; and (b) an increase of the authorized capital stock, in its variable part, for the amount of Ps1,258,407.08, through the issuance of 453,217,080 common shares, nominative and without par value, of which 302,144,720 would be Series A shares and 151,072,360 would be Series B shares, with the same rights and obligations as those currently outstanding, to be subscribed and issued through a public offering or private subscription, both in Mexico and abroad, and/or through the issuance of convertible securities into shares. The capital stock increases were made at a theoretical value of Ps0.00277661 per share.
At the annual ordinary general shareholders’ meeting of Cemex, S.A.B. de C.V., held on March 28, 2019, Cemex, S.A.B. de C.V. declared a cash dividend payment in the amount of Ps150 million, paid in two equal installments, in June 2019 and December 2019. On March 28, 2019, Cemex, S.A.B. de C.V. approved (a) a decrease of our capital stock, in its variable part, for the amount of Ps5,477,536.94, through the cancellation of 1,972,742,640 ordinary treasury shares, nominative and without par value, of which 1,315,161,760 were Series A shares and 657,580,880 were Series B shares, which supported the issuance of convertible debentures issued in March 2011 and that matured in March 2018; (b) a decrease of our capital stock, in its variable part, for the amount of Ps1,279,493.15, through the cancellation of 460,811,259 shares of our own common stock, ordinary, nominative and without par value, of which 307,207,506 were Series A shares and 153,603,753 were Series B shares, which were acquired through the repurchase program in the fiscal year 2018; and (c) an increase of our capital stock, in its variable part, for the amount of Ps416,491.50, through the issuance of 150,000,000 ordinary shares, nominative and without par value, of which 100,000,000 would be Series A shares and 50,000,000 would be Series B shares, with the same characteristics and the same rights as those currently outstanding, in order to preserve the rights of the holders of the debentures pursuant to the convertible debentures issuance acts. The capital stock decreases and increases were made at a theoretical value of Ps0.00277661 per share.
On March 26, 2020, we approved (a) a decrease in our capital stock, in its variable part, for the amount of Ps1,313,614.19, through the cancellation of 473,100,000 shares of common stock, ordinary, nominative and without par value, of which 315,400,000 would be Series A shares and 157,700,000 would be Series B shares, which were acquired through the repurchase program for the fiscal year 2019; (b) a decrease in our capital stock, in its variable part, for the amount of Ps82,708.48, through the cancellation of 29,787,576 treasury shares, common, nominative and without par value, of which 19,858,384 were Series A shares and 9,929,192 were Series B shares, which supported the issuance of the November 2019 Mandatory Convertible Mexican Peso Notes, and which remain in treasury after their settlement at maturity; and (c) a decrease in our capital stock, in its variable part, for the amount of Ps3,546,912.00, through the cancellation of 1,277,425,350 treasury shares, common, nominative and without par value, of which 851,616,900 are Series A shares and 425,808,450 are Series B shares, which supported the issuance of the convertible notes issued in March 2015, with an aggregate principal amount of $521 million, that matured on March 15, 2020, and which as of December 31, 2020, remained in treasury after their liquidation at maturity. Decreases in capital stock were made at a theoretical value of Ps0.00277661 per share.
At our annual ordinary general shareholders’ meeting held on March 25, 2021, we approved (a) a decrease in our capital stock, in its variable part, for the amount of Ps3,150,021.51, through the cancellation of 1,134,484,680 shares owned, ordinary, nominative and without par value, of which 756,323,120 were Series A shares and 378,161,560 were Series B shares, which were acquired through the repurchase program for the fiscal year 2020; and (b) a decrease in our capital stock, in its variable part, for the amount of Ps9,466,882.27, through the cancellation of 3,409,510,974 treasury shares, common, nominative and without par value, of which 2,273,007,316 were Series A shares and 1,136,503,658 were Series B shares, which supported new issues of
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convertible securities and/or to be subscribed and issued through public offering or private subscription, both in Mexico and abroad. The capital stock reductions were made at a theoretical value of Ps0.00277661 per share.
During 2021, Cemex did not use the repurchase program authorized at Cemex, S.A.B. de C.V.’s ordinary general shareholders’ meeting held on March 26, 2020 and March 25, 2021. As a result, as no repurchases of CPOs took place during 2021, Cemex, S.A.B. de C.V.’s ordinary general shareholders’ meeting held on March 24, 2022 did not include on its agenda the cancellation of shares repurchased by Cemex, S.A.B. de C.V.
During 2022, under the repurchase programs authorized at Cemex, S.A.B. de C.V.’s ordinary general shareholders’ meeting held on March 25, 2021 and March 24, 2022, Cemex, S.A.B. de C.V. repurchased 220.6 million CPOs, at a weighted average price in Mexican pesos equivalent to $0.5026 per CPO, which was equivalent to an amount of $110.9 million. The shares repurchased during 2022 under such repurchase programs were proposed and subsequently approved for cancellation at Cemex, S.A.B. de C.V.’s annual ordinary general shareholders’ meeting held on March 23, 2023.
Cemex, S.A.B. de C.V. did not declare a dividend for fiscal years 2021 or 2022. See “Item 8—Financial Information—Dividends” for a description of Cemex, S.A.B. de C.V.’s policy on dividend distributions and dividend restrictions. As of December 31, 2022, Cemex, S.A.B. de C.V.’s common stock was represented as follows:
| 2022 | ||||||||
| Shares(1) |
Series A(2) | Series B(2) | ||||||
| Subscribed and paid shares |
29,016,656,496 | 14,508,328,248 | ||||||
| Unissued shares authorized for stock compensation programs |
881,442,830 | 440,721,415 | ||||||
|
|
|
|
|
|||||
| 29,898,099,326 | 14,949,049,663 | |||||||
| (1) | As of December 31, 2022, 13,068,000,000 shares correspond to the fixed portion, and 32,441,076,423 shares correspond to the variable portion. |
| (2) | Series A or Mexican shares must represent at least 64% of Cemex, S.A.B. de C.V.’s capital stock and Series B or free subscription shares must represent at most 36% of Cemex, S.A.B. de C.V.’s capital stock. |
Material Contracts
For a description of the material terms relating to the Notes, see “Item 5—Operating and Financial Review and Prospects—Summary of Material Contractual Obligations and Commercial Commitments—Notes.”
For a description of the material terms relating to the 2022 EUR Credit Agreement, see “Item 5—Operating and Financial Review and Prospects —Summary of Material Contractual Obligations and Commercial Commitments—2022 EUR Credit Agreement.”
For a description of the material terms relating to the 5.125% Subordinated Notes, see “Item 5—Operating and Financial Review and Prospects—Summary of Material Contractual Obligations and Commercial Commitments—Subordinated Notes.”
Exchange Controls
Not applicable.
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Taxation
Mexican Tax Considerations
General
The following is a summary of certain Mexican federal income tax considerations relating to the ownership and disposition of Cemex, S.A.B. de C.V.’s CPOs or ADSs.
This summary is based on provisions of the Mexican Federal Income Tax Law (Ley del impuesto Sobre la Renta, or the “Mexican Income Tax Law”) in effect on the date hereof, which is subject to change (possibly with retroactive effect) or to new or different interpretations, which could affect the continued validity or correctness of this summary. This summary is limited to non-residents of Mexico, as defined below, who own Cemex, S.A.B. de C.V.’s CPOs or ADSs. This summary does not constitute tax advice and does not address all aspects of Mexican Income Tax Law. This summary does not describe any tax consequences arising under the laws, rules or regulations of any state or municipality of Mexico. Holders should consult their tax counsel as to the tax consequences that the purchase, ownership and disposition of Cemex, S.A.B. de C.V.’s CPOs or ADSs may have.
Tax residency is a highly technical definition that involves the application of a number of factors that are specified in the Mexican Tax Code (Código Fiscal de la Federación). An individual is a resident of Mexico if he or she has established his or her home in Mexico. If the individual also has a home in another country, he or she will be considered a resident of Mexico if his or her center of vital interests is in Mexico. Under Mexican law, an individual’s center of vital interests is in Mexico if, among other things:
| • | more than 50% of the individual’s total income in the calendar year comes from Mexican sources; or |
| • | the individual’s main center of professional activities is in Mexico. |
A Mexican national that is employed by the Mexican government is deemed resident of Mexico, even if his or her center of vital interests is located outside of Mexico. Unless otherwise proven, Mexican nationals are deemed residents of Mexico for tax purposes.
A legal entity is a resident of Mexico if it is organized under the laws of Mexico or if it maintains the principal administration of its business or the effective location of its management in Mexico. A Mexican citizen is presumed to be a resident of Mexico for tax purposes unless such person can demonstrate otherwise. If a legal entity or an individual is deemed to have a permanent establishment in Mexico for tax purposes, all income attributable to such permanent establishment will be subject to Mexican taxes, in accordance with relevant tax provisions.
A non-resident of Mexico is a legal entity or individual that does not satisfy the requirements to be considered a resident of Mexico for Mexican tax purposes.
Taxation of Dividends
Dividends from earnings generated before January 1, 2014, either in cash or in any other form, paid to non-residents of Mexico with respect to Series A shares or Series B shares represented by the CPOs (or in the case of holders who hold CPOs represented by ADSs), will not be subject to withholding tax in Mexico.
As a result of the enactment of certain tax provisions in Mexico, as of January 1, 2014, dividends in cash from identified pre-tax retained earnings generated after January 1, 2014 will be subject to a 10% withholding tax. This tax is considered as a definitive payment.
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Disposition of CPOs or ADSs
As a result of the enactment of certain tax provisions in Mexico, as of January 1, 2014, in the case of Mexican individuals, capital gains on the sale or other disposition of shares issued by Mexican companies on the MSE will be subject to a 10% withholding tax, which will be withheld by the intermediary acting as a withholding agent.
Under Mexican tax law, gains on the sale or disposition of CPOs or ADSs by a holder who is a non-resident of Mexico will not be subject to Mexican income tax, to the extent such sale is carried out through the MSE or other recognized securities market, as determined by Mexican tax authorities, and the non-resident’s country of tax residency has a tax treaty in force with Mexico. An affidavit stating that the non-resident of Mexico is entitled to tax treaty benefits should be delivered to the intermediary operating the disposition. Gains realized on sales or other dispositions of CPOs or ADSs by non-residents of Mexico made in other circumstances would be subject to a 10% capital gain withholding tax.
In addition, under the terms of the Convention Between the United States and Mexico for Avoidance of Double Taxation and Prevention of Fiscal Evasion with Respect to Income Taxes, and a protocol thereto (together, the “Tax Treaty”), gains obtained by a U.S. Holder (as defined below) eligible for benefits under the Tax Treaty on the disposition of CPOs or ADSs will generally not be subject to Mexican tax; provided that such gains are not attributable to a permanent establishment of such U.S. Holder in Mexico and that the eligible U.S. Holder did not own, directly or indirectly, 25% or more of our outstanding stock during the 12-month period preceding the disposition. Furthermore, in the case of non-residents of Mexico eligible for the benefits of a tax treaty, gains derived from the disposition of ADSs or CPOs may also be exempt, in whole or in part, from Mexican taxation under a treaty to which Mexico is a party.
The term “U.S. Holder” shall have the same meaning ascribed below under the section “Item 10—Additional Information—U.S. Federal Income Tax Considerations.”
As of January 1, 2022, transfers of shares issued by Mexican entities between non-residents of Mexico should be informed to the Mexican Tax Authorities by the Mexican issuer entity within the following month of the transaction. However, this new obligation is not applicable to shares or CPOs traded in the MSE.
Estate and Gift Taxes
There are no Mexican inheritance or succession taxes applicable to the ownership, transfer or disposition of ADSs or CPOs by holders that are non-residents of Mexico, although gratuitous transfers of CPOs may, in some circumstances, cause a Mexican federal tax to be imposed upon a recipient. There are no Mexican stamp, issue, registration or similar taxes or duties payable by holders of ADSs or CPOs.
U.S. Federal Income Tax Considerations
General
The following is a summary of U.S. federal income tax considerations generally applicable to the ownership and disposition of Cemex, S.A.B. de C.V.’s CPOs and ADSs.
This summary is limited to U.S. Holders who hold CPOs or ADSs as “capital assets” (generally, property held for investment) for U.S. federal income tax purposes. This summary is based on the U.S. Internal Revenue Code of 1986, as amended, U.S. Treasury Regulations promulgated thereunder (“Treasury Regulations”), administrative pronouncements, judicial decisions and other relevant authorities, all as in effect as of the date thereof and all of which are subject to change, possibly with retroactive effect.
This summary does not address U.S. federal estate, gift or other non-income tax considerations, the alternative minimum tax, the Medicare tax on certain net investment income, or any state, local or non-U.S. tax
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considerations, relating to the ownership or disposition of CPOs or ADSs, nor does it address all aspects of U.S. federal income taxation that may be relevant to a particular U.S. Holder in light of its particular circumstances or that may be relevant to U.S. Holders subject to special rules under U.S. federal income tax law, such as banks and other financial institutions, real estate investment trusts, regulated investment companies, insurance companies, dealers in securities or currencies, traders in securities that elect to use a mark-to-market method of accounting, former citizens or long-term residents of the United States, tax-exempt entities, persons who actively or constructively own 10% or more of our voting stock (by vote or value), persons that acquire CPOs or ADSs pursuant to any employee share option or otherwise as compensation, persons that hold CPOs or ADSs as part of a straddle, hedge, conversion, constructive sale or other integrated transaction, or persons whose functional currency is not the Dollar.
For purposes of this summary, a “U.S. Holder” means a beneficial owner of CPOs or ADSs, that is, for U.S. federal income tax purposes:
| • | a citizen or individual resident of the United States.; |
| • | a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) that is created or organized in or under the laws of United States, any state thereof of the District of Columbia; |
| • | an estate the income of which is subject to U.S. federal income tax regardless of its source; or |
| • | a trust if (i) a U.S. court is able to exercise primary supervision over its administration and one or more U.S. persons have the authority to control all of its substantial decisions or (ii) it has a valid election in effect under applicable Treasury Regulations to be treated as a U.S. person. |
If a partnership (including any entity or arrangement treated as a partnership for U.S. federal income tax purposes) is the beneficial owner of CPOs or ADSs, the U.S. federal income tax treatment of a partner in such partnership will generally depend upon the status of the partner and the activities of the partnership. Partnerships that hold CPOs or ADSs and their partners should consult their tax advisors regardingan investment in CPOs or ADSs.
Prospective investors should consult their tax advisors with respect to the U.S. federal, state, local and non-U.S. income and other tax considerations relevant to the ownership and disposition of CPOs or ADSs in light of their particular circumstances.
Ownership of CPOs or ADSs
In general, for U.S. federal income tax purposes, U.S. Holders who own ADSs will be treated as the beneficial owners of the CPOs represented by those ADSs, and each CPO will represent a beneficial interest in two Series A shares and one Series B share.
Distributions
The gross amount of any distribution with respect to the Series A shares or Series B shares represented by CPOs, including CPOs represented by ADSs (without reduction for Mexican withholding tax) will generally be subject to tax as ordinary dividend income to the extent paid out of our current or accumulated earnings and profits, as determined under U.S. federal income tax principles, and will be includible in the gross income of a U.S. Holder on the day actually or constructively received. Distributions in excess of our current or accumulated earnings and profits will first be treated as a tax-free return of capital to the extent of the U.S. Holder’s adjusted tax basis in the CPOs or ADSs, as applicable, and thereafter generally as capital gain. Any such dividend will not be eligible for the dividends-received deduction allowed to corporate U.S. Holders. Because we don’t intend to determine our earnings and profits on the basis of U.S. federal income tax principles, any distributions we pay will generally be treated as dividends for U.S. federal income tax purposes.
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The gross amount of any dividends paid in Mexican Pesos will be includible in the income of a U.S. Holder in a Dollar amount calculated by reference to the exchange rate in effect the day the Mexican Pesos are actually or constructively received by the CPO trustee or successor thereof whether or not the Mexican Pesos are converted into Dollars on that day. Generally, any gain or loss resulting from currency exchange fluctuations during the period from the date the dividend payment is includible in income to the date such payment is converted into Dollars will be treated as ordinary income or loss. Such gain or loss will generally be income from sources within the United States for foreign tax credit limitation purposes.
A non-corporate U.S. Holder will generally be subject to tax on dividend income received on the CPOs or ADSs at the lower capital gains tax rate applicable to “qualified dividend income,” provided that certain holding period requirements are met. “Qualified dividend income” includes dividends paid on shares of “qualified foreign corporations” if, among other things: (i) the shares of the foreign corporation are readily tradable on an established securities market in the United States, or (ii) the foreign corporation is eligible with respect to substantially all of its income for the benefits of a comprehensive income tax treaty (the “Treaty”) with the United States which contains an exchange of information program.
We believe that we are a “qualified foreign corporation” because (i) the ADSs trade on the New York Stock Exchange and (ii) we are eligible for the benefits of the Treaty, which constitutes a comprehensive income tax treaty with the United States which includes an exchange of information program. Accordingly, we believe that any dividends we pay should constitute “qualified dividend income” for U.S. federal income tax purposes. However, we cannot assure you that we will continue to be considered a “qualified foreign corporation” or that our dividends will continue to be “qualified dividend income.”
For U.S. foreign tax credit purposes, dividends received on CPOs or ADSs shares will generally be treated as income from foreign sources and will generally constitute passive category income. Depending on the U.S. Holder’s individual facts and circumstances and subject to certain conditions and limitations, a Treaty-eligible U.S. Holder may be eligible to claim a foreign tax credit in respect of any Mexican income taxes pair or withheld with respect to dividends on CPOs or ADSs to the extent such taxes are nonrefundable under the Treaty. Alternatively, a U.S. Holder may elect to deduct such taxes in computing its taxable income for U.S. federal income tax purposes. A U.S. Holder’s election to deduct foreign taxes instead of claiming foreign tax credits applies to all creditable foreign income taxes paid or accrued in the relevant taxable year. The rules regarding foreign tax credits and the deductibility of foreign taxes are complex. U.S. Holders should consult their tax advisors regarding the availability of foreign tax credits and the deductibility of foreign taxes in light of their particular circumstances.
Sale or Other Disposition of CPOs or ADSs
A U.S. Holder will generally recognize gain or loss on the sale or other disposition of CPOs or ADSs in an amount equal to the difference between the amount realized on the disposition and the U.S. Holder’s adjusted tax basis in the CPOs or ADSs. Any such gain or loss will generally be long-term capital gain or loss if the U.S. Holder’s holding period for the CPOs or ADSs exceeds one year at the time of the disposition. Long-term capital gains of individuals and certain other non-corporate U.S. Holders are generally eligible for a reduced rate of taxation. The deductibility of capital losses may be subject to limitations.
Gain recognized by a U.S. Holder on the sale or other disposition of CPOs or ADSs will generally be treated as from sources within the United States for U.S. foreign tax credit purposes. Consequently, a U.S. Holder may not be able to claim a credit for any Mexican or other non-U.S. tax imposed on such gain unless the credit can be applied (subject to applicable limitations) against tax due on other income treated as derived from foreign sources. In addition, under recently issued Treasury Regulations, it is possible that a U.S. Holder may not be entitled to claim a U.S. foreign tax credit with respect to any Mexican withholding tax imposed on gain recognized on a sale or other disposition of CPOs or ADSs unless the U.S. Holder is eligible for, and properly claims, the benefits of the Tax Treaty, pursuant to which the U.S. Holder may treat such gain as Mexican source
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for U.S. foreign tax credit limitation purposes. The rules governing the U.S. foreign tax credit are complex and the application thereof depends in large part on the U.S. Holder’s individual facts and circumstances. Accordingly, U.S. Holders should consult their tax advisors regarding the availability of the U.S. foreign tax credit (or a deduction in lieu of the U.S. foreign tax credit) in their particular circumstances, as well as their eligibility for benefits under the Tax Treaty and the effects of the recently issued Treasury Regulations.
THE PRECEDING SUMMARY OF U.S. FEDERAL INCOME TAX CONSIDERATIONS IS INTENDED FOR GENERAL INFORMATION ONLY AND DOES NOT CONSTITUTE TAX ADVICE. U.S. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS AS TO THE U.S. FEDERAL, STATE, LOCAL, AND NON-U.S. TAX CONSIDERATIONS GENERALLY APPLICABLE TO THE OWNERSHIP AND DISPOSITION OF OUR CPOs OR ADSs IN LIGHT OF THEIR PARTICULAR CIRCUMSTANCES.
Documents on Display
We are subject to the informational requirements of the Exchange Act and, in accordance with these requirements, file reports and information statements and other information with the SEC. These reports and information statements and other information filed by us with the SEC are available at the SEC’s website www.sec.gov.
In reviewing the agreements included as exhibits to this annual report, please remember they are included to provide you with information regarding their terms and are not intended to provide any other factual or disclosure information about us or the other parties to the agreements.
The agreements may contain representations and warranties by each of the parties to the applicable agreement. These representations and warranties have been made solely for the benefit of the other parties to the applicable agreement and:
| • | should not in all instances be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate; |
| • | have been qualified by disclosures that were made to the other party in connection with the negotiation of the applicable agreement, which disclosures are not necessarily reflected in the agreement; and |
| • | may apply standards of materiality in a way that is different from what may be viewed as material to you or other investors; |
| • | and were made only as of the date of the applicable agreement or such other date or dates as may be specified in the agreement and are subject to more recent developments. |
Accordingly, these representations and warranties may not describe the actual state of affairs as of the date they were made or at any other time.
Item 11—Quantitative and Qualitative Disclosures About Market Risk
See “Item 5—Operating and Financial Review and Prospects—Quantitative and Qualitative Market Disclosure.”
Item 12—Description of Securities Other than Equity Securities
Item 12A—Debt Securities
Not applicable.
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Item 12B—Warrants and Rights
Not applicable.
Item 12C—Other Securities
Not applicable.
Item 12D—American Depositary Shares
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Depositary Fees and Charges
Under the terms of the Deposit Agreement for Cemex, S.A.B. de C.V.’s ADSs, an ADS holder may have to pay the following service fees to the depositary:
| Services |
Fees | |
| Issuance of ADSs upon deposit of eligible securities |
Up to 5¢ per ADS issued. | |
| Surrender of ADSs for cancelation and withdrawal of deposited securities |
Up to 5¢ per ADS surrendered. | |
| Exercise of rights to purchase additional ADSs |
Up to 5¢ per ADS issued. | |
| Distribution of cash (i.e., upon sale of rights and other entitlements) |
Up to 2¢ per ADS held. |
An ADS holder also is responsible to pay fees and expenses incurred by the ADS depositary and taxes and governmental charges including, but not limited to:
| • | transfer and registration fees charged by the registrar and transfer agent for eligible and deposited securities, such as upon deposit of eligible securities and withdrawal of deposited securities; |
| • | expenses incurred for converting foreign currency into Dollars; |
| • | expenses for cable, telex and fax transmissions and for delivery of securities; |
| • | expenses incurred in connection with compliance with exchange control regulations and other applicable regulatory requirements; |
| • | fees and expenses incurred in connection with the delivery of deposited securities; and |
| • | taxes and duties upon the transfer of securities, such as when eligible securities are deposited or withdrawn from deposit. |
We have agreed to pay some of the other charges and expenses of the ADS depositary. Note that the fees and charges that a holder of ADSs is required to pay may vary over time and may be changed by us and by the ADS depositary. ADS holders will receive notice of the changes. The fees described above may be amended from time to time.
Depositary Payments for the Year Ended December 31, 2022
In 2022, we received $2,203,506.62 (after applicable U.S. taxes and including payments to third parties) from our Depositary Bank, Citibank, N.A., to reimburse us for contributions towards our investor relations activities (including but not limited to investor meetings, conferences and fees to investor relations service vendors) and other miscellaneous expenses related to the listing of our ADSs on the NYSE.
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PART II
Item 13—Defaults, Dividend Arrearages and Delinquencies
None.
Item 14—Material Modifications to the Rights of Security Holders and Use of Proceeds
None.
Item 15—Controls and Procedures
Disclosure Controls and Procedures
Our management has evaluated, with the participation of Cemex, S.A.B. de C.V.’s CEO and CFO, the effectiveness of our disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act) as of the end of the period covered by this annual report, and has concluded that our disclosure controls and procedures were effective as of December 31, 2022.
Management’s Annual Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act). Internal control over financial reporting refers to a process designed by, or under the supervision of, the CEO and CFO and effected by Cemex, S.A.B. de C.V.’s Board of Directors and our management to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and includes those policies and procedures that:
| • | pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of our assets; |
| • | provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that our receipts and expenditures are being made only in accordance with authorizations of our management and members of Cemex, S.A.B. de C.V.’s Board of Directors; and |
| • | provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets that could have a material effect on our financial statements. |
Under the supervision and with the participation of our management, including the CEO and CFO and principal financial and accounting officers, we conducted an evaluation of the effectiveness of our internal control over financial reporting as of December 31, 2022, using the criteria established in “Internal Control—Integrated Framework (2013)” issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Based on this evaluation, our management has concluded that our internal control over financial reporting was effective as of December 31, 2022.
Attestation Report of the Independent Registered Public Accounting Firm
The report on the audit of the effectiveness of our internal control over financial reporting issued by KPMG Cárdenas Dosal, S.C., a registered public accounting firm appears on page F-110 of this annual report.
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Changes in Internal Control Over Financial Reporting
We have not identified changes in our internal control over financial reporting during 2022 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Item 16—RESERVED
Item 16A—Audit Committee Financial Expert
Cemex, S.A.B. de C.V.’s Board of Directors has determined that it has at least one “audit committee financial expert” (as defined in Item 16A of Form 20-F) serving on its Audit Committee. Mr. Everardo Elizondo Almaguer meets the requisite qualifications.
Item 16B — Code of Ethics
We have adopted a written code of ethics that applies to all board members, employees, including our principal executive officer, principal financial officer and principal accounting officer, third parties (including but not limited to customers, suppliers, and contractors) and other stakeholders. All of our employees are expected to comply with this code in their daily interactions.
Our code of ethics provides the following main guidelines:
| (i) | Our purpose and scope: we look to act with integrity in our day-to-day work. This is important for Cemex’s sustained success and to create a workplace in which our people can thrive. Our code of ethics aims to provide guidance on what is expected from all of us as part of Cemex; |
| (ii) | Our people: we believe our people are our competitive advantage and the reason for our success. Therefore, we aim to provide a great place to work, we encourage an atmosphere of openness, courage, generosity and respect, so that all employees feel free to come forward with their questions, ideas, and concerns; |
| (iii) | Health and safety in the workplace: we plan to prevent incidents and safeguard the health and safety of our workforce and are committed to carrying out our business activities in a safe and efficient manner to care for the well-being of all those on our sites and those who may be impacted by our activities; |
| (iv) | Human rights: we look to support and respect the protection of internationally proclaimed human rights principles and we do not tolerate any violation of human rights in our business, our supply chain or partnerships; |
| (v) | Harassment and workplace respect: we look to foster an environment of mutual respect, and we promote supporting and encouraging each other; |
| (vi) | Diversity and inclusion: we seek to support differences and provide an inclusive work environment for everyone. Recruitment, promotion, training, compensation and benefits should be based on ability, career experience and alignment with our values; |
| (vii) | Customer relations: we work to be our customers’ best option and aim to conduct our business dealings fairly, professionally and with integrity. We expect our customers to act with the same integrity; |
| (viii) | Supplier relations: we look to manage our supplier relationships with honesty, respect and integrity, offering equal opportunities for all parties; |
| (ix) | Government relations: our operations require a wide range of interactions with government agencies in many countries; these agencies may act as regulators, customers, suppliers, stockholders and/or promoters. We seek to always conduct our interactions with these agencies in a manner consistent with our values, with a particular emphasis on integrity; |
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| (x) | Community relations: we are committed to promoting and contributing to the development of our communities by preserving the environment, fostering mutually beneficial relationships and maintaining open lines of communication. When considering Cemex’s participation in economic, social, and environmental programs, we should always comply with the law; |
| (xi) | Environment: our business should be carried out in an environmentally responsible and sustainable manner, aiming to mitigate the environmental and social impacts of our business; |
| (xii) | Antitrust compliance: we operate in many countries and are subject to different antitrust laws and regulations. Therefore, we are committed to conducting our business activities in compliance with local laws and regulations, and our policies; |
| (xiii) | Anti-corruption: we forbid our personnel from promising or providing anything of value to government officials or any third parties to secure any undue advantage or unduly influence any decisions; |
| (xiv) | Preventing money laundering: in order to prevent money laundering, we must recognize the signs of money laundering and procure that we do not facilitate or support the process of covering up the source of illicit funds of criminal activities through our legitimate business; |
| (xv) | Conflicts of interest and corporate opportunities: our employees, officers and directors have an obligation to conduct themselves in an honest and ethical manner and to act in our best interest. Our employees, officers and directors should not engage in situations that present or could present a potential or actual conflict between their personal interests and our interests; |
| (xvi) | Gifts and hospitalities: we avoid accepting or giving hospitalities of any kind that may influence, or appear to compromise, decision-making on current or future negotiations. We should never seek or structure a negotiation on the basis of any gift, service or hospitality from a customer, supplier, consultant, service provider or other third-party; |
| (xvii) | Use of Cemex’s assets: employees should never use Cemex assets for their own benefit, and seek that the Company’s assets are not misused by others, stolen or damaged. When using company devices it is prohibited for employees to create, view, store, request or distribute anything of an offensive, illegal or inappropriate nature; |
| (xviii) | Political activities: we acknowledge and respect the right of our employees to participate in activities external to the company, such as politics; provided that they are legal in their jurisdiction. Employees are not allowed to conduct political activities at company facilities, use company resources for these activities or engage in these activities on company time. We can make political contributions as long as the contributions are allowed by local law and pre-approved internally; |
| (xix) | Data privacy and protection: we are committed to protecting the confidentiality and integrity of personal data to foster trustworthy business relationships. We aim to process personal data fairly and lawfully and provide access to such data within our organization only on a need-to- know basis; |
| (xx) | Insider trading: we should never transact with Cemex securities while in possession of material non-public information about the company. We should never “tip” others or share material non-public information even if we do not intend to obtain profits for ourselves or others; |
| (xxi) | Intellectual property: we seek the protection of Cemex’s intellectual property and capture innovation to achieve added value and freedom to operate. Cemex recognizes and respects the intellectual property of third parties and intends to prevent and avoid consequences of potential infringement of third parties’ rights; |
| (xxii) | Accurate records: we look to provide our stakeholders with correct and complete information in a timely manner. Anyone responsible for financial records, or any other Cemex records or reporting, must seek that those records accurately reflect our business activities, are supported by evidence, and are complete, accurate, and timely; and |
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| (xxiii) | Communication and use of social media: we should not make any statements outside of Cemex about company performance, initiatives or any other internal matters. We look to keep all confidential matters safe. |
We promote awareness and enforcement of our code of ethics through our ethics committees, training programs and secured internal communications channels. We periodically evaluate and update the provisions of our code of ethics.
You may view our code of ethics in the corporate governance section of our website (www.cemex.com), or you may request a copy of our code of ethics, at no cost, by writing to or calling us at:
Cemex, S.A.B. de C.V. Avenida Ricardo Margáin Zozaya #325
Colonia Valle del Campestre
San Pedro Garza García, Nuevo León, 66265, México
Attn: Luis Hernández Echávez
Telephone: +52 81 8888-8888
Item 16C—Principal Accountant Fees and Services
Audit Fees: KPMG Cárdenas Dosal, S.C. in Mexico and KPMG firms worldwide charged us $15 million in fiscal year 2022 in connection with the professional services rendered for the audit of our annual financial statements and services normally provided by them relating to statutory and regulatory filings or engagements. In fiscal year 2021, KPMG Cárdenas Dosal, S.C. in Mexico and KPMG firms worldwide charged us $14 million for these services.
Audit-Related Fees: KPMG Cárdenas Dosal, S.C. in Mexico and KPMG firms worldwide charged us $1 million in fiscal year 2022 for assurance and related services reasonably related to the performance of our audit. In fiscal year 2021, KPMG Cárdenas Dosal, S.C. in Mexico and KPMG firms worldwide charged us $1 million for audit-related services.
Tax Fees: KPMG Cárdenas Dosal, S.C. in Mexico and KPMG firms worldwide charged us $1 million in fiscal year 2022 for tax compliance, tax advice and tax planning. In fiscal year 2021, KPMG Cárdenas Dosal, S.C. in Mexico and KPMG firms worldwide charged us $1 million for tax-related services.
All other fees: KPMG Cárdenas Dosal, S.C. in Mexico and KPMG firms worldwide charged us $1 million in fiscal year 2022 for products and services other than those comprising audit fees, audit-related fees and tax fees. In fiscal year 2021, KPMG Cárdenas Dosal, S.C. in Mexico and KPMG firms worldwide charged us $1 million for products and services in this category. These fees relate mainly to services provided by KPMG to us with respect to our sustainability report assurance, technical accounting matters and other services.
Audit Committee Pre-Approval Policies and Procedures
Our Audit Committee is responsible for, among other things, the appointment, compensation and oversight of our independent external auditors. To assure the independence of our independent external auditors, our Audit Committee pre-approves annually a catalog of specific audit and non-audit services in the categories Audit Services, Audit-Related Services, Tax-Related Services and Other Services that may be performed by our auditors, as well as the budgeted fee levels for each of these categories. All other permitted services must receive a specific approval from our Audit Committee. Our external auditor periodically provides a report to our Audit Committee in order for our Audit Committee to review the services that our external auditor is providing, as well as the status and cost of those services.
During 2022, there were no services provided to us by our external auditors that were performed pursuant to the de minimis exception.
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Item 16D—Exemptions from the Listing Standards for Audit Committees
Not applicable.
Item 16E—Purchases of Equity Securities by the Issuer and Affiliated Purchasers
Not applicable.
Item 16F—Change in Registrant’s Certifying Accountant
Not applicable.
Item 16G—Corporate Governance
Section 303A.11 of the NYSE Listed Company Manual (“LCM”) requires that listed foreign private issuers, such as Cemex, disclose any significant ways in which their corporate governance practices differ from those followed by U.S. companies under NYSE listing standards.
Cemex’s corporate governance practices are governed by its by-laws, by the corporate governance provisions set forth in the Mexican Securities Market Law (Ley del Mercado de Valores), the Mexican Regulation for Issuers (Disposiciones de Carácter General aplicables a las Emisoras de Valores y a otros Participantes del Mercado de Valores) issued by the Mexican Banking and Securities Commission (Comisión Nacional Bancaria y de Valores) and the MSE Rules (Reglamento Interior de la Bolsa Mexicana de Valores) and by applicable U.S. securities laws. Cemex is also subject to the rules of the NYSE to the extent they apply to foreign private issuers. Except for those specific rules, foreign private issuers are permitted to follow home country practice in lieu of the provisions of Section 303A of the LCM.
Cemex, on a voluntary basis, also complies with the Mexican Code of Best Corporate Practices (Código de Mejores Prácticas Corporativas) which, as indicated below, was promulgated by a committee established by the Mexican Corporate Coordination Board (Consejo Coordinador Empresarial). The Mexican Corporate Coordination Board provides recommendations for better corporate governance practices for listed companies in Mexico, and the Mexican Code of Best Corporate Practices has been endorsed by the Mexican Banking and Securities Commission.
The following is a summary of significant ways in which our corporate governance practices differ from those required to be followed by U.S. domestic companies under the NYSE’s listing standards.
| NYSE LISTING STANDARDS | CEMEX CORPORATE GOVERNANCE PRACTICE | |
| 303A.01 |
||
| Listed companies must have a majority of independent directors. | Pursuant to the Mexican Securities Market Law, Cemex, S.A.B. de C.V. is required to have a board of directors with a maximum of 21 members, 25% of whom must be independent. Determination as to the independence of Cemex, S.A.B. de C.V.’s directors is made upon their election by Cemex, S.A.B. de C.V.’s shareholders at the corresponding meeting. As of December 31, 2022, Cemex, S.A.B. de C.V.’s Board of Directors had 12 members, of which 75% are independent under the Mexican Securities Market Law. As of the date of this annual report, Cemex, S.A.B. de C.V.’s Board of Directors has 13 members, of which 77% are independent under the Mexican Securities Market Law. | |
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| NYSE LISTING STANDARDS | CEMEX CORPORATE GOVERNANCE PRACTICE | |
| 303A.02 | ||
| A listed company’s board of directors must perform director independence tests and affirmatively determine a director has no material relationship with the listed company after broadly considering all relevant facts and circumstances. | The Mexican Securities Market Law sets forth, in article 26, the definition of “independence,” which differs from the one set forth in Section 303A.02 of the LCM. Generally, under the Mexican Securities Market Law, a director is not independent if such director is an employee or officer of the company or its subsidiaries; an individual that has significant influence over the company or its subsidiaries; a shareholder that is part of a group that controls the company; or, if there exist certain relationships between a company and a director, entities with which the director is associated or family members of the director. | |
| 303A.03 |
||
| Non-management directors must meet at regularly scheduled executive sessions without management. | Under Cemex, S.A.B. de C.V.’s by-laws and Mexican laws and regulations, our non-management and independent directors are not required to meet in executive sessions. Cemex, S.A.B. de C.V.’s Board of Directors must meet at least once every three months. | |
| 303A.04 | ||
| Listed companies must have a nominating/ corporate governance committee composed of independent directors. | Under Cemex, S.A.B. de C.V.’s by-laws and Mexican laws and regulations, we are not required to have and do not have a nominating/corporate governance committee. However, Cemex, S.A.B. de C.V.’s Corporate Practices and Finance Committee performs substantially similar functions as would be performed by a nominating/ corporate governance committee.
Cemex, S.A.B. de C.V.’s Corporate Practices and Finance Committee operates pursuant to the provisions of the Mexican Securities Market Law and Cemex, S.A.B. de C.V.’s by-laws. Cemex, S.A.B. de C.V.’s Corporate Practices and Finance Committee is composed of three independent directors.
Cemex, S.A.B. de C.V.’s Corporate Practices and Finance Committee is responsible for performing the role of a nomination and compensation committee, mainly by (1) evaluating the employment and compensation of the Chief Executive Officer and the Chairman of the Board of Directors and (2) reviewing the hiring and compensation policies for executive officers; reviewing related party transactions and any conflicts of interest; reviewing policies regarding use of corporate assets; reviewing unusual or material transactions; evaluating waivers granted to directors or executive officers regarding participation and benefitting of corporate opportunities; identification, evaluation and follow up on the main risks affecting the company and its subsidiaries; evaluating financial plans; reviewing the financial strategy and its implementation; evaluating merger and acquisitions opportunities as well as asset sales, including financial and related transactions; and carrying out other activities described under Mexican law. Cemex, S.A.B. de C.V.’s Corporate Practices and Finance Committee meets as required by Cemex, S.A.B. de C.V.’s by-laws and by Mexican laws and regulations. For more information on our Corporate Practices and Finance Committee, see “Item 6—Directors, Senior Management and Employees—Board Practices—The Audit Committee, the Corporate Practices and Finance Committee and Other Committees.” | |
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| NYSE LISTING STANDARDS | CEMEX CORPORATE GOVERNANCE PRACTICE | |
| 303A.05 | ||
| Listed companies must have a compensation committee composed of independent directors. | Under Cemex, S.A.B. de C.V.’s by-laws and Mexican laws and regulations, we are not required to have and do not have a compensation committee. However, Cemex, S.A.B. de C.V.’s Corporate Practices and Finance Committee performs substantially similar functions as would be performed by a compensation committee. For more information on Cemex, S.A.B. de C.V.’s Corporate Practices and Finance Committee, see “Item 6—Directors, Senior Management and Employees—Board Practices—The Audit Committee, the Corporate Practices and Finance Committee and Other Committees.” | |
| Compensation committee members must satisfy additional independence requirements specific to compensation committee membership. | See above. | |
| Listed companies must have an audit committee that satisfies the requirements of Rule 10A-3 under the Exchange Act. | Cemex, S.A.B. de C.V.’s Audit Committee operates pursuant to the provisions of the Mexican Securities Market Law and Cemex, S.A.B. de C.V.’s by-laws.
Cemex, S.A.B. de C.V.’s Audit Committee is composed of three independent members. According to Cemex, S.A.B. de C.V.’s by-laws and the Mexican Securities Market Law, all of the members must be independent.
Cemex, S.A.B. de C.V.’s Audit Committee is responsible for evaluating internal controls and procedures and identifying deficiencies; following up with corrective and preventive measures in response to any non-compliance with operation and accounting guidelines and policies; evaluating the performance of external auditors and analyzing the reports, opinions and other information issued by such external auditors; describing and valuing non-audit services performed by external auditors; reviewing financial statements and determining if their approval should be recommended to the Board of Directors; informing the Board of Directors of the state of the company’s internal controls, internal audit and accounting systems, including any breaches detected; supporting the Board of Directors in producing different reports submitted to the shareholders; assessing the effects of any modifications to the accounting policies approved during any fiscal year; overseeing measures adopted as a result of any observations made by shareholders, directors, executive officers, employees or any third parties with respect to accounting, internal controls and internal and external audit, as well as any complaints regarding management irregularities; supervising complaints raised by employees, third parties and other stakeholders to report ethical, corruption, and/or compliance matters utilizing confidential methods and other whistleblowing mechanisms; ensuring compliance by the Chief Executive Officer with the resolutions adopted by the shareholders and Board of Directors; and analyzing the risks identified by independent auditors, accounting, internal control and process assessment areas. | |
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| NYSE LISTING STANDARDS | CEMEX CORPORATE GOVERNANCE PRACTICE | |
| Cemex, S.A.B. de C.V.’s Board of Directors has determined that it has an “audit committee financial expert,” for purposes of the Sarbanes-Oxley Act of 2002, serving on its Audit Committee.
Cemex, S.A.B. de C.V.’s Audit Committee meets as required by Cemex, S.A.B. de C.V.’s by-laws and by Mexican laws and regulations. | ||
| 303A.09 | ||
| Listed companies must adopt and disclose corporate governance guidelines. | Under Cemex, S.A.B. de C.V.’s by-laws and Mexican laws and regulations, we are not required to adopt corporate governance guidelines, but, on an annual basis, we file a report with the MSE regarding our compliance with the Mexican Code of Best Corporate Practices. | |
| 303A.10 | ||
| Listed companies must adopt and disclose a code of business conduct and ethics for directors, officers and employees, and promptly disclose any waivers of the code for directors or executive officers. | Cemex, S.A.B. de C.V. has adopted and disclosed a written code of business conduct and ethics that applies to all of our directors, officers and employees. | |
| Equity compensation plans Equity compensation plans require shareholder approval, subject to limited exemptions. | Shareholder approval is not expressly required under Cemex, S.A.B. de C.V.’s by-laws for the adoption and amendment of an equity compensation plan. However, at our annual shareholders’ meeting held on April 5, 2018, Cemex, S.A.B. de C.V.’s shareholders resolved to extend our current stock program for our employees, officers and administrators until December 31, 2023. | |
Item 16H—Mine Safety Disclosure
The information concerning mine safety violations and other regulatory matters required by Section 1503(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act is included in Exhibit 15.1 to this annual report.
Item 16I—Disclosure Regarding Foreign Jurisdictions that Prevent Inspections
Not applicable.
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PART III
Item 17—Financial Statements
Not applicable.
Item 18—Financial Statements
See pages F-1 through F-106, incorporated herein by reference.
Item 19—Exhibits
303
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304
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| (a) | Incorporated by reference to the Registration Statement on Form F-4 of Cemex, S.A.B. de C.V. (Registration No. 333-10682), filed with the SEC on August 10, 1999. |
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| (b) | Incorporated by reference to the 2009 annual report on Form 20-F of Cemex, S.A.B. de C.V. filed with the SEC on June 30, 2010. |
| (c) | Incorporated by reference to the Registration Statement on Form F-6 of Cemex, S.A.B. de C.V. (Registration No. 333-174743), filed with the SEC on June 6, 2011. |
| (d) | Incorporated by reference to the 2014 annual report on Form 20-F of Cemex, S.A.B. de C.V. filed with the SEC on April 27, 2015. |
| (e) | Incorporated by reference to the 2015 annual report on Form 20-F of Cemex, S.A.B. de C.V. filed with the SEC on April 22, 2016. |
| (f) | Incorporated by reference to the 2016 annual report on Form 20-F of Cemex, S.A.B. de C.V. filed with the SEC on April 28, 2017. |
| (g) | Incorporated by reference to the 2018 annual report on Form 20-F of Cemex, S.A.B. de C. V. filed with the SEC on April 25, 2019. |
| (h) | Incorporated by reference to the 2019 annual report on Form 20-F of Cemex, S.A.B. de C. V. filed with the SEC on April 29, 2020. |
| (i) | Incorporated by reference to the 2020 annual report on Form 20-F of Cemex, S.A.B. de C. V. filed with the SEC on April 23, 2021. |
| (j) | Incorporated by reference to the 2021 annual report on Form 20-F of Cemex, S.A.B. de C. V. filed with the SEC on April 29, 2022. |
| (k) | Filed herewith. |
| (l) | This was a paper filing, and it is not available on the SEC website. |
In reviewing the agreements included as exhibits to this annual report, please remember they are included to provide you with information regarding their terms and are not intended to provide any other factual or disclosure information about us or the other parties to the agreements.
The agreements may contain representations and warranties by each of the parties to the applicable agreement. These representations and warranties have been made solely for the benefit of the other parties to the applicable agreement and:
| • | should not in all instances be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate; |
| • | have been qualified by disclosures that were made to the other party in connection with the negotiation of the applicable agreement, which disclosures are not necessarily reflected in the agreement; |
| • | may apply standards of materiality in a way that is different from what may be viewed as material to you or other investors; and |
| • | were made only as of the date of the applicable agreement or such other date or dates as may be specified in the agreement and are subject to more recent developments. |
Accordingly, these representations and warranties may not describe the actual state of affairs as of the date they were made or at any other time.
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SIGNATURES
Cemex, S.A.B. de C.V. hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this annual report on its behalf.
| Cemex, S.A.B. de C.V. | ||
| By: | /s/ Fernando Ángel González Olivieri | |
| Name: | Fernando Ángel González Olivieri | |
| Title: | Chief Executive Officer | |
Date: April 28, 2023
Table of Contents
CEMEX, S.A.B. de C.V. and Subsidiaries: |
||||
| F-2 | ||||
| F-3 | ||||
| F-4 | ||||
| F-5 | ||||
| F-6 | ||||
| F-7 | ||||
| F-107 | ||||
| F-110 |
Years ended December 31, |
||||||||||||||||
Notes |
2022 |
2021 |
2020 |
|||||||||||||
Revenues |
3 |
$ | ||||||||||||||
Cost of sales |
2.17, 5 |
( |
) | ( |
) | ( |
) | |||||||||
Gross profit |
||||||||||||||||
Operating expenses |
2.17, 6 |
( |
) | ( |
) | ( |
) | |||||||||
Operating earnings before other expenses, net |
2.1 |
|||||||||||||||
Other expenses, net |
7 |
( |
) | ( |
) | ( |
) | |||||||||
Operating earnings (loss) |
( |
) | ||||||||||||||
Financial expense |
8.1, 17 |
( |
) | ( |
) | ( |
) | |||||||||
Financial income and other items, net |
8.2 |
( |
) | ( |
) | |||||||||||
Share of profit of equity accounted investees |
14.1 |
|||||||||||||||
Earnings (loss) before income tax |
( |
) | ||||||||||||||
Income tax |
20 |
( |
) | ( |
) | ( |
) | |||||||||
Net income (loss) from continuing operations |
( |
) | ||||||||||||||
Discontinued operations |
4.2 |
( |
) | ( |
) | |||||||||||
CONSOLIDATED NET INCOME (LOSS) |
( |
) | ||||||||||||||
Non-controlling interest net income |
||||||||||||||||
CONTROLLING INTEREST NET INCOME (LOSS) |
$ |
( |
) | |||||||||||||
Basic earnings (loss) per share |
23 |
$ | ( |
) | ||||||||||||
Basic earnings (loss) per share from continuing operations |
23 |
$ | ( |
) | ||||||||||||
Diluted earnings (loss) per share |
23 |
$ | ( |
) | ||||||||||||
Diluted earnings (loss) per share from continuing operations |
23 |
$ | ( |
) | ||||||||||||
Years ended December 31, |
||||||||||||||||
Notes |
2022 |
2021 |
2020 |
|||||||||||||
CONSOLIDATED NET INCOME (LOSS) |
$ |
( |
) | |||||||||||||
Items that will not be reclassified subsequently to the statement of operations |
||||||||||||||||
Net actuarial gains (losses) from remeasurements of defined benefit pension plans |
19 |
( |
) | |||||||||||||
Effects from strategic equity investments |
14.2 |
( |
) | ( |
) | ( |
) | |||||||||
Income tax income (expense) recognized directly in other comprehensive income |
20 |
( |
) | ( |
) | |||||||||||
| ( |
) | |||||||||||||||
Items that are or may be reclassified subsequently to the statement of operations |
||||||||||||||||
Results from derivative financial instruments designated as cash flow hedges |
17.4 |
( |
) | |||||||||||||
Currency translation results of foreign subsidiaries |
21.2 |
( |
) | ( |
) | ( |
) | |||||||||
Income tax income (expense) recognized directly in other comprehensive income |
20 |
|||||||||||||||
| ( |
) | ( |
) | ( |
) | |||||||||||
Total items of other comprehensive income (loss), net |
( |
) | ( |
) | ( |
) | ||||||||||
TOTAL COMPREHENSIVE INCOME (LOSS) |
( |
) | ||||||||||||||
Non-controlling interest comprehensive income (loss) |
( |
) | ( |
) | ||||||||||||
CONTROLLING INTEREST COMPREHENSIVE INCOME (LOSS) |
$ |
( |
) | |||||||||||||
December 31, |
||||||||||||
Notes |
2022 |
2021 |
||||||||||
ASSETS |
||||||||||||
CURRENT ASSETS |
||||||||||||
Cash and cash equivalents |
9 |
$ | ||||||||||
Trade accounts receivable |
10 |
|||||||||||
Other accounts receivable |
11 |
|||||||||||
Inventories |
12 |
|||||||||||
Assets held for sale and other current assets |
13 |
|||||||||||
Total current assets |
||||||||||||
NON-CURRENT ASSETS |
||||||||||||
Investments in associates and joint ventures |
14.1 |
|||||||||||
Other investments and non-current accounts receivable |
14.2 |
|||||||||||
Property, machinery and equipment, net and assets for the right-of-use, |
15 |
|||||||||||
Goodwill and intangible assets, net |
16 |
|||||||||||
Deferred income tax assets |
20.2 |
|||||||||||
Total non-current assets |
||||||||||||
TOTAL ASSETS |
$ |
|||||||||||
LIABILITIES AND STOCKHOLDERS’ EQUITY |
||||||||||||
CURRENT LIABILITIES |
||||||||||||
Current debt |
17.1 |
$ | ||||||||||
Other current financial obligations |
17.2 |
|||||||||||
Trade payables |
||||||||||||
Income tax payable |
||||||||||||
Other current liabilities |
18.1 |
|||||||||||
Liabilities directly related to assets held for sale |
13 |
|||||||||||
Total current liabilities |
||||||||||||
NON-CURRENT LIABILITIES |
||||||||||||
Non-current debt |
17.1 |
|||||||||||
Other non-current financial obligations |
17.2 |
|||||||||||
Pensions and other post-employment benefits |
19 |
|||||||||||
Deferred income tax liabilities |
20.2 |
|||||||||||
Other non-current liabilities |
18.2 |
|||||||||||
Total non-current liabilities |
||||||||||||
TOTAL LIABILITIES |
||||||||||||
STOCKHOLDERS’ EQUITY |
||||||||||||
Controlling interest: |
||||||||||||
Common stock and additional paid-in capital |
21.1 |
|||||||||||
Other equity reserves and subordinated notes |
21.2 |
( |
) | ( |
) | |||||||
Retained earnings |
21.3 |
|||||||||||
Total controlling interest |
||||||||||||
Non-controlling interest |
21.4 |
|||||||||||
TOTAL STOCKHOLDERS’ EQUITY |
||||||||||||
TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY |
$ |
|||||||||||
Years ended December 31, |
||||||||||||||||
Notes |
2022 |
2021 |
2020 |
|||||||||||||
OPERATING ACTIVITIES |
||||||||||||||||
Consolidated net income (loss) |
$ |
( |
) | |||||||||||||
Discontinued operations |
( |
) | ( |
) | ||||||||||||
Net income (loss) from continuing operations |
( |
) | ||||||||||||||
Adjustments for: |
||||||||||||||||
Gain on sale of emission allowances |
2.19, 7 |
( |
) | |||||||||||||
Depreciation and amortization of assets |
5, 6 |
|||||||||||||||
Impairment losses of longed-lived assets |
7 |
|||||||||||||||
Share of profit of equity accounted investees |
14.1 |
( |
) | ( |
) | ( |
) | |||||||||
Results on sale of subsidiaries, other disposal groups and others |
( |
) | ( |
) | ( |
) | ||||||||||
Financial expense, financial income and other items, net |
||||||||||||||||
Income taxes |
20 |
|||||||||||||||
Changes in working capital, excluding income taxes |
( |
) | ( |
) | ||||||||||||
Cash flows provided by operating activities from continuing operations |
||||||||||||||||
Interest paid |
( |
) | ( |
) | ( |
) | ||||||||||
Income taxes paid |
( |
) | ( |
) | ( |
) | ||||||||||
Net cash flows provided by operating activities from continuing operations |
||||||||||||||||
Net cash flows provided by operating activities from discontinued operations |
||||||||||||||||
Net cash flows provided by operating activities |
||||||||||||||||
INVESTING ACTIVITIES |
||||||||||||||||
Purchase of property, machinery and equipment, net |
15 |
( |
) | ( |
) | ( |
) | |||||||||
Proceeds from disposal of subsidiaries and assets held for sale, net |
4, 14.1 |
|||||||||||||||
Proceeds from the sale of emission allowances |
2.19, 7 |
|||||||||||||||
Acquisition of intangible assets, net |
16.1 |
( |
) | ( |
) | ( |
) | |||||||||
Non-current assets and others, net |
( |
) | ( |
) | ||||||||||||
Cash flows provided by (used in) investing activities from continuing operations |
( |
) | ( |
) | ||||||||||||
Net cash flows provided by (used in) investing activities from discontinued operations |
( |
) | ( |
) | ||||||||||||
Net cash flows provided by (used in) investing activities |
( |
) |
( |
) |
||||||||||||
FINANCING ACTIVITIES |
||||||||||||||||
Proceeds from new debt instruments |
17.1 |
|||||||||||||||
Debt repayments |
17.1 |
( |
) | ( |
) | ( |
) | |||||||||
Issuance of subordinated notes |
21.2 |
|||||||||||||||
Other financial obligations, net |
17.2 |
( |
) | ( |
) | ( |
) | |||||||||
Share repurchase program |
21.1 |
( |
) | ( |
) | |||||||||||
Shares in trust for future deliveries under share-based compensation |
22 |
( |
) | |||||||||||||
Changes in non-controlling interests and repayment of perpetual debentures |
21.4 |
( |
) | ( |
) | ( |
) | |||||||||
Derivative financial instruments |
17.4 |
( |
) | |||||||||||||
Coupons on perpetual debentures and subordinated notes |
21.2, 21.4 |
( |
) | ( |
) | ( |
) | |||||||||
Non-current liabilities, net |
( |
) | ( |
) | ( |
) | ||||||||||
Net cash flows used in financing activities |
( |
) |
( |
) |
( |
) | ||||||||||
Increase (decrease) in cash and cash equivalents from continuing operations |
( |
) | ( |
) | ||||||||||||
Increase in cash and cash equivalents from discontinued operations |
||||||||||||||||
Foreign currency translation effect on cash |
( |
) | ||||||||||||||
Cash and cash equivalents at beginning of period |
||||||||||||||||
CASH AND CASH EQUIVALENTS AT END OF PERIOD |
9 |
$ |
||||||||||||||
Changes in working capital, excluding income taxes: |
||||||||||||||||
Trade receivables |
$ | ( |
) | ( |
) | |||||||||||
Other accounts receivable and other assets |
( |
) | ( |
) | ||||||||||||
Inventories |
( |
) | ( |
) | ||||||||||||
Trade payables |
||||||||||||||||
Other accounts payable and accrued expenses |
( |
) | ||||||||||||||
Changes in working capital, excluding income taxes |
$ |
( |
) |
( |
) |
|||||||||||
Notes |
Common stock |
Additional paid-in capital |
Other equity reserves and subordinated notes |
Retained earnings |
Total controlling interest |
Non-controlling interest |
Total stockholders’ equity |
|||||||||||||||||||||||
Balance as of December 31, 2019 |
$ |
( |
) |
|||||||||||||||||||||||||||
Net loss for the period |
— | — | — | ( |
) | ( |
) | ( |
) | |||||||||||||||||||||
Other comprehensive income (loss) for the period |
— | — | ( |
) | — | ( |
) | ( |
) | ( |
) | |||||||||||||||||||
Total of other comprehensive income (loss) for the period |
21.2 |
— | — | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | |||||||||||||||||
Own shares purchased under shares repurchase program |
21.1 |
— | ( |
) | ( |
) | — | ( |
) | — | ( |
) | ||||||||||||||||||
Restitution of retained earnings |
21.3 |
— | ( |
) | — | — | — | — | ||||||||||||||||||||||
Changes in non-controlling interest |
21.4 |
— | — | — | ( |
) | — | |||||||||||||||||||||||
Share-based compensation |
22 |
— | — | — | ||||||||||||||||||||||||||
Coupons paid on perpetual debentures |
21.4 |
— | — | ( |
) | — | ( |
) | — | ( |
) | |||||||||||||||||||
Balance as of December 31, 2020 |
( |
) |
||||||||||||||||||||||||||||
Net income for the period |
— | — | — | |||||||||||||||||||||||||||
Other comprehensive income (loss) for the period |
— | — | ( |
) | — | ( |
) | ( |
) | ( |
) | |||||||||||||||||||
Total of other comprehensive income (loss) for the period |
21.2 |
— | — | ( |
) | |||||||||||||||||||||||||
Own shares purchased under shares repurchase program |
21.1 |
— | ( |
) | — | — | ||||||||||||||||||||||||
Issuance of subordinated notes |
21.2 |
— | — | — | — | |||||||||||||||||||||||||
Changes in non-controlling interest and repayment of perpetual debentures |
21.4 |
— | — | — | — | — | ( |
) | ( |
) | ||||||||||||||||||||
Share-based compensation |
22 |
— | — | — | — | |||||||||||||||||||||||||
Coupons paid on perpetual debentures and subordinated notes |
21.2, 21.4 |
— | — | ( |
) | — | ( |
) | — | ( |
) | |||||||||||||||||||
Balance as of December 31, 2021 |
( |
) |
||||||||||||||||||||||||||||
Net income for the period |
— | — | — | |||||||||||||||||||||||||||
Other comprehensive income (loss) for the period |
— | — | ( |
) | — | ( |
) | ( |
) | ( |
) | |||||||||||||||||||
Total of other comprehensive income (loss) for the period |
21.2 |
— | — | ( |
) | ( |
) | |||||||||||||||||||||||
Own shares purchased under shares repurchase program |
21.1 |
— | ( |
) | — | ( |
) | — | ( |
) | ||||||||||||||||||||
Shares in trust for future deliveries under share-based compensation |
22 |
— | — | ( |
) | — | ( |
) | — | ( |
) | |||||||||||||||||||
Changes in non-controlling interest |
21.4 |
— | — | — | — | |||||||||||||||||||||||||
Share-based compensation |
22 |
— | — | — | — | |||||||||||||||||||||||||
Coupons paid on subordinated notes |
21.2, 21.4 |
— | — | ( |
) | — | ( |
) | — | ( |
) | |||||||||||||||||||
Balance as of December 31, 2022 |
$ |
( |
) |
|||||||||||||||||||||||||||
1) |
DESCRIPTION OF BUSINESS |
2) |
SIGNIFICANT ACCOUNTING POLICIES |
2.1) |
BASIS OF PRESENTATION AND DISCLOSURE |
2) |
SIGNIFICANT ACCOUNTING POLICIES — continued |
2.1) |
BASIS OF PRESENTATION AND DISCLOSURE — continued |
| • | In 2022, 2021 and 2020, the increases in other financing obligations in connection with lease contracts negotiated during the year for $ |
2) |
SIGNIFICANT ACCOUNTING POLICIES — continued |
2.1) |
BASIS OF PRESENTATION AND DISCLOSURE — continued |
| • | In 2022, 2021 and 2020, in connection with the leases negotiated during the year, the increases in assets for the right-of-use |
Standard |
Main topic | |
| Amendment to IAS 37, Provisions, Contingent Liabilities and Contingent Assets |
Clarifies that the ‘cost of fulfilling’ a contract comprises the ‘costs that relate directly to the contract’. Costs that relate directly to a contract can either be incremental costs of fulfilling that contract or an allocation of other costs that relate directly to fulfilling contracts. | |
| Amendments to IAS 16, Property, Plant and Equipment |
Clarifies the standard to prohibit deducting from the cost of an item of property, plant and equipment any proceeds from selling items produced while bringing that asset to the location and condition necessary for it to be capable of operating in the manner intended by management. | |
| Annual improvements (2018-2020 cycle): IFRS 1 , First-time Adoption of IFRS |
The amendment permits a subsidiary to measure cumulative translation differences using the amounts reported by its parent, based on the parent’s date of transition to IFRSs. | |
| Annual improvements (2018-2020 cycle): IFRS 9, Financial Instruments |
The amendment clarifies which fees an entity includes when it applies the ‘10 per cent’ test in assessing whether to derecognize a financial liability. An entity includes only fees paid or received between the entity (the borrower) and the lender, including fees paid or received by either the entity or the lender on the other’s behalf. | |
| Amendments to IFRS 3, Business Combinations |
Update a reference in IFRS 3 to the Conceptual Framework for Financial Reporting without changing the accounting requirements for business combinations. | |
2.2) |
PRINCIPLES OF CONSOLIDATION |
2) |
SIGNIFICANT ACCOUNTING POLICIES — continued |
2.2) |
PRINCIPLES OF CONSOLIDATION — continued |
2.3) |
USE OF ESTIMATES AND CRITICAL ASSUMPTIONS |
2.4) |
CLIMATE CHANGE AND COMMITMENTS FOR THE REDUCTION OF CARBON DIOXIDE (“CO 2 ”) EMISSIONS (unaudited) |
2) |
SIGNIFICANT ACCOUNTING POLICIES — continued |
2.4) |
CLIMATE CHANGE AND COMMITMENTS FOR THE REDUCTION OF CARBON DIOXIDE (“CO 2 ”) EMISSIONS (unaudited) — continued |
2.5) |
FOREIGN CURRENCY TRANSACTIONS AND TRANSLATION OF FOREIGN CURRENCY FINANCIAL STATEMENTS |
2) |
SIGNIFICANT ACCOUNTING POLICIES — continued |
2.5) |
FOREIGN CURRENCY TRANSACTIONS AND TRANSLATION OF FOREIGN CURRENCY FINANCIAL STATEMENTS — continued |
2022 |
2021 |
2020 |
||||||||||||||||||||||
Currency |
Closing |
Average |
Closing |
Average |
Closing |
Average |
||||||||||||||||||
Peso |
||||||||||||||||||||||||
Euro |
||||||||||||||||||||||||
British Pound Sterling |
||||||||||||||||||||||||
Colombian Peso |
||||||||||||||||||||||||
2.6) |
CASH AND CASH EQUIVALENTS (note 9) |
2) |
SIGNIFICANT ACCOUNTING POLICIES — continued |
2.7) |
FINANCIAL INSTRUMENTS |
| • | Cash and cash equivalents (notes 2.6 and 9). |
| • | Trade receivables, other current accounts receivable and other current assets (notes 10 and 11). Due to their short-term nature, CEMEX initially recognizes these assets at the original invoiced or transaction amount less expected credit losses, as explained below. |
| • | Trade receivables sold under securitization programs, in which certain residual interest in the trade receivables sold in case of recovery failure and continued involvement in such assets is maintained, do not qualify for derecognition and are maintained in the statement of financial position (notes 10 and 17.2). |
| • | Investments and non-current accounts receivable (note 14.2). Subsequent changes in effects from amortized cost are recognized in the income statement as part of “Financial income and other items, net”. |
2) |
SIGNIFICANT ACCOUNTING POLICIES — continued |
2.7) |
FINANCIAL INSTRUMENTS — continued |
2) |
SIGNIFICANT ACCOUNTING POLICIES — continued |
2.7) |
FINANCIAL INSTRUMENTS — continued |
2) |
SIGNIFICANT ACCOUNTING POLICIES — continued |
2.7) |
FINANCIAL INSTRUMENTS — continued |
| • | Level 1.- represent quoted prices (unadjusted) in active markets for identical assets or liabilities that CEMEX can access at the measurement date. A quoted price in an active market provides the most reliable evidence of fair value and is used without adjustment to measure fair value whenever available. |
| • | Level 2.- are inputs other than quoted prices in active markets that are observable for the asset or liability, either directly or indirectly, and are used mainly to determine the fair value of securities, investments or loans that are not actively traded. Level 2 inputs included equity prices, certain interest rates and yield curves, implied volatility and credit spreads, among others, as well as inputs extrapolated from other observable inputs. In the absence of Level 1 inputs, CEMEX determined fair values by iteration of the applicable Level 2 inputs, the number of securities and/or the other relevant terms of the contract, as applicable. |
| • | Level 3.- inputs are unobservable inputs for the asset or liability. CEMEX used unobservable inputs to determine fair values, to the extent there are no Level 1 or Level 2 inputs, in valuation models such as Black-Scholes, binomial, discounted cash flows or multiples of Operating EBITDA, including risk assumptions consistent with what market participants would use to arrive at fair value. |
2.8) |
INVENTORIES (note 12) |
2.9) |
PROPERTY, MACHINERY AND EQUIPMENT AND ASSETS FOR THE RIGHT-OF-USE |
2) |
SIGNIFICANT ACCOUNTING POLICIES — continued |
2.9) |
PROPERTY, MACHINERY AND EQUIPMENT AND ASSETS FOR THE RIGHT-OF-USE |
Years |
||||
Administrative buildings |
||||
Industrial buildings |
||||
Machinery and equipment in plant |
||||
Ready-mix trucks and motor vehicles |
||||
Office equipment and other assets |
||||
2.10) |
BUSINESS COMBINATIONS, GOODWILL AND OTHER INTANGIBLE ASSETS (notes 4.1 and 16) |
2) |
SIGNIFICANT ACCOUNTING POLICIES — continued |
2.10) |
BUSINESS COMBINATIONS, GOODWILL AND OTHER INTANGIBLE ASSETS (notes 4.1 and 16) — continued |
2.11) |
IMPAIRMENT OF LONG-LIVED ASSETS (notes 15 and 16) |
2) |
SIGNIFICANT ACCOUNTING POLICIES — continued |
2.11) |
IMPAIRMENT OF LONG-LIVED ASSETS (notes 15 and 16) — continued |
2) |
SIGNIFICANT ACCOUNTING POLICIES — continued |
2.11) |
IMPAIRMENT OF LONG-LIVED ASSETS (notes 15 and 16) — continued |
2.12) |
PROVISIONS |
2) |
SIGNIFICANT ACCOUNTING POLICIES — continued |
2.12) |
PROVISIONS — continued |
2.13) |
PENSIONS AND OTHER POST-EMPLOYMENT BENEFITS (note 19) |
2) |
SIGNIFICANT ACCOUNTING POLICIES — continued |
2.13) |
PENSIONS AND OTHER POST-EMPLOYMENT BENEFITS (note 19) — continued |
2.14) |
INCOME TAXES (note 20) |
2) |
SIGNIFICANT ACCOUNTING POLICIES — continued |
2.14) |
INCOME TAXES (note 20) — continued |
Country |
2022 |
2021 |
2020 | |||
Mexico |
||||||
United States |
||||||
United Kingdom |
||||||
France |
||||||
Germany |
||||||
Spain |
||||||
Philippines |
||||||
Israel |
||||||
Colombia |
||||||
Others |
2) |
SIGNIFICANT ACCOUNTING POLICIES — continued |
2.14) |
INCOME TAXES (note 20) — continued |
2.15) |
STOCKHOLDERS’ EQUITY |
| • | Currency translation effects from the translation of foreign subsidiaries, net of: a) exchange results from foreign currency debt directly related to the acquisition of foreign subsidiaries; and b) exchange results from foreign currency related parties’ balances that are of a non-current investment class (note 2.5); |
| • | The effective portion of the valuation and liquidation effects from derivative financial instruments under cash flow hedging relationships, which are recorded temporarily in stockholders’ equity (note 2.7); |
| • | Changes in fair value of other investments in strategic securities (note 2.7); and |
| • | Current and deferred income taxes during the period arising from items whose effects are directly recognized in stockholders’ equity. |
| • | Effects related to controlling stockholders’ equity for changes or transactions affecting non-controlling interest stockholders in CEMEX’s consolidated subsidiaries; |
2) |
SIGNIFICANT ACCOUNTING POLICIES — continued |
2.15) |
STOCKHOLDERS’ EQUITY — continued |
| • | Effects attributable to controlling stockholders’ equity for financial instruments issued by consolidated subsidiaries that qualify for accounting purposes as equity instruments, such as the interest expense paid on perpetual debentures; |
| • | The balance of subordinated notes with no fixed maturity and any interest accrued thereof; and |
| • | The cancellation of the Parent Company’s shares held by consolidated entities. |
2.16) |
REVENUE RECOGNITION (note 3) |
2) |
SIGNIFICANT ACCOUNTING POLICIES — continued |
2.16) |
REVENUE RECOGNITION (note 3) — continued |
2.17) |
COST OF SALES AND OPERATING EXPENSES (notes 5 and 6) |
2.18) |
EXECUTIVE SHARE-BASED COMPENSATION (note 22) |
2.19) |
ALLOWANCES RELATED TO EMISSIONS OF CO 2 |
2) |
SIGNIFICANT ACCOUNTING POLICIES — continued |
2.19) |
ALLOWANCES RELATED TO EMISSIONS OF CO 2 — continued |
| • | Certificates received through government grants for no consideration paid are recognized at zero cost in the statement of financial position. |
| • | Revenues received from the sale of excess Allowances are recognized in the statement of operations in the period in which they occur. |
| • | Allowances that would be acquired to hedge exceeding CO 2 emissions would be recognized as intangible assets at cost and would be further amortized to cost of sales during the compliance period. |
| • | CEMEX would accrue a provision at market value against cost of sales when current emissions of CO 2 would exceed the number of emission rights on hand and the required additional Allowances would not be yet acquired in the market. |
| • | In addition, in certain countries, the environmental authorities impose levies per ton of CO 2 or other greenhouse gases released. Such expenses are recognized as part of cost of sales as incurred. |
2.20) |
CONCENTRATION OF CREDIT |
2) |
SIGNIFICANT ACCOUNTING POLICIES — continued |
2.21) |
NEWLY ISSUED IFRS NOT YET ADOPTED |
Standard |
Main topic |
Effective date | ||
| Amendments to IFRS 10, Consolidated financial statements |
Clarify the recognition of gains or losses in the Parent’s financial statements for the sale or contribution of assets between an investor and its associate or joint venture | Has yet to be set | ||
| Amendments to IAS 1, Presentation of Financial Statements Non-current |
Clarifies the requirements to be applied in classifying liabilities as current and non-current. |
January 1, 2023 | ||
| Amendments to IAS 8, Definition of Accounting Estimates |
The amendment makes a distinction between how an entity should present and disclose different types of accounting changes in its financial statements. Changes in accounting policies must be applied retrospectively while changes in accounting estimates are accounted for prospectively. | January 1, 2023 | ||
| Amendments to IAS 1 and IFRS Practice Statement 2, Disclosure of Accounting Policies |
The amendment requires entities to disclose their material accounting policies rather than their significant accounting policies. To support this amendment the Board has also developed guidance and examples to explain and demonstrate the application of the ‘four-step materiality process’ described in IFRS Practice Statement 2 Making Materiality Judgements to accounting policy disclosures |
January 1, 2023 | ||
| Amendments to IAS 12, Income Taxes |
The amendment clarifies that companies should account for deferred tax assets and liabilities on transactions such as leases and decommissioning obligations. CEMEX has always applied these criteria. | January 1, 2023 | ||
| IFRS 17, Insurance Contracts |
The new Standard establishes the principles for the recognition, measurement, presentation and disclosure of insurance contracts and supersedes IFRS 4, Insurance contracts |
January 1, 2023 | ||
2) |
SIGNIFICANT ACCOUNTING POLICIES — continued |
2.21) |
NEWLY ISSUED IFRS NOT YET ADOPTED — continued |
Standard |
Main topic |
Effective date | ||
| Amendments to IFRS 16, Leases |
The amendments mentioned that on initial recognition, the seller-lessee would include variable payments when it measures a lease liability arising from a sale-and-leaseback |
January 1, 2024 |
3) |
REVENUES |
2022 |
2021 |
2020 |
||||||||||
From the sale of goods associated to CEMEX’s main activities 1 |
$ | |||||||||||
From the sale of other goods and services 2 |
||||||||||||
| $ | ||||||||||||
1 |
Include in each period immaterial amounts of revenue generated under construction contracts. |
2 |
Refers mainly to revenues generated by subsidiaries not individually significant operating in different lines of business. |
3) |
REVENUES — continued |
2022 |
2021 |
2020 |
||||||||||
Opening balance of contract liabilities with customers |
$ | |||||||||||
Increase during the period for new transactions |
||||||||||||
Decrease during the period for exercise or expiration of incentives |
( |
) | ( |
) | ( |
) | ||||||
Currency translation effects |
||||||||||||
Closing balance of contract liabilities with customers |
$ | |||||||||||
4) |
BUSINESS COMBINATIONS, DISCONTINUED OPERATIONS AND SELECTED FINANCIAL INFORMATION BY REPORTABLE SEGMENT AND LINE OF BUSINESS |
4.1) |
BUSINESS COMBINATIONS |
4) |
BUSINESS COMBINATIONS, DISCONTINUED OPERATIONS AND SELECTED FINANCIAL INFORMATION BY REPORTABLE SEGMENT AND LINE OF BUSINESS — continued |
4.2) |
DISCONTINUED OPERATIONS |
4) |
BUSINESS COMBINATIONS, DISCONTINUED OPERATIONS AND SELECTED FINANCIAL INFORMATION BY REPORTABLE SEGMENT AND LINE OF BUSINESS — continued |
4.2) |
DISCONTINUED OPERATIONS — continued |
2021 |
||||
Current assets |
$ | |||
Non-current assets |
||||
Total assets held for sale |
||||
Current liabilities |
||||
Non-current liabilities |
||||
Total liabilities directly related to assets held for sale |
||||
Total net assets held for sale |
$ | |||
2022 |
2021 |
2020 |
||||||||||
Revenues |
$ | |||||||||||
Cost of sales and operating expenses |
( |
) | ( |
) | ( |
) | ||||||
Other income (expenses), net |
( |
) | ( |
) | ( |
) | ||||||
Financial expenses, net and others |
||||||||||||
Earnings before income tax |
||||||||||||
Income tax |
( |
) | ( |
) | ( |
) | ||||||
Result of discontinued operations |
( |
) | ( |
) | ||||||||
Net disposal result |
( |
) | ( |
) | ||||||||
Net result of discontinued operations |
$ | ( |
) | ( |
) | |||||||
4.3) |
SELECTED FINANCIAL INFORMATION BY REPORTABLE SEGMENT AND LINE OF BUSINESS |
4) |
BUSINESS COMBINATIONS, DISCONTINUED OPERATIONS AND SELECTED FINANCIAL INFORMATION BY REPORTABLE SEGMENT AND LINE OF BUSINESS — continued |
4.3) |
SELECTED FINANCIAL INFORMATION BY REPORTABLE SEGMENT AND LINE OF BUSINESS — continued |
2022 |
Revenues (including intragroup transactions) |
Less: Intragroup transactions |
Revenues |
Operating EBITDA |
Less: Depreciation and amortization |
Operating earnings before other expenses, net |
Other expenses, net |
Financial expense |
Other financing items, net |
|||||||||||||||||||||||||||
Mexico |
$ | ( |
) | ( |
) | ( |
) | |||||||||||||||||||||||||||||
United States |
( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||
EMEAA |
||||||||||||||||||||||||||||||||||||
United Kingdom |
— | ( |
) | ( |
) | ( |
) | |||||||||||||||||||||||||||||
France |
— | ( |
) | |||||||||||||||||||||||||||||||||
Germany |
( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||||
Poland |
( |
) | ( |
) | ||||||||||||||||||||||||||||||||
Spain |
( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||
Philippines 1 |
— | ( |
) | ( |
) | |||||||||||||||||||||||||||||||
Israel |
— | ( |
) | |||||||||||||||||||||||||||||||||
Rest of EMEAA |
( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||||
SCA&C |
||||||||||||||||||||||||||||||||||||
Colombia 2 |
— | ( |
) | |||||||||||||||||||||||||||||||||
Panama 2 |
( |
) | ( |
) | — | — | ||||||||||||||||||||||||||||||
Caribbean TCL 3 |
( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||
Dominican Republic |
( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||
Rest of SCA&C 2 |
( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||
Others |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||
Continuing operations |
( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||||
Discontinued operations |
— | ( |
) | ( |
) | |||||||||||||||||||||||||||||||
Total |
$ | ( |
) | ( |
) | ( |
) | |||||||||||||||||||||||||||||
4) |
BUSINESS COMBINATIONS, DISCONTINUED OPERATIONS AND SELECTED FINANCIAL INFORMATION BY REPORTABLE SEGMENT AND LINE OF BUSINESS — continued |
4.3) |
SELECTED FINANCIAL INFORMATION BY REPORTABLE SEGMENT AND LINE OF BUSINESS — continued |
2021 |
Revenues (including intragroup transactions) |
Less: Intragroup transactions |
Revenues |
Operating EBITDA |
Less: Depreciation and amortization |
Operating earnings before other expenses, net |
Other expenses, net |
Financial expense |
Other financing items, net |
|||||||||||||||||||||||||||
Mexico |
$ | ( |
) | ( |
) | ( |
) | |||||||||||||||||||||||||||||
United States |
( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||
EMEAA |
||||||||||||||||||||||||||||||||||||
United Kingdom |
— | ( |
) | ( |
) | ( |
) | |||||||||||||||||||||||||||||
France |
— | ( |
) | ( |
) | — | ||||||||||||||||||||||||||||||
Germany |
( |
) | — | ( |
) | ( |
) | |||||||||||||||||||||||||||||
Poland |
( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||||
Spain |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||
Philippines 1 |
— | ( |
) | ( |
) | |||||||||||||||||||||||||||||||
Israel |
— | ( |
) | ( |
) | |||||||||||||||||||||||||||||||
Rest of EMEAA |
( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||||
SCA&C |
||||||||||||||||||||||||||||||||||||
Colombia 2 |
— | ( |
) | ( |
) | ( |
) | |||||||||||||||||||||||||||||
Panama 2 |
( |
) | ( |
) | — | — | ||||||||||||||||||||||||||||||
Caribbean TCL 3 |
( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||
Dominican Republic |
( |
) | — | ( |
) | |||||||||||||||||||||||||||||||
Rest of SCA&C 2 |
( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||
Others |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||
Continuing operations |
( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||
Discontinued operations |
— | ( |
) | ( |
) | |||||||||||||||||||||||||||||||
Total |
$ | ( |
) | ( |
) | ( |
) | ( |
) | |||||||||||||||||||||||||||
2020 |
Revenues (including intragroup transactions) |
Less: Intragroup transactions |
Revenues |
Operating EBITDA |
Less: Depreciation and amortization |
Operating earnings before other expenses, net |
Other expenses, net |
Financial expense |
Other financing items, net |
|||||||||||||||||||||||||||
Mexico |
$ | ( |
) | ( |
) | ( |
) | ( |
) | |||||||||||||||||||||||||||
United States |
( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||
EMEAA |
||||||||||||||||||||||||||||||||||||
United Kingdom |
— | ( |
) | ( |
) | ( |
) | |||||||||||||||||||||||||||||
France |
— | ( |
) | ( |
) | |||||||||||||||||||||||||||||||
Germany |
( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||
Poland |
( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||||
Spain |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||
Philippines 1 |
— | ( |
) | |||||||||||||||||||||||||||||||||
Israel |
— | — | ( |
) | ||||||||||||||||||||||||||||||||
Rest of EMEAA |
( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||
SCA&C |
||||||||||||||||||||||||||||||||||||
Colombia 2 |
— | ( |
) | ( |
) | ( |
) | |||||||||||||||||||||||||||||
Panama 2 |
( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||
Caribbean TCL 3 |
( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||
Dominican Republic |
( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||||
Rest of SCA&C 2 |
( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||||
Others |
( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||
Continuing operations |
( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||
Discontinued operations |
( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||||
Total |
$ | ( |
) | ( |
) | ( |
) | ( |
) | |||||||||||||||||||||||||||
4) |
BUSINESS COMBINATIONS, DISCONTINUED OPERATIONS AND SELECTED FINANCIAL INFORMATION BY REPORTABLE SEGMENT AND LINE OF BUSINESS — continued |
4.3) |
SELECTED FINANCIAL INFORMATION BY REPORTABLE SEGMENT AND LINE OF BUSINESS — continued |
1 |
CEMEX’s operations in the Philippines are mainly conducted through CEMEX Holdings Philippines, Inc. (“CHP”), a Philippine company whose shares trade on the Philippines Stock Exchange. As of December 31, 2022 and 2021, there is a non-controlling interest in CHP of |
2 |
CEMEX Latam Holdings, S.A. (“CLH”), a company incorporated in Spain, trades its ordinary shares on the Colombian Stock Exchange. CLH is the indirect holding company of CEMEX’s operations in Colombia, Panama, Guatemala and Nicaragua, and until August 31, 2022, of the operations in Costa Rica and El Salvador. At year end 2022 and 2021, there is a non-controlling interest in CLH of |
3 |
The shares of TCL trade on the Trinidad and Tobago Stock Exchange. As of December 31, 2022 and 2021, there is a non-controlling interest in TCL of |
2022 |
Associates and joint ventures |
Other segment assets |
Total assets |
Total liabilities |
Net assets by segment |
Additions to fixed assets 1 |
||||||||||||||||||
Mexico |
$ | — | ||||||||||||||||||||||
United States |
||||||||||||||||||||||||
EMEAA |
||||||||||||||||||||||||
United Kingdom |
||||||||||||||||||||||||
France |
||||||||||||||||||||||||
Germany |
||||||||||||||||||||||||
Poland |
— | |||||||||||||||||||||||
Spain |
— | |||||||||||||||||||||||
Philippines |
— | |||||||||||||||||||||||
Israel |
— | |||||||||||||||||||||||
Rest of EMEAA |
||||||||||||||||||||||||
SCA&C |
||||||||||||||||||||||||
Colombia |
— | |||||||||||||||||||||||
Panama |
— | |||||||||||||||||||||||
Caribbean TCL |
— | |||||||||||||||||||||||
Dominican Republic |
— | |||||||||||||||||||||||
Rest of SCA&C |
— | |||||||||||||||||||||||
Others |
( |
) | ||||||||||||||||||||||
Total |
||||||||||||||||||||||||
Assets held for sale and related liabilities (note 13) |
— | — | — | |||||||||||||||||||||
Total consolidated |
$ | |||||||||||||||||||||||
4) |
BUSINESS COMBINATIONS, DISCONTINUED OPERATIONS AND SELECTED FINANCIAL INFORMATION BY REPORTABLE SEGMENT AND LINE OF BUSINESS — continued |
4.3) |
SELECTED FINANCIAL INFORMATION BY REPORTABLE SEGMENT AND LINE OF BUSINESS — continued |
2021 |
Associates and joint ventures |
Other segment assets |
Total assets |
Total liabilities |
Net assets by segment |
Additions to fixed assets 1 |
||||||||||||||||||
Mexico |
$ | — | ||||||||||||||||||||||
United States |
||||||||||||||||||||||||
EMEAA |
||||||||||||||||||||||||
United Kingdom |
||||||||||||||||||||||||
France |
||||||||||||||||||||||||
Germany |
||||||||||||||||||||||||
Poland |
||||||||||||||||||||||||
Spain |
— | |||||||||||||||||||||||
Philippines |
— | |||||||||||||||||||||||
Israel |
— | |||||||||||||||||||||||
Rest of EMEAA |
||||||||||||||||||||||||
SCA&C |
||||||||||||||||||||||||
Colombia |
— | |||||||||||||||||||||||
Panama |
— | |||||||||||||||||||||||
Caribbean TCL |
— | |||||||||||||||||||||||
Dominican Republic |
— | |||||||||||||||||||||||
Rest of SCA&C |
— | |||||||||||||||||||||||
Others |
( |
) | ||||||||||||||||||||||
Total |
||||||||||||||||||||||||
Assets held for sale and related liabilities (note 13) |
— | |||||||||||||||||||||||
Total consolidated |
$ | |||||||||||||||||||||||
1 |
In 2022 and 2021, the column “Additions to fixed assets” includes capital expenditures, which comprises acquisitions of property, machinery and equipment as well as additions of assets for the right-of-use, |
4) |
BUSINESS COMBINATIONS, DISCONTINUED OPERATIONS AND SELECTED FINANCIAL INFORMATION BY REPORTABLE SEGMENT AND LINE OF BUSINESS — continued |
4.3) |
SELECTED FINANCIAL INFORMATION BY REPORTABLE SEGMENT AND LINE OF BUSINESS — continued |
2022 |
Cement |
Concrete |
Aggregates |
Urbanization solutions |
Others |
Eliminations |
Revenues |
|||||||||||||||||||||
Mexico |
$ | ( |
) | |||||||||||||||||||||||||
United States |
( |
) | ||||||||||||||||||||||||||
EMEAA |
||||||||||||||||||||||||||||
United Kingdom |
( |
) | ||||||||||||||||||||||||||
France |
— | ( |
) | |||||||||||||||||||||||||
Germany |
( |
) | ||||||||||||||||||||||||||
Poland |
( |
) | ||||||||||||||||||||||||||
Spain |
( |
) | ||||||||||||||||||||||||||
Philippines |
— | — | ( |
) | ||||||||||||||||||||||||
Israel |
— | ( |
) | |||||||||||||||||||||||||
Rest of EMEAA |
( |
) | ||||||||||||||||||||||||||
SCA&C |
||||||||||||||||||||||||||||
Colombia |
( |
) | ||||||||||||||||||||||||||
Panama |
( |
) | ||||||||||||||||||||||||||
Caribbean TCL |
( |
) | ||||||||||||||||||||||||||
Dominican Republic |
( |
) | ||||||||||||||||||||||||||
Rest of SCA&C |
( |
) | ||||||||||||||||||||||||||
Others |
— | — | — | — | ( |
) | ||||||||||||||||||||||
Continuing operations |
( |
) | ||||||||||||||||||||||||||
Discontinued operations |
( |
) | ||||||||||||||||||||||||||
Total |
$ | ( |
) | |||||||||||||||||||||||||
4) |
BUSINESS COMBINATIONS, DISCONTINUED OPERATIONS AND SELECTED FINANCIAL INFORMATION BY REPORTABLE SEGMENT AND LINE OF BUSINESS — continued |
4.3) |
SELECTED FINANCIAL INFORMATION BY REPORTABLE SEGMENT AND LINE OF BUSINESS — continued |
2021 |
Cement |
Concrete |
Aggregates |
Urbanization solutions |
Others |
Eliminations |
Revenues |
|||||||||||||||||||||
Mexico |
$ | ( |
) | |||||||||||||||||||||||||
United States |
( |
) | ||||||||||||||||||||||||||
EMEAA |
||||||||||||||||||||||||||||
United Kingdom |
( |
) | ||||||||||||||||||||||||||
France |
— | ( |
) | |||||||||||||||||||||||||
Germany |
( |
) | ||||||||||||||||||||||||||
Poland |
( |
) | ||||||||||||||||||||||||||
Spain |
( |
) | ||||||||||||||||||||||||||
Philippines |
— | — | ( |
) | ||||||||||||||||||||||||
Israel |
— | ( |
) | |||||||||||||||||||||||||
Rest of EMEAA |
( |
) | ||||||||||||||||||||||||||
SCA&C |
||||||||||||||||||||||||||||
Colombia |
( |
) | ||||||||||||||||||||||||||
Panama |
( |
) | ||||||||||||||||||||||||||
Caribbean TCL |
( |
) | ||||||||||||||||||||||||||
Dominican Republic |
( |
) | ||||||||||||||||||||||||||
Rest of SCA&C |
( |
) | ||||||||||||||||||||||||||
Others |
— | — | — | — | ( |
) | ||||||||||||||||||||||
Continuing operations |
( |
) | ||||||||||||||||||||||||||
Discontinued operations |
( |
) | ||||||||||||||||||||||||||
Total |
$ | ( |
) | |||||||||||||||||||||||||
4) |
BUSINESS COMBINATIONS, DISCONTINUED OPERATIONS AND SELECTED FINANCIAL INFORMATION BY REPORTABLE SEGMENT AND LINE OF BUSINESS — continued |
4.3) |
SELECTED FINANCIAL INFORMATION BY REPORTABLE SEGMENT AND LINE OF BUSINESS — continued |
2020 |
Cement |
Concrete |
Aggregates |
Urbanization solutions |
Others |
Eliminations |
Revenues |
|||||||||||||||||||||
Mexico |
$ | ( |
) | |||||||||||||||||||||||||
United States |
( |
) | ||||||||||||||||||||||||||
EMEAA |
||||||||||||||||||||||||||||
United Kingdom |
( |
) | ||||||||||||||||||||||||||
France |
— | — | — | ( |
) | |||||||||||||||||||||||
Germany |
( |
) | ||||||||||||||||||||||||||
Poland |
( |
) | ||||||||||||||||||||||||||
Spain |
— | ( |
) | |||||||||||||||||||||||||
Philippines |
— | — | ( |
) | ||||||||||||||||||||||||
Israel |
— | ( |
) | |||||||||||||||||||||||||
Rest of EMEAA |
( |
) | ||||||||||||||||||||||||||
SCA&C |
||||||||||||||||||||||||||||
Colombia |
( |
) | ||||||||||||||||||||||||||
Panama |
( |
) | ||||||||||||||||||||||||||
Caribbean TCL |
( |
) | ||||||||||||||||||||||||||
Dominican Republic |
( |
) | ||||||||||||||||||||||||||
Rest of SCA&C |
||||||||||||||||||||||||||||
Others |
— | — | — | — | ( |
) | ||||||||||||||||||||||
Continuing operations |
( |
) | ||||||||||||||||||||||||||
Discontinued operations |
( |
) | ||||||||||||||||||||||||||
Total |
$ | ( |
) | |||||||||||||||||||||||||
5) |
COST OF SALES |
2022 |
2021 |
2020 |
||||||||||
Raw materials and goods for resale |
$ | |||||||||||
Payroll |
||||||||||||
Electricity, fuels and other services |
||||||||||||
Depreciation and amortization |
||||||||||||
Maintenance, repairs and supplies |
||||||||||||
Transportation costs |
||||||||||||
Other production costs |
||||||||||||
Change in inventory |
( |
) | ( |
) | ( |
) | ||||||
| $ | ||||||||||||
6) |
OPERATING EXPENSES |
2022 |
2021 |
2020 |
||||||||||
Administrative expenses 1, 2 |
$ | |||||||||||
Selling expenses 2 |
||||||||||||
Total administrative and selling expenses |
||||||||||||
Distribution and logistics expenses |
||||||||||||
Total operating expenses |
$ | |||||||||||
1 |
All significant R&D activities are executed by several internal areas of CEMEX as part of their daily activities. In 2022, 2021 and 2020, total combined expenses of these departments recognized within administrative expenses were $ |
2 |
In 2022, 2021 and 2020, administrative expenses include depreciation and amortization of $ |
2022 |
2021 |
2020 |
||||||||||
Transportation costs |
$ | |||||||||||
Payroll |
||||||||||||
Depreciation and amortization |
||||||||||||
Professional legal, accounting and advisory services |
||||||||||||
Maintenance, repairs and supplies |
||||||||||||
Other operating expenses |
||||||||||||
| $ | ||||||||||||
7) |
OTHER EXPENSES, NET |
2022 |
2021 |
2020 |
||||||||||
Impairment losses (notes 15.1, 16.1 and 16.2) |
$ | ( |
) | ( |
) | ( |
) | |||||
Results from the sale of assets and others 1 |
( |
) | ( |
) | ||||||||
Incremental costs and expenses related to the COVID-19 Pandemic 2 |
( |
) | ( |
) | ( |
) | ||||||
Restructuring costs 3 |
( |
) | ( |
) | ( |
) | ||||||
Sale of CO 2 Allowances (note 2.19) 4 |
||||||||||||
| $ | ( |
) | ( |
) | ( |
) | ||||||
1 |
7) |
OTHER EXPENSES, NET — continued |
2 |
SARS-CoV-2 “COVID-19 Pandemic”). From the beginning of the COVID-19 Pandemic and attending official dispositions of the authorities in the countries in which CEMEX operates, the Company implemented strict hygiene, sanitary and security protocols in all its operations and modified its manufacturing, selling and distribution processes to implement physical distancing, aiming to protect the health and safety of its employees and their families, customers and communities. |
3 |
|
4 |
2 Allowances under the EU ETS, during March 2021, considering CEMEX’s targets for the reduction of CO2 emissions (note 2.4), as well as the innovative technologies and considerable capital investments that have to be deployed to achieve such goals, CEMEX sold |
8) |
FINANCIAL ITEMS |
8.1) |
FINANCIAL EXPENSE |
8.2) |
FINANCIAL INCOME AND OTHER ITEMS, NET |
2022 |
2021 |
2020 |
||||||||||
| Effects of amortized cost on assets and liabilities and others, net |
$ | ( |
) | ( |
) | ( |
) | |||||
| Net interest cost of pension liabilities (note 19) |
( |
) | ( |
) | ( |
) | ||||||
| Results from financial instruments, net (notes 14.2 and 17.4) |
( |
) | ( |
) | ( |
) | ||||||
| Foreign exchange results |
( |
) | ( |
) | ||||||||
| Financial income |
||||||||||||
| Others |
( |
) | ||||||||||
| |
|
|
|
|
|
|||||||
| $ | ( |
) | ( |
) | ||||||||
| |
|
|
|
|
|
|||||||
9) |
CASH AND CASH EQUIVALENTS |
2022 |
2021 |
|||||||
| Cash and bank accounts |
$ | |||||||
| Fixed-income securities and other cash equivalents |
||||||||
| |
|
|
|
|||||
| $ | ||||||||
| |
|
|
|
|||||
9) |
CASH AND CASH EQUIVALENTS — continued |
10) |
TRADE ACCOUNTS RECEIVABLE |
2022 |
2021 |
|||||||
| Trade accounts receivable |
$ | |||||||
| Allowances for expected credit losses |
( |
) | ( |
) | ||||
| |
|
|
|
|||||
| $ | ||||||||
| |
|
|
|
|||||
Accounts receivable |
ECL allowance |
ECL average rate |
||||||||||
| Mexico |
$ | % | ||||||||||
| United States |
% | |||||||||||
| Europe, Middle East, Africa and Asia |
% | |||||||||||
| South, Central America and the Caribbean |
% | |||||||||||
| Others |
||||||||||||
| |
|
|
|
|||||||||
| $ | ||||||||||||
| |
|
|
|
|||||||||
10) |
TRADE ACCOUNTS RECEIVABLE — continued |
2022 |
2021 |
2020 |
||||||||||
| Allowances for expected credit losses at beginning of period |
$ | |||||||||||
| Charged to selling expenses |
||||||||||||
| Deductions |
( |
) | ( |
) | ( |
) | ||||||
| Reclassification to assets held for sale (note 4.2) |
— | ( |
) | — | ||||||||
| Foreign currency translation effects |
( |
) | ||||||||||
| |
|
|
|
|
|
|||||||
| Allowances for expected credit losses at end of period |
$ | |||||||||||
| |
|
|
|
|
|
|||||||
11) |
OTHER ACCOUNTS RECEIVABLE |
2022 |
2021 |
|||||||
| Advances of income taxes and other refundable taxes |
$ | |||||||
| Non-trade accounts receivable1 |
||||||||
| Interest and notes receivable |
||||||||
| Current portion of valuation of derivative financial instruments |
||||||||
| Loans to employees and others |
||||||||
| |
|
|
|
|||||
| $ | ||||||||
| |
|
|
|
|||||
1 |
Non-trade accounts receivable are mainly attributable to the sale of assets. |
12) |
INVENTORIES |
2022 |
2021 |
|||||||
| Materials and spare parts |
$ | |||||||
| Finished goods |
||||||||
| Raw materials |
||||||||
| Work-in-process |
||||||||
| Inventory in transit |
||||||||
| |
|
|
|
|||||
| $ | ||||||||
| |
|
|
|
|||||
12) |
INVENTORIES — continued |
13) |
ASSETS HELD FOR SALE AND OTHER CURRENT ASSETS |
2022 |
2021 |
|||||||
| Assets held for sale |
$ | |||||||
| Other current assets |
||||||||
| |
|
|
|
|||||
| $ | ||||||||
| |
|
|
|
|||||
2022 |
2021 |
|||||||||||||||||||||||
Assets |
Liabilities |
Net assets |
Assets |
Liabilities |
Net assets |
|||||||||||||||||||
| Other assets held for sale |
$ | — | $ | — | ||||||||||||||||||||
| Costa Rica and El Salvador (note 4.2) |
— | — | — | |||||||||||||||||||||
| |
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
| $ | — | $ | ||||||||||||||||||||||
| |
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
14) |
INVESTMENTS IN ASSOCIATES AND JOINT VENTURES, OTHER INVESTMENTS AND NON-CURRENT ACCOUNTS RECEIVABLE |
14.1) |
INVESTMENTS IN ASSOCIATES AND JOINT VENTURES |
Activity |
Country |
% |
2022 |
2021 |
||||||||||||||||
| $ | ||||||||||||||||||||
| — | ||||||||||||||||||||
| — | — | — | ||||||||||||||||||
| |
|
|
|
|||||||||||||||||
| $ | ||||||||||||||||||||
| |
|
|
|
|||||||||||||||||
| Out of which: |
||||||||||||||||||||
| Acquisition cost |
|
$ | ||||||||||||||||||
| Equity method recognition |
|
$ | ||||||||||||||||||
| |
|
|
|
|||||||||||||||||
14) |
INVESTMENTS IN ASSOCIATES AND JOINT VENTURES, OTHER INVESTMENTS AND NON-CURRENT ACCOUNTS RECEIVABLE — continued |
14.1) |
INVESTMENTS IN ASSOCIATES AND JOINT VENTURES — continued |
1 |
On October 25, 2022, in connection with the sale of Neoris’ |
2022 |
2021 |
|||||||
Current assets |
$ | |||||||
Non-current assets |
||||||||
Total assets |
||||||||
Current liabilities |
||||||||
Non-current liabilities |
||||||||
Total liabilities |
||||||||
Total net assets |
$ | |||||||
2022 |
2021 |
2020 |
||||||||||
Revenues |
$ | |||||||||||
Operating earnings |
||||||||||||
Income before income tax |
||||||||||||
Net income |
||||||||||||
2022 |
2021 |
2020 |
||||||||||
Mexico |
$ | |||||||||||
United States |
||||||||||||
EMEAA |
||||||||||||
Corporate and others |
( |
) | ( |
) | ||||||||
| $ | ||||||||||||
14) |
INVESTMENTS IN ASSOCIATES AND JOINT VENTURES, OTHER INVESTMENTS AND NON-CURRENT ACCOUNTS RECEIVABLE — continued |
14.2) |
OTHER INVESTMENTS AND NON-CURRENT ACCOUNTS RECEIVABLE |
2022 |
2021 |
|||||||
Non-current accounts receivable1 |
$ | |||||||
Investments in strategic equity securities 2 |
||||||||
Non-current portion of valuation of derivative financial instruments (note 17.4) |
||||||||
Investments at fair value through the income statement 3 |
||||||||
| $ | ||||||||
1 |
Includes, among other items: a) accounts receivable from investees and joint ventures of $ |
2 |
These investments are recognized at fair value through other comprehensive income. |
3 |
Refers to investments in private funds. In 2022 and 2021, no contributions were made to such private funds. |
15) |
PROPERTY, MACHINERY AND EQUIPMENT, NET AND ASSETS FOR THE RIGHT-OF-USE, |
2022 |
2021 |
|||||||
Property, machinery and equipment, net |
$ | |||||||
Assets for the right-of-use, |
||||||||
| $ | ||||||||
15) |
PROPERTY, MACHINERY AND EQUIPMENT, NET AND ASSETS FOR THE RIGHT-OF-USE, |
15.1) |
PROPERTY, MACHINERY AND EQUIPMENT, NET |
2022 |
||||||||||||||||||||
Land and mineral reserves |
Building |
Machinery and equipment |
Construction in progress 1 |
Total |
||||||||||||||||
Cost at beginning of period |
$ | |||||||||||||||||||
Accumulated depreciation and depletion |
( |
) | ( |
) | ( |
) | — | ( |
) | |||||||||||
Net book value at beginning of period |
||||||||||||||||||||
Capital expenditures |
||||||||||||||||||||
Stripping costs |
— | — | — | |||||||||||||||||
Total capital expenditures |
||||||||||||||||||||
Disposals 2 |
( |
) | ( |
) | ( |
) | — | ( |
) | |||||||||||
Business combinations (note 4.1) |
||||||||||||||||||||
Depreciation and depletion for the period |
( |
) | ( |
) | ( |
) | — | ( |
) | |||||||||||
Impairment losses (note 7) |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||
Foreign currency translation effects |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||
Cost at end of period |
||||||||||||||||||||
Accumulated depreciation and depletion |
( |
) | ( |
) | ( |
) | — | ( |
) | |||||||||||
Net book value at end of period |
$ | |||||||||||||||||||
2021 |
||||||||||||||||||||||||
Land and mineral reserves |
Building |
Machinery and equipment |
Construction in progress 1 |
Total |
2020 1 |
|||||||||||||||||||
Cost at beginning of period |
$ | |||||||||||||||||||||||
Accumulated depreciation and depletion |
( |
) | ( |
) | ( |
) | — | ( |
) | ( |
) | |||||||||||||
Net book value at beginning of period |
||||||||||||||||||||||||
Capital expenditures |
— | |||||||||||||||||||||||
Stripping costs |
— | — | — | |||||||||||||||||||||
Total capital expenditures |
— | |||||||||||||||||||||||
Disposals 2 |
( |
) | ( |
) | ( |
) | — | ( |
) | ( |
) | |||||||||||||
Reclassifications 3 |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||
Business combinations (note 4.1) |
— | — | — | — | — | |||||||||||||||||||
Depreciation and depletion for the period |
( |
) | ( |
) | ( |
) | — | ( |
) | ( |
) | |||||||||||||
Impairment losses (note 7) |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||
Foreign currency translation effects |
( |
) | ||||||||||||||||||||||
Cost at end of period |
||||||||||||||||||||||||
Accumulated depreciation and depletion |
( |
) | ( |
) | ( |
) | — | ( |
) | ( |
) | |||||||||||||
Net book value at end of period |
$ | |||||||||||||||||||||||
15) |
PROPERTY, MACHINERY AND EQUIPMENT, NET AND ASSETS FOR THE RIGHT-OF-USE, |
15.1) |
PROPERTY, MACHINERY AND EQUIPMENT, NET — continued |
1 |
As of December 31, 2022, the Maceo plant in Colombia, finalized significantly in 2017, with an annual capacity of approximately |
2 |
In 2022 includes sales of non-strategic fixed assets in the United States and the United Kingdom for $non-strategic fixed assets in Spain, the United States and the United Kingdom for $non-strategic fixed assets in the United Kingdom and the United States for $ |
3 |
In 2021, refers to the reclassification to held-for-sale |
2022 |
2021 |
2020 |
||||||||||
United States |
$ | |||||||||||
Spain |
||||||||||||
Colombia |
||||||||||||
Caribbean TCL |
— | — | ||||||||||
United Kingdom |
||||||||||||
Puerto Rico |
— | |||||||||||
Croatia |
— | |||||||||||
Panama |
— | |||||||||||
Others |
||||||||||||
| $ | ||||||||||||
15) |
PROPERTY, MACHINERY AND EQUIPMENT, NET AND ASSETS FOR THE RIGHT-OF-USE, |
15.2) |
ASSETS FOR THE RIGHT-OF-USE, |
2022 |
||||||||||||||||||||
Land |
Buildings |
Machinery and equipment |
Others |
Total |
||||||||||||||||
Assets for the right-of-use |
$ | |||||||||||||||||||
Accumulated depreciation |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||
Net book value at beginning of period |
||||||||||||||||||||
Additions of new leases |
||||||||||||||||||||
Cancellations and remeasurements |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||
Depreciation |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||
Foreign currency translation effects |
||||||||||||||||||||
Assets for the right-of-use |
||||||||||||||||||||
Accumulated depreciation |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||
Net book value at end of period |
$ | |||||||||||||||||||
2021 |
||||||||||||||||||||||||
Land |
Buildings |
Machinery and equipment |
Others |
Total |
2020 |
|||||||||||||||||||
Assets for the right-of-use |
$ | |||||||||||||||||||||||
Accumulated depreciation |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||
Net book value at beginning of period |
||||||||||||||||||||||||
Additions of new leases |
||||||||||||||||||||||||
Cancellations and remeasurements |
( |
) | ( |
) | ( |
) | — | ( |
) | ( |
) | |||||||||||||
Business combinations (note 4.1) |
— | — | — | — | — | |||||||||||||||||||
Depreciation |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||
Foreign currency translation effects |
( |
) | ( |
) | ||||||||||||||||||||
Assets for the right-of-use |
||||||||||||||||||||||||
Accumulated depreciation |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||
Net book value at end of period |
$ | |||||||||||||||||||||||
16) |
GOODWILL AND INTANGIBLE ASSETS, NET |
16.1) |
BALANCES AND CHANGES DURING THE PERIOD |
2022 |
2021 |
|||||||||||||||||||||||
Cost |
Accumulated amortization |
Carrying amount |
Cost |
Accumulated amortization |
Carrying amount |
|||||||||||||||||||
Intangible assets of indefinite useful life: |
||||||||||||||||||||||||
Goodwill |
$ | — | $ | — | ||||||||||||||||||||
Intangible assets of definite useful life: |
||||||||||||||||||||||||
Extraction rights |
( |
) | ( |
) | ||||||||||||||||||||
Industrial property and trademarks |
( |
) | ( |
) | ||||||||||||||||||||
Customer relationships |
( |
) | — | ( |
) | — | ||||||||||||||||||
Mining projects |
( |
) | ( |
) | ||||||||||||||||||||
Internally developed software |
( |
) | ( |
) | ||||||||||||||||||||
Other intangible assets |
( |
) | ( |
) | ||||||||||||||||||||
| $ | ( |
) | $ | ( |
) | |||||||||||||||||||
2022 |
2021 |
2020 |
||||||||||
Balance at beginning of period |
$ | |||||||||||
Impairment losses (notes 7 and 16.2) |
( |
) | ( |
) | ( |
) | ||||||
Business combinations (note 4.1) |
||||||||||||
Reclassification to assets held for sale (notes 4.2 and 13) |
( |
) | ( |
) | ||||||||
Foreign currency translation effects |
( |
) | ( |
) | ( |
) | ||||||
Balance at end of period |
$ | |||||||||||
2022 |
||||||||||||||||||||||||
Extraction rights |
Industrial property and trademarks |
Mining projects |
Internally developed software 1 |
Others |
Total |
|||||||||||||||||||
Balance at beginning of period |
$ | |||||||||||||||||||||||
Amortization for the period |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||
Additions (decreases), net 1 |
( |
) | — | ( |
) | |||||||||||||||||||
Foreign currency translation effects |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||
Balance at the end of period |
$ | |||||||||||||||||||||||
16) |
GOODWILL AND INTANGIBLE ASSETS, NET — continued |
16.1) |
BALANCES AND CHANGES DURING THE PERIOD — continued |
2021 |
||||||||||||||||||||||||||||
Extraction rights |
Industrial property and trademarks |
Mining projects |
Internally developed software 1 |
Others |
Total |
2020 |
||||||||||||||||||||||
Balance at beginning of period |
$ | |||||||||||||||||||||||||||
Impairment losses (note 7) |
— | — | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||
Amortization for the period |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||
Additions (decreases), net 1 |
— | |||||||||||||||||||||||||||
Business combinations (note 4.1) |
— | — | — | — | — | — | ||||||||||||||||||||||
Foreign currency translation effects |
( |
) | ( |
) | ||||||||||||||||||||||||
Balance at the end of period |
$ | |||||||||||||||||||||||||||
1 |
Includes the capitalized direct costs incurred in the development stage of internal-use software, such as professional fees, direct labor and related travel expenses. The capitalized amounts are amortized to the statement of operations over a period ranging from |
16.2) |
ANALYSIS OF GOODWILL IMPAIRMENT |
16) |
GOODWILL AND INTANGIBLE ASSETS, NET — continued |
16.2) |
ANALYSIS OF GOODWILL IMPAIRMENT — continued |
16) |
GOODWILL AND INTANGIBLE ASSETS, NET — continued |
16.2) |
ANALYSIS OF GOODWILL IMPAIRMENT — continued |
2022 |
2021 |
|||||||
Mexico |
$ | |||||||
United States |
||||||||
EMEAA |
||||||||
United Kingdom |
||||||||
France |
||||||||
Spain |
||||||||
Philippines |
||||||||
Rest of EMEAA 1 |
||||||||
SCA&C |
||||||||
Colombia |
||||||||
Caribbean TCL |
||||||||
Rest of SCA&C 2 |
||||||||
| $ | ||||||||
1 |
This caption refers to the operating segments in Israel, the Czech Republic and Egypt. |
2 |
This caption refers to the operating segments in the Dominican Republic, the Caribbean and Panama. |
Discount rates |
Long-term growth rates 1 | |||||||||||
Groups of CGUs |
2022 |
2021 |
2020 |
2022 |
2021 |
2020 | ||||||
United States |
||||||||||||
Spain |
||||||||||||
United Kingdom |
||||||||||||
France |
||||||||||||
Mexico |
||||||||||||
Colombia |
||||||||||||
United Arab Emirates |
— | — | — | — | ||||||||
Egypt |
||||||||||||
Range of rates in other countries |
( | |||||||||||
1 |
The long-term growth rates are generally based on projections issued by the International Monetary Fund (“IMF”). |
16) |
GOODWILL AND INTANGIBLE ASSETS, NET — continued |
16.2) |
ANALYSIS OF GOODWILL IMPAIRMENT — continued |
16) |
GOODWILL AND INTANGIBLE ASSETS, NET — continued |
16.2) |
ANALYSIS OF GOODWILL IMPAIRMENT — continued |
Additional effects to the impairment losses recognized from the sensitivity analyses to changes in assumptions as of December 31, 2022 |
||||||||||||||||
Operating segment |
Impairment losses recognized |
Discount rate + |
Long-term growth rate - |
Multiples Operating EBITDA |
||||||||||||
United States |
$ | ( |
) | ( |
) | ( |
) | — | ||||||||
Spain |
( |
) | ( |
) | ( |
) | — | |||||||||
17) |
FINANCIAL INSTRUMENTS |
17.1) |
CURRENT AND NON-CURRENT DEBT |
2022 |
2021 |
|||||||||||||||||||||||
Current |
Non-current |
Total 1, 2 |
Current |
Non-current |
Total 1, 2 |
|||||||||||||||||||
Floating rate debt |
$ | $ | ||||||||||||||||||||||
Fixed rate debt |
||||||||||||||||||||||||
| $ | $ | |||||||||||||||||||||||
Effective rate 3 |
||||||||||||||||||||||||
Floating rate |
% | % | % | % | ||||||||||||||||||||
Fixed rate |
% | % | % | % | ||||||||||||||||||||
17) |
FINANCIAL INSTRUMENTS — continued |
17.1) |
CURRENT AND NON-CURRENT DEBT — continued |
2022 |
2021 |
|||||||||||||||||||||||||||||||
Currency |
Current |
Non-current |
Total |
Effective rate 3 |
Current |
Non-current |
Total |
Effective rate 3 |
||||||||||||||||||||||||
Dollars |
$ | % | $ | % | ||||||||||||||||||||||||||||
Euros |
% | % | ||||||||||||||||||||||||||||||
Pesos |
% | % | ||||||||||||||||||||||||||||||
Philippine Pesos |
% | % | ||||||||||||||||||||||||||||||
Other currencies |
% | % | ||||||||||||||||||||||||||||||
| $ | $ | |||||||||||||||||||||||||||||||
1 |
As of December 31, 2022 and 2021, from total debt of $ |
2 |
As of December 31, 2022 and 2021, cumulative discounts, fees and other direct costs incurred in CEMEX’s outstanding debt borrowings and the issuance of notes payable (jointly “Issuance Costs”) for $ |
3 |
In 2022 and 2021, represents the weighted-average nominal interest rate of the related debt agreements determined at the end of each period. |
2022 |
Current |
Non-current |
2021 |
Current |
Non-current |
|||||||||||||
Bank loans |
Bank loans |
|||||||||||||||||
Loans in foreign countries, |
$ | Loans in foreign countries, |
$ | |||||||||||||||
Syndicated loans, |
— | Syndicated loans, |
— | |||||||||||||||
Notes payable |
Notes payable |
|||||||||||||||||
Medium-term notes, |
— | Medium-term notes, |
— | |||||||||||||||
Other notes payable, |
Other notes payable, |
|||||||||||||||||
Total bank loans and notes payable |
Total bank loans and notes payable |
|||||||||||||||||
Current maturities |
( |
) | Current maturities |
( |
) | |||||||||||||
| $ | $ | |||||||||||||||||
17) |
FINANCIAL INSTRUMENTS — continued |
17.1) |
CURRENT AND NON-CURRENT DEBT — continued |
2022 |
2021 |
2020 |
||||||||||
Debt at beginning of year |
$ | |||||||||||
Proceeds from new debt instruments |
||||||||||||
Debt repayments |
( |
) | ( |
) | ( |
) | ||||||
Foreign currency translation and accretion effects |
( |
) | ||||||||||
Debt at end of year |
$ | |||||||||||
Description |
Date of issuance |
Issuer 1 |
Currency |
Principal amount |
Rate |
Maturity date |
Redeemed amount 2 $ |
Outstanding amount 2 $ |
2022 |
2021 |
||||||||||||||||||||||||||
July 2031 Notes 3 |
% | ( |
) | $ | ||||||||||||||||||||||||||||||||
September 2030 Notes 3 |
% | ( |
) | |||||||||||||||||||||||||||||||||
November 2029 Notes 3 |
% | ( |
) | |||||||||||||||||||||||||||||||||
June 2027 Notes |
% | — | ||||||||||||||||||||||||||||||||||
March 2026 Notes |
% | — | ||||||||||||||||||||||||||||||||||
July 2025 Notes |
% | — | ||||||||||||||||||||||||||||||||||
Other notes payable |
||||||||||||||||||||||||||||||||||||
| $ | ||||||||||||||||||||||||||||||||||||
1 |
As of December 31, 2021, after closing the 2021 Credit Agreement, these issued notes are fully and unconditionally guaranteed by CEMEX Concretos, S.A. de C.V., CEMEX Operaciones México, S.A. de C.V., Cemex Innovation Holding Ltd. and CEMEX Corp. |
17) |
FINANCIAL INSTRUMENTS — continued |
17.1) |
CURRENT AND NON-CURRENT DEBT — continued |
2 |
Presented net of all notes repurchased by CEMEX. As of December 31, 2022, all repurchased notes have been canceled. |
3 |
During 2022, pursuant to tender offers and other market transactions, CEMEX partially repurchased different series of its notes for an aggregate notional amount of $ |
Bank loans |
Notes payable |
Total |
||||||||||
2024 |
$ | |||||||||||
2025 |
||||||||||||
2026 |
||||||||||||
2027 |
||||||||||||
2028 and thereafter |
— | |||||||||||
| $ | ||||||||||||
Lines of credit |
Available |
|||||||
Other lines of credit in foreign subsidiaries 1 |
$ | |||||||
Other lines of credit from banks 1 |
||||||||
Revolving credit facility 2021 Credit Agreement |
||||||||
| $ | ||||||||
1 |
Uncommitted amounts subject to the banks’ availability. |
17) |
FINANCIAL INSTRUMENTS — continued |
17.1) |
CURRENT AND NON-CURRENT DEBT — continued |
17) |
FINANCIAL INSTRUMENTS — continued |
17.1) |
CURRENT AND NON-CURRENT DEBT — continued |
1 |
The London Inter-Bank Offered Rate (“LIBOR”) represent the variable rate used in international markets for debt denominated in Dollars. As of December 31, 2022 and 2021, 3-Month LIBOR rate was |
2 |
The Euro Inter-Bank Offered Rate (“EURIBOR”) represent the variable rate used in international markets for debt denominated in Euros. The Tasa de Inter é s Interbancaria de Equilibrio 3-Month EURIBOR rate was - respectively. As of December 31, 2022 and 2021, 28-day TIIE rate was |
| • | Under the 2021 Credit Agreement, the ratio is calculated dividing “Consolidated Net Debt” by “Consolidated EBITDA” for the last twelve months as of the calculation date. Consolidated Net Debt equals debt, as reported in the statement of financial position, net of cash and cash equivalents, excluding any existing or future obligations under any securitization program, and any subordinated debt of CEMEX, adjusted for net mark-to-market |
17) |
FINANCIAL INSTRUMENTS — continued |
17.1) |
CURRENT AND NON-CURRENT DEBT — continued |
| • | Under the 2017 Facilities Agreement, the ratio was calculated dividing “Funded Debt” by pro forma Operating EBITDA for the last twelve months as of the calculation date including a permanent fixed adjustment from the adoption of IFRS 16. Funded Debt equals debt, as reported in the statement of financial position, net of cash and cash equivalents, excluding components of liability of convertible subordinated notes, plus lease liabilities, perpetual debentures and guarantees, plus or minus the fair value of derivative financial instruments, as applicable, among other adjustments for business acquisitions or disposals. |
| • | Under the 2021 Credit Agreement, the ratio is calculated by dividing Consolidated EBITDA by the financial expense for the last twelve months as of the calculation date. |
| • | Under the 2017 Facilities Agreement, the ratio was calculated by dividing pro forma Operating EBITDA by the financial expense for the last twelve months as of the calculation date, both including IFRS 16 effects. Financial expense included coupons accrued on the perpetual debentures. |
Consolidated financial ratios |
Refers to the compliance limits and calculations that were effective on each date |
|||||||||||||
2022 |
2021 |
2020 |
||||||||||||
Leverage ratio |
Limit |
<= |
<= |
<= |
||||||||||
Calculation |
||||||||||||||
Coverage ratio |
Limit |
>= |
>= |
>= |
||||||||||
Calculation |
||||||||||||||
17) |
FINANCIAL INSTRUMENTS — continued |
17.1) |
CURRENT AND NON-CURRENT DEBT — continued |
17.2) |
OTHER FINANCIAL OBLIGATIONS |
2022 |
2021 |
|||||||||||||||||||||||
Current |
Non-current |
Total |
Current |
Non-current |
Total |
|||||||||||||||||||
I. Leases |
$ | $ | ||||||||||||||||||||||
II. Liabilities secured with accounts receivable |
— | — | ||||||||||||||||||||||
| $ | $ | |||||||||||||||||||||||
I. |
Leases (notes 2.7, 8.1, 15.2 and 24.1) |
2022 |
2021 |
2020 |
||||||||||
Lease financial liability at beginning of year |
$ | |||||||||||
Additions from new leases |
||||||||||||
Reductions from payments |
( |
) | ( |
) | ( |
) | ||||||
Cancellations and liability remeasurements |
( |
) | ||||||||||
Foreign currency translation and accretion effects |
( |
) | ( |
) | ||||||||
Lease financial liability at end of year |
$ | |||||||||||
17) |
FINANCIAL INSTRUMENTS — continued |
17.2) |
OTHER FINANCIAL OBLIGATIONS — continued |
Total |
||||
2024 |
$ | |||
2025 |
||||
2026 |
||||
2027 |
||||
2028 and thereafter |
||||
| $ | ||||
II. |
Liabilities secured with accounts receivable |
17.3) |
FAIR VALUE OF FINANCIAL INSTRUMENTS |
17) |
FINANCIAL INSTRUMENTS — continued |
17.3) |
FAIR VALUE OF FINANCIAL INSTRUMENTS — continued |
2022 |
2021 |
|||||||||||||||
Carrying amount |
Fair value |
Carrying amount |
Fair value |
|||||||||||||
Financial assets |
||||||||||||||||
Derivative financial instruments (notes 14.2 and 17.4) |
$ | $ | ||||||||||||||
Other investments and non-current accounts receivable (note 14.2) |
||||||||||||||||
| $ | $ | |||||||||||||||
Financial liabilities |
||||||||||||||||
Long-term debt (note 17.1) |
$ | $ | ||||||||||||||
Other financial obligations (note 17.2) |
||||||||||||||||
Derivative financial instruments (notes 17.4 and 18.2) |
||||||||||||||||
| $ | $ | |||||||||||||||
2022 |
Level 1 |
Level 2 |
Level 3 |
Total |
||||||||||||
Assets measured at fair value |
||||||||||||||||
Derivative financial instruments (notes 14.2 and 17.4) |
$ | — | — | |||||||||||||
Investments in strategic equity securities (note 14.2) |
— | — | ||||||||||||||
Other investments at fair value through earnings (note 14.2) |
— | — | ||||||||||||||
| $ | — | |||||||||||||||
Liabilities measured at fair value |
||||||||||||||||
Derivative financial instruments (notes 17.4 and 18.2) |
$ | — | — | |||||||||||||
17) |
FINANCIAL INSTRUMENTS — continued |
17.3) |
FAIR VALUE OF FINANCIAL INSTRUMENTS — continued |
2021 |
Level 1 |
Level 2 |
Level 3 |
Total |
||||||||||||
Assets measured at fair value |
||||||||||||||||
Derivative financial instruments (notes 14.2 and 17.4) |
$ | — | — | |||||||||||||
Investments in strategic equity securities (note 14.2) |
— | — | ||||||||||||||
Other investments at fair value through earnings (note 14.2) |
— | — | ||||||||||||||
| $ | — | |||||||||||||||
Liabilities measured at fair value |
||||||||||||||||
Derivative financial instruments (notes 17.4 and 18.2) |
$ | — | — | |||||||||||||
17.4) |
DERIVATIVE FINANCIAL INSTRUMENTS |
2022 |
2021 |
|||||||||||||||
Notional amount |
Fair value |
Notional amount |
Fair value |
|||||||||||||
I. Net investment hedges |
$ | ( |
) | |||||||||||||
II. Interest rate swaps |
( |
) | ||||||||||||||
III. Fuel price hedging |
||||||||||||||||
IV. Foreign exchange options |
||||||||||||||||
| $ | ||||||||||||||||
I. |
Net investment hedges |
17) |
FINANCIAL INSTRUMENTS — continued |
17.4) |
DERIVATIVE FINANCIAL INSTRUMENTS — continued |
II. |
Interest rate swap contracts |
17) |
FINANCIAL INSTRUMENTS — continued |
17.4) |
DERIVATIVE FINANCIAL INSTRUMENTS — continued |
III. |
Fuel price hedging |
IV. |
Foreign exchange options |
17) |
FINANCIAL INSTRUMENTS — continued |
17.4) |
DERIVATIVE FINANCIAL INSTRUMENTS — continued |
17.5) |
RISK MANAGEMENT |
17) |
FINANCIAL INSTRUMENTS — continued |
17.5) |
RISK MANAGEMENT — continued |
17) |
FINANCIAL INSTRUMENTS — continued |
17.5) |
RISK MANAGEMENT — continued |
17) |
FINANCIAL INSTRUMENTS — continued |
17.5) |
RISK MANAGEMENT — continued |
2022 |
||||||||||||||||||||||||
Mexico |
United States |
EMEAA |
SCA&C |
Others 1 |
Total |
|||||||||||||||||||
Monetary assets |
$ | |||||||||||||||||||||||
Monetary liabilities |
||||||||||||||||||||||||
Net monetary assets (liabilities) |
$ | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | |||||||||||
Out of which: |
||||||||||||||||||||||||
Dollars |
$ | ( |
) | ( |
) | ( |
) | ( |
) | |||||||||||||||
Pesos |
( |
) | — | — | — | ( |
) | ( |
) | |||||||||||||||
Euros |
— | — | ( |
) | ( |
) | ( |
) | ||||||||||||||||
Pounds |
— | — | ( |
) | — | ( |
) | |||||||||||||||||
Other currencies |
— | ( |
) | ( |
) | ( |
) | ( |
) | |||||||||||||||
| $ | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||
2021 |
||||||||||||||||||||||||
Mexico |
United States |
EMEAA |
SCA&C |
Others 1 |
Total |
|||||||||||||||||||
Monetary assets |
$ | |||||||||||||||||||||||
Monetary liabilities |
||||||||||||||||||||||||
Net monetary assets (liabilities) |
$ | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | |||||||||||
Out of which: |
||||||||||||||||||||||||
Dollars |
$ | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | |||||||||||||
Pesos |
( |
) | — | — | — | ( |
) | ( |
) | |||||||||||||||
Euros |
— | — | ( |
) | ( |
) | ( |
) | ||||||||||||||||
Pounds |
— | — | ( |
) | — | ( |
) | |||||||||||||||||
Other currencies |
( |
) | — | ( |
) | ( |
) | ( |
) | ( |
) | |||||||||||||
| $ | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||
1 |
Includes the Parent Company, CEMEX’s financing subsidiaries, among other entities. |
17) |
FINANCIAL INSTRUMENTS — continued |
17.5) |
RISK MANAGEMENT — continued |
18) |
OTHER CURRENT AND NON-CURRENT LIABILITIES |
18.1) |
OTHER CURRENT LIABILITIES |
2022 |
2021 |
|||||||
Provisions 1 |
$ | |||||||
Interest payable |
||||||||
Other accounts payable and accrued expenses 2 |
||||||||
Contract liabilities with customers (note 3) 3 |
||||||||
| $ | ||||||||
1 |
Current provisions primarily consist of accrued employee benefits, insurance payments, accruals for legal assessments and others. These amounts are revolving in nature and are expected to be settled and replaced by similar amounts within the next 12 months. |
2 |
As of December 31, 2022 and 2021, includes $ |
3 |
As of December 31, 2022 and 2021, contract liabilities with customers included $ |
18.2) |
OTHER NON-CURRENT LIABILITIES |
2022 |
2021 |
|||||||
Asset retirement obligations 1 |
$ | |||||||
Accruals for legal assessments and other responsibilities 2 |
||||||||
Non-current liabilities for valuation of derivative instruments |
||||||||
Environmental liabilities 3 |
||||||||
Other non-current liabilities and provisions4, 5 |
||||||||
| $ | ||||||||
1 |
2 |
3 |
4 |
non-current porti on of taxes payable in Mexico. |
5 |
18) |
OTHER CURRENT AND NON-CURRENT LIABILITIES — continued |
18.2) |
OTHER NON-CURRENT LIABILITIES — continued |
2022 |
||||||||||||||||||||||||||||
Asset retirement obligations |
Environmental liabilities |
Accruals for legal proceedings |
Valuation of derivative instruments |
Other liabilities and provisions |
Total |
2021 |
||||||||||||||||||||||
Balance at beginning of period |
$ | |||||||||||||||||||||||||||
Additions or increase in estimates |
||||||||||||||||||||||||||||
Releases or decrease in estimates |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||
Business combinations |
||||||||||||||||||||||||||||
Reclassifications |
— | — | ( |
) | ||||||||||||||||||||||||
Accretion expense |
( |
) | — | ( |
) | — | ( |
) | ( |
) | ( |
) | ||||||||||||||||
Foreign currency translation |
( |
) | ( |
) | ( |
) | ||||||||||||||||||||||
Balance at end of period |
$ | |||||||||||||||||||||||||||
Out of which: |
||||||||||||||||||||||||||||
Current provisions |
$ | — | — | — | ||||||||||||||||||||||||
Pensions |
Other benefits |
Total |
||||||||||||||||||||||||||||||||||
Net period cost (income): |
2022 |
2021 |
2020 |
2022 |
2021 |
2020 |
2022 |
2021 |
2020 |
|||||||||||||||||||||||||||
Recorded in operating costs and expenses |
||||||||||||||||||||||||||||||||||||
Service cost |
$ | |||||||||||||||||||||||||||||||||||
Past service cost |
( |
) | ( |
) | ||||||||||||||||||||||||||||||||
Settlements and curtailments |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||
Recorded in other financial expenses |
||||||||||||||||||||||||||||||||||||
Net interest cost |
||||||||||||||||||||||||||||||||||||
Recorded in other comprehensive income |
||||||||||||||||||||||||||||||||||||
Actuarial (gains) losses for the period |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||
| $ | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||||||||||||||||
Pensions |
Other benefits |
Total |
||||||||||||||||||||||
2022 |
2021 |
2022 |
2021 |
2022 |
2021 |
|||||||||||||||||||
Change in benefits obligation: |
||||||||||||||||||||||||
Projected benefit obligation at beginning of the period |
$ | |||||||||||||||||||||||
Service cost |
||||||||||||||||||||||||
Interest cost |
||||||||||||||||||||||||
Actuarial gains |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||
Initial valuation from new plan |
||||||||||||||||||||||||
Reduction from disposal of assets 1 |
( |
) | ( |
) | ||||||||||||||||||||
Settlements and curtailments |
( |
) | ( |
) | ( |
) | ||||||||||||||||||
Plan amendments |
||||||||||||||||||||||||
Benefits paid |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||
Foreign currency translation |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||
Projected benefit obligation at end of the period |
||||||||||||||||||||||||
Change in plan assets: |
||||||||||||||||||||||||
Fair value of plan assets at beginning of the period |
||||||||||||||||||||||||
Return on plan assets |
— | — | ||||||||||||||||||||||
Actuarial (losses) gains |
( |
) | — | — | ( |
) | ||||||||||||||||||
Employer contributions |
||||||||||||||||||||||||
Initial valuation from new plan |
||||||||||||||||||||||||
Benefits paid |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||
Foreign currency translation |
( |
) | ( |
) | — | — | ( |
) | ( |
) | ||||||||||||||
Fair value of plan assets at end of the period |
||||||||||||||||||||||||
Net projected liability in the statement of financial position |
$ | |||||||||||||||||||||||
1 |
In connection with the sale of Neoris’ |
2022 |
2021 |
2020 |
||||||||||
Actuarial (gains) losses due to experience |
$ | ( |
) | |||||||||
Actuarial (gains) losses due to demographic assumptions |
( |
) | ||||||||||
Actuarial (gains) losses due financial assumptions |
( |
) | ( |
) | ||||||||
| $ | ( |
) | ( |
) | ||||||||
2022 |
2021 |
|||||||||||||||||||||||||||||||
Level 1 |
Level 2 |
Level 3 |
Total |
Level 1 |
Level 2 |
Level 3 |
Total |
|||||||||||||||||||||||||
Cash |
$ | — | — | $ | — | — | ||||||||||||||||||||||||||
Investments in corporate bonds |
— | — | ||||||||||||||||||||||||||||||
Investments in government bonds |
— | — | ||||||||||||||||||||||||||||||
Total fixed-income securities |
— | — | ||||||||||||||||||||||||||||||
Investment in marketable securities |
— | — | ||||||||||||||||||||||||||||||
Other investments and private funds |
||||||||||||||||||||||||||||||||
Total variable-income securities |
||||||||||||||||||||||||||||||||
Total plan assets |
$ | $ | ||||||||||||||||||||||||||||||
2022 |
2021 |
|||||||||||||||||||||||||||||
Mexico |
United States |
United Kingdom |
Range of rates in other countries |
Mexico |
United States |
United Kingdom |
Rates ranges in other countries |
|||||||||||||||||||||||
Discount rates |
% | % | % | % | % | % | ||||||||||||||||||||||||
Rate of return on plan assets |
% | % | % | % | % | % | ||||||||||||||||||||||||
Rate of salary increases |
% | — | % | % | — | % | ||||||||||||||||||||||||
Estimated payments |
||||
2023 |
$ | |||
2024 |
||||
2025 |
||||
2026 |
||||
2027 – 2032 |
||||
2022 |
2021 |
|||||||||||||||||||||||
PBO |
Assets |
Deficit |
PBO |
Assets |
Deficit |
|||||||||||||||||||
Mexico |
$ | $ | ||||||||||||||||||||||
United States |
||||||||||||||||||||||||
United Kingdom 1 |
||||||||||||||||||||||||
Germany |
||||||||||||||||||||||||
Other countries |
||||||||||||||||||||||||
| $ | $ | |||||||||||||||||||||||
1 |
Applicable regulation in the United Kingdom requires to maintain plan assets at a level similar to that of the obligations. Beginning in 2012, the pension fund started to receive annual dividends from a limited partnership (the “Partnership”), whose assets, transferred by CEMEX UK of an approximate value of $ |
Pensions |
Other benefits |
Total |
||||||||||||||||||||||
Assumptions: |
+50 bps |
-50 bps |
+50 bps |
-50 bps |
+50 bps |
-50 bps |
||||||||||||||||||
Discount Rate Sensitivity |
$ | ( |
) | ( |
) | ( |
) | |||||||||||||||||
Salary Increase Rate Sensitivity |
( |
) | ( |
) | ( |
) | ||||||||||||||||||
Pension Increase Rate Sensitivity |
( |
) | — | — | ( |
) | ||||||||||||||||||
20) |
INCOME TAXES |
20.1) |
INCOME TAXES FOR THE PERIOD |
2022 |
2021 |
2020 |
||||||||||
Current income tax expense |
$ | |||||||||||
Deferred income tax expense (income) |
( |
) | ( |
) | ||||||||
| $ | ||||||||||||
20) |
INCOME TAXES — continued |
20.2) |
DEFERRED INCOME TAXES |
2022 |
2021 |
|||||||
Deferred tax assets: |
||||||||
Tax loss carryforwards and other tax credits |
$ | |||||||
Accounts payable and accrued expenses |
||||||||
Intangible assets, net |
||||||||
Total deferred tax assets, gross |
||||||||
Presentation of net position by same legal entity |
( |
) | ( |
) | ||||
Deferred tax liabilities: |
||||||||
Property, machinery and equipment and right-of-use |
( |
) | ( |
) | ||||
Investments and other assets |
( |
) | ( |
) | ||||
Total deferred tax liabilities, gross |
( |
) | ( |
) | ||||
Presentation of net position by same legal entity |
||||||||
Total deferred tax liabilities, net in the statement of financial position |
( |
) | ( |
) | ||||
Net deferred tax assets (liabilities) |
$ | |||||||
Out of which: |
||||||||
Net deferred tax liabilities in Mexican entities 1 |
$ | ( |
) | ( |
) | |||
Net deferred tax assets in foreign entities 2 |
||||||||
Net deferred tax assets |
$ | |||||||
1 |
Net deferred tax liabilities in Mexico at the reporting date mainly refer to a temporary difference resulting when comparing the carrying amount of property, machinery and equipment, against their corresponding tax values (remaining tax-deductible amount), partially offset by certain deferred tax assets from tax loss carryforwards that are expected to be recovered in the future against taxable income. When the book value is greater than the related tax value results in a deferred tax liability. In 2011, upon transition to IFRS, CEMEX elected to measure its fixed assets at fair value, which resulted in a significant increase in book value, mainly associated with the revaluation of mineral reserves. Such restated amounts are depleted to the income statement in a period close to tax-deductible; hence the temporary difference will gradually reverse over time but does not represent a payment obligation to the tax authority at the reporting date. |
2 |
Net deferred tax assets in foreign entities in 2022 and 2021 are mainly related to tax loss carryforwards recognized in prior years, mainly in the United States, that are expected to be recovered in the future against taxable income. |
20) |
INCOME TAXES — continued |
20.2) |
DEFERRED INCOME TAXES — continued |
2022 |
2021 |
|||||||||||||||||||||||
Assets |
Liabilities |
Net |
Assets |
Liabilities |
Net |
|||||||||||||||||||
Mexican entities |
$ | ( |
) | ( |
) | $ | ( |
) | ( |
) | ||||||||||||||
Foreign entities |
( |
) | ( |
) | ||||||||||||||||||||
| $ | ( |
) | $ | ( |
) | |||||||||||||||||||
2022 |
2021 |
2020 |
||||||||||
Deferred income tax expense (income) in the income statement |
$ | ( |
) | ( |
) | |||||||
Deferred income tax expense (income) in stockholders’ equity |
( |
) | ( |
) | ||||||||
Reclassifications 1 |
( |
) | ||||||||||
Change in deferred income tax during the period |
$ | ( |
) | |||||||||
1 |
In 2022, 2021 and 2020, refers to the effects of the reclassification of balances to assets held for sale and related liabilities (note 4.2). |
2022 |
2021 |
2020 |
||||||||||
Revenue related to foreign exchange fluctuations from intercompany balances (note 21.2) |
$ | ( |
) | ( |
) | |||||||
Expense (revenue) associated to actuarial results (note 21.2) |
( |
) | ||||||||||
Revenue related to derivative financial instruments (note 17.4) |
( |
) | ( |
) | ||||||||
Expense (revenue) from foreign currency translation and other effects |
( |
) | ( |
) | ||||||||
| $ | ( |
) | ( |
) | ||||||||
Amount of carryforwards |
Amount of unrecognized carryforwards |
Amount of recognized carryforwards |
||||||||||
2023 |
$ | |||||||||||
2024 |
||||||||||||
2025 |
||||||||||||
2026 |
||||||||||||
2027 and thereafter |
||||||||||||
| $ | ||||||||||||
20) |
INCOME TAXES — continued |
20.2) |
DEFERRED INCOME TAXES — continued |
20.3) |
RECONCILIATION OF EFFECTIVE INCOME TAX RATE |
2022 |
2021 |
2020 |
||||||||||
| Earnings (loss) before income tax |
$ | ( |
) | |||||||||
| Income tax expense |
( |
) | ( |
) | ( |
) | ||||||
| |
|
|
|
|
|
|||||||
| Effective consolidated income tax expense rate 1 |
% | % | ( |
)% | ||||||||
| |
|
|
|
|
|
|||||||
1 |
The average effective tax rate equals the net amount of income tax revenue or expense divided by income or loss before income taxes, as these line items are reported in the income statement. |
20) |
INCOME TAXES — continued |
20.3) |
RECONCILIATION OF EFFECTIVE INCOME TAX RATE — continued |
2022 |
2021 |
2020 |
||||||||||||||||||||||
% |
$ |
% |
$ |
% |
$ |
|||||||||||||||||||
| Mexican statutory tax rate |
( |
) | ||||||||||||||||||||||
| Difference between accounting and tax expenses, net 1 |
( |
) | ||||||||||||||||||||||
| Non-taxable sale of equity securities and fixed assets |
( |
) | ( |
) | ( |
) | ||||||||||||||||||
| Difference between book and tax inflation |
( |
) | ||||||||||||||||||||||
| Differences in the income tax rates in the countries where CEMEX operates 2 |
( |
) | ( |
) | ( |
) | ||||||||||||||||||
| Changes in deferred tax assets 3 |
( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||||
| Changes in provisions for uncertain tax positions |
( |
) | ( |
) | ( |
) | ||||||||||||||||||
| Others |
( |
) | ||||||||||||||||||||||
| |
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
| Effective consolidated income tax expense rate |
( |
) | ||||||||||||||||||||||
| |
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
1 |
In 2022 includes $ non-deductible (note 7). |
2 |
Refers mainly to the effects of the differences between the statutory income tax rate in Mexico of |
3 |
Refers to the effects in the effective income tax rate associated with changes during the period in the amount of deferred income tax assets related to CEMEX’s tax loss carryforwards. |
2022 |
2021 |
|||||||||||||||
Changes in the statement of financial position |
Amounts in reconciliation |
Changes in the statement of financial position |
Amounts in reconciliation |
|||||||||||||
| Tax loss carryforwards generated and not recognized during the year |
$ | — | — | |||||||||||||
| Derecognition related to tax loss carryforwards recognized in prior years |
( |
) | — | ( |
) | |||||||||||
| Recognition related to unrecognized tax loss carryforwards |
( |
) | ( |
) | ||||||||||||
| Foreign currency translation and other effects |
( |
) | ( |
) | ||||||||||||
| |
|
|
|
|
|
|
|
|||||||||
| Changes in deferred tax assets |
$ | ( |
) | ( |
) | ( |
) | ( |
) | |||||||
| |
|
|
|
|
|
|
|
|||||||||
20) |
INCOME TAXES — continued |
20.4) |
UNCERTAIN TAX POSITIONS AND SIGNIFICANT TAX PROCEEDINGS |
2022 |
2021 |
2020 |
||||||||||
Balance of tax positions at beginning of the period |
$ | |||||||||||
Additions for tax positions of prior periods |
— | |||||||||||
Additions for tax positions of current period |
||||||||||||
Reductions for tax positions related to prior periods and other items |
( |
) | ( |
) | ( |
) | ||||||
Settlements and reclassifications |
( |
) | ( |
) | ( |
) | ||||||
Expiration of the statute of limitations |
( |
) | ( |
) | ( |
) | ||||||
Foreign currency translation effects |
( |
) | ||||||||||
Balance of tax positions at end of the period |
$ | |||||||||||
| • | The tax authorities in Spain (“the Spanish Tax Authorities”) challenged part of the tax loss carryforwards reported by CEMEX España covering the tax years from and including 2006 to 2009. During 2013, the Spanish Tax Authorities notified CEMEX España of fines in the aggregate amount of $ Tribunal Económico Administrativo Central |
20) |
INCOME TAXES — continued |
20.4) |
UNCERTAIN TAX POSITIONS AND SIGNIFICANT TAX PROCEEDINGS — continued |
resolution in November 2017 before the National Court ( Audiencia Nacional |
| • | On March 26, 2021, the Spanish Tax Authorities notified CEMEX España of an assessment for Income Taxes in an amount in Euros equivalent to $ |
| • | During April, 2018, CEMEX Colombia received a special proceeding from the Colombian Tax Authority (the “Tax Authority”), where certain deductions included in the 2012 income tax return were rejected. The Tax Authority assessed an increase in the income tax payable by CEMEX Colombia and imposed an inaccuracy penalty for amounts in Colombian Pesos equivalent to $26 of income tax and $ |
20) |
INCOME TAXES — continued |
20.4) |
UNCERTAIN TAX POSITIONS AND SIGNIFICANT TAX PROCEEDINGS — continued |
amounts include in the taxes payable, the adjustment of refunding to the Tax Authority credit balances for the year in question, which were used to offset taxes payable for subsequent years. If the proceeding is adversely resolved in the final stage, CEMEX Colombia must pay the amounts determined in the official settlement plus interest accrued on the amount of the income tax adjustment until the payment date. As of December 31, 2022, at this stage of the proceeding, CEMEX considers that an adverse resolution in this proceeding after conclusion of all available defense procedures is not probable, however, it is difficult to assess with certainty the likelihood of an adverse result in the proceeding; if adversely resolved, CEMEX believes this proceeding could have a material adverse impact on the operating results, liquidity or financial position of CEMEX. |
| • | In September 2012, the Tax Authority requested CEMEX Colombia to amend its income tax return for the year 2011 in connection with several deductible expenses including the amortization of goodwill. CEMEX Colombia rejected the arguments of the ordinary request and filed a motion requesting the case to be closed. The 2011 income tax return was under audit of the Tax Authority from August 2013 until September 5, 2018, when the Tax Authority notified CEMEX Colombia of a special proceeding in which it rejected certain deductions included in the 2011 tax return and determined an increase in the income tax payable and imposed a penalty for amounts in Colombian Pesos equivalent to $ |
21) |
STOCKHOLDERS’ EQUITY |
21) |
STOCKHOLDERS’ EQUITY — continued |
As of December 31, 2022 |
||||||||
Consolidated |
Parent Company |
|||||||
Common stock and additional paid-in capital1 |
$ | |||||||
Other equity reserves 1, 2 |
( |
) | ||||||
Retained earnings 2 |
||||||||
Total controlling interest |
$ | |||||||
1 |
The difference relates to the method of accruing Dollars using the historical exchange rates to translate each common stock and additional paid-in capital transaction denominated in Pesos to Dollars. The cumulative effect from these changes in exchange rates is recognized against other equity reserves. |
2 |
The difference relates with the method of accruing Dollars using the exchange rates of each month during the period for income statement purposes. The cumulative effect from these changes in exchange rates is recognized against other equity reserves. |
21.1) |
COMMON STOCK AND ADDITIONAL PAID-IN CAPITAL |
2022 |
2021 |
|||||||
Common stock |
$ | |||||||
Additional paid-in capital |
||||||||
| $ | ||||||||
21) |
STOCKHOLDERS’ EQUITY — continued |
21.1) |
COMMON STOCK AND ADDITIONAL PAID-IN CAPITAL — continued |
2022 |
2021 |
|||||||||||||||
Shares 1 |
Series A 2 |
Series B 2 |
Series A 2 |
Series B 2 |
||||||||||||
Subscribed and paid shares |
||||||||||||||||
Unissued shares authorized for executives’ stock compensation programs |
||||||||||||||||
Repurchased shares 3 |
||||||||||||||||
1 |
As of December 31, 2022 and 2021, |
2 |
Series “A” or Mexican shares must represent at least |
3 |
Shares repurchased under the share repurchase program authorized by the Company’s shareholders (note 21.2). |
21) |
STOCKHOLDERS’ EQUITY — continued |
21.1) |
COMMON STOCK AND ADDITIONAL PAID-IN CAPITAL — continued |
21.2) |
OTHER EQUITY RESERVES AND SUBORDINATED NOTES |
2022 |
2021 |
|||||||
Other equity reserves |
$ | ( |
) | ( |
) | |||
Subordinated notes |
||||||||
| $ | ( |
) | ( |
) | ||||
2022 |
2021 |
|||||||
Cumulative translation effect, net of effects from deferred income taxes recognized directly in equity (note 20.2) and derivative financial instruments designated as cash flow hedges |
$ | ( |
) | ( |
) | |||
Cumulative actuarial losses |
( |
) | ( |
) | ||||
Cumulative coupon payments under perpetual debentures (note 21.4) |
( |
) | ( |
) | ||||
Treasury shares repurchased under share repurchase program (note 21.1) |
( |
) | ||||||
Cumulative coupon payments under subordinated notes 1 |
( |
) | ( |
) | ||||
Treasury shares held by subsidiaries |
( |
) | ( |
) | ||||
| $ | ( |
) | ( |
) | ||||
1 |
Interest accrued under the Parent Company’s subordinated notes described below are recognized as part of other equity reserves. |
21) |
STOCKHOLDERS’ EQUITY — continued |
21.2) |
OTHER EQUITY RESERVES AND SUBORDINATED NOTES — continued |
2022 |
2021 |
2020 |
||||||||||
Foreign currency translation result 1 |
$ | ( |
) | ( |
) | |||||||
Foreign exchange fluctuations from debt 2 |
( |
) | ( |
) | ||||||||
Foreign exchange fluctuations from intercompany balances 3 |
( |
) | ( |
) | ( |
) | ||||||
| $ | ( |
) | ( |
) | ( |
) | ||||||
1 |
These effects refer to the result from the translation of the financial statements of foreign subsidiaries and include the changes in fair value of foreign exchange forward contracts designated as hedge of a net investment (note 17.4). |
2 |
Generated by foreign exchange fluctuations over a notional amount of debt in CEMEX, S.A.B. de C.V., associated with the acquisition of foreign subsidiaries and designated as a hedge of the net investment in foreign subsidiaries (note 2.4). |
3 |
Refers to foreign exchange fluctuations arising from balances with related parties in foreign currencies that are of a long-term investment nature considering that their liquidation is not anticipated in the foreseeable future and foreign exchange fluctuations over a notional amount of debt of a subsidiary of CEMEX España identified and designated as a hedge of the net investment in foreign subsidiaries. |
21.3) |
RETAINED EARNINGS |
21) |
STOCKHOLDERS’ EQUITY — continued |
21.4) |
NON-CONTROLLING INTEREST AND PERPETUAL DEBENTURES |
| • | In February 2017, CEMEX acquired a controlling interest in TCL, whose shares trade in the Trinidad and Tobago Stock Exchange. As of December 31, 2022 and 2021, there is a non-controlling interest in TCL of |
| • | In July 2016, CHP closed its initial offering of non-controlling interest in CHP from |
| • | In November 2012, CLH, a direct subsidiary of CEMEX España, concluded its initial offering of common shares. CLH’s assets include substantially all of CEMEX’s assets in Colombia, Panama, Guatemala and until August 31, 2022, operations in Costa Rica and El Salvador. In December 2020, by means of a public share tender offer, CEMEX España increased its ownership in CLH by acquiring 108,337,613 shares of CLH in exchange of $103. As of December 31, 2022 and 2021, there is a non-controlling interest in CLH of |
22) |
EXECUTIVE SHARE-BASED COMPENSATION |
23) |
EARNINGS (LOSS) PER SHARE |
2022 |
2021 |
2020 |
||||||||||
Denominator (thousands of shares) |
||||||||||||
Weighted-average number of shares outstanding – basic |
||||||||||||
Effect of dilutive instruments – share-based compensation (note 22) 1 |
||||||||||||
Weighted-average number of shares – diluted |
||||||||||||
Numerator |
||||||||||||
Net income (loss) from continuing operations |
$ | ( |
) | |||||||||
Less: non-controlling interest net income (loss) |
||||||||||||
Controlling interest net income (loss) from continuing operations – for basic earnings per share calculations |
( |
) | ||||||||||
Plus: after tax interest expense on optionally convertible securities |
||||||||||||
Controlling interest net income (loss) from continuing operations – for diluted earnings per share calculations |
$ | ( |
) | |||||||||
Net income (loss) from discontinued operations |
$ | ( |
) | ( |
) | |||||||
Basic earnings per share |
||||||||||||
Controlling interest basic earnings (loss) per share |
$ | ( |
) | |||||||||
Controlling interest basic earnings (loss) per share from continuing operations |
( |
) | ||||||||||
Controlling interest basic earnings (loss) per share from discontinued operations |
( |
) | ( |
) | ||||||||
Controlling interest diluted earnings per share 2 |
||||||||||||
Controlling interest diluted earnings (loss) per share |
$ | ( |
) | |||||||||
Controlling interest diluted earnings (loss) per share |
( |
) | ||||||||||
Controlling interest diluted earnings (loss) per share |
( |
) | ( |
) | ||||||||
23) |
EARNINGS (LOSS) PER SHARE — continued |
1 |
The number of Parent Company CPOs to be issued under the executive share-based compensation programs, as well as the total amount of Parent Company CPOs committed for issuance in the future under the mandatorily and optionally convertible securities, are computed from the beginning of the reporting period. The number of shares resulting from the executives’ stock-based compensation programs is determined under the inverse treasury method. |
2 |
For 2020, the effects on the denominator and numerator of potential dilutive shares generate antidilution; therefore, there is no change between the reported basic earnings per share and diluted earnings per share. |
24) |
COMMITMENTS |
24.1) |
CONTRACTUAL OBLIGATIONS |
2022 |
||||||||||||||||||||
Obligations |
Less than 1 year |
1-3 years |
3-5 years |
More than 5 years |
Total |
|||||||||||||||
Long-term debt |
$ | |||||||||||||||||||
Leases 1 |
||||||||||||||||||||
Total debt and other financial obligations 2 |
||||||||||||||||||||
Interest payments on debt 3 |
||||||||||||||||||||
Pension plans and other benefits 4 |
||||||||||||||||||||
Acquisition of property, plant and equipment 5 |
||||||||||||||||||||
Purchases of services, raw materials, 6 |
||||||||||||||||||||
Total contractual obligations |
$ | |||||||||||||||||||
1 |
Represent nominal cash flows. As of December 31, 2022, the NPV of future payments under such leases was $ |
2 |
The schedule of debt payments, which includes current maturities, does not consider the effect of any refinancing of debt that may occur during the following years. In the past, CEMEX has replaced its long-term obligations for others of a similar nature. |
3 |
Estimated cash flows on floating rate denominated debt were determined using the floating interest rates in effect as of December 31, 2022. |
4 |
Represents estimated annual payments under these benefits for the |
5 |
Refers mainly to the expansion of a cement-production line in the Philippines. |
6 |
Future payments for the purchase of raw materials are presented based on contractual nominal cash flows. Future nominal payments for energy were estimated for all contractual commitments based on an aggregate average expected consumption per year using the future prices of energy established in the contracts for each period. Future payments also include CEMEX’s commitments for the purchase of fuel. In addition, includes a contractual commitment with Neoris over a 5-year contract beginning in 2023 until 2027 for the acquisition by CEMEX of digitalization services and solutions for an annual amount of $ |
24) |
COMMITMENTS — continued |
24.2) |
OTHER COMMITMENTS |
| • | On February 8, 2022, CEMEX renewed or entered into new agreements with six service providers in the fields of data processing services (back office) in finance, accounting and human resources; as well as Information Technology (“IT”) infrastructure services, support and maintenance of IT applications in the countries in which CEMEX operates, for a tenure of five to seven years at an average annual cost of $ |
| • | Beginning in April 2016, in connection with the Ventika S.A.P.I. de C.V. and the Ventika II S.A.P.I. de C.V. wind farms (jointly “Ventikas”) located in the Mexican state of Nuevo Leon with a combined generation capacity of |
| • | Beginning in February 2010, for its overall electricity needs in Mexico CEMEX agreed with EURUS the purchase a portion of the electric energy generated for a period of no less than |
| • | CEMEX maintains a commitment initiated in April 2004 to purchase the energy generated by Termoeléctrica del Golfo (“TEG”) until 2027 for its overall electricity needs in Mexico. The estimated annual cost of this agreement is $ |
| • | In regards with the above, CEMEX also committed to supply TEG and another third-party electrical energy generating plant adjacent to TEG all fuel necessary for their operations until the year 2027, equivalent to approximately |
| • | On October 24, 2018, CEMEX, S.A.B. de C.V. entered into an energy financial hedge agreement in Mexico, commencing October 1, 2019 and for a period of |
24) |
COMMITMENTS — continued |
24.3) |
COMMITMENTS FROM EMPLOYEE BENEFITS |
25) |
LEGAL PROCEEDINGS |
25.1) |
PROVISIONS RESULTING FROM LEGAL PROCEEDINGS |
| • | As of December 31, 2022, CEMEX accrued environmental remediation liabilities through its subsidiaries in the United Kingdom pertaining to closed and current landfill sites for the confinement of waste, representing the NPV of such obligations for an amount in Pounds sterling equivalent to $ |
| • | As of December 31, 2022, CEMEX accrued environmental remediation liabilities through its subsidiaries in the United States for $ |
| • | In 2012, in connection with a contract entered into in 1990 (the “Quarry Contract”) by CEMEX Granulats Rhône Méditerranée (“CEMEX GRM”), one of CEMEX’s subsidiaries in France, with SCI La Quinoniere (“SCI”) pursuant to which CEMEX GRM had drilling rights to extract reserves and do quarry remediation at a quarry in the Rhône region of France, SCI filed a claim against CEMEX GRM for breach of the Quarry Contract, requesting the rescission of such contract and damages plus interest for a revised amount in Euros equivalent to $ |
25) |
LEGAL PROCEEDINGS — continued |
25.1) |
PROVISIONS RESULTING FROM LEGAL PROCEEDINGS — continued |
the Quarry Contract. After many hearings, resolutions and appeals over the years, on November 25, 2020, the expert appointed by the court of appeals determined an amount of loss of profits of $ |
25.2) |
CONTINGENCIES FROM LEGAL PROCEEDINGS |
| • | In July 2020, an individual filed a class action lawsuit ( Acción de Grupo |
| • | On September 20, 2018, triggered by heavy rainfall, a landslide causing damages and fatalities (the “Landslide”) occurred in a site located within an area covered by mining rights of APO Land & Quarry Corporation (“ALQC”) in Naga City, Cebu, Philippines. ALQC is a principal raw material supplier of APO Cement Corporation (“APO”), a wholly owned subsidiary of CHP. CEMEX indirectly owns a minority |
25) |
LEGAL PROCEEDINGS — continued |
25.2) |
CONTINGENCIES FROM LEGAL PROCEEDINGS — continued |
Cebu. Plaintiffs claim that the Landslide occurred because of the defendants’ gross negligence and seek, among other relief, (a) damages for an amount in Philippine Pesos equivalent to $ |
| • | In December 2016, the Parent Company received subpoenas from the SEC seeking information to determine whether there have been any violations of the U.S. Foreign Corrupt Practices Act stemming from the Maceo Project. These subpoenas do not mean that the SEC has concluded that the Parent Company or any of its affiliates violated the law. The DOJ also opened an investigation into this matter. In this regard, on March 12, 2018, the DOJ issued a grand jury subpoena to the Parent Company relating to its operations in Colombia and other jurisdictions. The Parent Company intends to continue to cooperate fully with the SEC, the DOJ and any other investigatory entity. As of December 31, 2022, the Parent Company is unable to predict the duration, scope, or outcome of either the SEC investigation or the DOJ investigation, or any other investigation that may arise, or, because of the current status of the SEC investigation and the preliminary nature of the DOJ investigation, the potential sanctions which could be borne by the Parent Company, or if such sanctions, if any, would have a material adverse impact on CEMEX results of operations, liquidity or financial position. |
| • | In February 2014, the Egyptian Tax Authority requested Assiut Cement Company (“ACC”), a subsidiary of CEMEX in Egypt, the payment of a development levy on clay used in the Egyptian cement industry for the period from May 5, 2008 to November 30, 2011. In March 2014, ACC appealed the levy and on September 2014 it was notified that it obtained a favorable resolution from the Ministerial Committee for Resolution of Investment Disputes, which instructed the Egyptian Tax Authority to cease claiming from ACC the payment of the levy on clay. It was further decided that the levy on clay should not be imposed on imported clinker. Nonetheless, in May 2016, the Egyptian Tax Authority challenged ACC´s right to cancel the levy on clay before the North Cairo Court, which referred the cases to Cairo’s Administrative Judiciary Court. These cases have been adjourned by the Commissioners of the Cairo Administrative Judiciary Court, which on November 2, 2020 referred the cases to the Court and established a first hearing session for February 15, 2021 and was adjourned to the May 31, 2021 session. During the session held on May 31, 2021, the Court that is hearing the case decided to refer the case to another Chamber within the same Court considering the nature of the subject. On October 28, 2021 ACC held the first hearing session before the new Chamber. On this session, the court postponed the hearing to the session of January 20, 2022 for ACC lawyers to submit a power of attorney allowing the withdrawal of the court case. CEMEX does not expect that such referral will prejudice ACC’s favorable legal position in this dispute. On February 24, 2022, this case was dismissed by the relevant court and this matter has ended. |
25) |
LEGAL PROCEEDINGS — continued |
25.2) |
CONTINGENCIES FROM LEGAL PROCEEDINGS — continued |
| • | In September 2012, in connection with a lawsuit submitted to a first instance court in Assiut, Egypt in 2011, the first instance court of Assiut issued a resolution to nullify the Share Purchase Agreement (the “SPA”) pursuant to which CEMEX acquired in 1999 a controlling interest in Assiut Cement Company. In addition, during 2011 and 2012, lawsuits seeking, among other things, the annulment of the SPA were filed by different plaintiffs, including th Circuit State Council Administrative Judiciary Court awaiting the High Constitutional Court to pronounce regarding the challenges against the constitutionality of Law 32/2014 filed by the plaintiffs, which protects CEMEX’s investments in Egypt. These matters are complex and take several years to be resolved. As of December 31, 2022, CEMEX is not able to assess the likelihood of an adverse resolution regarding these lawsuits nor is able to assess if the Constitutional Court will dismiss Law 32/2014, but, regarding the lawsuits, if adversely resolved, CEMEX does not believe the resolutions in the first instance would have an immediate material adverse impact on CEMEX’s operations, liquidity and financial condition. However, if CEMEX exhausts all legal recourses available, a final adverse resolution of these lawsuits, or if the Constitutional Court dismisses Law 32/2014, this could adversely impact the ongoing matters regarding the SPA, which could have a material adverse impact on CEMEX’s operations, liquidity and financial condition. (see note 27 for Subsequent Events). |
25.3) |
OTHER SIGNIFICANT PROCESSES |
| • | In August 2012, CEMEX Colombia signed a memorandum of understanding (the “MOU”) with the representative of CI Calizas y Minerales S.A. (“CI Calizas”), for the acquisition and transfer of assets |
25) |
LEGAL PROCEEDINGS — continued |
25.3) |
OTHER SIGNIFICANT PROCESSES — continued |
mainly comprising land, the mining concession, environmental license and the shares of Zona Franca Especial Cementera del Magdalena Medio S.A.S. (“Zomam”) (holder of the free trade zone concession). In addition, in December 2013, CEMEX Colombia engaged the same representative of CI Calizas to also represent in the name and on behalf of CEMEX Colombia in the acquisition of certain land plots adjacent to the plant, signing another memorandum of understanding (the “Land MOU”). Under the MOU and the Land MOU, CEMEX Colombia made cash advances to this representative for amounts in Colombian Pesos equivalent to $ |
| • | In December 2012 after signing of the MDE, a former shareholder of CI Calizas, who presumptively transferred its shares of CI Calizas two years before the signing of the MOU, was linked to a process of expiration of property initiated by the Attorney General. Amongst other measures, the Attorney General suspended the sale and ordered the seizure of the assets subject to the MOU, including the shares of Zomam acquired by CEMEX Colombia before the beginning of such process. As a third party acting in good faith and free of guilt, CEMEX Colombia joined the expiration of property process cooperating with the Attorney General. The expiration process continues which has not progressed since February, 2020, CEMEX is not able to make a reasonable estimate of the duration. As of December 31, 2022, pursuant to the expiration of property process of the assets subject to the MOU and the failures to formalize the purchases under the Land MOU, CEMEX Colombia does not have the legal representation of Zomam, is not the rightful owner of the land and is not the assigned entity of the mining concession. |
| • | In addition, there is an ongoing criminal investigation that resulted in a legal resolution by means of which an indictment was issued to two of the Company’s former officers and to CI Calizas’ representative. CEMEX is not able to anticipate the actions that criminal judges may impose against these people. Moreover, CEMEX Colombia filed a legal recourse for accountability against the representative, in connection with the responsibilities agreed under the Land MOU for the acquisition of certain land plots adjacent to the plant. This legal recourse finalized in 2021 with a definitive resolution favorable to CEMEX Colombia in which it was ordered the transfer to CEMEX Colombia of those land plots acquired by the representative, as well as the return of unused cash advances, equivalent to $ |
25) |
LEGAL PROCEEDINGS — continued |
25.3) |
OTHER SIGNIFICANT PROCESSES — continued |
| • | On December 7, 2020, the Parent Company, acting as shareholder of CEMEX Colombia, filed a lawsuit before the Business Superintendency of Colombia ( Superintendencia de Sociedades de Colombia in-kind carried out by CEMEX Colombia to Zomam on December 11, 2015. In the event of a favorable resolution, all the effects of the equity contribution would roll back. As a consequence, the assets contributed to Zomam, which had a value of $ |
| • | In July 2013, CEMEX Colombia signed with the provisional depository designated by the former Drugs National Department (then depository of the assets subject to the expiration of property process), which functions after its liquidation were assumed by the Administrator of Special Assets ( Sociedad de Activos Especiales S.A.S. |
| • | On April 12, 2019, CEMEX Colombia, CCL and another of its subsidiaries reached a conciliatory agreement with the SAE and CI Calizas before the Attorney General’s Office and signed a contract of Mining Operation, Manufacturing and Delivery Services and Leasing of Properties for Cement Production (the “Operation Contract”), which will allow CEMEX Colombia to continue using the assets subject to the aforementioned expiration of property process for an initial term of one-time initial payments in Colombian Pesos equivalent to $ |
| • | Once the Maceo Plant begins commercial operations, CEMEX Colombia and/or a subsidiary will pay on a quarterly basis: a) |
| • | The Operation Contract will continue in force regardless of the result in the expiration of property process, except that the applicable criminal judge would recognize ownership rights of the assets under |
25) |
LEGAL PROCEEDINGS — continued |
25.3) |
OTHER SIGNIFICANT PROCESSES — continued |
expiration of property to CEMEX Colombia and its subsidiary, in which case the Operation Contract would no longer be needed and would be early terminated. |
| • | Under the presumption that CEMEX Colombia conducted itself in good faith, CEMEX considers that it will be able to keep ownership of the plant, and that the rest of its investments are protected by Colombian law, under which, if a person builds on the property of a third party, with full knowledge of such third party, this third party may: a) take ownership of the plant, provided a corresponding indemnity to CEMEX Colombia, or otherwise, b) oblige CEMEX Colombia to purchase the land. Nonetheless, had this not be the case, CEMEX Colombia would take all necessary actions to safeguard its rights. If the expiration of property over the assets subject to the MOU is ordered in favor of the State, if the assets were adjudicated to a third party in a public tender offer, considering the signing of the Operation Contract, such third party would have to subrogate to the Operation Contract. As of December 31, 2022, CEMEX is not able to estimate whether the expiration of property over the assets subject to the MOU will be ordered in favor of the State, or, if applicable, if the assets would be adjudicated to a third party in a public tender offer. |
| • | On September 3, 2019, the Corantioquia’s Directive Council, the regional environmental authority (“Corantioquia”), approved the subtraction of a portion of the plant from the IMD. In addition, in February, 2021, Corantioquia notified CI Calizas of the modification of the environmental license allowing the extraction of up to |
| • | Regarding the permits to conclude the construction of several sections of the access road, on November 10, 2020, Maceo’s municipality issued the approval of the Road Infrastructure Intervention project and, on December 11, 2020, issued a decree establishing the public utility of the access road, required authorizations for both, to obtain the permits to acquire the required land and build the remainder of the road. In respect to the modification of the permitted land use where the project is located, CEMEX Colombia received favorable criteria from Corantioquia regarding the change of land use because of the approval for the subtraction from the IMD, which was endorsed by the municipality of Maceo on August 29, 2020, which allows for an industrial and mining use compatible with the project. |
25) |
LEGAL PROCEEDINGS — continued |
25.3) |
OTHER SIGNIFICANT PROCESSES — continued |
| • | Moreover, in another significant progress, on June 15, 2022, the Ministry of Commerce, Industry and Tourism granted Zomam the extension of the free trade zone area, which now includes the full extension of the plant. |
| • | The obtention of the modification in the environmental license, which means a significant progress for future operation of Maceo Plant, the beginning of commercial operations is subject mainly to the construction of the access road and the authorization required from the owners of land plots adjacent to the plant, as well as the extension of environmental and mining permits that allow the production of up to |
26) |
RELATED PARTIES |
26) |
RELATED PARTIES — continued |
27) |
SUBSEQUENT EVENTS |
27) |
SUBSEQUENT EVENTS — continued |
28) |
PRINCIPAL SUBSIDIARIES |
28) |
PRINCIPAL SUBSIDIARIES — continued |
% Interest |
||||||||||
Subsidiary |
Country |
2022 |
2021 |
|||||||
1 |
||||||||||
2 |
||||||||||
3 |
||||||||||
4 |
||||||||||
5 |
||||||||||
6 |
||||||||||
7 |
||||||||||
8 |
||||||||||
9 |
||||||||||
9 |
||||||||||
10 |
||||||||||
11 |
||||||||||
12 |
||||||||||
13 |
||||||||||
1 |
CEMEX España is the direct or indirect holding company of most of CEMEX’s international operations. |
2 |
The interest reported excludes own shares held in CLH’s treasury. CLH, incorporated in Spain, trades its ordinary shares in the Colombian Stock Exchange under the symbol CLH, and is the indirect holding company of CEMEX’s operations in Colombia, Panama, Guatemala, Nicaragua and until August 31, 2022, operations in Costa Rica and El Salvador (note 21.4). |
3 |
The sale of its indirect interest in CEMEX (Costa Rica), S.A. was closed on August 31, 2022. |
4 |
Represents CEMEX Colombia, S.A.’s |
5 |
Represents CLH’s direct and indirect interest in ordinary and preferred shares, including own shares held in CEMEX Colombia, S.A.’s treasury. |
6 |
Represents CLH’s |
7 |
Represents the aggregate ownership interest of CEMEX in this entity of |
28) |
PRINCIPAL SUBSIDIARIES — continued |
8 |
CEMEX’s operations in the Philippines are conducted through CHP, a subsidiary incorporated in the Philippines which since July 2016 trades its ordinary shares on the Philippines Stock Exchange under the symbol CHP (note 21.4) |
9 |
Represents CHP´s direct and indirect interest. |
10 |
CEMEX España indirectly owns a |
11 |
On October 25, 2022, CEMEX closed the sale of a |
12 |
CEMEX International Trading LLC is involved in the international trading of CEMEX’s products. |
13 |
Sunbulk Shipping Limited is involved mainly in maritime and land transportation and/or shipping of goods worldwide and the handling, administration, hiring of shipments and cargo at ports, terminals and other loading and unloading destinations worldwide, as well as the offering and contracting of services in relation thereto for CEMEX’s trading entities and operations. |
Exhibit 1.1
ENGLISH TRANSLATION
As of March 24, 2022
CEMEX, S.A.B. de C.V.
By-Laws
ARTICLE 1. DENOMINATION.- The Company is a commercial anonymous Company and it is named CEMEX, followed by the words “Sociedad Anónima Bursátil de Capital Variable” or by its abbreviation “S.A.B. de C.V.”.
ARTICLE 2. CORPORATE PURPOSE.- The Company’s corporate purpose is to participate in corporations and civil associations, civil organizations and in all other types of domestic and foreign companies, through subscription and/or purchase of their shares, stocks, assets and rights and otherwise dispose and enter into any type of acts or contracts regarding such shares, stocks, assets and rights, and for the fulfillment of its corporate purpose, the Company may, directly or indirectly through third parties, enter into or execute all kinds of acts, operations and civil or commercial contracts, specialized services or works or of any kind, that are conducive to, accessory to, necessary for or convenient for the effective achievement of its corporate purpose through the activities indicated below:
(A) The manufacture, sale or purchase, distribution, transportation, importation, exportation, exploitation and the industrial and commercial use of cement and, in general, any type of building materials. (B) The production, distribution, importation, exportation, supply, transportation, hauling, consignment, sale or purchase, storage, mediation, agency, exploitation, marketing and industrial and commercial use in general of cement, concrete, mortar, clay, limestone, gypsum, gravel, sand, iron ore, raw materials used in the manufacture of cement and, in general all kinds of building materials. (C) The sale, distribution, transportation, import, export, exploitation, use and industrial and commercial utilization of aggregates, ready-mixed concrete, its additives and components and, in general, all types of pieces and prestressed concrete objects, preconcretes, tubes and construction materials, concrete blocks and precast concrete elements. (D) The establishment of concrete, cement and asphalt manufacturing plants with dependencies focusing on obtaining and triturating aggregates, dosing and mixing these and hauling and consolidating its products. (E) To be the holder of Exploration and/or Exploitation of Mining Concessions, in order to explore and/or exploit the minerals or
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substances subject to the Mining Law (Ley Minera)) in full force and effect, in accordance with the provisions of article 11 of said law. (F) Be the holder of, Ordinary and/or Extraordinary General Permits for the purchase, storage and consumption or purchase and consumption of explosive materials, for the construction industry and for the mining industry, in order to exploit the stone and mineral materials, respectively, in accordance with the provisions of articles 37 and 42 of the Federal Firearms and Explosives Law (Ley Federal de Armas de Fuego y Explosivos). (G) The transportation of merchandise and products in modality of general cargo, waste and/or hazardous materials and bulky and/or heavy weight materials, exploitation and use of the General Ways of Communication (Vías Generales de Comunicación) or their services and related under the concessions or permits granted by the Federal Executive as applicable; or, through the concessions or permits that the Company receives in contribution, transfer or in right of its Partners and authorized by the competent authorities. (H) The exploitation of specialized services of general cargo, waste and/or hazardous materials and bulky and/or heavy objects related to the concessions and permits granted by the authorities of the federal entities of the country. (I) The use of roads in general and their connection with other means of transport, through the Agreements that are entered into, in order to offer the public user an efficient and safe service. (J) Verification of official Mexican standards and serve as an approved and accredited inspection and verification unit to perform the procedures for evaluating the specifications and physical-mechanical and safety conditions for the operation of roads and bridges under the federal jurisdiction of motor transportation cargo, in compliance with Mexican official standards. (K) The training and preparation of Drivers of the Federal Motor Carrier and Private Transport Service (Conductores del Servicio de Autotransporte Federal y Transporte Privado). (L) The specialized workshop maintenance and repair service, as well as the sale of spare parts and technical equipment to third parties. (M) The development, purchase, sale, import, export, assembly and marketing of bags, packs and all types of packaging of any material, as well as the raw materials necessary for that purpose. (N) The industrial and commercial use of wastewater through its treatment and reuse. (Ñ) The use, exploitation and utilization of public property, for the handling of fluids and the use of goods and the provision of port services that constitute the port operation under the terms of the Ports Act (Ley de Puertos), classified as maneuvering services for the transfer of goods or merchandise, such as loading, unloading, stacking, storage, stowage and haulage within the port, by any of the modalities provided by
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such law, including, but not limited to, obtaining concessions, permits, authorizations and partial assignments of rights. (O) Logistic services associated with the oil industry, as well as operation management of asphalt emulation plants. (P) The Treatment and refining of Oil, the processing of Natural Gas and the export and import of Hydrocarbons and Petroleum, as well as the Transportation, Storage, Distribution, compression, liquefaction, decompression, regasification, commercialization and Public Expense of Hydrocarbons, Petroleum or Petrochemicals, including the construction, operation and exploitation of land areas, warehouses, ships, tanks, dry ports, marine terminals and facilities of any kind, for the management of petroleum and/or energy products, by any of the modalities provided by such law, including but not limited to, obtaining concessions, permits and/or authorizations, as appropriate, under the terms of Title Three of the Hydrocarbons Law (Título Tercero de la Ley de Hidrocarburos). (Q) The rendering of the Auxiliary Service for the Railway Freight Terminal, the Railway Auxiliary Service for transshipment and transfer of liquids, the Railway Auxiliary Service of railway equipment maintenance workshops and the provision of the transfer of liquids in any of its modalities. (R) The establishment of navigation services, transport, passengers and cargo, between the ports of the country and abroad, if necessary, the acquisition of boats for the aforementioned purposes and the operation of docks, shipyards and any other necessary construction or work for the initiation and development of its services. (S) The acquisition of concessions, permits, subsidies and legal franchises related to any of the activities of its corporate purpose and acquiring by any legal title, including by concession of public power, direct ownership over lands, waters or their accessions and exploiting them, whether for irrigation, to generate driving force or for industrial objects. (T) The manufacture, sale, distribution, lease, import, export, transportation, supply, assembly, transport, loading, consignment, sale, deposit, mediation, commission, exploitation, commercialization and industrial and commercial use in general of all types of products allowed by the laws and in general, all kinds of domestic or foreign goods or merchandise, either as raw material, semi-finished products and perform with them trade acts in any form on their own or by third parties. (U) The rendering of handling, storage and custody of foreign goods services, either owned by the Company or by third parties with whom the Company enters into an agreement. (V) The private transportation of goods owned by the Company or related to their activities, as well as of persons related to the same purpose, without involving the provision of federal public transportation in any of its forms. (W) The
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operation as a shipping company and performance of all activities related to its operation and carrying out all the formalities before the competent authorities to obtain the proper permits. (X) Purchase, lease, charter and enter into any type of contract with foreign and Mexican vessels as well as registering and obtaining the Mexican flag for the vessels that may require it. (Y) To act as consignee agent for vessels and perform all activities related to the operation as such. (Z) The manufacture, sale, distribution, lease, import, export, exploitation and overall development of all types of industrial and commercial equipment, machinery, tools, spare parts and parts, motor carriers and any articles or commercial items. (AA) The exploitation of the various engineering branches in all its aspects either pure or applied, as well as projects and construction works. (BB) Entering into contracts for construction, design, engineering, and supply of technical and professional services, the development of architectural projects, installation of technical and mechanical infrastructure, and any other applications necessary, convenient or conducive to the development and prosperity of the Company, including participating in competitions, public or private bids or offers either national or international. (CC) Acquire, sell, manage, lease or receive in lease or sublease, give or receive on loan, exchange, encumber in any way, exploit, affect or be a trustee in trust and, in general, enter into any legal act that involves acquiring, transferring or guaranteeing the rights of ownership or possession of all real or personal types of property, as deemed necessary or convenient for the development and prosperity of the Company, or to directly or indirectly support the development of the Company. (DD) Decorate, manage and operate in any manner all kinds of buildings, factories, warehouses, houses and apartments on their own or through third parties. (EE) Provide and receive any type of technical, administrative, sales, advertising, monitoring, technical assistance, consultation and advice services on industrial, tax, accounting, commercial, financial, and any other type of matters. (FF) Order, obtain, buy, lease, assign or otherwise acquire or dispose of trademarks, trade names, copyrights, patents, inventions and processes, know-how and, in general, intellectual and industrial property rights, as well as licenses over them. (GG) Enter into or agree on agency operations, mediation, technical assistance, professional services, consulting, distribution, supply, leasing and factoring, brokerage and generally all kinds of contracts or agreements involving services to or for third parties, as a result of the obligations or duties incurred by virtue of entering into the contracts in this subparagraph. (HH) Give or take money on loan, secured or unsecured, including the issuance of debt securities in public or private sale that
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represent loans with the investing public. (II) Issue, draw, sign, accept, endorse, guarantee and enter into any type of commercial or legal transaction, regarding negotiable instruments, with national or foreign credit institutions, as well as agents and securities intermediaries, in investment companies and auxiliary credit organizations and in any organization, corporation or association, any and all types of transactions necessary or convenient for the fulfillment of its corporate purpose, including entering into repurchases, loans, trusts, mandates, agencies or any contract or agreement either for the purpose of investing its resources, to obtain financing, or where appropriate, to affect, transmit or to pledge the negotiable instruments referred to in this subparagraph. (JJ) To execute avales, bonds and, in general, guarantee, including with pledges and mortgages, obligations incurred on behalf of third parties, with or without consideration. (KK) To render the Comprehensive Logistics and Supply Chain Service.
ARTICLE 3. DOMICILE.- The corporate seat of the Company is the city of Monterrey, N.L., Mexico, with the understanding that agencies or branches may be established within Mexico or abroad as deemed advisable by the Board of Directors.
ARTICLE 4. DURATION.- The duration of the Company shall be indefinite.
ARTICLE 5. NATIONALITY.- This Company is Mexican. Any foreigner who in the incorporation date of this Company has acquired or in the future shall acquire an interest or participation in the Capital Stock of the Company, shall be considered for this sole act as Mexican, it being understood that said party has agreed not to seek the protection of its government, under penalty of losing said interest or participation in favor of the Republic of Mexico. This article shall be inserted in its entirety on the share certificates issued by the Company. This Company received authorization from the Mexican Ministry of Foreign Affairs under Permit Number 267, dated February 4, 1927, in accordance with the Organizational Law of Section I of Article 27 of the Constitution and its Regulations.
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ARTICLE 6. CAPITAL STOCK.- The Capital Stock shall be variable. The Minimum Fixed Capital with no redemption rights is of $36,300,000.00 (thirty-six million three hundred thousand 00/100 MXN) represented by 13,068´000,000 (thirteen thousand sixty eight million) ordinary shares, which shall be registered and with no face value, of which 8,712´000,000 (eight thousand seven hundred twelve million) correspond to the Series “A” and 4,356´000,000 (four thousand three hundred fifty six million) to Series “B”; the Variable Capital with no redemption rights shall be unlimited. The common ordinary Capital Stock, as well as the capital represented by Class Shares, both in its Fixed and Variable portions, shall be represented by Series of registered shares with no par value, together with its respective sub-series. Every time reference is made to a series of shares, Fixed or Variable Capital, it shall be construed as a reference to any sub-series that, as the case may be, have been issued and that shall be identified with the same letter with which the Series has been identified and a number from 1 (one) onwards, in accordance with the respective sub-series.
The common ordinary Capital Stock shall be represented by two Series, both for its Fixed and Variable portions. The Series “A” shall represent as a minimum the (64%) sixty-four per cent of the common ordinary Capital Stock and the Series “B”, or of free subscription, shall represent as a maximum the (36%) thirty-six per cent. In the event that Class Shares shall exist, and unless an authorization is obtained to treat them as neutral investment in accordance with the Law, at least (64%) sixty-four percent of the Capital Stock represented by this type of shares shall be subject, in respect to its holders, to the same restrictions applicable to the Series “A” shares of the ordinary capital. All the shares forming part of the common ordinary Capital Stock, except for the characteristics related to the holdings of each one of the Series and the part of the Capital which they represent, give their holders the same rights and obligations. By no means and neither directly nor indirectly, may the shares of the Series “A” be acquired: (i) by foreign individuals or foreign legal entities or Mexican legal entities that do not have a foreign exclusion clause, in the understanding that such clause shall be contained both in the by-laws of the acquirer as in the by-laws of any other company or partnership that directly or indirectly has an interest in the Capital Stock of such acquirer; (ii) by groups, units, associations, trusts, and any entity, with or without legal personality, that admits foreigners, is foreign, is one in which, by any form, directly or indirectly, has intervention of foreigners, or companies in which any foreigners participate (except for the case of Trusts formed by the Company for the issuance of ordinary participation certificates to be offered to the public investors); (iii) by foreign governments or foreign sovereigns. The Class Shares may be acquired subject to the terms and conditions approved by the Shareholders’ Meeting authorizing its issuance.
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In the event of a violation of these restrictions, the acquisition shall be null and the Company shall not recognize the acquirer as the owner nor may the acquirer exercise the corporate rights inherent to the shares.
For the purposes of these by-laws, “Class Shares” refer to the shares that carry no voting rights, limited or restricted voting rights, that have any limitation in the exercise of their corporate rights or that confer preferred economic rights in relation to ordinary shares.
ARTICLE 7. ACQUISITION OF OWN SHARES AND MEASURES TO LIMIT THE SHAREHOLDING OWNERSHIP.- I.- The Company may acquire shares representing its own Capital Stock or credit instruments representing them, as well as optional instruments or financial derivative instruments which may be liquidated in kind that have such shares or credit instruments underlying in accordance with the terms and conditions indicated by the applicable Law. The shares or credit instruments that represent such shares that belong to the Company, or, the shares issued but not subscribed maintained in the Treasury, may be placed among the public investors in accordance with the dispositions of the applicable law. So long the shares are the property of the Company, they may not be represented nor voted in the Shareholders’ Meetings, and no social or economic rights of whatever nature may be exercised. II.- (A).- For purposes of these by-laws, the following definitions shall apply, whether in their singular or plural form:
| • | “SHARES”: the ones that represent the Capital Stock of the Company; any type of certificate or receipt referred to the shares representing the Capital Stock of the Company; as well as any other security, credit instrument or document that refers to or permits the exercise of, the vote of the corresponding shares representing the Capital Stock of CEMEX, S.A.B. de C.V. |
| • | “CONSORTIUM”: shall have the meaning established by the Mexican Securities Market Law. |
| • | “RELATIVE”: person or persons that with respect to each other, have family relationship by consanguinity, affinity or civil, up until the fifth degree in a straight or collateral line, the spouse, concubine and concubinary. |
| • | “ENCUMBRANCE”: pledges, seizures, trusts (or equivalent figures under foreign Law), or any act or transaction that in any form, limits, restricts or affects, the implicit rights of the Shares. |
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| • | “GROUP OF PERSONS”: shall have the meaning established by the Mexican Securities Market Law. |
| • | “CORPORATE GROUP”: shall have the meaning established by the Mexican Securities Market Law. |
| • | “RELATED PARTY”: shall have the meaning established by the Mexican Securities Market Law. |
| • | “HOLDING”: the ownership, possession or holding of Shares or the possibility of instructing or exercising the right to vote. |
| • | “TRANSACTION”: Any agreement, contract, unilateral declaration, stipulation, arrangement and any act that creates, transmits, modifies or extinguishes obligations, including, enunciatively but not limited to, all acts or facts that give or may give place to any exercise or instruction to exercise the voting rights, or if the ownership, possession or holding of the Shares may be obtained or is obtained. |
| • | Any Transaction or Encumbrance that may result or results in a direct or indirect possibility, to acquire or exercise the right to vote regarding the Shares that represent a 2% or more of the Capital Stock of the Company, shall be subject to the prior authorization of the Board of Directors. The Board of Directors must decide, within a period of 90 (ninety) calendar days from the reception of the written application directed to the President or Secretary of the Board. The application must be in written form and must contain the following information: (i) name, social denomination of the participant(s) in the Transaction or Encumbrance and the Shares whose Holding they have on the date of the application, (ii) in the case of a Group of Persons, Corporate Group, Consortium, Related Parties or Relatives, provide the details of all the persons involved, indicating their name, social denomination and Shares each holds, as well as who shall exercise the social and economic rights, (iii) description of the Transactions or Encumbrances, and (iv) in the event that the Transaction or Encumbrance is made indirectly through agents, brokers, trusts or similar figures under any law or third parties; it must be indicated who or whom are the effective beneficiaries and who or whom will exercise or will instruct to exercise the voting rights. The Board of Directors, in order to resolve the applications, shall consider the following criteria: a) if it involves Transactions or Encumbrances of qualified investors or institutions in which the public investors participate; b) if it involves |
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acquisitions that aim to make portfolio investments with speculative purposes, that could affect stock prices; or if it is intended to accumulate significant amounts of Shares in a way that the number of Shares outstanding is reduced and that the marketability may be affected; c) the likelihood of the participants in the Transactions or Encumbrances exercising a significant influence or being able to obtain control (as these terms are defined in the applicable law); d) if all the legal dispositions and the by-laws have been observed, and the persons who wish to participate in the Transactions or Encumbrances have not incurred in any violation of the Law or by-laws or have not complied with applicable Law or by-laws; e) if the persons involved in the Transactions or Encumbrances are competitors of the Corporate Group to which the company belongs, are persons or legal entities participating in companies, entities or persons that are competitors of the Corporate Group to which it belongs and there is a risk of affecting the process of fair competition or there could be an access to confidential and privileged information; f) the moral and economic solvency of the participants; g) the protection of the rights of minorities and workers of the Company and its subsidiaries; and h) maintain an adequate base of investors. If the Board of Directors authorizes the application, the Transaction or Encumbrance shall be done during the next 10 (ten) days following notification from the Board of such authorization. If done afterwards, the authorization shall be null.
| • | If after making the Transaction or Encumbrance the Holding of Shares is reduced, in order to make a new Transaction or Encumbrance, a new application must be made, unless the Board had authorized the possibility of multiple Transactions or Encumbrances over a time frame. When the Transaction or Encumbrance had been authorized on the basis of false or incorrect information or information had been withheld, the voting rights corresponding to the Shares related to the Transaction or Encumbrance will not be able to be exercised. |
II.- (B).- Any Transaction or Encumbrance that results or may result in a participation equal or greater than 30% of the Capital Stock of the Company, shall oblige, without taking into account whether the participants in the Transaction or Encumbrance wish or not to acquire control, the execution of a forced public offer for the acquisition of the totality of the Shares representing the Company’s Capital Stock.
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In the event that the requirements described in numeral II of this Article are not met or exceed the participations indicated in the paragraphs A and B, the persons involved therein shall not be entitled to exercise the voting rights corresponding to the total of the Shares whose Holding was obtained or is currently obtained, and therefore, such Shares shall not be taken into account for the determination of the quorum of attendance and voting in the Shareholders’ Meetings, nor shall the records in the shareholder ledger be done and there shall be no effects of the Registry done by the Institute for the Deposit of Securities.
In order to determine if a specific situation is within numeral II of this Article, the following considerations and criteria shall apply and all the Shares whose Holding is obtained, shall be obtained, or is currently obtained by virtue of any Transaction or Encumbrance, shall be taken into account (the calculation shall be made regarding the number of shares directly representing the Capital Stock of the Company).
1.- It does not matter if the Transaction or Encumbrance is made abroad.
2.- A single Holding shall be considered regarding each of the participants in the Group of Persons, Corporate Group, Consortium, each Related Party, and each Relative.
3.- Each Transaction or Encumbrance that may result in obtaining a 2% or more of the Capital Stock must be submitted to authorization.
4.- In case of Trusts established by the Company for the issuance of ordinary participation certificates to be offered to the public investors, the fiduciary institution shall not be subject to numeral II of this Article or Article 10 of these by- laws.
5.- For the interpretation of these by-laws, the applicable law shall be taken into account.
ARTICLE 8. MODIFICATIONS TO THE CAPITAL STOCK.- To increase or decrease the Capital Stock and amortize issued shares with undistributed profits, except in accordance with the provisions of Article 7 of these by-laws, the following procedure shall be followed: The Fixed Capital Stock shall only be increased or decreased by resolution of the General Extraordinary Shareholders’ Meeting, and such Meeting shall also authorize the amortization of issued shares representing this part of the Capital Stock with distributable profits and the amendments to the limits of the Variable Capital. The Variable Capital Stock shall be increased or decreased by resolution of the General Ordinary Shareholders’ Meeting,
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and such Meeting shall also resolve about the amortization of issued Shares representing this part of the Capital Stock with distributable profits; in the event of a Capital increase in its Variable part, the Meeting may delegate to the Board of Directors the authority to determine the terms and conditions under which it shall proceed to the issuance, exhibit and subscription of the respective shares, which once issued and while subscribed shall be held by the Treasury of the Company. In the event of a capital reduction in the Variable part of its Capital Stock, the Board of Directors, in accordance with applicable legal provisions, may fix the terms and conditions for its implementation. The amortization of Shares with distributable profits shall be done in accordance with the terms instructed by the Law. The minutes of the General Ordinary Shareholders´ Meetings that approve increases or decreases in the variable portion of the Capital Stock must be notarized, except in the cases where the increases and decreases are the result of the repurchase of shares. In the terms of the applicable law, the Company may increase its Capital Stock by the issuance of non-voting shares, shares with other limitations or preferred corporate rights, or shares with preferred or limited vote. The issuance of the shares mentioned in this paragraph shall not exceed the percentage of the Capital Stock established by the applicable Law and may be part of the Fixed or Variable portions of the Capital Stock.
The non-voting shares shall not be counted for purposes of determining the attendance or voting quorums at the Shareholders’ Meetings, while the shares with limitations on other corporate rights, or of restricted vote, shall only be counted to determine the attendance and voting quorums in the Shareholders’ Meetings held to deal with any matters in which such shares have a voting right.
Issued Class Shares, as the case may be, shall conform one or several Series with its respective sub-series, each Series shall be identified with two letters of the alphabet, one of which shall be “A”, “B” or “N”, respectively and depending on whether its Holding is reserved in the terms of these by-laws with respect to the Series “A”, common ordinary Capital, are of free subscription in the terms of these by-laws with respect to the Series “B” of the common ordinary Capital Stock, or in its case, are considered as neutral investment under which they shall also have free subscription; and the other letter shall be used to distinguish them from the shares representing the common ordinary Capital Stock and the other Classes that conform the Capital Stock, attaching a progressive number for each sub-series issued.
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In the event of a Capital Stock increase, the Shareholders’ Meeting may extend, limit or deny the shareholders the preemptive right to subscribe in proportion to their participation in the common ordinary Capital Stock or in the capital represented by Class Shares, the shares that in either case are issued. When applicable, the proportion shall be determined considering only the participation in the issued Capital Stock and the preemptive rights may only be exercised with respect to the same class of Shares that are held by the shareholder and within the (15) fifteen days following the publication of the resolution of the respective Shareholders’ Meeting, the publication shall be made in the terms provided in these by-laws for the calls for Shareholders’ Meetings. The preemptive right to subscribe shall not be applicable to Capital increase through public offers or through the issuance of own shares previously acquired by the Company.
The Shareholders shall also have the right to receive the shares that are issued by means of capitalization of reserves or profits, in the understanding that the shares issued under this concept shall correspond proportionately to all issued Shares. The Shareholders’ Meeting shall determine the nature or class of shares that will represent the Capital increase by the capitalization of reserves or profits and only those Shareholders holding common ordinary shares or Class Shares, depending on which of them are being issued, shall share the right of receiving the shares so issued in the proportion of their Holdings in the issued ordinary common Capital Stock or of Class, respectively.
The Company may issue unsubscribed shares kept in treasury, to be subscribed afterwards by the public investors, in accordance with the applicable Laws.
The shareholders of the variable part of the Capital Stock of the Company shall not have withdrawal rights.
The Company shall keep a Book, which shall be authorized by the Chairman or Secretary of the Board of Directors or by any other officer designated by the Board of Directors for this purpose. All notes relating to the registration of increases and decreases of the Capital Stock in its Variable portion shall be kept in this Book.
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ARTICLE 9. CERTIFICATES REPRESENTING THE SHARES.- The Share Certificates and Provisional Certificates issued in each case, must contain the expressions referred to in the Law and in Articles 5, 7 (regarding the restrictions for the transmission of Shares or to acquire substantial portions of the Capital Stock), 8, and 10 of these by-laws, regarding the rights and obligations of the shareholders, and must have the handwritten signatures of any two Board members appointed by the Board of Directors. The Chairman and Secretary may use a facsimile of their signature, pursuant to the requirements of the applicable Law. The Share Certificates and provisional certificates must also contain adhered vouchers, to be used when exercising their dividend and preemptive rights. The Board shall determine the number of shares represented in each Share Certificate and the number of vouchers to be adhered.
ARTICLE 10. SHARE REGISTRY AND SIGNIFICANT PARTICIPATIONS.- The Company shall have a Share Registry that must contain: a).- The name, nationality, and address of the Shareholder, as well as the indication of the shares belonging to him, indicating their number, series, class, and other distinctions; b).- The indication of the payments made; c).- Any encumbrances over the Shares, as well as of the rights incorporated in them, the limitations of domain, and transfers made. The Registry must also comply with the provisions established in the applicable law and with Article 7 of these by-laws. The Company shall consider the person inscribed in the Registry, referred to in this article, as owner of the shares. To this effect, the Company must record in such Registry, when requested by any entitled person, the transfers, limitations, or liens imposed on them. In case the Shares or certificates that represent them were deposited in an authorized Institution for the Deposit of Securities, the register shall be made in accordance with the applicable law and with the by-laws. The persons who, in any way and in accordance with the criteria set forth in numeral II of Article 7 of these by-laws, obtain a participation of 5%, 10%, 15%, 20%, 25% or 30% must inform the Company within a period of 5 (five) working days following the day in which such percentage of ownership is reached. For purposes of calculating such percentages, numeral II of article 7 of these by-laws shall apply. In the case of Corporate Groups, Groups of Persons, or Consortiums, the obligation to notify applies to all the persons that are considered members of such groups.
The notice given to the Company, referenced in this Article, shall include the name of the person or persons that have the holding and the rights or faculties acquired, the authorization from the Board in those cases described in Article 7 of these by-laws, and the information needed to identify the persons for which the Shares are grouped for Ownership.
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In case of non-compliance with the provisions of this Article, regarding notices of significant participations, the corresponding Shares shall not be represented in the Share holders’ Meeting. The Company shall keep a registry of significant participations, in which names, nationality and domicile of the persons whose names are in the share certificates or respective certificates, as well as the relation, agreement or arrangement that exists between them and the information necessary in order to verify the compliance of these by-laws, shall be registered. Only those who are registered may represent the respective shares in the Shareholders’ Meeting. The shareholders must, additionally, comply with what the applicable law establishes regarding acquisitions of securities subject to disclosure and disclosure of contracts and agreements between shareholders. In order to comply with the obligations to notify, this Article shall apply. Only those that have complied with these by-laws and the applicable law shall be able to exercise or instruct the exercise of the corresponding voting rights. In case of non-compliance with what is stated in these by-laws, the notes or registries in the Registry of Shares shall not take place and all the transactions made by an institution for the deposit of securities shall have no legal effect whatsoever.
ARTICLE 11. SHAREHOLDERS MEETING.- The General Meeting of Shareholders is the supreme body of the Company, and it may agree and ratify all of the resolutions and acts of the same. It shall have no limitation on its powers other than as mentioned in the Law and in these by-laws.
In the event that the Capital Stock of the Company, in addition to the common ordinary shares, is represented by shares of other classes, all proposals that may affect the rights conferred to Shareholders holding shares of such classes shall be previously accepted by the class so affected in a Special Shareholders’ Meeting in which the attendance and voting quorums required for the Extraordinary Shareholders’ Meetings shall apply, which must be counted in reference to the total number of shares of the respective class.
The class Shareholders’ Meetings shall be held in the social domicile and shall be subject to the provisions of Articles 13, 14 and 15 of these by-laws, and the Shareholder designated by the Shareholders present thereat shall act as Chairman and the Secretary of the Company shall act as Secretary or in his absence, whoever the Shareholders designate.
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ARTICLE 12. COMPETENCE OF THE SHAREHOLDERS’ MEETINGS.- The Ordinary General Shareholders’ Meeting shall meet at least once a year, once the immediate preceding fiscal year ends, in the corporate domicile, on the date specified by the Board of Directors in accordance with applicable law. The Ordinary General Shareholders’ Meeting held because of the closing of the fiscal year, shall deal, in accordance with the applicable law, with the following: (a) the annual reports regarding the activities corresponding to the Corporate Practices and Audit Committees; (b) the annual report of the Chief Executive Officer, accompanied with the report from the external auditor; (c) the opinion of the Board of Directors regarding the contents of the Chief Executive Officer’s annual report; (d) the annual report of the Board of Directors declaring and explaining the main policies and accounting and information criteria followed in the preparation of the financial information; (e) the report of the Board of Directors regarding the operations and activities in which it has participated; (f) the election, removal or substitution of the members of the Board of Directors, and their level of independence; additionally, the Ordinary Meeting shall approve the operations that the Company or the companies controlled by the Company wish to undertake during one fiscal year, when they represent 20% (twenty percent) or more of the consolidated assets of the Company, based on amounts as of the closing of the immediate preceding quarter of the date the Meeting is held, independent from the way they are executed, simultaneously or progressively, but that, because of their characteristics, may be considered as one operation; in such Meetings the shareholders that have shares with voting rights may vote, including the ones that have a limited or restricted vote; and (g) all other matters that are part of their faculties in accordance with these by- laws or the applicable law.
Extraordinary General Meetings shall have the competence over the matters established in the applicable law and in the by-laws.
Ordinary and Extraordinary Meetings shall meet whenever called.
ARTICLE 13. NOTICES OF SHAREHOLDERS MEETINGS.- The notices for Shareholders’ Meetings shall be made by the Board of Directors or by the Corporate Practices or Audit Committees, with the exception of those rights granted by Law to the shareholders to legally publish the calls. The Notice shall be made through the publication of a notice in the electronic system established by the Ministry of Economy (Secretaría de Economía) or, in its absence, in the Official Gazette of the State of Nuevo Leon or in any of the major daily
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newspapers of the State of Nuevo Leon, at least fifteen days prior to the date set for the Meeting. The Notice shall state the place, day and time at which the Meeting shall be held and shall contain the Agenda, which shall not include matters under the title of “general” or equivalents. A Notice shall not be required if all the shares in their entirety are represented when the Meeting is installed and the votes are taken. When a quorum is not obtained for a Meeting, a minute shall be drawn-up in the respective Book, evidencing such circumstance, and said minute shall be signed by the Chairman and Secretary as well as by the appointed Tellers, setting forth the date in which the call was published. If such should be the case, a second Notice, so noted, shall be published just once.
The Shareholders that are Owners of shares with voting right, including in a limited or restrictive form, that represent at least 10% (ten percent) of the Capital Stock subscribed and paid, shall be able to request to the Chairman of the Board of Directors or of the Corporate Practices or Audit Committees, in any moment, that a General Shareholders Meeting take place, in the terms of the applicable law.
Any Shareholder may request the Chairman of the Board of Directors that a General Shareholders Meeting takes place, in the terms of the applicable law, when, for any cause, the minimum number, required for a Meeting to be held, of members of the Corporate Practices and Audit Committees is not present and the Board of Directors has not made the provisional corresponding appointments.
From the publication of the Notice of the Shareholders’ Meetings, information and documents related to each matter included in the Agenda shall be made available to the Shareholders, in the offices of the Company and at no cost.
ARTICLE 14. ATTENDANCE TO THE SHAREHOLDERS’ MEETINGS.- In order to attend and participate in the General Meetings of Shareholders, the Shareholders with the right to vote shall deposit their shares at the corporate offices, in a Credit Institution or Institution for Securities Depository (Institución para Depósito de Valores) through a broker in the securities market in accordance with the Mexican Securities Market Law (Ley del Mercado de Valores). The Certificate of Deposit and, as the case may be, the list of Owners issued by the broker shall be delivered in the office of the Secretary of the Company at least 48 hours prior to the time set for the Meeting. In addition, it is necessary to observe the dispositions of Articles 7 and 10 of these by-laws regarding the Shares intended to be
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represented in the Meeting. The Secretary, in exchange for the aforesaid certificate of deposit, shall list, and after verifying the compliance with the by-laws regarding Articles 7 and 10, shall issue a deposit voucher that certifies the shareholders’ standing as such and the number of shares represented. Said voucher shall authorize the person to whom it has been issued to attend the Meeting. The deposited shares or respective certificates shall only be returned to the Shareholders when the Meeting has been concluded, and in exchange for the voucher issued by the Secretary. The Secretary shall have the documents referred to herein, at the disposal of the Tellers appointed to act as such at the respective Meeting, so that, at the end of the respective registration period, they may prepare the Attendance List of the Shareholders who have right to attend that Meeting.
ARTICLE 15. SHAREHOLDERS’ REPRESENTATION.- Every Shareholder has the right, subject to compliance with these by-laws, to attend the Meetings, personally or through a legal representative. In this case, the legal representative shall validate its personality through Proxy granted in accordance with the forms created by the Company and that shall be at the disposal of the shareholders, including the brokers in the Stock Exchange, during the term indicated by the Law. The forms shall contain the following requirements: (a) clearly name the Company and the Agenda without being able to include under the title “General Matters”, the items referred to by the applicable law, and (b) a space for including the instructions for exercising the Power of Attorney indicated by the grantor of such Power of Attorney.
The Secretary of the Board of Directors shall verify that this Article is observed and shall inform the Meeting thereof.
ARTICLE 16. INSTALLATION OF THE SHAREHOLDERS’ MEETINGS.- The General Ordinary Shareholders’ Meeting shall be considered legitimately installed in its first notice, if at least 50% of the total number of voting shares representing the Capital Stock are present thereat. In the event of a second notice, the General Ordinary Shareholders’ Meeting shall be deemed installed regardless of the number of voting Shares that are present thereat. The General Extraordinary Shareholders’ Meeting shall be considered legitimately installed in its first notice, if at least three fourths of the total number of voting shares representing the Capital Stock are present thereat, and in the event of a second notice, if at least 50% per cent of the total number of voting shares representing the Capital Stock are present thereat.
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ARTICLE 17. DEVELOPMENT OF THE SHAREHOLDERS’ MEETINGS.- The Meeting shall be chaired by the Chairman of the Board of Directors. In the absence of the Chairman, the Meeting shall be chaired by the Shareholder appointed by the absolute majority of those present. The Secretary of the Meeting shall be the person who is the Secretary of the Board of Directors or in his absence, the person appointed by the majority of the shareholders and proxies present thereat. The Chairman of the Board of Directors shall appoint two Tellers, having the possibility of doing so in writing once the call for the Meeting is published. In the case of absence of the Tellers so appointed, a new designation may be made. The Tellers present at the Meeting shall determine, with the documentation available and the Attendance List formulated for said effect, the number of legally represented shares. If by any reason the Agenda was not totally discussed in the date for which the Meeting had been called, such Meeting shall continue to be open during the immediate following days and until all items on the Agenda are dealt with.
The Shareholders owning shares with voting rights, including in a limited or restrictive form, duly represented in the Meeting and that represent at least 10% (ten percent) of the Capital Stock subscribed and paid, shall have the right to request the deferral of the voting on any matter for which they considered themselves not to be well informed, abiding to the terms and conditions indicated by applicable law.
ARTICLE 18. VOTING RIGHTS AND QUOROUM OF THE SHAREHOLDERS’ MEETINGS.- In all Meetings, each common ordinary share shall be entitled to one vote. This principle shall be subject to applicable legal provisions and to the provisions of these by-laws, with exception to those cases of shares temporarily re-acquired by the Company as referred to in numeral I of Article 7; to the non-voting shares, as well as to, or with the limitation to other corporate rights, and any shares with limited vote in accordance with the applicable law and the resolutions of the Shareholders’ Meeting in which its issuance has been approved; as well as to those cases contemplated by numeral II of Article 7 and Article 10 of these by-laws. In all Ordinary Shareholders’ Meetings, the resolutions shall be valid with the affirmative vote of the majority of the votes of the voting-
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shares present thereat. In the Extraordinary Shareholders’ Meetings, the resolutions shall only be valid if approved by the affirmative vote of the voting-shares representing at least (50%) fifty per cent of the Capital Stock with voting rights, except in the case of amendments to Articles 7 (except for the acquisitions of own shares), 10, and 22, in which it shall be required to obtain approval of (75%) seventy-five percent of the voting shares as well as those cases that in accordance with the Law, require a special quorum. It shall be left to the Tellers, who shall sign the respective minute, to verify that the quorums so indicated are complied with. The Shareholders, Owners of shares with voting rights, including in a limited or restrictive form, that represent at least 20% of the Capital Stock subscribed and paid, shall have the right to judicially oppose to the resolutions of the General Meetings, regarding those items where they have voting rights, whenever the provisions stated in applicable law, for these purposes, are observed.
ARTICLE 19. INTEGRATION OF THE BOARD.- The Board of Directors shall be composed of a maximum of twenty one (21) Regular Board Members, where at least 25% (twenty-five percent) must be independent in accordance with the applicable Law. A Shareholders’ Meeting may designate Alternate Board Members. The Alternate Board Members shall become part of the Board of Directors only in such cases of temporary or permanent absences of the Regular Board Members. The person appointed as Chairman of the Board of Directors shall be designated by the Shareholders’ Meeting; in case of death, resignation or declaration of total disability or absence, without prejudice to the powers of the Shareholders’ Meeting, the Board of Directors shall appoint a Chairman. The personwho holds the position of Chairman of the Board, will not hold the office of Chief Executive Officer of the Company. The Shareholders’ Meeting or the Board of Directors shall designate the Secretary, who will not be a Board Member and, if agreed, its Alternate may be elected. The Board Members, Regular or Alternate, shall remain in their position, even if their term has expired or because of their resignation, up until 30 days from such event. In case any of the Board Members is absent, or the appointed one does not take charge of such appointment, and no alternate has been appointed, or such alternate does not take charge of such appointment, the Board of Directors may appoint provisional members, without the intervention of the Shareholders’ Meeting, who shall ratify such appointments or appoint the substitute members in the next Meeting from such event. The Alternate Board
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Members, in the order in which they were appointed, shall substitute the Regular Members; in case the number of Alternate Board Members designated is less than the number of Board Members, each Alternate Board Member shall substitute the Board Member that corresponds according to the designation order of the Alternate Board Members, and once the Alternate Board Members have been appointed, this procedure shall be repeated until designating each Board Member its own Alternate Board Member, under which cases an Alternate Board Member can have that character with respects to one or more Regular Board Members, in the understanding that Alternate Board Members of Regular Board Members who are independent must have that same character. The Regular Board Members can only be substituted in their absences by the Alternate Board Member that corresponds in accordance to the designation.
The independent Board Members and their Alternates must be appointed in accordance with the dispositions of the applicable Law and these by-laws, and those who cease to have such character must notify the Board of Directors in its next Meeting at the latest.
ARTICLE 20. MINORITY RIGHTS IN THE APPOINTMENT OF THE BOARD.- All shareholders owning shares with voting rights, including limited and restricted, who individually or jointly own 10% of the Capital Stock of the Company, shall have the right to appoint and revoke, in the General Shareholders Meeting, a member of the Board of Directors. Such appointment may only be revoked by the other shareholders when all the other appointments of the members are revoked, in which case, the substituted persons may not be appointed with such character during the next twelve months following the date of such revocation. In such case, the minority shareholders must refrain from taking part in the election of the Board referred to by Article 19 of the by-laws, limiting their actions to appointing by majority of votes, a member of the Board of Directors.
ARTICLE 21. HONORARY CHAIRMAN.- The General Shareholders Meeting may, through a resolution, appoint as Honorary Chairman of the Company a person that deserves such appointment due to his achievements within the Company. The Honorary Chairman must keep confidential the information or matters of the Company that he is
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aware of, when such information is not of public domain. The Honorary Chairman shall not be subject to the responsibilities established in the applicable law for Board members and Relevant Executives; he shall have voice without vote whenever he attends to the Meetings of the Board of Directors, The Honorary Chairman may not adopt resolutions that transcend in a significant way the administrative, financial, operational or legal situation of the Company or corporate group to which it belongs.
ARTICLE 22. RESTRICTION TO BECOME A BOARD MEMBER.- The following persons cannot be Board Members of the Company: a) Persons with no legal capacity.- b) Persons who, in accordance with the Law, may not engage in commercial transactions; c) Those who, during the twelve months immediately preceding the election, have held a position as external auditors of the Company or any of the companies part of the corporate group; d) Those who have been substituted in their appointment by revocation, in which case they cannot be appointed with such character during the twelve months following the date of revocation; e) Those who have past due obligations with the Company not duly guaranteed; f) Those, including any of their Relatives, who during the fiscal year immediately preceding the election (either with or without interruptions) have held a position in, acted as representatives or attorneys-in-fact in any form of, have been shareholders or have participated (directly or indirectly) in 5% or more of the Capital Stock or assets of, or have rendered services through any form to: persons or entities (either incorporated or not) (except those companies in which CEMEX, S.A.B de C.V. has direct or indirect participation with a minimum of 40% of the Capital Stock) and whose activity is related to the production or distribution of cement or its derivatives (persons or entities includes those that at the same time are shareholders or participate in the management, either directly or indirectly, of the person or entity dedicated to the above mentioned activity, and also those in which the latter is a shareholder or participate in the management, either directly or indirectly), or g) Those who have participated in an act that implicates a violation to the by-laws, Laws and applicable rules. Board members who, after being appointed, are found to be in one of the cases or situations described above, shall have to renounce and shall not be able to perform their functions again, except with a new election and after the restriction has been eliminated.
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ARTICLE 23. BOARD MEETINGS.- The Board of Directors shall gather at least four times during each fiscal year. The Chairman of the Board of Directors and of the Corporate Practices and Audit Committees, as well as 25% (twenty five percent) of the Board Members, can call a Board Meeting and include in the agenda such items as they consider pertinent.
The Company’s external auditor may be called to the Board of Director Meetings, as an invitee with voice but without vote, and shall abstain from being present during the discussion of those items on the agenda in which he has a conflict of interest or that could impair his independence as defined by the Law.
The Meeting shall be considered duly installed with the presence of the majority of the Board Members, who shall make their decisions by an absolute majority of the Board Members there present. Minutes shall be drawn up for each of the Meetings of the Board, which shall contain the topics and items discussed; said minutes must be signed by the Chairman and Secretary who acted as such during said Meeting. The Board may adopt resolutions without a Meeting through the unanimous consent of its members. Such resolutions shall be confirmed in writing.
All information presented to the Board of Directors, whether of the Company or of its controlled entities, shall be signed by the persons responsible for its content and drafting.
ARTICLE 24. FACULTIES OF THE CHAIRMAN OF THE BOARD.– The Chairman of the Board of Directors shall have, except for any modifications, restrictions or additional responsibilities that the General Shareholders’ Meeting or the Law may determine, the following faculties, obligations, attributions, and powers: I.- Execute or procure the execution of the resolutions of the General Shareholders’ Meetings and the Board of Directors, doing anything that is necessary or prudent in order to protect the Company’s interests, without affecting the faculties that the Shareholders’ Meeting, the Board or the Law may confer to the Chief Executive Officer. II.- Submit proposals to the Board of Directors regarding the independent directors that shall integrate the Corporate Practices and Audit Committees, as well as the provisional directors that shall be
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designated by the Board, if necessary. III.- Chair the Shareholders’ Meetings and the Board Meetings, having a casting vote in the Board’s Resolutions in the case of a tie. IV.- Prepare, sign and publish the calls for the General Shareholders’ Meetings and summon the Board of Directors’ Meetings. V.- Represent the Company before any type of authority, company or individual. Any absence of the Chairman shall be covered by the Board Member appointed by the Board of Directors.
ARTICLE 25. APPOINTMENT OF THE SECRETARY OF THE BOARD.- In case the Shareholders’ Meeting does not assign it, the Board of Directors shall appoint a Secretary, who may not be a Board Member and who shall be subject to the obligations and responsibilities established by the Law, being this appointment revocable at any time.
ARTICLE 26. DUTIES AND RESPONSIBILITIES OF THE BOARD MEMBERS.- The General Ordinary Shareholders’ Meeting may establish the obligation that the Board Members and Secretary of the Board, the Chief Executive Officer and the Relevant Executives referred to by the applicable Law, grant a guarantee to cover the liabilities in which they may incur as a result of the performance of their position.
The Board Members shall perform their duties in a value-creating manner for the benefit of the Company, without favoring a specific shareholder or group of shareholders, and shall therefore act diligently and in good faith by adopting informed decisions; and shall comply with their duty of care and loyalty, abstaining from engaging in illicit acts or activities, as established by the applicable Law.
The liability for breach of these fiduciary duties or for engaging in illicit acts or activities shall consist of indemnifying the Company for the damages and costs suffered, and the responsible individuals shall be removed from their positions as established by applicable Laws.
With respect to liabilities arising from the breach of the duty of care, and only when the relevant acts were not done willfully, in bad faith or are not illegal, indemnities or insurance may be contracted for the Board Members or the Secretary. In no other case may such indemnity or insurance be granted or contracted.
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The right to bring actions based on the breach of the fiduciary duties or on the committing of illicit acts or activities as established by the Law, shall be exclusively on behalf of the Company or of the individual who is controlled by the Company or in which the Company has significant influence, that suffers the economic damage, and may be enforced by the Company, through the resolution previously adopted in the General Extraordinary Shareholders’ Meeting, or by the shareholders who, individually or in group, hold voting shares, including shares with limited or restricted voting rights, that represent 5% or more of the Company’s Capital Stock, with disregard of the fulfillment of the requirements established by the General Corporations Law (Ley General de Sociedades Mercantiles) for suing management for their civil liability. With respect to liability claims brought on behalf of controlled companies or of those where the Company has substantial influence, these shall be independent of other claims that should be brought under the General Corporations Law (Ley General de Sociedades Mercantiles), and if such claims are brought by the Sociedad Anónima Bursátil, the prior approval by the General Extraordinary Shareholders’ Meeting shall be required. In the event that the shares representing the Capital Stock of the Company are placed among the public through credit instruments representing such shares, issued by fiduciary institutions under a trust, the right to bring the liability claim shall correspond to the fiduciary institution and to the holders of such instruments that represent 5% or more of the Company’s Capital Stock.
ARTICLE 27. RESPONSIBILITIES OF THE BOARD.- It is the responsibility of the Board of Directors to:
I.- Establish the general strategies for conducting the Company’s business and other companies controlled by it.
II.- Monitor the managing and handling of the Company and of the other companies controlled by it, considering the importance that the latter have in the financial, administrative and legal situation of the Company, as well as the performance of the Relevant Executives.
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III.- Approve, with the prior opinion of the Audit and Corporate Practices Committees: A) The policies and guidelines for the use of the Company’s assets and the assets of other companies controlled by it, by related parties. B) Each related party transaction that the Company or other companies controlled by it plan to enter into. C) Transactions that are executed, either simultaneously or successively, that may be considered as one single transaction given their characteristics, and that the Company or the companies controlled by it plan to enter into, during a fiscal year, when these are unusual or non-recurrent, or else, when their total value represents, based on numbers corresponding to the end of the immediately preceding quarter in any of the following scenarios: 1. The purchase or sale of assets with a value equal or greater than 5% of the consolidated assets of the Company. 2. The granting of guarantees or the assumption of liabilities for a total sum equal or greater than 5% of the consolidated assets of the Company. Investments in debt securities or financial instruments shall not be covered by this provision whenever these are made in accordance with the policies that for such purpose are issued by the Board of Directors. D) The appointment, election, and, as the case may be, removal of the Chief Executive Officer of the Company, and its compensation, as well as the policies for the appointment and compensation of other Relevant Executives. E) The policies for extending credit or personal guarantees to related parties. F) Waivers granted so that a Board Member, Relevant Executive or any other individual with power to command, can take personal advantage or for third parties of corporate opportunities belonging to the Company or to other companies controlled by it or where the Company has substantial influence. Waivers for transactions with a total value less than what is mentioned in Section C) of this numeral III may be delegated to the Audit and Corporate Practices Committees. G) The guidelines with respect to internal controls and the internal audit of the Company and of the other companies controlled by it. H) The accounting policies of the Company, adjusting them to the accounting principles recognized or issued by the National Banking and Securities Commission (Comisión Nacional Bancaria y de Valores). I) The Company’s financial statements. J) The hiring of the firm that shall render the external audit services and, if applicable, of additional or complementary services.
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IV.- Present to the General Shareholders’ Meeting held after the end of the fiscal year: A) the annual report regarding the activities of the Audit and Corporate Practices Committees. B) The report prepared by the Chief Executive Officer, according to the Law, together with the report of the external auditor. C) The Board of Director’s opinion regarding the content of the Chief Executive Officer’s report mentioned in the preceding section. D) The report mentioned in Article 172, section b) of the General Corporations Law (Ley General de Sociedades Mercantiles), which contains the main accounting and information policies and criteria to be used in preparing the financial information. E) The report on the activities and transactions in which it intervened as required by the applicable Law.
V.- Follow-up on the main risks to which the Company and the other companies controlled by it are exposed, identified based on the information presented to the committees, the Chief Executive Officer and the firm that serves as external auditor, as well as the accounting, internal control and internal audit, registry, archive or information systems of the Company or the other companies controlled by it. This task may be done through the conduit of the Audit and Corporate Practices Committee.
VI.- Approve the policies for information and communication with shareholders and the market, as well as with the Board Members and Relevant Executives, in order to comply with the Law.
VII.- Determine the corresponding course of action in order to correct any irregularities it is aware of and to implement the applicable corrective measures.
VIII.- Establish the terms and conditions to which the Chief Executive Director shall abide in the exercise of its powers of administration.
IX.- Order the Chief Executive Officer to disclose to the public those material events that it has knowledge of.
X.- Manage the businesses and assets of the Company, with full management power, under the terms of Article 2,554 (two thousand five hundred and fifty-four), Second paragraph of the Federal District Civil Code (Código Civil para el Distrito Federal), and its correlative Article 2,448 (two thousand four hundred and forty-eight) of the State of Nuevo Leon.
XI.- Perform the domain over movable and real estate assets of the Company, as well as over their real and personal rights, under the terms of the third paragraph of Article 2,554 (two thousand five hundred and fifty-four) of the Federal District Civil Code (Código Civil para el Distrito Federal) and its correlative article 2,448 (two thousand four hundred and forty- eight) of the Civil Code for the State of Nuevo Leon (Código Civil para el Estado de Nuevo León)
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XII.- Represent the Company before any type of administrative or judicial authorities of the Municipality, State or Country, as well as before the labor authorities or any other authority, or before arbitrators, with a vast power, including those faculties requiring a special clause according to the Law, under the provisions of the first paragraph of Article 2,554 (two thousand five hundred and fifty-four) of the Federal District Civil Code (Código Civil para el Distrito Federal) and its correlative Article 2,448 (two thousand four hundred and forty-eight) of the Civil Code for the State of Nuevo Leon (Código Civil para el Estado de Nuevo León), and file legal suits, complaints and criminal accusations, being also able to act as a civil party in criminal cases, and grant remission, as well as to present Juicios de Amparo and waive the Company’s rights under them.
XIII.- Grant and subscribe credit instruments on behalf of the Company, contribute with movable and real estate assets of the Company to other companies, and subscribe shares or take a participation in other companies, with the exception of those restrictions established by the applicable Law.
XIV.- Grant avales, bonds, and generally guarantee, even with mortgage or pledge, third party duties with or without counter benefits, and therefore execute credit instruments contracts and other documents that are necessary for the granting of said guarantees, with the exception of those restrictions established by the applicable Law.
XV.- Monitor compliance with the resolutions of the Shareholders’ Meetings.
XVI.- Grant or deny the authorizations referred to in article 7 of these by-laws.
XVII.- Any other responsibility established by the Law in accordance with the functions that the Law grants to the Board of Directors and that are not reserved for the General Shareholders’ Meeting.
Approval from the Board of Directors shall not be required for the following transactions, each individually, entered between related parties and the Company or the companies controlled by it, if such transactions adhere to the policies and guidelines approved by the Board of Directors for such purpose: (a) those transactions that, based on their value, are not material to the Company or those companies controlled by it; (b) transactions entered into by the Company and the companies controlled by it or companies where the Company
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has substantial influence or entered by any of latter, whenever such transactions are part of the Company’s business scope or are considered made at market prices or supported on valuations made by external specialized firms; and (c) transactions with employees, whenever these are entered under the same conditions as with other clients or as a result of the rendering of general professional services.
The Board of Directors may only delegate its faculties under numerals X, XI, XII, XIII, and XIV above, and the attorneys-in-fact to whom they delegate those faculties are hereby duly authorized to delegate once more the faculties that have been delegated to them; with respect to section F) of numeral III, delegation shall be made as established therein, all other faculties correspond exclusively to the Board of Directors.
ARTICLE 28. CHIEF EXECUTIVE OFFICER.- The management, direction and execution of the business of Company and of the companies controlled by it shall be the responsibility of the Chief Executive Officer, who shall abide to the strategies, policies and guidelines approved by the Board of Directors.
The Chief Executive Officer shall have the signature of the Company, and shall have the following faculties, duties and obligations: I.- Represent the Company with general powers for act of administration, to manage the businesses and corporate assets with the ampleness of the second paragraph of Article 2554 of the Federal District Civil Code (Código Civil para el Distrito Federal) and its correlative Articles in the Civil Codes of any and all States of the Republic of Mexico, and Article 10 of the General Corporations Law (Ley General de Sociedades Mercantiles). II.- Represent the Company with general power for lawsuits and collections, with all the general and special powers requiring special power or clause, without any limitation whatsoever, with the ampleness of the first paragraph of Article 2554 and 2587 of the Federal District Civil Code (Código Civil para el Distrito Federal), and its correlative Articles in the Civil Codes of any and all States of the Republic of Mexico, as well as the power to represent the Company in labor disputes, with the attributions, obligations and rights prescribed in the Federal Employment Law (Ley Federal del Trabajo). III.- Execute acts of domain over the corporate assets, as well as over their personal and real rights, whether movable or real estate assets pursuant to the terms of the third paragraph of Article 2554 of the Federal District Civil Code (Código Civil para el Distrito Federal) and the correlative Article 2448 of the State of Nuevo Leon. IV.- Exercise the voting rights of
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those shares issued by those subsidiaries owned by the Company, complying with the Law. V.- Organize, manage and direct the personnel and the assets and businesses of the Company as instructed by the Board and to collect and make payments. VI.- Enter into agreements, execute credit instruments that are to be issued, accepted, endorsed or guaranteed, and all other documents related to his attributions, and execute those acts that are required for the ordinary course of business whenever they abide to the policies and guidelines that are approved by the Board of Directors for such purposes. VII.- Designate the Relevant Executives that shall assist him in the exercise of his functions and due fulfillment of his obligations, as well as any other employees he deems convenient. VIII.- Grant and revoke general and special powers, as well as to delegate, all or part of his faculties, including the power to authorize the attorney-in-fact to whom he delegated Powers so that the latter can likewise delegate the faculties he deems convenient, including such power of delegation. IX.- All other faculties, obligations and responsibilities established by the Law and that are not reserved to the General Shareholders’ Meeting or to the Board of Directors. The Board of Directors may broaden or restrict the faculties of the Chief Executive Officer.
The Chief Executive Officer and Relevant Executives shall conduct their positions in a manner that looks after the creation of value for the Company, without favoring a specific shareholder or group of shareholders. For this purpose they shall act with due diligence, making informed decisions and complying with the duties imposed by the Law or these by-laws. The Chief Executive Officer and the Relevant Executives shall be responsible for damages and losses caused to the Company or to other companies controlled by it, as determined by the Law.
With respect to liabilities arising from the breach of the duty of care, and only when the relevant acts were not done willfully, in bad faith or are not illegal, indemnities or insurance may be contracted for the Chief Executive Officer and the Relevant Executives. In no other case may such indemnity or insurance be granted or contracted.
ARTICLE 29. MANAGING POSITIONS.- The Chief Executive Officer may appoint and remove the Relevant Executives of the Company and of the entities that together with the Company form the Business Group, and set their integral compensation, in accordance with the policies agreed by the Board of Directors. The Chief Executive Officer may delegate the powers granted to him to the Relevant Executives empowering them to delegate their powers as well. The Relevant Executives shall report directly to the Chief Executive Officer, who shall distribute among them the various roles that they are taking, the Relevant Executives will have the authorities granted to them in the corresponding powers of attorney.
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| As of March 24, 2022 |
ARTICLE 30. FACULTIES OF THE SECRETARY OF THE BOARD.- The Board may designate, among its Members, one or more delegates for executing specific acts. The Secretary of the Board of Directors shall have the following faculties, obligations and attributions:
A).- Draft, sign and publish the calls and notifications for the Shareholders’ Meetings, and if applicable, call the Meetings of the Board of Directors and of the Corporate Practices and Audit Committees.
B).- Participate with voice, but without vote, in the Board of Director Meetings.
C).- Maintain the confidentiality of the information and issues that he becomes aware of as part of his position in the Company, when such information and issues are not deemed public.
D).- Attend all of the General Shareholders’ Meetings and Board of Director Meetings, draft and sign the corresponding minutes, and keep the Minute Books of the General Shareholders’ Meetings and Board of Director Meetings as established by Law.
E).- Sign the minutes prepared in such Meetings, as well as authenticate such acts or resolutions contained in such minutes for all applicable legal effects.
F).- Act as the special designated representative of the Company to appear before a notary public and obtain the complete or partial protocolization of the minutes prepared at the General Shareholders’ Meetings and the Board of Director Meetings.
G).- Issue any required proofs or authentications of the legal representation of the Company and of records inserted in the Shareholder Ledger.
ARTICLE 31. COMMITTEES.- To fulfill its responsibilities, the Board of Directors shall be assisted by the Audit and Corporate Practices Committees, which shall be only comprised of independent directors and at least with three of such directors as appointed by the General Shareholders’ Meeting or by the Board of Directors, as per the proposal made by the Chairman of such Board.
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| ENGLISH TRANSLATION | ||||
| As of March 24, 2022 |
The Chairman of the Audit and Corporate Practices Committees shall be appointed and removed from office exclusively by the General Shareholders’ Meeting, and shall not be able to chair the Board of Directors. The Secretary of the Board of Directors shall also be the Secretary of the Audit and Corporate Practices Committees, but he shall not be a member of such Committees.
The Chairmen of the Audit and Corporate Practices Committees may call Board of Director Meetings and insert in the agenda the items they deem pertinent.
With respect to corporate practices, the Committee shall: (a) Provide its opinion to the Board of Directors with respect to those issues that are relevant to it, as provided by the Law. (b) Request opinions from independent experts whenever it deems it necessary for the efficient performance of its duties o whenever required by Law; (c) Call General Shareholders’ Meetings and insert in such Meetings’ agendas those items that it deems pertinent. (d) Assist the Board of Directors in preparing the reports referenced in Article 28, section IV, letters d) and e) of the Mexican Securities Market Law. (e) Perform all other duties established by the Law or in these by-laws.
With respect to audit matters, the Committee shall: (a) Provide its opinion to the Board of Directors with respect to those issues that are relevant to it, as provided by the Law. (b) Evaluate the performance of the firm that renders the external audit services, as well as analyze the report, opinions or notices prepared and issued by the external auditor; to this effect, the Committee may request the external auditor’s presence whenever it deems it convenient, in addition to its duty to meet with the external auditor at least once a year. (c) Discuss the Company’s financial statements with the persons involved in their preparation and revision, and based on this, recommend the Board of Directors to approve or disapprove the financial statements. (d) Inform the Board of Directors about the condition of the internal control and internal audit systems of the Company and the companies controlled by it, including any irregularities that it detects, if so is the case. (e) Prepare the opinion referenced in Article 28, section IV, letter c) of the Mexican Securities Market Law and submit it to the Board of Director’s consideration, for its later presentation to the Shareholders’ Meeting, aiding itself with, among other things, the report of the external auditor; such opinion shall indicate, at the least: 1.- Whether the policies and accounting and information criteria followed by the Company are adequate and sufficient
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| ENGLISH TRANSLATION | ||||
| As of March 24, 2022 |
based on the particular circumstances of the Company. 2.- Whether such policies and criteria have been consistently applied to the information presented by the Chief Executive Officer. 3.- Whether, as the result of numbers 1. and 2. above, the information presented by the Chief Executive Officer reasonably reflects the financial results and condition of the Company. (f) Assist the Board of Directors in the preparation of the reports referenced in Article 28, section IV, letters d) and e) of the Mexican Securities Market Law. (g) Supervise that the transactions referenced in Articles 28, section III and 47 of the Mexican Securities Market Law are conducted in compliance with the Law and with the policies issued as per such legal dispositions. (h) Request opinions from independent experts whenever it deems it necessary for the efficient performance of its duties o whenever required by Law. (i) Request from the Relevant Executives and any other employees of the Company or other companies controlled by it, any reports related to the preparation of financial information or any other report that he deems necessary for performing its duties. (j) Investigate possible non-compliance that he is aware of, with the operations, guidelines and policies, internal control, internal audit and accounting record systems, whether by the Company or any other company controlled by it; to this effect, it shall conduct the examination of the documents, files and any other evidence, to the extent this is necessary to perform such surveillance. (k) Receive any observations made by the Shareholders, Directors, Relevant Executives, employees, and any other third party, with respect to the matters described in letter (j) above, and take any action that, under its judgment, may be taken as a result of such observations. (l) Request periodic meetings with the Relevant Executives, as well as the submittal of information related to the internal control and internal audit of the Company or other companies controlled by it. (m) Inform the Board of Directors of any material irregularities it detects during the performance of its duties and, if applicable, of the corrective actions adopted or suggest such actions that must be adopted. (n) Call Shareholder Meetings and request the inclusion in the agenda of those items that it deems pertinent. (o) Monitor that the Chief Executive Officer performs the resolutions adopted at the Shareholders’ Meetings and the Board of Director Meetings, based on the instructions that, for such purposes, are dictated by such Meetings. (p) Monitor the establishment of mechanisms and internal controls that allow verifying that acts and transactions of the Company and other companies controlled by it are in compliance with the applicable Law, as well as implement methods that enable reviewing compliance of the aforementioned duties. (q) Perform all other duties established by the Law or in these by-laws pursuant to the responsibilities provided herein.
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| ENGLISH TRANSLATION | ||||
| As of March 24, 2022 |
The annual report on the Audit and Corporate Practices Committees’ activities shall be prepared by the Chairmen of such Committees and presented to the Board of Directors.
The Audit and Corporate Practices Committees shall gather as many times as necessary, having the right to call such meetings the Chairman of the Board of Directors, 25% of the Board Members, the Chief Executive Officer, or the Chairman of such Committee. The decisions shall be made by majority of votes, having the Chairman a deciding vote in case of a tie; and it shall require the attendance of the majority of its members in order to have a valid meeting. The Alternates of those Directors members of the Audit and Corporate Practices Committee, shall also have the same position regarding the integration of this Committee.
In those Committee meetings where the Chairman and/or Secretary were absent, the attending members shall appoint among them, by majority vote, those who shall act as Chairman and Secretary for that particular meeting.
The Committees shall keep a minute book of their meetings, where the minutes of every meeting shall be kept with the signature of whoever acted as Chairman and Secretary.
One single Committee may perform the functions of both, the Audit and the Corporate Practices Committees.
ARTICLE 32. COMPENSATION OF THE BOARD.- The Members of the Board of Directors and their Alternates, as well as the members of the Audit and Corporate Practices Committees, shall be remunerated for their services in the amounts determined by the General Shareholders’ Meeting.
ARTICLE 33. SURVEILANCE OF THE COMPANY.- The surveillance of the management and execution of the Company’s business shall be the responsibility of the Board of Directors, through the Audit and Corporate Practices Committee, as well as through the firm performing the external audit of the Company, each within the scope of their attributions.
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| ENGLISH TRANSLATION | ||||
| As of March 24, 2022 |
The Audit and Corporate Practices Committee, and the firm performing the external audit of the Company, shall perform those activities in accordance with the duties that the applicable Law imposes on them.
ARTICLE 34. FISCAL YEARS.- The fiscal years shall have a duration of one (1) calendar year, starting from January 1st (first) through December 31 (thirty-first).
ARTICLE 35. USE OF NET PROFITS.- The net profits that are obtained annually shall be applied in the following order: 1.- An amount equal to 5% (five per cent) shall be set apart to form a fund for the Legal Reserve until such point as such Reserve amounts at least 20% (twenty per cent) of the Capital Stock. When for any circumstances the Legal Reserve is reduced, it shall be reconstituted in the form mentioned in this sub paragraph. 2.- An amount that the Shareholders’ Meeting deems appropriate shall be set apart to create special reserve or prevention funds. 3.- The remaining portion shall be distributed among the shareholders in proportion to the number of shares they own, corresponding an equal part to each share, except for the provisions contained in the Law or in the Shareholders’ Meeting approving their issuance, in the case of shares representing a special class. The payment of dividends shall be made in accordance with the Law.
ARTICLE 36. FOUNDERS.- The Founders shall not reserve for themselves any special participation in the profits of the Company.
ARTICLE 37. LOSSES ALLOCATION.- Should there be any losses, they shall be allocated among the shareholders in proportion to their representation and up to the value of their respective shares, in accordance with the proportion that they represent from the paid and subscribed Capital Stock.
ARTICLE 38. DISSOLUTION OF THE COMPANY.- The Company shall be dissolved prior to its scheduled termination in the events described in subparagraphs II (second), III (third), IV (fourth) and V (fifth) of Article 229 (two hundred and twenty-nine) of the General Corporations Law (Ley General de Sociedades Mercantiles).
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| ENGLISH TRANSLATION | ||||
| As of March 24, 2022 |
ARTICLE 39. LIQUIDATORS.- Once the Company has been dissolved, the Shareholders’ Meeting, shall designate three liquidators by majority of votes. The Shareholders’ Meeting shall establish the term within which said liquidators must complete their duties and shall set the compensation that they shall receive.
ARTICLE 40. BASES FOR LIQUIDATION.- The liquidators shall pass their resolutions by a majority of votes. The liquidation shall be made in accordance with the following bases: I.- Conclude all pending business in the manner best deemed appropriate by the liquidators. II.- The liquidators shall collect the credits, pay the debts and transfer the ownership of the assets of the Company as deemed necessary for such purpose. III.- The liquid assets that result from the final balance sheet to be produced by the liquidators, approved by the Shareholders’ Meeting, shall be distributed among the shareholders, either by distribution in kind or selling them and distributing the product of the sale or executing on them any other transaction approved by the General Shareholders’ Meeting, without harming any rights corresponding to special classes of shares, if any. The distribution of the liquid assets shall be made in proportion to the amount of issued Capital Stock, without affecting the preferential rights that correspond to special classes of shares.
ARTICLE 41. LIQUIDATION OF THE COMPANY.- The General Shareholders’ Meeting shall have, during the term of liquidation, the necessary powers to determine the rules that, in addition and amendment to the rules set forth in this public deed, shall govern the acts of the liquidators, having the power to revoke their designation and appoint new liquidators. The Shareholders’ Meeting shall be called during the liquidation by any of the liquidators.
ARTICLE 42. CANCELLATION OF LISTING ON THE NATIONAL REGISTER OF SECURITIES.- In the event that the Company requests the cancellation of the listing of its shares on the Securities Section of the National Register of Securities, the prior approval of the General Extraordinary Shareholders’ Meeting, with the favorable vote of the shares, with or without voting rights, that represent 95% of the Company’s Capital Stock, shall be required. It shall also be necessary to make a public tender offer, which shall be made at the price, terms and conditions established by the Law or determined by the National Banking and Securities Commission (Comisión Nacional Bancaria y de Valores) through its regulations.
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| ENGLISH TRANSLATION | ||||
| As of March 24, 2022 |
The Company shall create a trust, for a period of at least six month as of the date of such cancellation, with enough funds to purchase, at the same offered price, the shares of those investors who did not tender at such offer.
The Board of Directors shall inform to investors and the public, through the stock exchanges where the Company’s securities are traded and in compliance with the conditions established by such stock exchanges, its opinion with respect to the price of the offer.
Transitory Article 1.- Individuals or corporations that, as of April 25, 2002, date in which the General Extraordinary Shareholders’ Meeting approved the amendment to several Articles of the by-laws of CEMEX, S.A. de C.V., are covered by the amendments to Articles 7 or 10, shall have 6 (six) months, starting the date such Meeting was held, to comply with the authorizations, notifications and other formalities referred to in such amended Articles 7 and 10, not being able to exercise the rights inherent to such shares until such formalities are not strictly complied with.
Transitory Article 2.- For all applicable legal effects, the amendments to the various Articles of the by-laws of CEMEX, S.A. de C.V., approved in the General Extraordinary Shareholders’ Meeting held on April 27, 2006, are subject to the condition that the new Mexican Securities Market Law (Ley del Mercado de Valores) published in the Mexican Federal Official Gazette on December 30, 2005, enters into force as per the condition described in such new Law, a publication of the amended and restated by-laws shall be made.
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Exhibit 1.2
English translation for information purposes only. In the event of discrepancy, the Spanish original will prevail.
CEMEX, S.A.B. de C.V.
On March 24, 2023, CEMEX, S.A.B. de C.V. (“CEMEX” or the “Company”) informed the Mexican Stock Exchange (Bolsa Mexicana de Valores) about the resolutions adopted at CEMEX’s Ordinary General Shareholders’ Meeting that was held on March 23, 2023.
The following is an unofficial English translation of the information that was provided to the Mexican Stock Exchange. In the event of any discrepancy between the English translation and the Spanish version of the information provided to the Mexican Stock Exchange, the Spanish version shall prevail:
Summary of the resolutions adopted at the Ordinary General Shareholders’ Meeting held pursuant to article 181 of the Mexican General Corporations Law (Ley General de Sociedades Mercantiles) being represented 42,619,619,917 (forty-two billion, six hundred nineteen million, six hundred nineteen thousand, nine hundred seventeen) shares of the 43,524,984,744 (forty-three billion, five hundred twenty-four million, nine hundred eighty-four thousand, seven hundred forty-four) shares with voting rights that constitute the capital stock which represents of 97.92% (ninety-seven point ninety-two percent) of the votes present.
In relation to the First Item on the Agenda, by majority vote in favor and with the opposing vote of 268,611,700 (two hundred sixty-eight million, six hundred eleven, seven hundred) shares which represent 0.63% (zero point sixty-three percent) of the votes present, the following Agreement was made:
FIRST: The following is approved:
a) The Chief Executive Officer’s Report regarding the Company’s performance during fiscal year 2022, the Company’s individual and consolidated Financial Statements of Financial Position, Results of Operations, Cash Flow, and Variations of Capital Stock, for fiscal year 2022, together with their complementary notes; the Board of Directors’ Report on the transactions and activities in which it intervened during fiscal year 2022; the Annual Report on the activities of the Audit, Corporate Practices and Finance, and Sustainability Committees; the Report containing the main accounting policies and guidelines criteria followed in the preparation of the financial information, as well as the Report on the review of the Company’s Tax Situation; and
b) The ratification of all acts and actions carried out by the Chief Executive Officer, the Board of Directors, and the Audit, Corporate Practices and Finance, and Sustainability Committees.
In relation to the Second Item on the Agenda, by majority vote in favor and with the opposing vote of 8’854,000 (eight million, eight hundred fifty- four thousand) shares which represent 0.02% (zero point zero two percent) of the votes present, the following Agreement was made:
SECOND: The allocation of profits for the fiscal year ended December 31, 2022 was approved in the following terms:
(figures in constant millions of Mexican pesos as of December 31, 2022)
| Initial retained earnings: |
$ | 48,966 | ||
| Restitution of retained earnings: |
$ | — | ||
| Dividends: |
$ | — | ||
| Earnings for the year ended December 31, 2022: |
$ | 17,341 | ||
| Retained earnings remainder: |
$ | 66,307 |
In relation to the Third Item on the Agenda, by majority vote in favor and with the opposing vote of 14,522,772 (fourteen million, five hundred twenty-two thousand, seven hundred seventy-two) shares which represent 0.03% (zero point zero three percent) of the votes present, the following Agreement was made:
THIRD: The Board of Directors’ Report on the procedures and approvals pursuant to which the repurchase of CEMEX’s shares was instructed for the 2022 fiscal year.
In relation to the Fourth Item on the Agenda, by majority vote in favor and with the opposing vote of 586,456,633 (five hundred eighty-six million, four hundred fifty-six thousand, six hundred thirty-three) shares which represent 1.38% (one point thirty-eight percent) of the votes present, the following Agreement was made:
FOURTH: The following is approved:
a) To set the amount of USD $500,000,000.00 (five hundred million U.S. dollars 00/100) or its equivalent in Mexican pesos, as the maximum amount of resources that during fiscal year 2023, and until the next annual ordinary shareholder’s meeting is held, CEMEX, S.A.B. de C.V. may use for the acquisition of its own shares or securities that represent such shares; and
b) Authorize the Company’s Board of Directors to determine the bases on which the acquisition and placement of said shares shall be instructed, designate the persons that shall make the decisions to acquire or place them, appoint those responsible for carrying out the transaction and giving the corresponding notices to the authorities. The Board of Directors and/or attorneys-in-fact or delegates appointed at the time, or the persons responsible for such transactions, shall determine in each case, whether the purchase shall be carried out with a charge to stockholders’ equity as long as the shares belong to the Company, or charged to the share capital, in case it is resolved to convert them into unsubscribed shares to be kept in treasury.
In relation to the Fifth Item on the Agenda, by majority vote in favor and with the opposing vote of 3,058,810 (three million, fifty-eight thousand, eight hundred ten) shares which represent 0.01% (zero point zero one percent) of the votes present, the following Agreement was made:
FIFTH: It is approved to decrease CEMEX’s capital stock, in its variable part, for the amount of MXN $1,837,914.33 (one million, eight hundred thirty-seven thousand, nine hundred fourteen Mexican pesos 33/100), through the cancellation of 661,927,434 (six hundred sixty-one million, nine hundred twenty-seven thousand, four hundred thirty-four) own, ordinary, nominative shares and without nominative value expression shares, of which 441,284,956 (four hundred and forty-one million, two hundred eighty-four thousand, nine hundred and fifty-six) are Series A and 220,642,478 (two hundred and twenty million, six hundred forty-two thousand, four hundred and seventy-eight) are Series B, which were acquired through the share buyback program in fiscal year 2022. The decrease in capital stock is made at a theoretical value of MXN $0.00277661 per share.
As part of the Sixth Item on the Agenda, the following Agreements were made:
SIXTH: By majority vote in favor and with the opposing vote stated in each case and the percentage each represents of the votes present, the following people were approved to be designated to CEMEX, S.A.B. de C.V.’s Board of Directors:
| Board Member | Type of Board Member | Votes Against | ||
| ROGELIO ZAMBRANO LOZANO | Non-Independent Director (Criteria: Relevant Director of the Company) | 2,472,704,653 (two billion, four hundred seventy-two million, seven hundred four thousand, six hundred fifty-three) which represent 5.80% (five point eighty percent) of the votes present. | ||
| FERNANDO ÁNGEL GONZÁLEZ OLIVIERI | Non-Independent Director (Criteria: Relevant Director of the Company) | 2,111,218,323 (two billion, one hundred eleven million, two hundred eighteen thousand, three hundred twenty-three) which represent 4.95% (four point ninety-five percent) of the votes present. | ||
| MARCELO ZAMBRANO LOZANO | Non-Independent Director (Criteria: First degree blood relative of the Chairman of the Board of Directors) | 2,472,674,563 (two billion, four hundred seventy-two million, six hundred seventy-four thousand, five hundred sixty-three) which represent 5.80% (five point eighty percent) of the votes present. | ||
| ARMANDO J. GARCÍA SEGOVIA | Independent Director | 2,782,265,173 (two billion, seven hundred eighty-two million, two hundred sixty-five thousand, one hundred seventy-three) which represent 6.53% (six point fifty-three percent) of the votes present. | ||
| RODOLFO GARCÍA MURIEL | Independent Director | 2,585,260,023 (two billion, five hundred eighty- five million, two hundred sixty thousand, twenty-three) which represent 6.07% (six point zero seven percent) of the votes present. | ||
| FRANCISCO JAVIER FERNÁNDEZ CARBAJAL | Independent Director | 2,432,223,933 (two billion, four hundred thirty-two million, two hundred twenty-three thousand, nine hundred thirty-three which represent 5.71% (five point seventy-one percent) of the votes present. | ||
| ARMANDO GARZA SADA | Independent Director | 4,526,248,803 (four billion, five hundred twenty-six million, two hundred forty-eight thousand, eight hundred three) which represent 10.62% (ten point sixty-two percent) of the votes present. | ||
| DAVID MARTÍNEZ GUZMÁN | Independent Director | 2,050,088,823 (two billion, fifty million, eighty- eight thousand, eight hundred twenty-three) which represent 4.81% (four point eighty-one percent) of the votes present. | ||
| EVERARDO ELIZONDO ALMAGUER | Independent Director | 2,302,510,683 (two billion, three hundred two million, five hundred and ten thousand, six hundred eighty-three) which represent 5.40% (five point forty percent) of the votes present. | ||
| RAMIRO GERARDO VILLARREAL MORALES | Independent Director | 2,289,733,503 (two billion, two hundred eighty- nine million, seven hundred thirty-three thousand, five hundred and three) which represent 5.37% (five point thirty-seven percent) of the votes present. | ||
| GABRIEL JARAMILLO SANINT | Independent Director | 2,011,046,023 (two billion, eleven million, forty-six thousand, twenty-three) which represent 4.82% (four point eighty-two percent) of the votes present. | ||
| ISABEL MARÍA AGUILERA NAVARRO | Independent Director | 2,355,308,343 (two billion, three hundred fifty-five million, three hundred and eight thousand, three hundred forty-three) which represent 5.53% (five point fifty-three percent) of the votes present. | ||
| MARÍA DE LOURDES MELGAR PALACIOS | Independent Director | 1,891,662,793 (one billion, eight hundred ninety-one million, six hundred sixty-two thousand, seven hundred ninety-three) which represent 4.44% (four point forty-four percent) of the votes present. | ||
Based on the aforementioned criteria and the information provided by of each person, no independent director falls under any of the conditions set forth in article 26 of the Mexican Securities Market Law.
It was approved that the Directors are exempt from granting surety.
SEVENTH: And in accordance with the Sixth Agreement, the appointment on an individual basis of each of the following persons, as Chairman and Secretary of CEMEX, S.A.B. de C.V.’s Board of Directors is approved:
| Position | Votes Against | |||
| ROGELIO ZAMBRANO LOZANO | Chairman | 2,472,704,653 (two billion, four hundred seventy-two million, seven hundred and four thousand, six hundred fifty-three) which represent 5.80% (five point eighty percent) of the votes present. | ||
| ROGER SALDAÑA MADERO | Secretary | 1,925,982,963 (one billion, nine hundred twenty-five million, nine hundred eighty-two thousand, nine hundred sixty-three) which represent 4.52% (four point fifty-two percent) of the votes present. | ||
Additionally, René Delgadillo Galván was voted in to serve as Alternate Secretary of CEMEX, S.A.B. de C.V.’s Board of Directors.
As part of the Seventh Item on the Agenda, by majority vote in favor and with the opposing vote stated in each case and the percentage each represents of the votes present, the following Agreements were made:
EIGHT: The appointment on an individual basis of each of the following persons, as members of CEMEX, S.A.B. de C.V.’s Audit Committee:
| Board Member | Votes Against | |
| EVERARDO ELIZONDO ALMAGUER | 649,739,002 (six million, seven hundred thirty-nine thousand, and two) which represent 1.52% (one point fifty-two percent) of the votes present. | |
| FRANCISCO JAVIER FERNÁNDEZ CARBAJAL | 765,648,482 (seven hundred sixty-five million, six hundred forty-eight, four hundred eighty-two) which represent 1.80% (one point eighty percent) of the votes present. | |
| GABRIEL JARAMILLO SANINT | 383,146,092 (three hundred eighty-three million, one hundred forty-six thousand, ninety-two) which represent 0.90% (zero point ninety percent) of the | |
| votes present. | ||
NINTH: And in accordance with the Eight Agreement, the appointment on an individual basis of each of the following persons, as President and Secretary of CEMEX, S.A.B. de C.V.’s Audit Committee is approved:
| Position | Votes Against | |||
| EVERARDO ELIZONDO ALMAGUER | President | 649,739,002 (six million, seven hundred thirty- nine thousand, and two) which represent 1.52% (one point fifty-two percent) of the votes present. | ||
| ROGER SALDAÑA MADERO | Secretary | 361,297,162 (three hundred sixty-one million, two hundred ninety-seven thousand, one hundred sixty-two) which represent 0.85% (zero point eighty-five percent) of the votes present. | ||
Additionally, René Delgadillo Galván was voted in to serve as Alternate Secretary of CEMEX, S.A.B. de C.V.’s Audit Committee.
As part of the Eight Item on the Agenda, by majority vote in favor and with the opposing vote stated in each case and the percentage each represents of the votes present, the following Agreements were made:
TENTH: The appointment on an individual basis of each of the following persons, as members of CEMEX, S.A.B. de C.V.’s Corporate Practices and Finance Committee:
| Board Member | Votes Against | |
| FRANCISCO JAVIER FERNÁNDEZ CARBAJAL | 2,116,444,662 (two billion, one hundred sixteen million, four hundred forty-four thousand, six hundred sixty-two) which represent 4.97% (four point ninety-seven percent) of the votes present. | |
| ARMANDO GARZA SADA | 4,229,819,832 (four billion, two hundred twenty-nine, eight hundred nineteen thousand, eight hundred thirty-two) which represent 9.92% (nine point ninety-two percent) of the votes present. | |
| RODOLFO GARCÍA MURIEL | 2,265,307,252 (two billion, two hundred sixty-five million, three hundred and seven thousand, two hundred fifty-two) which represent 5.32% (five point thirty-two percent) of the votes present. | |
ELEVENTH: And in accordance with the Tenth Agreement, the appointment on an individual basis of each of the following persons, as President and Secretary of CEMEX, S.A.B. de C.V.’s Corporate Practices and Finance Committee is approved:
| Position | Votes Against | |||
| FRANCISCO JAVIER FERNÁNDEZ CARBAJAL | President | 2,116,444,662 (two billion, one hundred sixteen million, four hundred forty-four thousand, six hundred sixty-two) which represent 4.97% (four point ninety-seven percent) of the votes present | ||
| ROGER SALDAÑA MADERO | Secretary | 1,712,471,182 (one billion, seven hundred twelve million, four hundred seventy-one thousand, one hundred eighty-two) which represent 4.02% (four point zero two percent) of the votes present. | ||
Additionally, René Delgadillo Galván was voted in to serve as Alternate Secretary of CEMEX, S.A.B. de C.V.’s Corporate Practices and Finance Committee.
As part of the Ninth Item on the Agenda, by majority vote in favor and with the opposing vote stated in each case and the percentage each represents of the votes present, the following Agreements were made:
TWELFTH: The appointment on an individual basis of each of the following persons, as members of CEMEX, S.A.B. de C.V.’s Sustainability, Climate Action, Social Impact, and Diversity Committee (formerly known as the Sustainability Committee):
| Board Member | Votes Against | |
| ARMANDO J. GARCÍA SEGOVIA | 1,126,860,392 (one billion, one hundred twenty-six million, eight hundred sixty thousand, three hundred ninety-two) which represent 2.64% (two point sixty-four percent) of the votes present. | |
| MARCELO ZAMBRANO LOZANO | 822,532,792 (eight hundred twenty-two million, five hundred thirty-two, seven hundred ninety-two) which represent 1.93% (one point ninety- three percent) of the votes present. | |
| ISABEL MARÍA AGUILERA NAVARRO | 504,832,722 (five hundred million, eight hundred thirty-two thousand, seven hundred twenty-two) which represent 1.18% (one point eighteen percent) of the votes present. | |
| MARÍA DE LOURDES MELGAR PALACIOS | 162,576,982 (one hundred sixty-two million, five hundred seventy-six thousand, nine hundred eighty-two) which represent 0.38% (zero point thirty-eight percent) of the votes present. | |
THIRTEENTH: And in accordance with the Twelfth Agreement, the appointment on an individual basis of each of the following persons, as President and Secretary of CEMEX, S.A.B. de C.V.’s Sustainability, Climate Action, Social Impact, and Diversity Committee (formerly known as the Sustainability Committee) is approved:
| Position | Votes Against | |||
| ARMANDO J. GARCÍA SEGOVIA | President | 1,126,860,392 (one billion, one hundred twenty-six million, eight hundred sixty thousand, three hundred ninety-two) which represent 2.64% (two point sixty-four percent) of the votes present. | ||
| ROGER SALDAÑA MADERO | Secretary | 259,999,772 (two hundred fifty-nine million, nine hundred ninety-nine thousand, seven hundred seventy-two) which represent 0.61% (zero point sixty-one percent) of the votes present. | ||
Additionally, René Delgadillo Galván was voted in to serve as Alternate Secretary of CEMEX, S.A.B. de C.V.’s Sustainability, Climate Action, Social Impact, and Diversity Committee (formerly known as the Sustainability Committee).
In relation to the Tenth Item on the Agenda, by majority vote in favor and with the opposing vote of 582,761,634 (five hundred eighty-two million, seven hundred sixty-one thousand, six hundred thirty-four) shares which represent 1.37% (one point thirty-seven percent) of the votes present, the following Agreement was made:
FOURTEENTH: It is approved that, considering that the accumulated inflation in Mexico was 7.82% (seven point eighty-two percent), the honoraria for the meetings of the Board of Directors and the Committees of CEMEX, S.A.B. de C.V. for the period 2023-2024 are increased by a similar percentage, to be, in a gross amount and before taxes, paid the amount of MXN $519,000.00 (five hundred and nineteen thousand Mexican pesos 00/100) to each of the Directors for each Board meeting attended, and in the amount of MXN $125,000.00 (one hundred and twenty-five thousand Mexican pesos 00/100) to each of the members of the Audit, Corporate Practices and Finance, and Sustainability, Climate Action, Social Impact, and Diversity (formerly known as the Sustainability Committee) Committees for each respective Committee meeting attended. The members of the Committees created by the Board of Directors will receive a maximum of the same compensation as the members of the Audit, Corporate Practices and Finance and Sustainability, Corporate Practices and Finance, and Sustainability, Climate Action, Social Impact, and Diversity (formerly known as the Sustainability Committee) Committees.
In relation to the Eleventh Item on the Agenda, by majority vote in favor and with the opposing vote of 7,970,700 (seven million, nine hundred seventy thousand, seven hundred) shares which represent 0.02% (zero point zero two percent) of the votes present, the following Agreement was made:
FIFTEENTH: MR. ROGELIO ZAMBRANO LOZANO, MR. FERNANDO ÁNGEL GONZÁLEZ OLIVIERI, MR. ROGER SALDAÑA MADERO, and MR. RENÉ DELGADILLO GALVÁN are appointed to appear, jointly or separately, before a Notary Public of their choice to record the minutes of this Shareholder’s Meeting, formalize and compliment, in the given opportunities, the Resolutions adopted and manage their registration in the corresponding Public Registry of Commerce, if necessary.
Exhibit 2.5-7
October 24, 2022
CEMEX, S.A.B. de C.V.
Avenida Constitucion 444 Pte
Colonia Centro
Monterrey, Nuevo Leon 64000
Mexico
Attention: Mr. Louisa P. Rodriguez, Attorney-in-Fact
Dear Ms. Rodriguez,
Reference is made to the Letter Agreement dated July 11, 2013, as amended by the Amendment to the Letter Agreement dated February 1, 2017 and the Amendment to the Letter Agreement dated November 22, 2019, between CEMEX, S.A.B. de C.V. (“CEMEX”) and Citibank, N.A. (“Citibank”) relating to the continued appointment of Citibank as the exclusive Depositary for its American Depositary Receipts (“ADR”) Program (“ADR Program”) (collectively, the “Letter Agreement”). Capitalized terms not otherwise defined in this amendment to the Letter Agreement (this “Amendment”) shall have the meanings ascribed to them in the Letter Agreement.
In consideration of Citibank’s continuing to act as CEMEX exclusive Depositary for the ADR Program and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Citibank and CEMEX hereby agree to amend the Letter Agreement as follows:
| 1) | The Term of the Letter Agreement shall be amended and extended for another three (3) years through December 31, 2025. |
| 2) | In the “Financial Arrangements” section, the bullet points shall be replaced in their entirety with the following: |
| • | “Make available to CEMEX the amounts described below (collectively, the “Contributions”) for the three consecutive twelve month periods beginning January 1, 2023 through December 31, 2025: |
| • | U.S. $1,500,000 per twelve-month period (the “Fixed Contribution”), plus; |
| • | An amount equal to 75% of the ADR Fees collected above the Fixed Contribution, per twelve-month period (the “Variable Contribution”), plus; |
| • | Also make available any amounts carried over from the financial contributions previously made available to CEMEX under the Agreement to the Letter Agreement dated November 22, 2019, less any amounts that Citibank has paid in respect of invoices of behalf of CEMEX, or reimbursed CEMEX for amounts previously paid by CEMEX for Program-Related Expenses, prior to the effectiveness of this Amendment. |
| CEMEX, S.A.B. de C.V. October 2022 – Citibank – Confidential |
Page 1 |
| • | The Contributions less any applicable US withholding tax may be used by the Company solely to defray Program-Related Expenses. To the extent that payments of Contributions or other payments of expenses made by Citibank on behalf of the Company are subject to US withholding tax, such payments will either be made net of such taxes or, to the extent that the payments are being made to third parties, will be paid gross and the amount of any applicable US withholding tax will be deducted from the amount of the Contributions.” |
This letter shall be governed by and construed in accordance with the internal laws of the State of New York without reference to conflicts of law principles. Headings contained in the Letter Agreement as modified by this Amendment are for reference purposes only and shall not affect the construction of or be taken into consideration in interpreting the Letter Agreement. The amendments set forth in this letter shall become effective as of January 1, 2023.
Except as otherwise modified herein, all other terms and conditions of the Letter Agreement shall remain unchanged and in full force and effect. Future references to the Letter Agreement shall be deemed to mean the Letter Agreement as modified by this Amendment.
Each party represents that it has full power and authority to enter into and perform this Amendment. The provisions set forth in this Amendment supersede all prior negotiations, understandings and agreements bearing upon the subject matter covered herein, including any conflicting provisions of the Letter Agreement or any provisions of the Letter Agreement that directly cover or indirectly bear upon matters covered under this Amendment. No amendment or modification to this Amendment shall be valid unless made in writing and executed by each party hereto.
This Amendment may be executed in counterparts, each of which shall be an original but all of which, taken together, shall constitute one and the same agreement. Facsimile or electronically transmitted signatures may be used in place of original signatures to this Amendment.
[Signature Page follows]
| CEMEX, S.A.B. de C.V. October 2022 – Citibank – Confidential |
Page 2 |
If you are in agreement with the foregoing, please sign and return the enclosed duplicate copy of this Amendment to Ana-Maria Carasso by November 7, 2022.
| Yours faithfully, | ||
| /s/ Andrew Leamon | ||
| Andrew Leamon | ||
| Managing Director, Depositary Receipt Services | ||
| Citibank, N.A. | ||
| ACCEPTED AND AGREED: | ||
| CEMEX, S.A.B. de C.V. | ||
| By: | /s/ Louisa P. Rodriguez | |
| Name: | Louisa P. Rodriguez | |
| Title: | Chief Communications Officer | |
| Date: | 10/26/2022 | |
| CEMEX, S.A.B. de C.V. October 2022 – Citibank – Confidential |
Page 3 |
Exhibit 2.6
DESCRIPTION OF THE REGISTRANT’S SECURITIES REGISTERED PURSUANT TO SECTION 12 OF THE SECURITIES EXCHANGE ACT OF 1934
As of the date of our annual report on Form 20-F of which this exhibit is a part, we have the following classes of securities registered under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”): (1) the Series A common stock, with no par value (the “Series A shares”), (2) the Series B common stock, with no par value (the “Series B shares”), (3) Ordinary Participation Certificates (Certificados de Participación Ordinarios), (the “CPOs”), and (4) American Depositary Shares (the “ADSs”). Our CPOs are listed on the Mexican Stock Exchange (Bolsa Mexicana de Valores; the “MSE”) under the symbol “CEMEXCPO.” Our ADSs are listed on the New York Stock Exchange under the symbol “CX.”
As of December 31, 2022, CEMEX, S.A.B. de C.V. had outstanding 14,711,512,721 CPOs, 29,457,941,452 Series A shares (including Series A shares underlying CPOs) and 14,728,970,726 Series B shares (including Series B shares underlying CPOs), in each case including shares held by our subsidiaries.
Except as otherwise indicated or the context otherwise requires, the terms “CEMEX,” “we,” “us” or “our” refer to CEMEX, S.A.B. de C.V. and its consolidated entities.
Description of Common Stock
The following description of our common stock is a summary of the material terms of CEMEX, S.A.B. de C.V.’s articles of association and by-laws (estatutos sociales) (the “By-Laws”) and applicable Mexican law in effect as of the date of our annual report on Form 20-F of which this exhibit is a part. Because it is a summary, it does not describe every aspect of our common stock, the By-Laws or Mexican law and may not contain all of the information that is important to you. References to provisions of the By-Laws are qualified in their entirety by reference to the full By-Laws, an English translation of which has been filed as an exhibit to our annual report on Form 20-F of which this exhibit is a part.
General
Pursuant to the requirements of Mexican corporations law, the By-Laws have been registered with the Mercantile Section of the Public Registry of Property and Commerce in Monterrey, Nuevo León, Mexico, under entry number 21, since June 11, 1920.
CEMEX, S.A.B. de C.V. is an operating and a holding company engaged directly or indirectly, through its operating subsidiaries, primarily in the production, distribution, marketing and sale of cement, ready-mix concrete, aggregates, clinker and other construction materials, and Urbanization Solutions throughout the world. CEMEX, S.A.B. de C.V.’s full corporate purpose can be found in article 2 of the By-Laws.
CEMEX, S.A.B. de C.V. has two series of common stock, the Series A shares, which can only be owned by Mexican nationals, and the Series B shares, which can be owned by both Mexican and non-Mexican nationals. The By-Laws state that the Series A shares may not be held by non-Mexican individuals, corporations, groups, units, trusts, associations or governments that are foreign or have participation by foreign governments or their agencies. The By-Laws also state that the Series A shares shall at all times account for a minimum of 64% of CEMEX, S.A.B. de C.V.’s total outstanding voting stock and that the Series B shares shall at all times account for a minimum of 36% of CEMEX, S.A.B. de C.V.’s total outstanding voting stock. Other than as described herein, holders of the Series A shares and the Series B shares have the same rights and obligations.
In 1994, CEMEX, S.A.B. de C.V. changed from a fixed capital corporation to a variable capital corporation in accordance with Mexican corporation law. As a result, CEMEX, S.A.B. de C.V. established a fixed capital account and a variable capital account and issued one share of variable capital stock of the same series for each eight shares of fixed capital stock held by any shareholder. Each of our fixed and variable capital accounts is comprised of Series A shares and Series B shares. Under the Mexican Securities Market Law and the By-Laws, holders of shares representing variable capital are not entitled to withdraw those shares.
Shareholder authorization is required to increase or decrease either the fixed capital account or the variable capital account. Shareholder authorization to increase or decrease the fixed capital account must be obtained at an extraordinary meeting of shareholders. Shareholder authorization to increase or decrease the variable capital account must be obtained at an ordinary general meeting of shareholders.
On April 29, 1999, CEMEX, S.A.B. de C.V.’s shareholders approved a stock split, and for every one of CEMEX, S.A.B. de C.V.’s shares of any series CEMEX, S.A.B. de C.V. issued two Series A shares and one Series B share. Concurrently with this stock split, CEMEX, S.A.B. de C.V. also consummated an exchange offer to exchange new CPOs and new ADSs representing the new CPOs for CEMEX, S.A.B. de C.V.’s then-existing Series A shares, Series B shares and ADSs, and converted CEMEX, S.A.B. de C.V.’s then existing CPOs into the new CPOs. On June 1, 2001, the then- effective Mexican Securities Market Law was amended, among other things, to increase the protection granted to minority shareholders of Mexican listed companies and to commence bringing corporate governance procedures of Mexican listed companies in line with international standards.
On February 6, 2002, the Mexican securities authority (Comisión Nacional Bancaria y de Valores) issued an official communication authorizing the amendment of the By-Laws to incorporate additional provisions to comply with the then new provisions of the then-effective Mexican Securities Market Law. Following approval from CEMEX, S.A.B. de C.V.’s shareholders at the 2002 annual shareholders’ meeting, CEMEX, S.A.B. de C.V. amended and restated the By-Laws to incorporate these additional provisions, which consisted of, among other things, protective measures to prevent share acquisitions, hostile takeovers, and direct or indirect changes of control.
On March 19, 2003, the Mexican securities authority issued new regulations designed to (i) further implement minority rights granted to shareholders by the then-effective Mexican Securities Market Law and (ii) simplify and consolidate in a single document provisions relating to securities offerings and periodic reports by Mexican-listed companies.
On April 24, 2003, CEMEX, S.A.B. de C.V.’s shareholders approved changes to the By-Laws, incorporating additional provisions and removing some restrictions. The changes that are still in force are as follows:
| • | The limitation on CEMEX, S.A.B. de C.V.’s variable capital was removed. Formerly, CEMEX, S.A.B. de C.V.’s variable capital was limited to ten times CEMEX, S.A.B. de C.V.’s minimum fixed capital. |
| • | Increases and decreases in CEMEX, S.A.B. de C.V.’s variable capital now require the notarization of the minutes of the ordinary general shareholders’ meeting that authorize such increase or decrease, as well as the filing of these minutes with the Mexican National Securities Registry (Registro Nacional de Valores), except when such increase or decrease results from stock repurchases. |
| • | The cancelation of registration of our shares in the Securities Section of the Mexican National Securities Registry now involves an amended procedure, which is described below under “—Repurchase Obligation.” In addition, any amendments to the article containing these provisions no longer require the consent of the Mexican securities authority and 95% approval by shareholders entitled to vote. |
On December 30, 2005, the Mexican Securities Market Law was published to continue bringing corporate governance requirements of Mexican listed companies in line with international standards. This new law included provisions increasing disclosure information requirements, improving minority shareholder rights and strengthening corporate governance standards, including the introduction of new requirements and fiduciary duties (duties of care and loyalty) applicable to each director, officer, external auditor and major shareholder of publicly traded companies. The law also provided that each member of the audit committee must be an independent director and required the creation of corporate governance committees integrated by independent directors as well. In addition, the law clarified directors’ duties, specified safe harbors for directors’ actions, clarified what is deemed as a conflict of interest and clarified what are the confidentiality obligations for directors.
Under the then new Mexican Securities Market Law, CEMEX, S.A.B. de C.V. was required to adopt specific amendments to the By-Laws within 180 days of the effective date of the new law. Following approval from CEMEX, S.A.B. de C.V.’s shareholders at its extraordinary shareholders’ meeting held on April 27, 2006, CEMEX, S.A.B. de C.V. amended and restated the By-Laws to incorporate these amendments. The amendments to the By-Laws became effective on July 3, 2006. The most significant of these amendments were as follows:
| • | The change of its corporate name from CEMEX, S.A. de C.V. to CEMEX, S.A.B. de C.V., which means that it is now called a publicly traded company (sociedad anónima bursátil or S.A.B.). |
| • | The creation of a Corporate Practices Committee, which was a new committee of CEMEX, S.A.B. de C.V.’s Board of Directors and which is comprised exclusively of independent directors. |
| • | The elimination of the position of statutory examiner (comisario) and the assumption of its responsibilities by the Board of Directors through the Audit Committee and the then new Corporate Practices Committee, as well as through the external auditor who audits CEMEX, S.A.B. de C.V.’s financial statements, each within its professional role. |
| • | The express attribution of certain duties (such as the duty of loyalty and the duty of care) and liabilities on members of the Board of Directors as well as on certain senior executive officers. |
| • | The implementation of a mechanism for claims of a breach of a director’s or officer’s duties, to be brought by us or by holders of 5% or more of CEMEX, S.A.B. de C.V.’s shares. |
| • | The Chief Executive Officer is now the person in charge of managing the company. Previously, this was the duty of the Board of Directors. The Board of Directors now supervises the Chief Executive Officer. |
| • | Shareholders are given the right to enter into certain agreements with other shareholders. |
On March 20, 2014, CEMEX, S.A.B. de C.V. held an extraordinary shareholders’ meeting, at which its shareholders approved, among other items, the Board of Directors’ proposal to expand the corporate purpose of CEMEX, S.A.B. de C.V. so that, aside from being a holding company, CEMEX, S.A.B. de C.V. can undertake operating activities related to the production and commercialization of cement, ready-mix concrete and aggregates.
On March 26, 2015, CEMEX, S.A.B. de C.V. held an extraordinary shareholders’ meeting, at which its shareholders approved, among other items, changes to the By-Laws, incorporating additional provisions and removing some restrictions. The changes, among other items, are the following: extend CEMEX, S.A.B. de C.V.’s corporate existence for an indefinite period of time; adopt the electronic system established by the Ministry of Economy (Secretaría de Economía) for the publication of notices and other legal matters; remove a redundancy in minority rights; adopt additional considerations that CEMEX, S.A.B. de C.V.’s Board of Directors shall consider in order to authorize purchases of 2% or more of shares; adopt provisions to improve corporate governance with respect to the presidency at shareholders’ meetings and corporate bodies; separation of roles of chairman of the board and Chief Executive Officer; include the possibility of electing an alternate secretary of the Board of Directors; authorization to formalize CEMEX, S.A.B. de C.V.’s restated By-Laws; and authorization to exchange the share certificates that represent CEMEX, S.A.B. de C.V.’s then outstanding capital stock.
On March 28, 2019, CEMEX, S.A.B. de C.V. held an extraordinary shareholders’ meeting, at which its shareholders approved, among other items, changes to articles 2 and 28 of the By-Laws, incorporating additional provisions and removing some restrictions. The changes, among other items, are the following: broadening CEMEX, S.A.B. de C.V.’s corporate purpose, which would permit CEMEX to transport goods; amending the provision regarding seaport related services for its marine terminals; the manufacture and commercialization of cement bags, etc.; and clarifying that CEMEX, S.A.B. de C.V.’s Relevant Executives (as defined under the laws of Mexico) are entitled to indemnification and liability protection only for liability arising from the lack of diligence when acting in good faith and pursuant to our best interests.
On March 25, 2021, CEMEX, S.A.B. de C.V. held an extraordinary shareholders’ meeting, at which its shareholders approved changes to Article 2 of CEMEX, S.A.B. de C.V.’s by-laws to further broaden CEMEX, S.A.B. de C.V.’s corporate purpose. The changes, among other things, adjust our written corporate purpose in order to allow us to conduct certain activities, directly or indirectly through third parties, in line with our current needs and corporate vision.
On March 24, 2022, CEMEX, S.A.B. de C.V. held an extraordinary shareholders’ meeting, at which its shareholders approved changes to Article 2 of CEMEX, S.A.B. de C.V.’s by-laws to detail CEMEX, S.A.B. de C.V.’s corporate purpose so that it will list only those activities it currently carries out; and cease contemplating those activities it does not perform or that are already included in another part of the by-laws.
Changes in Capital Stock and Preemptive Rights
Subject to certain exceptions discussed below, the By-Laws allow for a decrease or increase in its capital stock if it is approved by its shareholders at a shareholders’ meeting. Additional shares of CEMEX, S.A.B. de C.V.’s capital stock, having no voting rights or limited voting rights, are authorized by the By-Laws and may be issued upon the approval of its shareholders at a shareholders’ meeting, with the prior approval of the Mexican securities authority. The By-Laws provide that, subject to certain exceptions, shareholders have preemptive rights with respect to the class and in proportion to the number of shares of our capital stock they hold, in connection with any capital increase in the number of outstanding Series A shares, Series B shares or any other existing series of shares, as the case may be. Subject to certain requirements: (i) under article 53 of the Mexican Securities Market Law, this preemptive right to subscribe is not applicable to increases of CEMEX, S.A.B. de C.V.’s capital through public offers and (ii) under article 210-bis of the General Law of Negotiable Instruments and Credit Operations (Ley General de Títulos y Operaciones de Crédito), this preemptive right to subscribe is not applicable when issuing shares under convertible notes. Preemptive rights give shareholders the right, upon any issuance of shares by us, to purchase a sufficient number of shares to maintain their existing ownership percentages. Preemptive rights must be exercised within the period and under the conditions established for that purpose by the shareholders, and the By-Laws and applicable law provide that this period must be 15 days following the publication of the notice of the capital increase through the electronic system established by the Ministry of Economy (Secretaría de Economía) or, in its absence, in the Official Gazette of the State of Nuevo León (Periódico Oficial del Estado de Nuevo León) or in any major newspaper published and distributed in the city of Monterrey, Nuevo León, México.
Holders of ADSs that are U.S. persons or are located in the U.S. may be restricted in their ability to participate in the exercise of such preemptive rights.
Pursuant to the By-Laws, significant acquisitions of shares of CEMEX, S.A.B. de C.V.’s capital stock and changes of control of CEMEX, S.A.B. de C.V. require prior approval from CEMEX, S.A.B. de C.V.’s Board of Directors. CEMEX, S.A.B. de C.V.’s Board of Directors must authorize in advance any transfer of, or creation of any encumbrance or lien on, voting shares of CEMEX, S.A.B. de C.V.’s capital stock that would result in any person or group becoming a holder of 2% or more of CEMEX, S.A.B. de C.V.’s shares. CEMEX, S.A.B. de C.V.’s Board of Directors shall consider the following when determining whether to authorize such transfer of voting shares: a) the type of investors involved; b) if stock prices may be affected or if the number of CEMEX, S.A.B. de C.V.’s shares outstanding would be reduced in such way that marketability may be affected; c) whether the acquisition would result in the potential acquirer exercising a significant influence or being able to obtain control; d) whether all applicable rules and the By-Laws have been observed by the potential acquirer; e) whether the potential acquirers are our competitors or are persons or legal entities participating in companies, entities or persons that are or competitors and whether there is a risk of affecting market competition, or the potential acquirers could have access to confidential and privileged information; f) the morality and economic solvency of the potential acquirers; g) the protection of minority rights and the rights of our employees; and h) whether an adequate base of investors would be maintained. If CEMEX, S.A.B. de C.V.’s Board of Directors denies the authorization, or the transfer had been authorized on the basis of false or incorrect information or information had been withheld or the requirements established in the By-Laws are not complied with, the persons involved in the transfer shall not be entitled to exercise the voting rights corresponding to the transferred shares, such shares shall not be taken into account for the determination of the quorums of attendance and voting at shareholders’ meetings and the transfers shall not be recorded or have any effect in our share registry and the registry undertaken by S.D. Indeval, Institución para el Depósito de Valores, S.A. de C.V. (“Indeval”), the Mexican securities depositary.
Any acquisition of shares of CEMEX, S.A.B. de C.V.’s capital stock representing 30% or more of its capital stock by a person or group of persons requires prior approval from CEMEX, S.A.B. de C.V.’s Board of Directors and, in the event approval is granted, the acquirer has an obligation to make a public offer to purchase all of the outstanding shares of CEMEX, S.A.B. de C.V.’s capital stock.
In the event the requirements for significant acquisitions of shares of CEMEX, S.A.B. de C.V.’s capital stock are not met, the persons acquiring such shares will not be entitled to any corporate rights with respect to such shares, such shares will not be taken into account for purposes of determining a quorum for shareholders’ meetings, CEMEX, S.A.B. de C.V. will not record such persons as holders of such shares in its share registry and the registry undertaken by Indeval shall not have any effect. The By-Laws require the stock certificates representing shares of its capital stock to make reference to the provisions in the By-Laws relating to the prior approval of the CEMEX, S.A.B. de C.V. Board of Directors for significant share transfers and the requirements for recording share transfers in its share registry. In addition, shareholders are responsible for informing CEMEX, S.A.B. de C.V. within five business days whenever their shareholdings exceed 5%, 10%, 15%, 20%, 25% and 30% of CEMEX, S.A.B. de C.V.’s capital stock. If a person acquires beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission (the “SEC”) under the Exchange Act) of 20% or more in voting power of the outstanding voting stock of CEMEX, S.A.B. de C.V., a change of control will be deemed to have occurred under the Credit Agreements and other debt agreements of CEMEX.
CEMEX, S.A.B. de C.V. is required to maintain a share registry to record the names, nationalities and domiciles of all significant shareholders, and any shareholder that meets or exceeds these thresholds must be recorded in this registry if such shareholder is to be recognized or represented at any shareholders’ meeting. If a shareholder fails to inform CEMEX, S.A.B. de C.V. of its shareholdings reaching a threshold as described above, we will not record the transactions that cause such threshold to be met or exceeded in CEMEX, S.A.B. de C.V.’s share registry, and such transaction will have no legal effect and will not be binding on us.
The By-Laws also require that its shareholders comply with legal provisions regarding acquisitions of securities and certain shareholders’ agreements that require disclosure to the public.
Repurchase Obligation
In accordance with Mexican securities regulations, CEMEX, S.A.B. de C.V. is obligated to make a public offer for the purchase of stock to its shareholders if CEMEX, S.A.B. de C.V.’s registration with the Mexican securities registry is canceled, either by resolution of its shareholders or by an order of the Mexican securities authority. The minimum price at which we must purchase the stock is the higher of:
| • | the weighted average price per share based on the weighted average trading price of CEMEX, S.A.B. de C.V.’s CPOs on the MSE during the latest period of 30 trading days preceding the date of the offer, for a period not to exceed six months; or |
| • | the book value per share, as reflected in the last quarterly report filed with the Mexican securities authority and the MSE before the date of the offer. |
CEMEX, S.A.B. de C.V.’s Board of Directors shall prepare and disclose to the public through the MSE, within ten business days after the day the public offer begins, and after consulting the Corporate Practices and Finance Committee, its opinion regarding the price of the offer and any conflicts of interests that each of its members may have regarding such offer. This opinion may be accompanied by an additional opinion issued by an independent expert that we may hire.
Following the cancelation of CEMEX, S.A.B. de C.V.’s registration with the Mexican securities registry, it must place in a trust set up for that purpose for a six-month period an amount equal to that required to purchase the remaining shares held by investors who did not participate in the offer.
Shareholders’ Meetings and Voting Rights
Shareholders’ meetings may be called by:
| • | CEMEX, S.A.B. de C.V.’s Board of Directors or the Corporate Practices and Finance Committee and Audit Committee; |
| • | shareholders representing at least 10% of outstanding and fully paid shares, by making a request to the chairman of CEMEX, S.A.B. de C.V.’s Board of Directors or CEMEX, S.A.B. de C.V.’s Corporate Practices and Finance Committee and Audit Committee; |
| • | any shareholder (i) if no meeting has been held for two consecutive years or when the matters referred to in Article 181 of the Mexican corporations law have not been dealt with or (ii) when, for any reason, the required quorum for valid sessions of the Corporate Practices and Finance Committee and Audit Committee was not reached and the Board of Directors failed to make the appropriate provisional appointments; or |
| • | a Mexican court of competent jurisdiction, in the event CEMEX, S.A.B. de C.V.’s Board of Directors or the Corporate Practices and Finance Committee and Audit Committee do not comply with the valid shareholders’ request described above. |
Notice of shareholders’ meetings must be published through the electronic system established by the Ministry of Economy (Secretaría de Economía) or, in its absence, in the Official Gazette of the State of Nuevo León (Periódico Oficial del Estado de Nuevo León), Mexico or in any major newspaper published and distributed in the city of Monterrey, Nuevo León, Mexico. The notice must be published at least 15 days prior to the date of any shareholders’ meeting. Consistent with Mexican law, the By-Laws further require that all information and documents relating to the shareholders’ meeting be available to shareholders from the date the notice of the meeting is published.
General shareholders’ meetings can be ordinary or extraordinary. At every general shareholders’ meeting, each qualified holder of Series A shares and Series B shares is entitled to one vote per share. Shareholders may vote by proxy duly appointed in writing. Under the CPO trust agreement, holders of CPOs who are not Mexican nationals cannot exercise voting rights corresponding to the Series A shares represented by their CPOs, in which case the CPO trustee (as defined below) will vote the underlying Series A shares in the same manner as the holders of the majority of the voting shares.
An annual general ordinary shareholders’ meeting must be held during the first four months after the end of each of CEMEX, S.A.B. de C.V.’s fiscal year to consider the approval of a report of its Board of Directors regarding CEMEX, S.A.B. de C.V.’s performance and its financial statements for the preceding fiscal year and to determine the allocation of profits from the preceding year. In addition, CEMEX, S.A.B. de C.V.’s annual general ordinary shareholders’ meeting must:
| • | review the annual reports of CEMEX, S.A.B. de C.V.’ Corporate Practices and Finance Committee and Audit Committee, its Chief Executive Officer and its Board of Directors; |
| • | elect, remove, or substitute the members of CEMEX, S.A.B. de C.V.’s Board of Directors, which are voted on an individual basis; |
| • | determine the level of independence of the members of CEMEX, S.A.B. de C.V.’s Board of Directors; |
| • | elect or remove the chairman of CEMEX, S.A.B. de C.V.’s Corporate Practices and Finance and the Audit Committees; |
| • | approve any transaction that represents 20% or more of CEMEX, S.A.B. de C.V. consolidated assets; and |
| • | resolve any issues not reserved for extraordinary shareholders’ meetings. |
A general extraordinary shareholders’ meeting may be called at any time to deal with any of the matters specified by Article 182 of the Mexican corporations law, which include, among other things:
| • | extending CEMEX, S.A.B. de C.V.’s corporate existence; |
| • | CEMEX, S.A.B. de C.V.’s voluntary dissolution; |
| • | increasing or reducing CEMEX, S.A.B. de C.V.’s fixed capital stock; |
| • | changing CEMEX, S.A.B. de C.V.’s corporate purpose; |
| • | changing CEMEX, S.A.B. de C.V.’s country of incorporation; |
| • | changing CEMEX, S.A.B. de C.V.’s form of organization; |
| • | a proposed merger; |
| • | issuing preferred shares; |
| • | redeeming CEMEX, S.A.B. de C.V.’s own shares; |
| • | any amendment to the By-Laws; and |
| • | issuing bonds to be registered in the Mexican National Securities Registry |
| • | any other matter for which a special quorum is required by law or by the By-Laws. |
In order to vote at a meeting of shareholders, shareholders must (i) appear on the list that Indeval and Indeval participants holding shares on behalf of the shareholders prepare prior to the meeting, or (ii) prior to the meeting, deposit the certificates representing their shares at CEMEX, S.A.B. de C.V.’s offices or in a Mexican credit institution or brokerage house that operates in accordance with applicable laws in Mexico. The certificate of deposit with respect to the share certificates must be presented to CEMEX, S.A.B. de C.V.’s company secretary at least 48 hours before a meeting of shareholders. CEMEX, S.A.B. de C.V.’s company secretary verifies that the person in whose favor any certificate of deposit was issued is named in CEMEX, S.A.B. de C.V.’s share registry and issues an admission pass authorizing that person’s attendance at the meeting of shareholders.
The By-Laws provide that a shareholder may only be represented by proxy in a shareholders’ meeting with a duly completed form provided by CEMEX, S.A.B. de C.V. authorizing the proxy’s presence. In addition, the By-Laws require that the secretary acting at the shareholders’ meeting publicly affirm the compliance by all proxies with this requirement. A shareholders’ resolution is required to take action on any matter presented at a shareholders’ meeting.
At an ordinary shareholders’ meeting, the affirmative vote of the holders of a majority of the shares present at the meeting is required to adopt a shareholders’ resolution. At an extraordinary meeting of shareholders, the affirmative vote of at least 50% of the capital stock is required to adopt a shareholders’ resolution, except that when amending Article 7 (with respect to measures limiting shareholding ownership), Article 10 (relating to the register of shares and significant participations) or Article 22 (specifying the impediments to being appointed a member of CEMEX, S.A.B. de C.V.’s Board of Directors) of the By-Laws, the affirmative vote of at least 75% of the voting stock is required.
The attendance quorum for a general ordinary shareholders’ meeting upon the first call is 50% of CEMEX, S.A.B. de C.V.’s outstanding and fully paid shares and, for the second call, is any number of CEMEX, S.A.B. de C.V.’s outstanding and fully paid shares. If the quorum is not met upon the first call, a subsequent meeting may be called and the quorum for the second ordinary shareholders’ meeting is any number of CEMEX, S.A.B. de C.V.’s outstanding and fully paid shares represented at the meeting. The attendance quorum for the extraordinary shareholders’ meeting upon the first call is 75% of CEMEX, S.A.B. de C.V.’s outstanding and fully paid shares and, upon the second and subsequent calls, is 50% of CEMEX, S.A.B. de C.V.’s outstanding and fully paid shares.
Rights of Minority Shareholders
At CEMEX, S.A.B. de C.V.’s annual general ordinary shareholders’ meeting, any shareholder or group of shareholders representing 10% or more of its voting stock has the right to appoint or remove one member of CEMEX, S.A.B. de C.V.’s Board of Directors, in addition to the directors appointed by the majority. Such appointment may only be revoked by other shareholders when the appointment of all other directors is also revoked. The By-Laws provide that holders of at least 10% of its outstanding capital stock are entitled to demand the postponement of the voting on any resolution of which they deem they have not been sufficiently informed.
Under Mexican law, holders of at least 20% of CEMEX, S.A.B. de C.V.’s outstanding capital stock are entitled to vote on a particular matter they oppose on any resolution at a shareholders’ meeting by filing a petition with a court of law for a court order to suspend the resolution temporarily within 15 days after the adjournment of the meeting at which that action was taken and showing that the challenged action violates Mexican law or the By-Laws, provided the opposing shareholders deliver a bond to the court to secure payment of any damages that we suffer as a result of suspending the resolution in the event that the court ultimately rules against the opposing shareholders. Relief under these provisions is only available to holders who were entitled to vote on, or whose rights as shareholders were adversely affected by, the challenged shareholder action and whose shares were not represented when the action was taken or, if represented, voted against it.
Under Mexican law, an action for civil liabilities against directors may be initiated by a shareholders’ resolution for violation of their duty of loyalty to shareholders. In the event shareholders decide to bring an action of this type, the persons against whom that action is brought will immediately cease to be directors. Additionally, shareholders representing not less than 33% of the outstanding shares may directly exercise that action against the directors; provided that:
| • | those shareholders shall not have voted against exercising such action at the relevant shareholders’ meeting; and |
| • | the claim covers all of the damage alleged to have been caused to us and not merely the damage suffered by the plaintiffs. |
Under the By-Laws, shareholders representing 5% or more of its outstanding capital stock may initiate actions exclusively on behalf of CEMEX, S.A.B. de C.V. against members of its Board of Directors, its Corporate Practices and Finance Committee and Audit Committee, its Chief Executive Officer, or any relevant executives, for breach of their duty of care or duty of loyalty to shareholders or for committing illicit acts or activities. The only requirement is that the claim covers all of the damage alleged to have been caused to us or any entities on which we have a significant influence and not merely the damage suffered by the plaintiffs. Actions initiated on these grounds have a five-year statute of limitations from the day of the act or action that caused the damage.
Any recovery of damages with respect to these actions will be for CEMEX, S.A.B. de C.V.’s benefit and not that of the shareholders bringing the action.
Registration and Transfer
CEMEX, S.A.B. de C.V.’s common stock is evidenced by share certificates in registered form with registered dividend coupons attached. Shareholders who have not deposited their shares into the CPO trust may hold their shares in the form of physical certificates or through institutions that have accounts with Indeval. Accounts may be maintained at Indeval by brokers, banks and other entities approved by the Mexican securities authority. CEMEX, S.A.B. de C.V. maintains a stock registry, and, in accordance with Mexican Law, only those holders listed in CEMEX, S.A.B. de C.V.’s stock registry and those holding certificates issued by Indeval and by Indeval participants indicating ownership are recognized as CEMEX, S.A.B. de C.V. shareholders.
Pursuant to Mexican law, any transfer of shares must be registered in CEMEX, S.A.B. de C.V.’s stock registry, if effected physically, or through book entries that may be tracked back from CEMEX, S.A.B. de C.V.’s stock registry to the records of Indeval.
Redemption
CEMEX, S.A.B. de C.V.’s capital stock is subject to redemption upon approval of our shareholders at an extraordinary shareholders’ meeting.
Share Repurchases
If approved by CEMEX, S.A.B. de C.V.’s shareholders at a general shareholders’ meeting, we may purchase CEMEX, S.A.B. de C.V.’s outstanding shares. The economic and voting rights corresponding to repurchased shares cannot be exercised during the period the shares are owned by us and the shares will be deemed outstanding for purposes of calculating any quorum or vote at any shareholders’ meeting. We may also repurchase our equity securities on the MSE at the then prevailing market prices in accordance with Mexican securities law. If we intend to repurchase shares representing more than 1% of CEMEX, S.A.B. de C.V.’s outstanding shares at a single trading session, we must inform the public of such intention at least ten minutes before submitting our bid. If we intend to repurchase shares representing 3% or more of CEMEX, S.A.B. de C.V.’s outstanding shares during a period of 20 trading days, we are required to conduct a public tender offer for such shares. We must conduct share repurchases as per the framework authorized by CEMEX, S.A.B. de C.V.’s Board of Directors and through the person or persons approved by CEMEX, S.A.B. de C.V.’s Board of Directors, through a single broker dealer during the relevant trading session and without submitting bids during the first and the last 30 minutes of each trading session. We must inform the MSE of the results of any share repurchase no later than the business day following any such share repurchase.
Directors’ and Shareholders’ Conflict of Interest
Under Mexican law, any shareholder who has a conflict of interest with CEMEX, S.A.B. de C.V. with respect to any transaction is obligated to disclose such conflict and is prohibited from voting on that transaction. A shareholder who violates this prohibition may be liable for damages if the relevant transaction would not have been approved without that shareholder’s vote.
Under Mexican law, any director who has a conflict of interest with CEMEX, S.A.B. de C.V. in any transaction must disclose that fact to the other directors and is prohibited from participating and being present during the deliberations and voting on that transaction. A director who violates this prohibition will be liable for damages and lost profits. Additionally, CEMEX, S.A.B. de C.V.’s directors may not represent shareholders in our shareholders’ meetings.
Withdrawal Rights
Whenever CEMEX, S.A.B. de C.V.’s shareholders approve a change of corporate purpose, change of nationality or transformation from one form of corporate organization to another, Mexican law provides that any shareholder entitled to vote on that change who has voted against it may withdraw from CEMEX, S.A.B. de C.V. and receive an amount equal to the book value (in accordance with the latest statement of financial position approved by the annual general ordinary shareholders’ meeting) attributable to such shareholder’s shares, provided that such shareholder exercises that right within 15 days following the meeting at which the change was approved.
Dividends
At each annual general ordinary shareholders’ meeting, CEMEX, S.A.B. de C.V.’s Board of Directors submits, for approval by its shareholders, its financial statements together with a report on them prepared by its Board of Directors and the statutory auditors. CEMEX, S.A.B. de C.V.’s shareholders, once they have approved the financial statements, determine the allocation of our net income, after provision for income taxes, legal reserve and statutory employee profit sharing payments, for the preceding year. All shares of CEMEX, S.A.B. de C.V.’s capital stock outstanding at the time a dividend or other distribution is declared are entitled to share equally in that dividend or other distribution.
Liquidation Rights
In the event CEMEX, S.A.B. de C.V. is liquidated, the surplus assets remaining after payment of all its creditors will be divided among CEMEX, S.A.B. de C.V.’s shareholders in proportion to the respective shares held by them. The liquidator may, with the approval of CEMEX, S.A.B. de C.V.’s shareholders, distribute the surplus assets in kind among CEMEX, S.A.B. de C.V.’s shareholders, sell the surplus assets and divide the proceeds among CEMEX, S.A.B. de C.V.’s shareholders or put the surplus assets to any other uses agreed to by a majority of CEMEX, S.A.B. de C.V.’s shareholders voting at an extraordinary shareholders’ meeting.
Description of CPOs
The following description of our CPOs is a summary of the material terms of our CPOs. Because it is a summary, it does not describe every aspect of our CPOs and may not contain all of the information that is important to you. For more information, please see the Bylaws, an English translation of which has been filed as an exhibit to our annual report on Form 20-F of which this exhibit is a part. References to provisions of the By-Laws are qualified in their entirety by reference to the full By-Laws.
General
Our CPOs are issued under the terms of a CPO trust agreement. The CPOs and the CPO trust agreement are governed by Mexican law. The CPO trust agreement established a master trust that, among other things, enables non-Mexican investors to acquire CPOs representing financial interests in our common stock, of which the Series A shares may otherwise be acquired directly only by Mexican investors. CPOs, which are negotiable instruments under Mexican law, are issued by Banco Nacional de México, S.A., which is the trustee of the CPO trust (the “CPO trustee”) pursuant to the terms of the CPO trust agreement. As of December 31, 2022, a total of 29,457,941,452 Series A shares and 14,728,970,726 Series B shares outstanding were held by the CPO trust. Each CPO represents two Series A shares and one Series B share. A portion of the CPOs is represented by ADSs.
Transfer and Withdrawal of CPOs
Under the terms of the CPO trust agreement, the CPO trustee may accept Series A shares and Series B shares against the issuance and release of CPOs. Each CPO represents two Series A shares and one Series B share. All Series A shares and Series B shares underlying the CPOs are held in trust by the CPO trustee in accordance with the terms and conditions of the CPO trust agreement. Those shares are registered in the name of the CPO trustee. The CPO trust operates through Indeval, the central depository for participants trading on the Mexican Securities Exchange, which maintains ownership records of the CPOs in book-entry form.
The CPO trustee will deliver CPOs in respect of the shares as described above. All CPOs are evidenced by a single certificate, the global CPO. CPOs are issued to and deposited in accounts maintained by the purchasers at Indeval. Ownership of CPOs deposited with Indeval is shown on, and transfer of the ownership of CPOs is effected through, records maintained by Indeval and Indeval participants. Holders of CPOs are not entitled to receive physical certificates evidencing their CPOs but may request certificates issued by Indeval and the relevant Indeval participants indicating ownership of CPOs. Holders of CPOs, including Mexican nationals, are not entitled to withdraw the Series A shares or Series B shares that are held in the CPO trust.
Dividends, Other Distributions and Rights
Holders of CPOs are entitled to receive the economic benefits to which they would be entitled if they were the holders of the Series A shares and Series B shares underlying those CPOs at the time that we declare and pay dividends or make distributions to holders of Series A shares and Series B shares. The CPO trustee will distribute cash dividends and other cash distributions received by it in respect of the Series A shares and Series B shares held in the CPO trust to the holders of CPOs in proportion to their respective holdings, in each case in the same currency in which they were received. The CPO trustee will distribute those cash dividends and other cash distributions through Indeval as custodian of the CPOs. Dividends paid with respect to CPOs deposited with Indeval will be distributed to the holders on the business day following the date on which the funds are received by Indeval.
If we pay a dividend in shares of our stock, those shares will be distributed to the CPO trustee who will hold those shares in the CPO trust for the benefit of CPO holders entitled thereto, and the CPO trustee, if the shares so received constitute units identical to the unit of securities then represented by a CPO, will distribute to the holders of outstanding CPOs, in proportion to their holdings, additional CPOs representing economic interests in the total number of shares received by the CPO trustee as that dividend. If the shares of stock so received do not constitute units of securities identical to the unit of securities then represented by a CPO, the CPO trustee will cause the securities received to be delivered to the CPO holders entitled thereto and as permitted under applicable law.
If we offer the holders of Series A shares and Series B shares the right to subscribe for additional Series A shares or Series B shares, the CPO trustee, subject to applicable laws, will offer to each holder of CPOs the right to instruct the CPO trustee to subscribe for that holder’s proportionate share of those additional Series A shares or Series B shares, subject to that holder’s providing the CPO trustee with the funds necessary to subscribe for those additional shares. The CPO trustee will offer those rights to a CPO holder only if that offer is legal and valid under the provisions of the laws of the country of residence of that CPO holder. Neither we nor the CPO trustee is obligated to register those rights, the CPOs or the underlying shares under the Securities Act. If CPO trust holders are offered those rights and if CPO holders provide the CPO trustee with the necessary funds, the CPO trustee will subscribe for the corresponding number of shares, which will be held in the CPO trust for the benefit of the subscribing holders, and if the shares so received constitute units identical to the unit of securities then represented by a CPO it will deliver additional CPOs representing those underlying shares to the applicable CPO holders.
Changes Affecting Underlying Shares
If as a result of a redemption of our common stock any underlying shares held in the CPO trust are called for redemption, the CPO trustee will proceed in accordance with the resolutions adopted by shareholders at the meeting of shareholders that authorizes the redemption and repurchase of the corresponding CPOs. See “—Description of Common Stock—Redemption.”
Voting of Series A Shares
Mexican holders of CPOs shall be entitled to attend our shareholders’ meetings for purposes of representing and exercising the voting rights of the Series A shares underlying their CPOs.
Under the CPO trust agreement, holders of CPOs who are not Mexican nationals cannot exercise voting rights with respect to the Series A shares represented by their CPOs. At our shareholders’ meetings the Series A shares of non-Mexican holders held in the CPO trust will be voted by the CPO trustee in the same manner as the votes cast by the majority of Mexican holders of Series A shares and holders of Series B shares voting at the meeting. The nationality of a holder of CPOs is established by reference to the information contained in the CPO registry book of the CPO trust. A Mexican national constitutes either:
| • | an individual of Mexican nationality; or |
| • | a Mexican corporation whose articles of association exclude foreign investors from owning or controlling, either directly or indirectly, a majority of its capital stock. |
CPOs represented by ADSs will be deemed owned by non-Mexican nationals.
The CPO trustee shall attend our shareholders’ meetings to represent and vote the Series A shares underlying the CPOs held by Mexicans for which no instructions were received from the holders of those CPOs. The technical committee under the trust shall have the power to cooperate with the CPO trustee’s exercise of its corporate rights with respect to the Series A shares underlying the CPOs.
Voting of Series B Shares
All holders of CPOs shall be entitled to attend our shareholders’ meetings for purposes of representing and exercising the voting rights of the Series B shares underlying their CPOs. The CPO trustee shall attend our shareholders’ meetings to represent and vote the Series B shares underlying the CPOs for which no instructions were received from the holders of the CPOs. The technical committee under the trust shall have the power to cooperate with the CPO trustee’s exercise of its corporate rights with respect to the Series B shares underlying the CPOs.
Voting at CPO Holders’ Meetings
Whenever we call a meeting of holders of CPOs, Mexican and non-Mexican holders of CPOs, whether they hold their CPOs directly or in the form of ADSs, will have the right to give instructions to vote the CPOs at the meeting.
The following table sets forth the method of voting for each security contained in a CPO:
| Securities Contained in a CPO |
Method for Voting | |
| Series A shares represented by CPOs held by non-Mexican nationals (all CPOs represented by ADSs are deemed held by non-Mexican persons). | CPO trustee will vote the Series A shares in accordance with the majority of all Series A shares held by Mexican nationals and Series B shares voted at the meeting. | |
| Series A shares represented by CPOs held by Mexican nationals: | ||
| • If the CPO holder timely instructs the trustee as to voting. |
||
| • If the CPO holder makes timely arrangements with the CPO trustee to attend the shareholders’ meeting in person. |
CPO holder may attend the shareholders’ meeting and vote the Series A shares in person. | |
| • If the CPO holder does not timely instruct the CPO trustee as to voting or does not make timely arrangements with the CPO trustee to attend the shareholders’ meeting in person. |
CPO trustee will vote the Series A shares in cooperation with the technical committee. | |
| Series B shares represented by CPOs, whether held by Mexican or non-Mexican persons: | ||
| • If the CPO holder timely instructs the CPO trustee as to voting.CPO trustee will vote the Series B shares in accordance with the CPO |
CPO trustee will vote the Series B shares in accordance with the CPO holder’s instructions. | |
| • If the CPO holder makes timely arrangements with the CPO trustee to attend the shareholders’ meeting in person. |
CPO holder may attend the shareholders’ meeting and vote the Series B shares in person. | |
| • If the CPO holder does not timely instruct the CPO trustee as to voting or does not make timely arrangements with the CPO trustee to attend the shareholders’ meeting in person. |
CPO trustee will vote the Series B shares in cooperation with the technical committee. | |
Administration of the CPO Trust
Under the terms of the CPO trust agreement, the CPO trust is managed by the CPO trustee under the direction of a technical committee, which must consist of at least three members. Substitute members may also be appointed, who may substitute for any of the members. Technical committee meetings may also be attended by the CPO trustee, by the CPO common representative and by our statutory auditors, who may participate in any debate but may not vote. Resolutions adopted by the technical committee are required to be approved by a majority of the members of the technical committee present at the respective meeting; provided, however, that at least the chairman and two other members of the technical committee must be present at a meeting in order validly to adopt resolutions. The technical committee has the authority to instruct the CPO trustee to increase the maximum number of additional CPOs which may be issued and delivered for the purposes contemplated under the CPO trust agreement.
Termination of the CPO Trust and Establishment of Successor Trust
The CPO trust term is 30 years from the date of execution, expiring on September 6, 2029. Upon termination, the trustee and the common representative of the CPO holders shall constitute a successor CPO trust with the same terms and conditions set forth in the CPO trust agreement, other than the provisions pertaining to the exchange of CPOs for successor trust CPOs. We refer to that successor CPO trust as the successor trust. Upon termination of the CPO trust, which we call the “conversion date,” investors holding CPOs, subject to the provisions of the By-Laws, will receive in exchange for their CPOs, the successor trust CPOs issued by the successor trustee. Each successor trust CPO will represent the economic interests in two Series A shares and one Series B share.
The CPO trust cannot be terminated if any dividends or other distributions previously received by the CPO trustee remain unpaid to any CPO holder.
Upon termination of the CPO trust, any transfer of Series A shares or Series B shares which would result in any person or group of persons acting in concert becoming a holder of 2% or more of our voting shares will be subject, as provided in the By-Laws, to prior approval of CEMEX, S.A.B. de C.V.’s Board of Directors. See “—Description of Common Stock—Changes in Capital Stock and Preemptive Rights.”
We will be obligated to pay any cost or expense incurred in connection with the transfer of the shares from the CPO trust to the successor trust and the exchange of CPOs for successor trust CPOs.
Charges of the CPO Trustee and Indeval
Under the CPO trust agreement, we will be obligated to pay the fees of the CPO trustee for the administration of the CPO trust and the fees of Indeval as depository.
Description of ADSs
The following description of our ADSs is a summary of the material terms of our ADSs. Because it is a summary, it does not describe every aspect of our ADSs and may not contain all of the information that is important to you. For more information, please see the Bylaws and the ADS deposit agreement (as defined below), each of which has been filed as an exhibit to our annual report on Form 20-F of which this exhibit is a part. References to provisions of the By-Laws or the ADS deposit agreement are qualified in their entirety by reference to the full By-Laws or the ADS deposit agreement, as applicable.
General
Each ADS represents ten CPOs. Holders of ADSs will, on and after the conversion date, have the right to receive ten successor trust CPOs for every ADS held. The CPOs and successor trust CPOs eligible for deposit with the custodian are sometimes known as “eligible securities,” and the eligible securities once deposited with the custodian are sometimes known as “deposited securities” against which the ADS depositary issues the ADSs. Please note that an ADS also represents any other property received by the ADS depositary or the custodian on behalf of the owner of the ADS but not distributed to that owner because of legal or practical restrictions. The ADSs are issuable in registered form by the depositary pursuant to the ADS deposit agreement. As of December 31, 2022, we had 494 ADS holders of record, holding 538,983,750 ADRs (as defined below), representing 5,389,837,500CPOs, or approximately 36.63% of CEMEX, S.A.B. de C.V.’s outstanding capital stock as of such date.
The ADS deposit agreement, as amended (the “ADS deposit agreement”), and the related ADRs contain our rights and obligations as well as your rights and obligations and those of the depositary. The ADS deposit agreement is governed by New York law. Each of CEMEX and the depositary has agreed that federal and state courts in the City of New York will have non-exclusive jurisdiction over any actions, proceedings or disputes that arise out of or in connection with the ADS deposit agreement and submits to that jurisdiction. However, our obligations to the holders of deposited securities will continue to be governed by the laws of Mexico, which may be very different from the laws in the United States.
We have appointed Citibank, N.A. as ADS depositary pursuant to the ADS deposit agreement. Citibank’s depositary offices are located at 390 Greenwich Street, 4th Floor, New York, New York 10013. The ADSs represent ownership interests in securities that are on deposit with the depositary. The depositary typically appoints a custodian to safekeep the securities on deposit. Citibank has appointed Banco Nacional de México, S.A., División Fiduciaria as custodian for the deposited securities represented by the ADSs. ADSs may be represented by certificates that are commonly known as American Depositary Receipts (the “ADRs”).
Registration and Transfer
If you become an owner of ADSs, you may hold your ADSs in the form of an ADR certificate registered in your name, through a brokerage or safekeeping account or through an account established by the ADS depositary in your name reflecting registration of uncertificated ADSs directly on the books of the ADS depositary (commonly referred to as the “direct registration system” or “DR System”). The direct registration system reflects the uncertificated (book-entry) registration of ownership of ADSs by the ADS depositary. Under the direct registration system, ownership of ADSs is evidenced by periodic statements issued by the ADS depositary to the holders of ADSs. The direct registration system includes automated transfers between the ADS depositary and The Depositary Trust Company, or DTC, the central book-entry clearing and settlement system for equity securities in the United States. If you decide to hold your ADSs through your brokerage or safekeeping account, you must rely on the procedures of your broker or custodian to assert your rights as an ADS owner. This summary description assumes you have opted to own the ADSs directly by means of an ADR registered in your name and, as such, we will refer to you as “holder.”
Dividends and distributions
If you become a holder of ADSs, you will usually have the right to receive the distributions we make on the securities deposited with the custodian. Your receipt of these distributions may be limited, however, by practical considerations and legal restrictions. Holders will receive distributions they are entitled to receive under the terms of the ADS deposit agreement in proportion to the number of ADSs they hold as of a specified record date.
Distributions of cash
Whenever we make a cash distribution payment for the securities on deposit with the custodian and the ADS depositary receives confirmation of our deposit of the distribution, the ADS depositary will convert the cash distribution into Dollars and distribute the proceeds of the conversion to the holders, so long as the conversion is reasonable and the Dollars are transferable to the United States. The amounts distributed to holders will be net of the fees, expenses, taxes and governmental charges payable by holders under the terms of the ADS deposit agreement. The ADS depositary will distribute the proceeds of the sale of any property held by the custodian in respect of the securities on deposit in the same manner.
Distributions of eligible securities
Whenever we make a free distribution of eligible securities for the securities on deposit with the custodian, we will cause the eligible securities to be deposited with the custodian. When the ADS depositary receives confirmation of such deposit with the custodian, the ADS depositary will either distribute to holders new ADSs representing the eligible securities deposited or modify the ADS-to-deposited securities ratio, in which case each ADS you hold will represent rights and interests in the additional eligible securities so deposited. The ADS depositary will distribute only whole numbers of ADSs. The ADS depositary will sell any remaining fractional entitlements and distribute the proceeds of that sale as in the case of a cash distribution.
The distribution of the new ADSs or the modification of the ADS-to-deposited securities ratio upon distribution of eligible securities will be made net of the fees, expenses, taxes and governmental charges payable by holders under the terms of the ADS deposit agreement. In order to pay those taxes and governmental charges, the ADS depositary may sell all or a portion of the eligible securities so distributed.
The ADS depositary will not make a distribution of ADSs if the distribution would engender a breach of law. If the ADS depositary does not distribute ADSs as described above, it may sell the securities received and will distribute the proceeds of the sale as in the case of a cash distribution.
Distributions of rights
Whenever we intend to distribute rights to subscribe for additional eligible securities, we will give prior notice to the ADS depositary and will indicate whether we wish such rights to be made available to ADS holders. In such cases, we will assist the ADS depositary in determining whether it is lawful and reasonably practicable to distribute rights to purchase additional ADSs to holders and, if so, provide the ADS depositary with the documentation required under the ADS deposit agreement.
If the above conditions are satisfied, the ADS depositary will establish procedures to distribute such rights and to enable holders to exercise those rights. Holders of ADSs will have to pay the subscription price and may have to pay fees, expenses, taxes and other governmental charges to subscribe for the ADSs when they exercise their rights. We cannot assure you that any holder of ADSs will be able to exercise rights on the same terms as holders of eligible securities or that any holder of ADSs will be able to exercise its rights at all. The ADS depositary has no obligation to provide you with the means to exercise rights to subscribe for new eligible securities rather than ADSs.
The ADS depositary will not distribute the rights to any holder of ADSs if:
| • | we do not timely request that the rights be distributed to such holders or if we ask that the rights not be distributed to such holders; |
| • | we fail to deliver the required documents to the ADS depositary; or |
| • | it is not reasonably practicable to distribute the rights to such holders. |
The ADS depositary will sell the rights that are not exercised or not distributed if such a sale is lawful and reasonably practicable. The proceeds of that sale will be distributed to holders as in the case of a distribution in cash. If the ADS depositary is unable to sell the rights, it will allow the rights to lapse.
Elective distributions
Whenever we intend to distribute a dividend payable at the election of shareholders either in cash or in additional eligible securities, we will give prior notice thereof to the ADS depositary and will indicate whether we wish the elective distribution to be made available to holders of ADSs. In that case, we will assist the ADS depositary in determining whether that distribution is lawful and reasonably practicable.
The ADS depositary will make the election available to holders of ADSs only if it is reasonably practicable and if we have provided all the documentation contemplated in the ADS deposit agreement. In that case, the ADS depositary will establish procedures to enable holders of ADSs to elect to receive either cash or additional ADSs, in each case as described in the ADS deposit agreement.
If the election is not made available to holders of ADSs, such holders will receive either cash or additional ADSs, depending on what a shareholder in Mexico would receive for failing to make an election, as more fully described in the ADS deposit agreement.
Redemption
Whenever we decide to redeem any of the securities on deposit with the custodian, we will notify the ADS depositary. If it is reasonably practicable and if we provide all of the documentation contemplated in the ADS deposit agreement, the ADS depositary will mail notice of the redemption to the holders.
The custodian will be instructed to surrender the deposited securities being redeemed against payment of the applicable redemption price. The ADS depositary will convert the redemption funds received into Dollars upon the terms of the ADS deposit agreement and will establish procedures to enable holders to receive the net proceeds from the redemption upon surrender of their ADSs to the ADS depositary. Holders of ADSs may have to pay fees, expenses, taxes and other governmental charges upon the redemption of their ADSs. If less than all ADSs are being redeemed, the ADSs to be retired will be selected by lot or on a pro rata basis, as the ADS depositary may determine.
Other distributions
Whenever we intend to distribute property other than cash, eligible securities or rights to purchase additional eligible securities, we will give prior notice thereof to the ADS depositary and will indicate whether we wish the distribution to be made to holders of ADSs. In that case, we will assist the ADS depositary in determining whether the distribution to holders is lawful and reasonably practicable.
If it is reasonably practicable to distribute the property to holders of ADSs and if we provide all the documentation required under the ADS depositary agreement, the ADS depositary shall distribute that property to the holders in a manner it deems practicable for accomplishing the distribution.
The distribution of the property will be made net of fees, expenses, taxes and governmental charges payable by holders under the terms of the ADS deposit agreement. In order to pay those taxes and governmental charges, the ADS depositary may sell all or a portion of the property.
The ADS depositary will not distribute the property to holders of ADSs and will sell the property if:
| • | we do not request that the property be distributed to such holders or if we ask that the property not be distributed to such holders; |
| • | we do not deliver satisfactory documents to the ADS depositary; or |
| • | such distribution is not reasonably practicable. |
The proceeds of any sale of the property will be distributed to holders as in the case of a cash distribution. If the ADS depositary is unable to sell the property, the ADS depositary may dispose of the property in any way it deems reasonably practicable under the circumstances.
Preemptive Rights
ADS holders may be unable to exercise preemptive rights granted to our shareholders, in which case ADS holders could be substantially diluted following future equity or equity-linked offerings. Under Mexican law, whenever we issue new shares for payment in cash or in kind, we are generally required to grant preemptive rights to our shareholders, except if the shares are issued in respect of a public offering or if the relevant shares underlie convertible securities. However, ADS holders may not be able to exercise these preemptive rights to acquire new shares unless both the rights and the new shares are registered in the United States or an exemption from registration is available. We cannot assure you that we would file a registration statement in the United States at the time of any rights offering.
Changes Affecting Deposited Securities
The deposited securities held on deposit in respect of ADSs may change from time to time as a result, for example, of a change in nominal or par value, a split-up, cancellation, consolidation or re-classification of deposited securities or a recapitalization, reorganization, merger, consolidation or sale of our assets.
If any such change were to occur, ADSs will, to the extent permitted by law, represent the right to receive the property received or exchanged in respect of the deposited securities held on deposit. The ADS depositary may in such circumstances deliver additional ADSs to holders of ADSs or call for the exchange of ADSs for replacement ADSs. If the ADS depositary may not lawfully distribute such property to holders of ADSs, the ADS depositary shall use its best efforts to sell such property and distribute the net proceeds to such holders as in the case of a cash distribution.
Issuance of ADSs Upon Deposit of Eligible Securities
If permitted by applicable law, the ADS depositary will create ADSs if eligible securities are deposited with the custodian. The ADS depositary will deliver the ADSs representing the eligible securities deposited to the person indicated after payment of the applicable issuance fees and all charges and taxes payable for the transfer of the eligible securities to the custodian.
Please note that the issuance of ADSs in all cases, other than the distribution of the appreciation value, may be delayed until the ADS depositary or the custodian receives confirmation that all required approvals have been given and that the eligible securities have been duly transferred. The ADS depositary will only issue ADSs in whole numbers.
When a deposit of eligible securities is made, the depositor will be responsible for transferring good and valid title to the ADS depositary. In addition, the depositor will be deemed to represent and warrant that:
| • | the eligible securities are duly authorized, validly issued, fully paid, non-assessable and legally obtained; |
| • | all preemptive and similar rights, if any, with respect to the eligible securities have been validly waived or exercised; |
| • | the depositor is duly authorized to deposit the eligible securities; |
| • | the eligible securities presented for deposit are free and clear of any lien, encumbrance, security interest, charge, mortgage or adverse claim, and are not, and the ADSs issuable upon such deposit will not be, “restricted securities” (as defined in the ADS deposit agreement); and |
| • | the eligible securities presented for deposit have not been stripped of any rights or entitlements. |
If any of these representations or warranties are false in any way, we and the ADS depositary may, at the depositor’s cost and expense, take any and all actions necessary to correct the consequences thereof.
Withdrawal of Deposited Securities Upon Cancellation of ADSs
A holder of ADSs is entitled to present its ADSs to the ADS depositary for cancellation and to receive delivery of the deposited securities represented by its ADSs from the custodian. In order to withdraw the deposited securities represented by such ADSs, the holder withdrawing ADSs will be required to pay the fees of the ADS depositary for cancellation of its ADSs and the charges and taxes payable for the transfer of the deposited securities being withdrawn. The holder withdrawing ADSs assumes the risk of delivery of all funds and securities upon withdrawal. Once cancelled, ADSs shall not have any rights under the ADS deposit agreement.
The ADS depositary may ask for proof of identity and the genuineness of signatures before canceling ADSs. The withdrawal of the deposited securities represented by ADSs may be delayed until the ADS depositary receives satisfactory evidence of compliance with all applicable laws and regulations. Under Mexican law, a holder of ADSs is not entitled to withdraw the shares underlying CPOs. When ADSs are surrendered prior to the conversion date, the holder will be entitled to receive CPOs; after the conversion date, the holder will be entitled to receive successor trust CPOs. The ADS depositary will only accept ADSs for cancellation that represent a whole number of deposited securities.
A holder will have the right to withdraw the deposited securities represented by its ADSs at any time except for:
| • | temporary delays that may arise because the transfer books for the shares, CPOs, successor trust CPOs or ADSs are closed, or the deposited securities are immobilized on account of a shareholders’ meeting or a payment of dividends; |
| • | obligations to pay fees, taxes and similar charges; and |
| • | restrictions imposed on account of laws or regulations applicable to ADSs or the withdrawal of the securities deposited. |
Please note that the ADS deposit agreement may not be modified to impair withdrawal rights in respect of deposited securities represented by ADSs except to comply with mandatory provisions of law.
Voting Rights
A holder of ADSs generally has the right to instruct the ADS depositary to exercise the voting rights for the deposited securities represented by its ADSs. However, the By-Laws prohibit non-Mexican nationals from directly holding or voting Series A shares. A holder of ADSs is deemed to be a non-Mexican national and accordingly, has no right to instruct the ADS depositary to cause the CPO trustee to vote the Series A shares held in the CPO trust or the successor trust. Under the terms of the ADS depositary agreement, holders of ADSs may have the right to instruct the depositary to cause the CPO trustee to exercise the voting rights attributable to the Series B Shares held in the CPO trust. The voting rights of holders of deposited securities are described in “Description of CPOs—Voting of Series A shares” and “Description of CPOs—Voting of Series B shares” above.
At our request, the ADS depositary will coordinate with us the mailing to holders of ADSs of any notice of shareholders’ meeting together with information explaining how to instruct the depositary to exercise the voting rights, if any, pertaining to the deposited securities represented by ADSs. We will use our best efforts to deliver the notice of shareholders’ meeting to the ADS depositary 20 days prior to the date of the meeting. The ADS depositary will coordinate with us the mailing of the notice to ADS holders to coincide as closely as is reasonably practicable with the publication of the notice of shareholders’ meeting in Mexico.
Prior to the conversion date, at any meeting of shareholders, ADS holders have the right to instruct the ADS depositary to exercise their voting rights only in respect of the Series B shares held in the CPO trust. The terms of the CPO trust require the CPO trustee to vote the Series A shares held in the CPO trust in the same manner as the votes cast by the holders of the majority of all Series A shares held by Mexican nationals and Series B shares voted at the meeting.
On and after the conversion date, at any meeting of shareholders, ADS holders have the right to instruct the ADS depositary to exercise their voting rights in respect of the Series B shares in the successor trust. The terms of the successor trust are expected to require the successor trustee to vote the Series A shares held in the successor trust in substantially the same manner as Series A shares are voted under the CPO trust.
Whenever we call a meeting of holders of CPOs or successor trust CPOs, holders of ADSs have the right, as holders of ADSs representing CPOs or successor trust CPOs, to instruct the ADS depositary to vote the CPOs or successor trust CPOs according to their instructions.
If the ADS depositary timely receives an ADS holder’s voting instructions, it will endeavor to vote the deposited securities represented by ADSs for which holders of ADSs are entitled to give voting instructions according to those voting instructions or to cause the custodian to transmit to the CPO trustee the voting instructions received, as applicable.
If the ADS depositary does not receive voting instructions from a holder of ADSs in a timely manner, such holder will nevertheless be treated as having instructed the ADS depositary to give a proxy to a person we designate to vote the Series B shares underlying the CPOs represented by the ADSs in his/her discretion. The ADS depositary will not deliver the discretionary proxy if:
| • | we do not provide the ADS depositary with the requisite materials pertaining to the meeting on a timely basis; |
| • | we request that the discretionary proxy not be given; |
| • | we do not deliver to the ADS depositary a satisfactory opinion of counsel providing legal comfort under Mexican laws on the subject of the discretionary proxy; or |
| • | we do not deliver a satisfactory representation and indemnity letter to the ADS depositary. |
Please note that the ability of the ADS depositary to carry out voting instructions may be limited by practical and legal limitations and the terms of the securities on deposit. We cannot assure holders of ADSs that they will receive voting materials in sufficient time to enable them to return voting instructions to the ADS depositary in a timely manner.
The ADS depositary or the custodian for the CPOs on deposit may represent the CPOs at any meeting of holders of CPOs even if no voting instructions have been received. The CPO trustee may represent the Series A shares and the Series B shares represented by the CPOs at any meeting of holders of Series A shares or Series B shares even if no voting instructions have been received. By so attending, the ADS depositary, the custodian or the CPO trustee, as applicable, may contribute to the establishment of a quorum at a meeting of holders of CPOs, Series A shares or Series B shares, as appropriate.
Fees and Charges
An ADS holder is required to pay the following service fees to the ADS depositary:
| Service |
Fees | |
| Issuance of ADSs upon deposit of eligible securities | Up to 5¢ per ADS issued | |
| Surrender of ADSs for cancellation and withdrawal of deposited securities | Up to 5¢ per ADS surrendered | |
| Exercise of rights to purchase additional ADSs | Up to 5¢ per ADS issued | |
| Distribution of cash (i.e., upon sale of rights and other entitlements) | Up to 2¢ per ADS held | |
An ADS holder also is responsible to pay fees and expenses incurred by the ADS depositary and taxes and governmental charges including, but not limited to:
| • | transfer and registration fees charged by the registrar and transfer agent for eligible and deposited securities, such as upon deposit of eligible securities and withdrawal of deposited securities; |
| • | expenses incurred for converting foreign currency into Dollars; |
| • | expenses for cable, telex and fax transmissions and for delivery of securities; |
| • | expenses incurred in connection with compliance with exchange control regulations and other applicable regulatory requirements; |
| • | fees and expenses incurred in connection with the delivery of deposited securities; and |
| • | taxes and duties upon the transfer of securities, such as when eligible securities are deposited or withdrawn from deposit. |
We have agreed to pay some of the other charges and expenses of the ADS depositary. Note that the fees and charges that a holder of ADSs is required to pay may vary over time and may be changed by us and by the ADS depositary. ADS holders will receive notice of the changes. The fees described above may be amended from time to time.
Amendments and Termination
We may agree with the ADS depositary to modify or supplement the ADS deposit agreement at any time without the consent of ADS holders. We undertake to provide ADS holders with 30 days’ prior notice of any modifications or supplements that would materially prejudice the substantial rights of ADS holders under the ADS deposit agreement. We will not consider to be materially prejudicial to the substantial rights of ADS holders any modifications or supplements that are reasonably necessary for the ADSs to be registered under the Securities Act or to be eligible for book-entry settlement, in each case without imposing or increasing the fees and charges ADS holders are required to pay. In addition, we may not be able to provide ADS holders with prior notice of any modifications or supplements that are required to accommodate compliance with applicable provisions of law, whether or not those modifications or supplements could be considered to be materially prejudicial to the substantial rights of ADS holders.
ADS holders will be bound by the modifications to the ADS deposit agreement if they continue to hold ADSs after the modifications to the ADS deposit agreement become effective. The ADS deposit agreement cannot be amended to prevent ADS holders from withdrawing the deposited securities represented by ADSs, except to comply with mandatory provisions of applicable law.
We have the right to direct the ADS depositary to terminate the ADS deposit agreement. Similarly, the ADS depositary may in some circumstances on its own initiative terminate the ADS deposit agreement. In either case, the ADS depositary must give notice to the holders at least 30 days before termination.
Upon termination, the following will occur under the ADS deposit agreement:
| • | For a period of 3 months after termination, ADS holders will be able to request the cancellation of their ADSs and the withdrawal of the deposited securities represented by their ADSs and the delivery of all other property held by the ADS depositary in respect of their deposited securities on the same terms as prior to the termination. During this three-month period, the ADS depositary will continue to collect all distributions received on the deposited securities, such as dividends, but will not distribute any such property to ADS holders until they request the cancellation of their ADSs. |
| • | After the expiration of the three-month period, the ADS depositary may sell the deposited securities held on behalf of the remaining holders with the custodian. The ADS depositary will hold the proceeds from the sale and any other funds then held for the holders of ADSs in a non-interest bearing account. At that point, the ADS depositary will have no further obligations to holders other than to account for the funds then held for the holders of ADSs still outstanding. |
Books of ADS Depositary
The ADS depositary will maintain ADS holder records at its depositary office. Holders of ADSs may inspect those records at that office during regular business hours but solely for the purpose of communicating with other holders in the interest of business matters relating to the ADSs and the ADS deposit agreement.
The ADS depositary will maintain facilities in New York to record and to process the issuance, cancellation, combination, split-up and transfer of ADSs. These facilities may be closed from time to time, to the extent not prohibited by law.
Limitations On Obligations and Liabilities
The ADS deposit agreement limits our obligations and liability and the ADS depositary’s obligations and liability to holders of ADSs. Please note the following:
| • | We and the ADS depositary are only obligated to take the actions specifically stated in the ADS deposit agreement without gross negligence or bad faith. |
| • | The ADS depositary disclaims any liability for any failure to carry out voting instructions, for any manner in which a vote is cast or for the effect of any vote, provided it acts in good faith and in accordance with the terms of the ADS deposit agreement. |
| • | The ADS depositary disclaims any liability for any failure to determine the lawfulness or reasonable practicality of any action, for the content of any document forwarded to ADS holders on their behalf or for the accuracy of any translation of such document, for the investment risks associated with investing in deposited securities, for the validity or worth of the deposited securities, for any tax consequences that result from the ownership of ADSs, for allowing any rights to lapse under the terms of the ADS deposit agreement, for the timeliness of any of our notices or for our failure to give notice. |
| • | We and the ADS depositary will not be obligated to perform any act that is inconsistent with the terms of the ADS deposit agreement. |
| • | We and the ADS depositary disclaim any liability if we are prevented or forbidden from acting on account of any law or regulation, any provision of our articles of association, any provision of any securities on deposit or by reason of any act of God or war or other circumstances beyond our control. |
| • | We and the ADS depositary disclaim any liability by reason of any exercise of, or failure to exercise, any discretion provided for in the ADS deposit agreement or in our articles of association or in any provisions of the securities on deposit. |
| • | We and the ADS depositary further disclaim any liability for any action or inaction in reliance upon the advice of or information from legal counsel, accountants, any person presenting eligible securities for deposit, any holder of ADSs or authorized representative thereof, or any other person believed by us in good faith to be competent to give such advice or information. |
| • | We and the ADS depositary also disclaim liability for the inability by a holder to benefit from any distribution, offering, right or other benefit which is made available to holders of eligible securities but is not, under the terms of the ADS deposit agreement, made available to the holders of the ADSs. |
| • | We and the ADS depositary may rely without any liability upon any written notice, request or other document believed by the ADS depositary to be genuine and to have been signed or presented by the proper parties. |
| • | We and the ADS depositary disclaim any liability for any consequential or punitive damages. |
Pre-Release Transactions
The ADS depositary may, in some circumstances, issue ADSs before receiving a deposit of eligible securities or release deposited securities before receiving ADSs. These transactions are commonly referred to as “pre-release transactions.” The ADS deposit agreement limits the aggregate size of pre-release transactions and imposes a number of conditions on such transactions including the need to receive collateral, the type of collateral required, and the representations required from brokers. The ADS depositary may retain the compensation received from the pre-release transactions.
Taxes
Holders of ADSs will be responsible for the taxes and other governmental charges payable on the ADSs and the securities represented by the ADSs. We, the ADS depositary and the custodian may deduct from any distribution the taxes and governmental charges payable by holders and may sell any and all property on deposit to pay the taxes and governmental charges payable by holders. Holders of ADSs will be liable for any deficiency if the sale proceeds do not cover the taxes that are due.
The ADS depositary may refuse to issue ADSs and to deliver, transfer, split and combine ADRs or to release securities on deposit until all applicable taxes and charges are paid by the holder. The ADS depositary and the custodian may take reasonable administrative actions to obtain tax refunds and reduced tax withholding for any distributions on behalf of ADS holders. However, ADS holders may be required to provide to the ADS depositary and to the custodian proof of taxpayer status and residence and any other information as the ADS depositary and the custodian may reasonably require to fulfill legal obligations. Holders of ADSs are required to indemnify us, the ADS depositary and the custodian for any claims with respect to taxes based on any tax benefit obtained for such holders.
Foreign Currency Conversion
Whenever the ADS depositary or the custodian receives foreign currency and the ADS depositary can reasonably convert all foreign currency received into Dollars, the ADS depositary will distribute the Dollars according to the terms of the ADS deposit agreement. ADS holders may have to pay fees and expenses incurred in converting foreign currency, such as fees and expenses incurred in complying with currency exchange controls and other governmental requirements.
If the conversion of foreign currency is not practical or lawful, or if any required approvals are denied or not obtainable at a reasonable cost or within a reasonable period, the ADS depositary may take the following actions in its discretion:
| • | convert the foreign currency to the extent practicable and lawful and distribute the Dollars to the holders of ADSs for whom such conversion and distribution is lawful and practicable; |
| • | distribute the foreign currency to holders of ADSs for whom such distribution is lawful and practicable; or |
| • | hold the foreign currency, without liability for interest, for holders of ADSs. |
Exhibit 4.7
CEMEX, S.A.B. DE C.V.,
as Issuer
and
THE BANK OF NEW YORK MELLON,
as Trustee
INDENTURE
DATED AS OF March 14, 2023
SUBORDINATED NOTES
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE |
1 | |||||
| Section 1.01. |
Definitions | 1 | ||||
| Section 1.02. |
Rules of Construction | 14 | ||||
| ARTICLE II THE NOTES |
15 | |||||
| Section 2.01. |
Form and Dating | 15 | ||||
| Section 2.02. |
Execution and Authentication | 16 | ||||
| Section 2.03. |
Registrar, Paying Agent and Transfer Agent | 17 | ||||
| Section 2.04. |
Paying Agent to Hold Money in Trust | 17 | ||||
| Section 2.05. |
Holder Lists | 18 | ||||
| Section 2.06. |
Global Note Provisions | 18 | ||||
| Section 2.07. |
Legends | 20 | ||||
| Section 2.08. |
Transfer and Exchange | 20 | ||||
| Section 2.09. |
Mutilated, Destroyed, Lost or Stolen Notes | 25 | ||||
| Section 2.10. |
Temporary Notes | 26 | ||||
| Section 2.11. |
Cancellation | 26 | ||||
| Section 2.12. |
Defaulted Interest | 27 | ||||
| Section 2.13. |
Additional Notes | 27 | ||||
| Section 2.14. |
CUSIP and ISIN Numbers | 28 | ||||
| Section 2.15. |
Subordination | 28 | ||||
| Section 2.16. |
Deferral of Interest | 30 | ||||
| ARTICLE III OPTIONAL REDEMPTIONS |
31 | |||||
| Section 3.01. |
Optional Redemption | 31 | ||||
| Section 3.02. |
Notice of Redemption | 31 | ||||
| Section 3.03. |
Deposit of Redemption Price | 33 | ||||
| Section 3.04. |
Notes Payable on Redemption Date | 33 | ||||
| Section 3.05. |
Optional Redemption for a Rating Methodology Event | 33 | ||||
| Section 3.06. |
Optional Redemption for a Tax Deductibility Event | 33 | ||||
| Section 3.07. |
Optional Redemption for Changes in Withholding Taxes | 34 | ||||
| Section 3.08. |
Optional Redemption upon a Substantial Repurchase Event | 35 | ||||
| Section 3.09. |
Optional Redemption for an Accounting Event | 35 | ||||
| Section 3.10. |
Optional Redemption upon a Change of Control that Results in a Ratings Downgrade Event | 35 | ||||
| Section 3.11. |
Substitution or Variation | 36 | ||||
| Section 3.12. |
Selection of Notes to Be Redeemed in Part | 37 | ||||
| Section 3.13. |
Unredeemed Portions of Partially Redeemed Note | 37 | ||||
| Section 3.14. |
No Limitation | 37 | ||||
| Section 3.15. |
No Scheduled Maturity | 38 | ||||
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TABLE OF CONTENTS
(continued)
| Page | ||||||
| ARTICLE IV COVENANTS |
38 | |||||
| Section 4.01. |
Payment of Notes | 38 | ||||
| Section 4.02. |
Merger, Consolidation or Sale of Assets | 38 | ||||
| Section 4.03. |
Reports to Holders | 39 | ||||
| Section 4.04. |
Payment of Additional Amounts | 40 | ||||
| Section 4.05. |
Further Instruments and Acts | 43 | ||||
| ARTICLE V NO EVENTS OF DEFAULT; REMEDIES |
43 | |||||
| Section 5.01. |
No Defaults or Events of Default | 43 | ||||
| Section 5.02. |
Acceleration | 43 | ||||
| Section 5.03. |
Remedies | 44 | ||||
| Section 5.04. |
[Reserved.] | 44 | ||||
| Section 5.05. |
Control by Majority | 44 | ||||
| Section 5.06. |
Limitation on Suits | 44 | ||||
| Section 5.07. |
Rights of Holders to Receive Payment | 45 | ||||
| Section 5.08. |
Trustee May File Proofs of Claim | 45 | ||||
| Section 5.09. |
Priorities | 46 | ||||
| Section 5.10. |
Undertaking for Costs | 46 | ||||
| Section 5.11. |
Waiver of Stay or Extension Laws | 47 | ||||
| Section 5.12. |
No Additional Remedies | 47 | ||||
| ARTICLE VI TRUSTEE |
47 | |||||
| Section 6.01. |
Duties of Trustee | 47 | ||||
| Section 6.02. |
Rights of Trustee | 48 | ||||
| Section 6.03. |
Individual Rights of Trustee | 50 | ||||
| Section 6.04. |
Trustee’s Disclaimer | 50 | ||||
| Section 6.05. |
Notice of Certain Events | 50 | ||||
| Section 6.06. |
[Reserved] | 50 | ||||
| Section 6.07. |
Compensation and Indemnity | 50 | ||||
| Section 6.08. |
Replacement of Trustee | 51 | ||||
| Section 6.09. |
Successor Trustee by Merger | 52 | ||||
| Section 6.10. |
Eligibility; Disqualification | 52 | ||||
| ARTICLE VII DISCHARGE OF INDENTURE |
52 | |||||
| Section 7.01. |
[Reserved] | 52 | ||||
| Section 7.02. |
[Reserved] | 52 | ||||
| Section 7.03. |
Application of Trust Money | 52 | ||||
| Section 7.04. |
Repayment to Company | 52 | ||||
| Section 7.05. |
Indemnity for U.S. Government Obligations | 53 | ||||
| Section 7.06. |
Reinstatement | 53 | ||||
| Section 7.07. |
Satisfaction and Discharge | 53 | ||||
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TABLE OF CONTENTS
(continued)
| Page | ||||||
| ARTICLE VIII AMENDMENTS |
54 | |||||
| Section 8.01. |
Without Consent of Holders | 54 | ||||
| Section 8.02. |
With Consent of Holders | 55 | ||||
| Section 8.03. |
Revocation and Effect of Consents and Waivers | 56 | ||||
| Section 8.04. |
Notation on or Exchange of Notes | 57 | ||||
| Section 8.05. |
Trustee to Sign Amendments | 57 | ||||
| Section 8.06. |
Payment for Consent | 57 | ||||
| ARTICLE IX MISCELLANEOUS |
57 | |||||
| Section 9.01. |
Notices | 57 | ||||
| Section 9.02. |
Communication by Holders with Other Holders | 59 | ||||
| Section 9.03. |
Certificate and Opinion as to Conditions Precedent | 59 | ||||
| Section 9.04. |
Statements Required in Certificate or Opinion | 59 | ||||
| Section 9.05. |
Rules by Trustee, Paying Agent, Transfer Agent and Registrar | 60 | ||||
| Section 9.06. |
Legal Holidays | 60 | ||||
| Section 9.07. |
Governing Law, etc. | 60 | ||||
| Section 9.08. |
No Recourse Against Others | 61 | ||||
| Section 9.09. |
Successors | 61 | ||||
| Section 9.10. |
Duplicate and Counterpart | 62 | ||||
| Section 9.11. |
Severability | 62 | ||||
| Section 9.12. |
Table of Contents; Headings | 62 | ||||
| Section 9.13. |
Currency Indemnity | 62 | ||||
| Section 9.14. |
U.S.A. Patriot Act | 63 | ||||
| Section 9.15. |
FATCA | 63 | ||||
| EXHIBIT A | FORM OF NOTE | |
| EXHIBIT B | FORM OF CERTIFICATE FOR TRANSFER PURSUANT TO REGULATION S | |
| EXHIBIT C | FORM OF CERTIFICATE FOR TRANSFER PURSUANT TO RULE 144 | |
| EXHIBIT D | FORM OF CERTIFICATE FOR TRANSFER PURSUANT TO RULE 144A |
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INDENTURE, dated as of March 14, 2023, between CEMEX, S.A.B. de C.V., a publicly traded variable stock corporation (sociedad anónima bursátil de capital variable) (the “Company”), organized under the laws of the United Mexican States (“Mexico”) and The Bank of New York Mellon, as trustee (the “Trustee”).
Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Company’s Subordinated Notes issued hereunder (the “Notes”):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
“5.125% Subordinated Notes” means the $1,000,000,000 aggregate principal amount of 5.125% Subordinated Notes of the Company issued pursuant to the indenture, dated as of June 8, 2021, among the Company and The Bank of New York Mellon, as trustee.
“Accounting Event” means that a recognized accounting firm, acting upon the Company’s instructions, has delivered a letter, opinion or report to the Company, stating that, as a result of a change after the Issue Date (a “Change”) in the accounting rules, methodology (or the application thereof) or official interpretations of the IASB or similar governing body effective in Mexico, the Notes, in whole or in part, may not or may no longer, from the implementation of the relevant new IFRS or any other accounting standards that may replace IFRS for the purposes of the Company’s consolidated financial statements, be recorded as “equity” pursuant to IFRS as in effect in Mexico or any other accounting standards that may replace IFRS for the purposes of the Company’s consolidated financial statements; provided that, the Company may give a notice of redemption of the Notes as a result of the occurrence of an Accounting Event at any time from and including the earlier of (x) the date such Change is officially announced or (y) the date such Change is officially adopted, which may be before such Change has come into effect.
“Additional Amounts” has the meaning assigned to it in Section 4.04(b).
“Additional Note Board Resolutions” means resolutions duly adopted by the Board of Directors of the Company and delivered to the Trustee in an Officer’s Certificate providing for the issuance of Additional Notes.
“Additional Note Certificate” has the meaning assigned to it in Section 2.13(b).
“Additional Notes” means the Company’s Subordinated Notes originally issued after the Issue Date pursuant to Section 2.13, including any replacement Notes as specified in the relevant Additional Note Board Resolutions or Additional Note Supplemental Indenture issued therefor in accordance with this Indenture.
“Additional Note Supplemental Indenture” means a supplement to this Indenture duly executed and delivered by the Company and the Trustee pursuant to Article VIII providing for the issuance of Additional Notes.
“Affiliate” means, with respect to any specified Person, any other Person who directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.
“Agents” means any Paying Agent, Transfer Agent, Authenticating Agent, Registrar, co-Registrar or other agent appointed pursuant to this Indenture.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in a Global Note, the rules and procedures of DTC, Euroclear and Clearstream, as the case may be, that apply to such transfer or exchange, including the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” of Euroclear and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream.
“Arrears of Interest” has the meaning assigned to it in Section 2.16(b).
“Authentication Order” has the meaning assigned to it in Section 2.02(c).
“Authenticating Agent” has the meaning assigned to it in Section 2.02(b).
“Authorized Agent” has the meaning assigned to it in Section 9.07(c).
“Authorized Officers” has the meaning assigned to it in Section 9.01(d).
A “Bankruptcy Event” shall have occurred if a decree or order by a court having jurisdiction shall have been entered (i) declaring the Company to be bankrupt or in concurso mercantil or adjudging the Company as in quiebra or insolvent; (ii) approving as properly filed a petition seeking the Company’s reorganization, concurso mercantil or quiebra under any Bankruptcy Law, or (iii) for the appointment of a receiver or liquidator or conciliador or similar official or for the Company’s liquidation or dissolution under any Bankruptcy Law, and with respect to each of the preceding clauses, such decree or order shall have continued undischarged and unstayed for a period of one hundred and twenty (120) days.
“Bankruptcy Law” means Title 11 of the U.S. Code, the Mexican Ley de Concursos Mercantiles or any similar federal, state or non-U.S. law for the relief of debtors.
“Board of Directors” means, as to any Person, the board of directors, management committee or similar governing body of such Person or any duly authorized committee thereof.
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“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors of the Company and to be in full force and effect on the date of such certification.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City or Mexico City are authorized or required by law, regulation or other governmental action to remain closed.
“Capital Stock” means (i) each class of the Company’s Common Stock and Preferred Stock, and (ii) any warrants, rights or options to purchase any of the Company’s Common Stock and Preferred Stock, but excluding any Convertible Indebtedness.
“Certificated Note” means any Note issued in fully-registered certificated form (other than a Global Note), which shall be substantially in the form of Exhibit A, with appropriate legends as specified in Section 2.07 and Exhibit A.
“Change of Control” means the beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Commission) of twenty percent (20%) or more in voting power of the outstanding Voting Stock of the Company is acquired by any Person. Notwithstanding the foregoing, a transaction will not be deemed to constitute a Change of Control if (1) the Company becomes a direct or indirect Wholly-Owned Subsidiary of a holding company and (2)(A) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Company’s Voting Stock immediately prior to that transaction or (B) immediately following that transaction no Person (other than a holding company satisfying the requirements of this sentence) has beneficial ownership of twenty percent (20%) or more in voting power of the Voting Stock of such holding company.
“Change of Control Event” means the occurrence of both a Change of Control and a Rating Downgrade Event.
“Clearstream” means Clearstream Banking, société anonyme, or the successor to its securities clearance and settlement operations.
“Code” has the meaning assigned to it in Section 4.04(b).
“Commission” means the U.S. Securities and Exchange Commission.
“Common Stock” means any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of the Company’s common equity interests, whether outstanding on the Issue Date or issued after the Issue Date, and includes, without limitation, all series and classes of such common equity interests. For the avoidance of doubt, “Common Stock” will be deemed to include the Company’s ordinary participation certificates (certificados de participación ordinaria) and American depositary shares.
“Company” means the party named as such in this Indenture until a successor replaces it pursuant to the applicable provisions hereof and, thereafter, means the successor thereof.
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A “Compulsory Arrears of Interest Settlement Event” shall have occurred if:
| (1) | a cash dividend, other cash distribution or payment in cash of any nature is validly declared, paid or made in respect of any Capital Stock or Parity Security (other than the Notes); or |
| (2) | the Company, or any of its Subsidiaries, have repurchased (including repurchases in the open market), redeemed or otherwise acquired any Capital Stock or Parity Security (other than the Notes); |
except, in each case, (x) where the Company, or any of its Subsidiaries is, obligated under the terms of such securities to make such declaration, distribution, payment, redemption, repurchase or acquisition, (y) upon any purchase of Capital Stock undertaken in connection with any existing or future buy-back program, share option, employee stock option plan or other employee participation plan or free share allocation program reserved for directors, officers and/or employees of the Company, its Subsidiaries, its Affiliates and its and their respective investees or any associated hedging transaction or the hedging of any Convertible Indebtedness, or (z) in respect of the redemption, repurchase or acquisition of Parity Securities (other than the Notes), where such redemption, repurchase or acquisition is effected as a cash tender offer or exchange offer at a purchase price per security which is below its par value.
“Convertible Indebtedness” means any financial obligations the terms of which provide for conversion into, or exchange for, the Company’s Common Stock, cash in lieu thereof and/or a combination of the Company’s Common Stock and cash in lieu thereof.
“Corporate Trust Office” means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 240 Greenwich Street, Floor 7 East, New York, New York 10286, Attention: International Corporate Trust, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company.
“Defaulted Interest” has the meaning assigned to it in paragraph 1 of the Form of Reverse Side of Note contained in Exhibit A.
“Deferred Interest” means interest payments payable upon the Notes deferred at the option of the Company pursuant to the provisions set forth in Section 2.16.
“Distribution Compliance Period” means, in respect of any Regulation S Global Note, the 40 consecutive days beginning on and including the later of (a) the day on which any Notes represented thereby are offered to persons other than “distributors” (as defined in Regulation S under the Securities Act) pursuant to Regulation S and (b) the issue date for such Notes.
“DTC” means The Depository Trust Company, its nominees and their respective successors and assigns, or such other depositary institution hereinafter appointed by the Company that is a clearing agency registered under the Exchange Act.
“DTC Participants” has the meaning assigned to it in Section 2.06(b).
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“Euroclear” means Euroclear Bank SA/NV, as operator of the Euroclear System, or its successor in such capacity.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute or statutes thereto.
“FATCA” has the meaning assigned to it in Section 4.04(b).
“Federal Reserve” means the Board of Governors of the United States Federal Reserve System.
“First Call Date” means March 14, 2028, the date that is three months prior to First Reset Date.
“First Reset Date” means June 14, 2028.
“First Step-up Date” means June 14, 2028.
“First Step-up Margin” means 0.25% per annum.
“Fitch” means Fitch Ratings, Ltd. or any successor to the rating agency business thereof.
“Global Note” means any Note issued in fully-registered certificated form to DTC (or its nominee), as depositary for the beneficial owners thereof, which shall be substantially in the form of Exhibit A, with appropriate legends as specified in Section 2.07 and Exhibit A.
“Holder” means the Person in whose name a Note is registered in the Note Register, and not those who own beneficial interests in Notes issued in book-entry form through DTC or in Notes registered in street name.
“H.15” means the daily statistical release designated as such, or any successor publication, published by the Federal Reserve and “most recent H.15” means the H.15 published closest in time but prior to the close of business on the applicable Reset Interest Determination Date. H.15 may be currently obtained at the following website: https://www.federalreserve.gov/releases/h15.
“IFRS” means the standards and interpretations issued by the IASB which includes the (i) International Financial Reporting Standards, (ii) International Accounting Standards, (iii) the interpretations of the International Financial Reporting Interpretations Committee, and (iv) the interpretations of the former Committee of Interpretation.
“IASB” means the International Accounting Standards Board.
“Indenture” means this Indenture as amended or supplemented from time to time.
“Initial Margin” means 4.907% per annum.
“Instructions” has the meaning assigned to it in Section 9.01(d).
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“Interest Payment Date” means the stated due date of an installment of interest on the Notes as specified in the Form of Face of Note contained in Exhibit A.
“Investment Grade Rating” means a rating equal to or higher than BBB- (or the equivalent) by S&P.
“Issue Date” means March 14, 2023.
“Issue Date Notes” means the $1,000,000,000 aggregate principal amount of Notes originally issued on the Issue Date, and any replacement Notes issued therefor in accordance with this Indenture.
A “Liquidation Event” shall have occurred if the Company is liquidated for any reason other than pursuant to a consolidation, amalgamation or merger or other reorganization.
“Make-Whole Amount” has the meaning assigned to it in Section 3.01(a).
“Mandatory Payment Date” means the earlier of:
| (a) | as soon as reasonably practical, but in no event later than the tenth Business Day following the occurrence of a Compulsory Arrears of Interest Settlement Event; |
| (b) | the date on which the Notes are redeemed in whole or repaid in full in accordance with the terms of this Indenture; |
| (c) | an Interest Payment Date in respect of which the Company has not elected to defer payment of the relevant scheduled interest payment with respect to the Notes; or |
| (d) | the date on which a Liquidation Event occurs. |
“Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.
“Notes” has the meaning assigned to it in the second introductory paragraph of this Indenture.
“Note Custodian” means the custodian with respect to any Global Note appointed by DTC, or any successor Person thereto, and shall initially be the Trustee.
“Note Register” has the meaning assigned to it in Section 2.03(a).
“Officer” means, when used in connection with any action to be taken by the Company, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, the Controller, the Secretary or an attorney-in-fact of the Company, as the case may be.
“Officer’s Certificate” means a certificate signed on behalf of a Person by an Officer of such Person, who must be the principal executive officer, the principal financial officer, the treasurer, the Vice President – Corporate Finance, the principal accounting officer or an attorney-in-fact of such Person, that meets the requirements set forth in this Indenture.
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“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel for the Company, and who shall be reasonably acceptable to the Trustee.
“Optional Redemption” has the meaning assigned to it in Section 3.01(b).
“Outstanding” means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(b) Notes, or portions thereof, for the payment, redemption or purchase of which money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company or an Affiliate of the Company) in trust or set aside and segregated in trust by the Company or an Affiliate of the Company (if the Company or such Affiliate of the Company is acting as Paying Agent) for the Holders of such Notes; provided that, if Notes (or portions thereof) are to be redeemed or purchased, notice of such redemption or purchase has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and
(c) Notes which have been replaced or surrendered pursuant to Section 2.08 or in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Notes are held by a protected purchaser in whose hands such Notes are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite aggregate principal amount of the Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Company or any other obligor upon the Notes or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding and shall not be eligible to vote, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which a Trust Officer of the Trustee actually knows to be so owned shall be so disregarded. Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not the Company or any other obligor upon such Notes or any Affiliate of the Company or of such other obligor.
“Parity Securities” means, at any time, the Notes, the 5.125% Subordinated Notes and any other securities which rank pari passu with the Notes. The term Parity Securities shall apply mutatis mutandis to any instruments issued by any of the Company’s Subsidiaries, where relevant, provided that each such instrument shall qualify as Parity Securities only to the extent such instrument is guaranteed by the Company or the Company otherwise assumes liability for it, and the obligations of the Company under the relevant guarantee or other assumption of liability rank pari passu with the Company’s obligations under Parity Securities.
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“Paying Agent” has the meaning assigned to it in Section 2.03(a).
“Person” means an individual, partnership, limited partnership, corporation, company, limited liability company, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof.
“Preferred Stock” means any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of corporate stock that have preferential rights over any other Capital Stock with respect to dividends, distributions or mandatory redemptions or upon liquidation.
“Private Placement Legend” has the meaning assigned to it in Section 2.07(b).
“QIB” means any “qualified institutional buyer” (as defined in Rule 144A).
“Qualifying Equivalent Securities” means securities that have terms not materially less favorable to Holders, as reasonably determined by the Company in consultation with an independent investment bank, independent financial advisor or legal counsel of international standing on the subject, and which:
(a) contain terms providing for the same interest rate and interest payment dates applying to the Notes;
(b) rank senior to or have the same ranking as the Notes;
(c) contain new terms providing for deferral of payments of interest only if such terms are not materially less favorable to Holders than the deferral provisions contained in the Notes;
(d) preserve all obligations (including the obligations arising from the exercise of any right) as to principal and as to repayment of the Notes, including (without limitation) as to timing of, and amounts payable upon, such repayment;
(e) do not contain terms providing for loss absorption through principal write-down or conversion to ordinary shares;
(f) preserve any rights to any accrued and unpaid interest, and any existing rights to other amounts payable under the Notes, which have accrued to Holders and not been paid; and
(g) may include a feature which contains a term for the mandatory repayment of such equivalent securities on a specified date which shall not be earlier than the next following date on which the Notes may otherwise be redeemed (and the inclusion of such feature shall be deemed not to be materially less favorable to Holders as compared with the terms of the Notes).
“Rating Agencies” means S&P and Fitch.
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“Rating Downgrade Event” means that the rating of the Notes by both Rating Agencies, or if the Notes are rated by a single Rating Agency, the rating of the Notes by such Rating Agency, is decreased by one or more gradations (including gradations within rating categories as well as between rating categories) at any time within ninety (90) days after the earlier of the date of public notice of the occurrence of a Change of Control or of the Company’s intention to effect a Change of Control (which period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies); provided that a Rating Downgrade Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Rating Downgrade Event for purposes of the definition of Change of Control Event hereunder) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the trustee in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Rating Downgrade Event); provided further that a Rating Downgrade Event shall be deemed to have occurred to the extent that the Notes are not rated by any Rating Agency.
“Rating Methodology Event” means that the Company certifies in a notice to the Trustee that, due to an amendment, clarification or change in the assessment criteria of any Rating Agency under its hybrid capital methodology or in the interpretation thereof, in each case occurring or becoming effective after the Issue Date (or, if “equity credit” is not assigned to the Notes by the relevant Rating Agency on the Issue Date, the date on which “equity credit” is assigned by such Rating Agency for the first time):
| (i) | all or any of the Notes are being assigned a level of “equity credit” that is lower than the level or equivalent level of “equity credit” assigned to the Notes by such Rating Agency on the Issue Date or, if “equity credit” is not assigned to the Notes by the relevant Rating Agency on the Issue Date, at the date on which “equity credit” is assigned by such Rating Agency for the first time; |
| (ii) | if the Notes have been partially re-financed since the Issue Date and are no longer eligible for “equity credit” in part or in full as a result, paragraph (i) above would have applied had the Notes not been re-financed; or |
| (iii) | the length of time the Notes are assigned a particular level of “equity credit” by that Rating Agency would be shortened compared to the length of time they would have been assigned that level of “equity credit” by that Rating Agency on the initial issuance of the Notes. |
“Record Date” has the meaning assigned to it in the Form of Face of Note contained in Exhibit A.
“Redemption Price” means:
| (i) | in the case of a Rating Methodology Event, a Tax Deductibility Event or an Accounting Event, either: |
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| (1) | a redemption price equal to 101% of the principal amount of the Notes to be redeemed, if the date fixed for redemption falls prior to the First Call Date; |
| (2) | a redemption price equal to 100% of the principal amount of the Notes to be redeemed, if the date fixed for redemption falls on or after the First Call Date; |
| (ii) | in the case of a Withholding Tax Event, a Substantial Repurchase Event or a Change of Control Event, a redemption price equal to 100% of the principal amount of the Notes to be redeemed; |
in each case, plus accrued and unpaid interest (including any Deferred Interest and Arrears of Interest) and any Additional Amounts due up to (but not including) the Redemption Date of the Notes, and Additional Amounts, if any, with respect to such payment.
“Redemption Date” means, with respect to any redemption of Notes, the date fixed for such redemption pursuant to this Indenture and such Notes.
“Reference Rate” means, for any Reset Interest Determination Date, as applicable, (a) an interest rate (expressed as a decimal) determined to be the per annum rate equal to the weekly average yield to maturity for U.S. Treasury securities with a maturity of five years from the next Reset Date and trading in the public securities markets or (b) if there is no such published U.S. Treasury security with a maturity of five years from the next Reset Date and trading in the public securities markets, then the rate will be determined by interpolation between the most recent weekly average yield to maturity for two series of U.S. Treasury securities trading in the public securities market, (i) one maturing as close as possible to, but earlier than, the Reset Date following the next succeeding Reset Interest Determination Date, and (ii) the other maturity as close as possible to, but later than the Reset Date following the next succeeding Reset Interest Determination Date, in each case as published in the most recent statistical release designated H.15 or any successor publication which is published by the Federal Reserve as of 5:00 p.m. (Eastern Time) on the applicable Reset Interest Determination Date. If the Reference Rate cannot be determined pursuant to the methods described in clauses (a) or (b) above, then the Reference Rate will be the same interest rate determined for the prior Reset Interest Determination Date or, in the case of the Reset Period commencing on the First Reset Date, the rate equal to 4.218% per annum.
“Registrar” has the meaning assigned to it in Section 2.03(a).
“Regulation S” means Regulation S under the Securities Act (or any successor rule), as amended.
“Regulation S Global Note” has the meaning assigned to it in Section 2.01(e).
“Resale Restriction Termination Date” means, for any Restricted Note (or beneficial interest therein), one year from the Issue Date or, if any Additional Notes that are Restricted Notes have been issued before the Resale Registration Termination Date for any Restricted Notes, from the latest such original issue date of such Additional Notes.
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“Reset Date” means the First Reset Date and each date falling on the five-year anniversary of a Reset Date.
“Reset Interest Determination Date” means, in respect of any Reset Period, the day falling two Business Days prior to the beginning of the relevant Reset Period.
“Reset Period” means the period from (and including) the First Reset Date to (but excluding) the next succeeding Reset Date and subsequently each period from (and including) a Reset Date to (but excluding) the next succeeding Reset Date.
“Restricted Note” means any Issue Date Note (or beneficial interest therein) or any Additional Note (or beneficial interest therein) not originally issued and sold pursuant to an effective registration statement under the Securities Act, until such time as:
(a) the Resale Restriction Termination Date therefor has passed;
(b) such Note is a Regulation S Global Note and the Distribution Compliance Period therefor has terminated; or
(c) the Private Placement Legend therefor has otherwise been removed pursuant to Section 2.08(d) or, in the case of a beneficial interest in a Global Note, such beneficial interest has been exchanged for an interest in a Global Note not bearing a Private Placement Legend.
“Rule 144” means Rule 144 under the Securities Act (or any successor rule), as amended.
“Rule 144A” means Rule 144A under the Securities Act (or any successor rule), as amended.
“Rule 144A Global Note” has the meaning assigned to it in Section 2.01(d).
“S&P” means S&P Global Ratings, a division of S&P Global Inc., or any successor to its rating agency business thereof.
“Second Step-up Date” means (i) if by (and effective on) the thirtieth (30th) calendar day preceding the First Step-up Date the Company is assigned an Investment Grade Rating by S&P, June 14, 2048; and, if not, (ii) June 14, 2043.
“Second Step-up Margin” means 0.75% per annum.
“Securities Act” means the U.S. Securities Act of 1933, as amended, or any successor statute or statutes thereto.
“Senior Indebtedness” means all of the Company’s financial obligations other than financial obligations in respect of Capital Stock and Parity Securities.
“Special Record Date” has the meaning assigned to it in Section 2.12(a).
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“Subsidiary” means with respect to any Person, any corporation, partnership, joint venture, limited liability company, trust, estate or other entity of which (or in which) more than fifty percent (50%) of (a) in the case of a corporation, the issued and outstanding Capital Stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time Capital Stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency that has not occurred and is not in the control of such Person), (b) in the case of a limited liability company, partnership or joint venture, the voting or other power to control the actions of such limited liability company, partnership or joint venture or (c) in the case of a trust or estate, the voting or other power to control the actions of such trust or estate, is at the time directly or indirectly owned or controlled by (x) such Person, (y) such Person and one or more of its other Subsidiaries or (z) one or more of such Person’s other Subsidiaries. Unless the context otherwise requires, all references herein to “Subsidiaries” shall refer to the Company’s Subsidiaries.
A “Substantial Repurchase Event” shall have been deemed to have occurred if, prior to the giving of the relevant notice of redemption, at least 75% of the initial aggregate principal amount of the Notes has been purchased by the Company or on behalf of the Company.
“Substitution or Variation Event” has the meaning assigned to it in Section 3.11(a).
“Tax Law Change” means any amendment to, or change in, the laws (or any rules or regulations thereunder) of Mexico or any political subdivision thereof affecting taxation, or any amendment to or change in an official interpretation or application of such laws, rules or regulations, which amendment to or change of such laws, rules or regulations becomes effective on or after the Issue Date.
A “Tax Deductibility Event” shall be deemed to have occurred with respect to the Notes if, as a result of a Tax Law Change (even if such change is not yet effective), payments of interest by the Company in respect of the Notes are no longer, or within ninety (90) calendar days of the date of any opinion provided pursuant to Section 3.06 of this Indenture will no longer be, deductible in whole or in part for corporate income tax purposes in Mexico or any political subdivision or taxing authority thereof or therein affecting taxation, and the Company cannot avoid the foregoing by taking reasonable measures available to the Company.
“Taxes” has the meaning assigned to it in Section 4.04(a).
“Taxing Jurisdiction” has the meaning assigned to it in Section 4.04(a).
“TIA” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date of this Indenture; provided, however, that, in the event the TIA is amended after such date, “TIA” means, to the extent required by any such amendments, the Trust Indenture Act of 1939 as so amended.
“Transfer Agent” has the meaning assigned to it in Section 2.03(a).
“Treasury Rate” means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following two paragraphs.
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The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third U.S. Business Day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent H.15 under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the First Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the First Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
If on the third U.S. Business Day preceding the Redemption Date H.15 or any successor designation or publication is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second U.S. Business Day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the First Call Date, as applicable. If there is no United States Treasury security maturing on the First Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the First Call Date, one with a maturity date preceding the First Call Date and one with a maturity date following the First Call Date, the Company shall select the United States Treasury security with a maturity date preceding the First Call Date. If there are two or more United States Treasury securities maturing on the First Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
“Trustee” means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor thereof.
“Trust Officer” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, having direct responsibility for the administration of this Indenture, or any other officer of the Trustee to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject.
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“Uniform Commercial Code” means the New York Uniform Commercial Code as in effect from time to time.
“USA PATRIOT Act” has the meaning assigned to it in Section 9.14.
“U.S. Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law, regulation or other governmental action to remain closed.
“U.S. Government Obligations” means direct obligations (or certificates representing an ownership interest in such obligations) of, or guaranteed by, the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the Company’s option.
“U.S. Legal Tender” means such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts.
“Voting Stock” with respect to any Person, means any and all shares, interests, participations or other equivalents (however designated) of corporate stock of such Person entitling the holders thereof (whether at all times or only so long as no senior class of stock has voting power by reason of any contingency) to vote in the election of members of the Board of Directors (or equivalent governing body) of such Person.
A “Withholding Tax Event” shall be deemed to have occurred with respect to the Notes if, as a result of any amendment to, or change in, the laws (or any rules or regulations thereunder) of a Taxing Jurisdiction (or any political subdivision thereof) affecting taxation, or any amendment to or change in an official interpretation or application of such laws, rules or regulations that has a general effect, which amendment to or change of such laws, rules or regulations becomes effective on or after the later of (x) the Issue Date and, in the case of a merger, consolidation or other transaction permitted and described under Section 4.02, the date of such transaction, we would be obligated, after taking all reasonable measures to avoid this requirement, to pay Additional Amounts in excess of those attributable to a Mexican withholding tax rate of 4.9% with respect to such Notes.
“Wholly-Owned Subsidiary” means, for any Person, any Subsidiary of which at least 99.5% of the outstanding Capital Stock (other than, in the case of a Subsidiary not organized in the United States, directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable law) is owned by such Person or any other Person that satisfies this definition in respect of such Person.
Section 1.02. Rules of Construction. Unless the context otherwise requires:
| (1) | a term has the meaning assigned to it; |
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| (2) | an accounting term not otherwise defined has the meaning assigned to it in accordance with IFRS; |
| (3) | “or” is not exclusive; |
| (4) | “including” means including without limitation; |
| (5) | words in the singular include the plural and words in the plural include the singular; |
| (6) | references to the payment of principal on the Notes shall include applicable premium, if any; and |
| (7) | the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of the Company dated such date prepared in accordance with IFRS. |
ARTICLE II
THE NOTES
Section 2.01. Form and Dating.
(a) The Issue Date Notes are being originally offered and sold by the Company pursuant to a Purchase Agreement, dated as of March 9, 2023, among the Company, and BBVA Securities Inc., BNP Paribas Securities Corp., BofA Securities, Inc., Intesa Sanpaolo S.p.A., London Branch, and J.P. Morgan Securities LLC, as initial purchasers. The Notes will be issued in fully-registered certificated form without interest coupons, and only in minimum denominations of $200,000 and integral multiples of $1,000 in excess thereof. Each such Global Note shall constitute a single Note for all purposes under this Indenture. Certificated Notes, if issued pursuant to the terms hereof, will be issued in fully registered certificated form without coupons. The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A.
(b) The terms and provisions of the Notes, the form of which is in Exhibit A, shall constitute, and are hereby expressly made, a part of this Indenture, and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture expressly agree to such terms and provisions and to be bound thereby. Except as otherwise expressly permitted in this Indenture, all Notes (including any Additional Notes) shall be identical in all respects. Notwithstanding any differences among them, all Notes issued under this Indenture shall vote and consent together on all matters as one class and are otherwise treated as a single issue of securities, except as otherwise provided in this Indenture.
(c) The Notes may have notations, legends or endorsements reasonably acceptable to the Company as specified in Section 2.07 or as otherwise required by law, stock exchange rule or DTC, Euroclear or Clearstream rule or usage. The Company shall approve any changes to the form of the Notes attached to this Indenture and any additional notation, legend or endorsement required to be inserted on them. Each Note shall be dated the date of its authentication.
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(d) Notes originally offered and sold to QIBs in reliance on Rule 144A will be issued in the form of one or more permanent Global Notes (each, a “Rule 144A Global Note”).
(e) Each Rule 144A Global Note shall be deposited on behalf of the purchasers of the Notes represented thereby with the Note Custodian and registered in the name of DTC or its nominee, for credit to the accounts maintained at DTC. In no event shall any Person hold an interest in a Rule 144A Global Note other than in or through accounts maintained at DTC.
(f) Notes originally offered and sold to persons outside the United States in reliance on Regulation S will be issued in the form of one or more permanent Global Notes (each, a “Regulation S Global Note”).
(g) Each Regulation S Global Note shall be deposited on behalf of the purchasers of the Notes represented thereby with the Note Custodian and registered in the name of DTC or its nominee, for credit to the accounts maintained at DTC by or on behalf of Euroclear or Clearstream. In no event shall any Person hold an interest in a Regulation S Global Note other than in or through accounts maintained at DTC by or on behalf of Euroclear or Clearstream.
Section 2.02. Execution and Authentication.
(a) Any Officer of the Company may sign the Notes for the Company by manual, facsimile or electronic signature. If an Officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.
(b) A Note shall not be valid until electronically or manually authenticated by an authorized signatory of the Trustee or an agent appointed by the Trustee (and reasonably acceptable to the Company) for such purpose (an “Authenticating Agent”). The electronic or manual signature of an authorized signatory of the Trustee or an Authenticating Agent on a Note shall be conclusive evidence that such Note has been duly and validly authenticated and issued under this Indenture. Unless limited by the terms of its appointment, an Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by an Authenticating Agent.
(c) At any time and from time to time after the execution and delivery of this Indenture, the Trustee shall authenticate and make available for delivery Notes upon a written order of the Company signed by an Officer of the Company (the “Authentication Order”). An Authentication Order shall specify the amount of the Notes to be authenticated and the date on which the original issue of Notes is to be authenticated.
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(d) In case a Successor Issuer has executed an indenture supplemental hereto with the Trustee pursuant to Section 4.02, any of the Notes authenticated or delivered prior to such transaction may, from time to time, at the request of the Successor Issuer be exchanged for other Notes executed in the name of the Successor Issuer with such changes in phraseology and form as may be appropriate, but otherwise identical to the Notes surrendered for such exchange and of like principal amount; and the Trustee, upon Authentication Order of the Successor Issuer, shall authenticate and deliver Notes as specified in such order for the purpose of such exchange. If Notes shall at any time be authenticated and delivered in any new name of a Successor Issuer pursuant to this Section 2.02 in exchange or substitution for or upon registration of transfer of any Notes, such Successor Issuer, at the option of the Holders but without expense to them, shall provide for the exchange of all Notes at the time Outstanding for Notes authenticated and delivered in such new name.
Section 2.03. Registrar, Paying Agent and Transfer Agent.
(a) The Company shall maintain an office or agency in the Borough of Manhattan, City of New York, that shall keep a register of the Notes (the “Note Register”) and of their transfer and exchange (the “Registrar”), where Notes may be presented or surrendered for registration of transfer or for exchange (the “Transfer Agent”), where Notes may be presented for payments (the “Paying Agent”) and for the service of notices and demands to or upon the Company in respect of the Notes and this Indenture. The Company may have one or more co-Registrars and one or more additional paying agents. The term “Paying Agent” includes any additional paying agent.
(b) The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent, co-Registrar or Transfer Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of each such agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 6.07. The Company or any Affiliate of the Company may act as Transfer Agent, Paying Agent, Registrar, co-Registrar or Transfer Agent.
(c) The Company initially designates the Corporate Trust Office of the Trustee as such office or agency of the Company as required by Section 2.03(a) and appoints the Trustee as Registrar, Paying Agent, Transfer Agent and agent for service of demands and notices in connection with the Notes and this Indenture, until such time as another Person is appointed as such.
(d) The Company may change the Paying Agent, Transfer Agent and the Registrar without notice to Holders.
Section 2.04. Paying Agent to Hold Money in Trust(a) . The Company shall require each Paying Agent (other than the Trustee) to agree in writing that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal of or interest on the Notes and shall notify the Trustee in writing if the Company fails to make any such payment. If the Company or an Affiliate of the Company acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Company at any time may require a Paying Agent (other than the Trustee) to pay all money held by it to the Trustee and to account for any funds disbursed by such Paying Agent. Upon complying with this Section 2.04, the Paying Agent (if other than the Company or any
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Affiliate of the Company) shall have no further liability for the money delivered to the Trustee. Upon any proceeding under any Bankruptcy Law with respect to the Company or any Affiliate of the Company, if the Company or such Affiliate is then acting as Paying Agent, the Trustee shall replace the Company or such Affiliate as Paying Agent. With respect to Certificated Notes, such Notes shall be surrendered to the Paying Agent by the Holders thereof in order for such Holders to receive principal payment thereon.
Section 2.05. Holder Lists(a) . The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. At any time that the Trustee is not the Registrar, the Company shall furnish to the Trustee, in writing at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holder.
Section 2.06. Global Note Provisions.
(a) Each Global Note initially shall: (i) be registered in the name of DTC or the nominee of DTC, (ii) be delivered to the Note Custodian, and (iii) bear the appropriate legend, as set forth in Section 2.07 and Exhibit A. Any Global Note may be represented by more than one certificate. The aggregate principal amount of each Global Note may from time to time be increased or decreased by adjustments made on the Schedule of Increases and Decreases in Global Note attached to such Global Note (the form of which is attached hereto) and on the records of the Note Custodian, as provided in this Indenture.
(b) Ownership of beneficial interests in each Global Note will be limited to members of, or participants in, DTC (“DTC Participants”) or persons who hold interests through DTC participants (including Euroclear and Clearstream). Under procedures established by DTC:
| (1) | upon deposit of each Global Note with DTC’s custodian, DTC will credit portions of the principal amount of the Global Note to the accounts of the DTC Participants designated by the Holders; and |
| (2) | ownership of beneficial interests in each Global Note will be shown on, and transfer of ownership of those interests will be effected only through, records maintained by DTC (with respect to interests of DTC Participants) and the records of DTC Participants (with respect to other owners of beneficial interests in the Global Note). |
(c) Except as provided in clause (iii) of Section 2.07(d), DTC Participants shall have no rights under this Indenture with respect to any Global Note held on their behalf by DTC or by the Note Custodian under such Global Note, and DTC may be treated by the Company, the Trustee, and the Paying Agent, the Transfer Agent, the Note Custodian, the Registrar and any of their respective agents as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall (i) prevent the Company, the Trustee, the Paying Agent, the Transfer Agent, the Note Custodian, the Registrar and any of their respective agents from giving effect to any written certification, proxy or other
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authorization furnished by DTC or (ii) impair, as between DTC and its DTC Participants, the operation of customary practices of DTC governing the exercise of the rights of an owner of a beneficial interest in any Global Note. The registered Holder of a Global Note may grant proxies and otherwise authorize any Person, including DTC Participants and Persons that may hold interests through DTC Participants, to take any action that a Holder is entitled to take under this Indenture or the Notes.
(d) Except as provided below, owners of beneficial interests in Global Notes will not be entitled to receive Certificated Notes in exchange for such beneficial interests.
| (1) | Certificated Notes shall be issued to all owners of beneficial interests in a Global Note in exchange for such interests if (A) DTC notifies the Company that it is unwilling or unable to continue as depositary for such Global Note or (B) DTC ceases to be registered as a clearing agency under the Exchange Act, at a time when DTC is required to be so registered in order to act as depositary, and in each case a successor depositary is not appointed by the Company within 90 days of such notice. In connection with the exchange of an entire Global Note for Certificated Notes pursuant to this clause (1) of this Section 2.7(d), such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and upon an Authentication Order the Trustee shall authenticate and deliver, to each beneficial owner identified by DTC in exchange for its beneficial interest in such Global Note, an equal aggregate principal amount of Certificated Notes of authorized denominations, and the Registrar shall register such exchanges in the Note Register. |
| (2) | If an event described in clause (1) of Section 2.07(d) occurs and Certificated Notes are not issued promptly to all beneficial owners, the Company expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to Section 5.03 hereof, the right of any beneficial owner of Notes to pursue such remedy with respect to the portion of the Global Note that represents such beneficial owner’s Notes as if such Certificated Notes had been issued. |
(e) In connection with any proposed transfer outside of a book-entry system, there shall be provided to the Trustee all information necessary to allow the Trustee to comply with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Section 6045 of the Code. The Trustee may conclusively rely on the information provided to it and shall have no responsibility to verify or ensure the accuracy of such information.
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Section 2.07. Legends.
(a) Each Global Note shall bear the legend specified therefor in Exhibit A on the face thereof.
(b) Each Restricted Note shall bear the private placement legend specified therefor in Exhibit A on the face thereof (the “Private Placement Legend”).
Section 2.08. Transfer and Exchange.
(a) Transfers of Beneficial Interests in a Rule 144A Global Note. If the owner of a beneficial interest in a Rule 144A Global Note that is a Restricted Note wishes to transfer such interest (or portion thereof) pursuant to Rule 144 (if available) or to a Non-U.S. Person pursuant to Regulation S:
| (1) | upon receipt by the Registrar of:: |
(A) instructions from a DTC Participant given to DTC in accordance with the Applicable Procedures directing DTC to credit or cause to be credited a beneficial interest in the Regulation S Global Note in a principal amount equal to the principal amount of the beneficial interest to be transferred;
(B) instructions given in accordance with the Applicable Procedures containing information regarding the account to be credited with such increase, and
(C) a certificate in the form of Exhibit B or Exhibit C hereto, as applicable, duly executed by the transferor;
| (2) | the Note Custodian shall increase the Regulation S Global Note and decrease the Rule 144A Global Note in accordance with the foregoing, and the Registrar shall register the transfer in the Note Register. |
(b) Transfers of Beneficial Interests in a Regulation S Global Note. Subject to the Applicable Procedures, the following provisions shall apply with respect to any proposed transfer of an interest in a Regulation S Global Note that is a Restricted Note. If the owner of a beneficial interest in a Regulation S Global Note that is a Restricted Note wishes to transfer such interest (or a portion thereof) to a QIB pursuant to Rule 144A:
| (1) | upon receipt by the Registrar of: |
(A) instructions from a DTC Participant given to DTC in accordance with the Applicable Procedures directing DTC to credit or cause to be credited a beneficial interest in the Rule 144A Global Note in a principal amount equal to the principal amount of the beneficial interest to be transferred,
(B) instructions given in accordance with the Applicable Procedures containing information regarding the account to be credited with such increase, and
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(C) a certificate in the form of Exhibit C hereto, duly executed by the transferor;
| (2) | the Note Custodian shall increase the Rule 144A Global Note and decrease the Regulation S Global Note in accordance with the foregoing, and the Registrar shall register the transfer in the Note Register. |
(c) Other Transfers. Any registration of transfer of Restricted Notes (including Certificated Notes) not described above (other than a transfer of a beneficial interest in a Global Note that does not involve an exchange of such interest for a Certificated Note or a beneficial interest in another Global Note, which must be effected in accordance with applicable law and the Applicable Procedures, but is not subject to any procedure required by this Indenture) shall be made only upon receipt by the Registrar of such Opinions of Counsel, certificates and such other evidence reasonably required by and satisfactory to the Company in order to ensure compliance with the Securities Act or in accordance with paragraph (d) of this Section 2.08.
(d) Use and Removal of Private Placement Legends. Upon the registration of transfer, exchange or replacement of Notes (or beneficial interests in a Global Note) not bearing (or not required to bear upon such transfer, exchange or replacement) a Private Placement Legend, the Note Custodian and Registrar shall exchange such Notes (or beneficial interests) for beneficial interests in a Global Note (or Certificated Notes if they have been issued pursuant to Section 2.06(d)) that does not bear a Private Placement Legend. Upon the registration of transfer, exchange or replacement of Notes (or beneficial interests in a Global Note) bearing a Private Placement Legend, the Note Custodian and Registrar shall deliver only Notes (or beneficial interests in a Global Note) that bear a Private Placement Legend unless:
| (1) | such Notes (or beneficial interests) are transferred pursuant to Rule 144 upon delivery to the Registrar of a certificate of the transferor in the form of Exhibit D and an Opinion of Counsel reasonably satisfactory to the Registrar; |
| (2) | such Notes (or beneficial interests) are transferred, replaced or exchanged after the Resale Restriction Termination Date therefor and, in the case of any such Restricted Notes, the Company has complied with the applicable procedures for delegending in accordance with Section 2.08(h); or |
| (3) | in connection with such registration of transfer, exchange or replacement the Registrar shall have received an Opinion of Counsel, certificates and such other evidence reasonably satisfactory to the Company and the Registrar to the effect that neither such Private Placement Legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act. |
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The Holder of a Global Note bearing a Private Placement Legend may exchange an interest therein for an equivalent interest in a Global Note not bearing a Private Placement Legend upon transfer of such interest pursuant to this Section 2.08(d).
(e) Consolidation of Global Notes. If a Global Note not bearing a Private Placement Legend is Outstanding at the time of a removal of legends pursuant to Section 2.08(h), any interests in a Global Note delegended pursuant to Section 2.08(h) shall be exchanged for interests in such Outstanding Global Note, subject to the proviso at the end of Section 2.13(a).
(f) Retention of Documents. The Registrar and the Trustee shall retain copies of all letters, notices and other written communications received pursuant to this Article II and in accordance with the Trustee’s, or if different, the Registrar’s, record retention procedures. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable notice to the Registrar or the Trustee, as the case may be.
(g) General Provisions Relating to Transfers and Exchanges.
| (1) | Subject to the other provisions of this Section 2.08, when Notes are presented to the Registrar or a co-Registrar with a request to register the transfer of such Notes or to exchange such Notes for an equal principal amount of Notes of other authorized denominations, the Registrar or co-Registrar shall register the transfer or make the exchange as requested if its requirements for such transaction are met; provided that any Notes presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Registrar or co-Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing. |
| (2) | To permit registrations of transfers and exchanges and subject to the other terms and conditions of this Article II, the Company will execute, and upon an Authentication Order, the Trustee will authenticate and make available for delivery, Certificated Notes and Global Notes at the Registrar’s or co-Registrar’s request. |
| (3) | No service charge shall be made to a Holder for any registration of transfer or exchange, but the Company and the Trustee may require payment of a sum sufficient to cover any transfer tax, assessments, or similar governmental charge payable in connection therewith. |
| (4) | The Registrar or co-Registrar shall not be required to register the transfer of or exchange of (x) any Note for a period beginning 15 days before an Interest Payment Date and ending on such Interest Payment Date and (y) any Note selected for repurchase or redemption, except the unrepurchased or unredeemed portion thereof, if any. |
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| (5) | Prior to the due presentation for registration of transfer of any Note, the Company, the Trustee, the Paying Agent, the Transfer Agent, the Registrar or any co-Registrar may deem and treat the Person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of the Company, the Trustee, the Paying Agent, the Transfer Agent, the Registrar or any co-Registrar or the Note Custodian shall be affected by notice to the contrary. |
| (6) | All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange. |
| (7) | Subject to Section 2.06 and this Section 2.08 in connection with the exchange of a portion of a Certificated Note for a beneficial interest in a Global Note, the Trustee shall cancel such Certificated Note, and the Company shall execute, and upon an Authentication Order, the Trustee shall authenticate and make available for delivery to the exchanging Holder, a new Certificated Note representing the principal amount not so exchanged. |
(h) Applicable Procedures for Delegending.
| (1) | Promptly after one year has elapsed following (A) the Issue Date or (B) if the Company has issued Additional Notes with the same terms and the same CUSIP number as the Issue Date Notes pursuant to this Indenture within one year following the Issue Date, the date of original issuances of such Additional Notes, if the relevant Notes are freely tradable pursuant to Rule 144 under the Securities Act by Holders who are not Affiliates of the Company where no conditions of Rule 144 are then applicable (other than the holding period requirement in paragraph (d)(1)(ii) of Rule 144 so long as such holding period requirement is satisfied), the Company may, at its sole option: |
(A) instruct the Trustee in writing to remove the Private Placement Legend from such Notes, and upon receipt of such instruction, the Private Placement Legend shall be deemed removed from any Global Notes representing such Notes without further action on the part of Holders;
(B) notify Holders of such Notes that the Private Placement Legend has been removed or deemed removed; and
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(C) instruct DTC to change the CUSIP number for such Notes to the unrestricted CUSIP number for the Notes.
| (2) | Any Restricted Note (or security issued in exchange or substitution therefor) as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of such Restricted Note for exchange to the Registrar in accordance with the provisions of Article II of this Indenture, be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not bear the Private Placement Legend. The Company shall notify the Trustee in writing upon occurrence of the Resale Restriction Termination Date for any Note. |
| (3) | In the case of a Regulation S Global Note, after the Resale Restriction Termination Date of any such Regulation S Global Note, the Company may, at its sole option: |
(A) instruct the Trustee in writing to remove the Private Placement Legend from such Regulation S Global Note (including setting forth the basis for such removal), and upon receipt of such instruction, the Private Placement Legend shall be deemed removed from such Regulation S Global Note without further action on the part of Holders; and
(B) instruct DTC to change the CUSIP number for such Notes to the unrestricted CUSIP number for the Notes.
| (4) | Notwithstanding any provision herein to the contrary, in the event that Rule 144 as promulgated under the Securities Act (or any successor rule) is amended to change the one-year holding period thereunder (or the corresponding period under any successor rule), (A) each reference in this Section 2.08(h) to “one year” and in the Private Placement Legend described in Section 2.08(b) and Exhibit A to “ONE YEAR” shall be deemed for all purposes hereof to be references to such changed period, and (B) all corresponding references in this Indenture (including the definition of Resale Restriction Termination Date), the Notes and the Private Placement Legends thereon shall be deemed for all purposes hereof to be references to such changed period; provided, that such changes shall not become effective if they are otherwise prohibited by, or would otherwise cause a violation of, the then-applicable federal securities laws; provided further that if such change does not apply to existing Notes, all references to “one year” in this Indenture shall not be deemed for all purposes hereof to be references to such changed period. This Section 2.08(h) shall apply to successive amendments to Rule 144 (or any successor rule) changing the holding period thereunder |
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(i) No Obligation of the Trustee or Agents.
| (1) | The Trustee shall have no responsibility or obligation to any beneficial owner of an interest in a Global Note, DTC Participants or any other Persons with respect to the accuracy of the records of DTC or its nominee or of DTC Participants, with respect to any ownership interest in the Notes or with respect to the delivery to any DTC Participant, beneficial owner or other Person (other than DTC) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be DTC or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through DTC, subject to the applicable rules and procedures of DTC. The Trustee may rely and shall be fully protected in relying upon information furnished by DTC with respect to its DTC Participants and any beneficial owners. |
| (2) | The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among DTC Participants or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. |
Section 2.09. Mutilated, Destroyed, Lost or Stolen Notes.
(a) If a mutilated Note is surrendered to the Registrar or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Company shall execute, and upon an Authentication Order, the Trustee shall authenticate and make available for delivery, a replacement Note for such mutilated, lost or stolen Note, of like tenor and principal amount, bearing a number not contemporaneously Outstanding if:
| (1) | the requirements of Section 8-405 of the Uniform Commercial Code are met, |
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| (2) | the Holder satisfies any other reasonable requirements of the Trustee, and |
| (3) | neither the Company nor the Trustee has received notice that such Note has been acquired by a protected purchaser (as defined in Section 8-303 of the Uniform Commercial Code). |
If required by the Trustee or the Company, such Holder shall furnish an affidavit of loss and indemnity bond sufficient in the judgment of the Company and the Trustee to protect the Company, the Trustee, the Paying Agent, the Transfer Agent, the Registrar or any co-Registrar and the Note Custodian from any loss that any of them may suffer if a Note is replaced.
(b) Upon the issuance of any new Note under this Section 2.09, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) in connection therewith.
(c) Every new Note issued pursuant to this Section 2.09 in exchange for any mutilated Note, or in lieu of any destroyed, lost or stolen Note, shall constitute an original additional contractual obligation of the Company and any other obligor upon the Notes, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
Section 2.10. Temporary Notes. Until definitive Notes are ready for delivery, the Company may execute, and upon an Authentication Order the Trustee will authenticate and make available for delivery, temporary Notes. Temporary Notes will be substantially in the form of definitive Notes but may have variations that the Company considers appropriate for temporary Notes. Without unreasonable delay, the Company will prepare and execute, and upon an Authentication Order the Trustee will authenticate and make available for delivery, definitive Notes. After the preparation of definitive Notes, the temporary Notes will be exchangeable for definitive Notes upon surrender of the temporary Notes at any office or agency maintained by the Company pursuant to Section 2.03 for that purpose and such exchange shall be without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Company will execute and upon an Authentication Order the Trustee will authenticate and make available for delivery in exchange therefor one or more definitive Notes representing an equal principal amount of Notes. Until so exchanged, the Holder of temporary Notes shall in all respects be entitled to the same benefits under this Indenture as a Holder of definitive Notes.
Section 2.11. Cancellation. The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar, the Paying Agent and the Transfer Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel and dispose of canceled Notes in accordance with its policy of disposal or upon written request of the Company, return to the Company of all Notes surrendered for registration of transfer, exchange, payment or cancellation. The Company may not issue new Notes to replace Notes it has paid or delivered to the Trustee for cancellation for any reason other than in connection with a registration of transfer or exchange upon an Authentication Order.
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Section 2.12. Defaulted Interest. Subject to the Company’s right to defer interest payments on the Notes as set forth in Section 2.16, payment of which has not become mandatory under this Indenture, when any installment of interest payable under the Notes becomes Defaulted Interest, such installment shall forthwith cease to be payable to the Holders in whose names the Notes were registered on the Record Date applicable to such installment of interest. Defaulted Interest (including any interest on such Defaulted Interest) may be paid by the Company, at its election, as provided in Section 2.12(a) or (b).
(a) The Company may elect to make payment of any Defaulted Interest (including any interest payable on such Defaulted Interest) to the Holders in whose names the Notes are registered at the close of business on a special record date for the payment of such Defaulted Interest (a “Special Record Date”), which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited by the Company to be held in trust for the benefit of the Holders entitled to such Defaulted Interest as provided in this Section 2.12(a). Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest, which shall be not more than fifteen (15) calendar days and not less than ten (10) calendar days prior to the date of the proposed payment and not less than ten (10) calendar days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be sent, first-class mail, postage prepaid, to each Holder at such Holder’s address as it appears in the Note Register, not less than ten (10) calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Holders in whose names the Notes are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to Section 2.12(b).
(b) The Company may make payment of any Defaulted Interest (including any interest on such Defaulted Interest) in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Section 2.12(b), such manner of payment shall be deemed practicable by the Trustee. The Trustee shall in the name and at the expense of the Company cause prompt notice of the proposed payment and the date thereof to be sent, first-class mail, postage prepaid, to each Holder at such Holder’s address as it appears in the Note Register.
Section 2.13. Additional Notes. The Company may, from time to time, subject to compliance with any other applicable provisions of this Indenture, without the consent of the Holders, create and issue pursuant to this Indenture Additional Notes having terms and conditions set forth in Exhibit A identical to those of the other Outstanding Notes, except with respect to:
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| (1) | the Issue Date; |
| (2) | the amount of interest payable on the first Interest Payment Date therefor; |
| (3) | the issue price; and |
| (4) | any adjustments necessary in order to conform to and ensure compliance with the Securities Act (or other applicable securities laws) and any agreement applicable to such Additional Notes, which are not adverse in any material respect to the Holder of any Outstanding Notes (other than such Additional Notes). |
The Issue Date Notes and any Additional Notes shall be treated as a single series for all purposes under this Indenture; provided that such Additional Notes are either (i) part of the same “issue” as the Issue Date Notes for U.S. federal income tax purposes, (ii) issued pursuant to a “qualified reopening” for U.S. federal income tax purposes, or (iii) issued with a different CUSIP or other similar numbers than the Issue Date Notes to the extent required to comply with securities or tax law requirements, including to permit delegending pursuant to Section 2.08(h).
(b) With respect to any Additional Notes, the Company will set forth in an Officer’s Certificate of the Company (the “Additional Note Certificate”), copies of which will be delivered to the Trustee, the following information:
| (1) | the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture; |
| (2) | the Issue Date and the issue price of such Additional Notes; and |
| (3) | whether such Additional Notes will be subject to transfer restrictions under the Securities Act (or other applicable securities laws). |
Section 2.14. CUSIP and ISIN Numbers. The Company in issuing the Notes may use “CUSIP” and “ISIN” numbers, as applicable (if then generally in use), and, if so, the Trustee shall use for the Notes “CUSIP” and “ISIN” numbers in notices of redemption to the Holders as a convenience to such Holders; provided, however, that neither the Company nor the Trustee shall have any responsibility for any defect in the “CUSIP” or “ISIN” number that appears on any Note, check, advice of payment or redemption notice, and any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such notice shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee in writing of any changes in the “CUSIP” of “ISIN” numbers.
Section 2.15. Subordination. (a) Upon any liquidation of the Company, (i) all Senior Indebtedness must be paid in full before the holders of Parity Securities (including the Notes) are entitled to receive or retain any payment in respect thereof, and (ii) the holders of Parity Securities (including the Notes) will be entitled to receive pari passu among themselves any payment in respect thereof. In any such event, the Notes and any other Parity Securities will be senior to all classes of the Company’s Capital Stock.
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(b) Each Holder (for itself and on behalf of the beneficial owners of the Notes), by purchasing the Notes, whether in connection with the initial offering of the Notes or a subsequent purchase at a later date, shall be deemed to agree with the Company, for the benefit of all of the Company’s present and future creditors, to the fullest extent permitted under applicable law, (i) to subordinate their rights to collect any amount of principal, premium, if any, and interest due or to become due in respect of the Notes as described in (a) above; (ii) that the Trustee shall be the only party entitled to receive and distribute amounts paid in respect of the Notes in the event of the liquidation of the Company and (iii) in the event that, in connection with such proceedings, notwithstanding the subordination provisions set forth in clause (i) this Section 2.15(b), any amount is allocated for payment to the Holders prior to the payment of all of the Senior Indebtedness of the Company, any such amount received by the Trustee will be required to be distributed by the Trustee, on behalf of the Holders, to the creditors of any of the unsatisfied Senior Indebtedness of the Company as instructed in writing to the Trustee by such creditors of such unsatisfied Senior Indebtedness, subject to proof of claim satisfactory to the Trustee and if such proof is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.
(c) To the fullest extent permitted under applicable law, if a payment or distribution is made to Holders that, pursuant to this Section 2.15, should not have been made to them, such Holders shall be required to hold such payment or distribution in trust for the holders of Senior Indebtedness of the Company to which such distribution should have been made and shall pay such distributions over to them as their interests may require.
(d) The Trustee shall have the exclusive right, to the fullest extent permitted under applicable law, to file in any Bankruptcy Event or Liquidation Event to which the Company is a party for the recognition of the claims of all Holders. Each Holder hereby irrevocably instructs the Trustee to file, on behalf of such Holder, a claim for recognition of the claims of all of the Notes in such event.
(e) Each Holder hereby irrevocably instructs the Trustee to abstain from voting during the course of any Bankruptcy Event or Liquidation Event to which the Company is a party in any matter submitted for approval by the general unsecured creditors of the Company in any such proceeding.
(f) Each Holder by purchasing the Notes, whether in connection with the initial offering of the Notes or a subsequent purchase at a later date, shall be deemed to waive any right of set-off, counterclaim or combination of accounts with respect to the Notes (or between obligations of the Company regarding the Notes and any liability owed by a Holder or the Trustee to the Company) that such Holder might otherwise have against the Company.
(g) Each Holder by purchasing the Notes authorizes and directs the Trustee on behalf of such Holder to take such action as may be necessary or appropriate to effectuate the subordination as between such Holder and holders of Senior Indebtedness as provided in this Section 2.15, and appoints the Trustee as its attorney-in-fact for all such purposes.
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(h) The Trustee and each Paying Agent will not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness, and will not be liable to any such holders if the Trustee or any Paying Agent pays over or distributes to or on behalf of Holders or the Company or any other person money or assets to which any holders of Senior Indebtedness are then entitled by virtue of this Section 2.15.
(i) The Company will promptly notify the Trustee of any facts known to the Company that would cause a payment of any obligations with respect to the Notes to violate this Section 2.15.
(j) Notwithstanding the provisions of this Section 2.15 or any other provision of this Indenture, the Trustee will not be charged with knowledge of the existence of any facts that would prohibit the making of any payment or distribution by the Trustee or any Paying Agent, and the Trustee and any Paying Agent may continue to make payments on the Notes, unless a Trust Officer of the Trustee has received at its Corporate Trust Office at least three (3) Business Days prior to the date of such payment notice by the Company or a representative of facts that would cause the payment of any obligations with respect to the Notes to violate this Section 2.15, except for any acceleration of the Notes prior to making any such payment or distribution which is known by the Trustee prior to making any such payment or distribution.
(k) Notwithstanding anything to the contrary contained herein, the fees and expenses of the Trustee shall not be subordinated in any way.
Section 2.16. Deferral of Interest. (a) The Company, in its sole discretion, may defer payment of interest on the Notes that would otherwise be payable on any Interest Payment Date in whole, or in part. Interest may be so deferred by the Company giving notice of its decision to do so to the Trustee and Holders of such Notes pursuant to Section 9.01, not less than seven (7) and not more than fourteen (14) Business Days before the applicable Interest Payment Date. If the Company elects not to make any payment of interest on an Interest Payment Date, then the Company shall have no obligation to do so, and the failure of the Company to pay interest shall not be an event of default or any other breach of the obligations of the Company under the Notes or this Indenture.
(b) (i) Any and all Deferred Interest shall bear interest as if it constituted principal of the Notes at a rate which corresponds to the interest rate applicable to the Notes (such further interest together with the Deferred Interest, being “Arrears of Interest”); and (ii) Arrears of Interest shall accrue from the deferred date, and Arrears of Interest shall be compounded on subsequent Interest Payment Dates, semi-annually, at the rate of interest applicable to the Notes.
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(c) The Company may elect, in its sole discretion, to pay Deferred Interest at any time, together with any related Arrears of Interest in whole or in part, with respect to the Notes. If the Company elects to pay such interest, the Company shall give not less than seven (7) and not more than fourteen (14) Business Days’ notice thereof to the Trustee and the Holders pursuant to Section 9.01. On the payment date specified by the Company in any such notice, all outstanding Deferred Interest and related Arrears of Interest with respect to the Notes that the Company has elected to pay shall become due and payable. Such notice shall also specify the record date for determining the registered Holders to which such amounts shall be paid.
(d) The Company shall pay any Deferred Interest and all related Arrears of Interest in respect of the Notes, in whole but not in part, on the first occurring Mandatory Payment Date following the Interest Payment Date on which such Deferred Interest first arose. The Company shall give notice to the Holders and the Trustee of any Compulsory Arrears of Interest Settlement Event that occurs while Deferred Interest is outstanding no later than the tenth Business Day preceding the Mandatory Payment Date in relation to the same. Such previously Deferred Interest and related Arrears of Interest shall be paid: in relation to each of clauses (a), (d) and (e) in the definition of Mandatory Payment Date, to the registered Holders on the date on which such event shall have occurred; in relation to clause (b) in the definition of Mandatory Payment Date, to the Holders of the Notes being redeemed in whole or repaid; and in relation to clause (c) in definition of Mandatory Payment Date, to the Holders on the Record Date therefor in accordance with the terms of this Indenture.
ARTICLE III
OPTIONAL REDEMPTIONS
Section 3.01. Optional Redemption.
(a) Prior to the First Call Date, the Company shall have the right, at its option, to redeem any of the Notes, in whole or in part, at a redemption price equal to the greater of (1) 100% of the principal amount of such Notes and (2) the sum of the present value of the redemption price of the Notes to be redeemed on the First Call Date plus each remaining scheduled payment of interest thereon during the period between the Redemption Date and the First Call Date (exclusive of interest accrued to, but not including, the date of redemption), in each case, discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points (the “Make-Whole Amount”), plus, in each case, any accrued and unpaid interest on the principal amount of the Notes, if any, to, but not including, the date of redemption and any deferred interest and arrears of interest thereon.
(b) On (i) any day during the period commencing on (and including) the First Call Date and ending on (and including) the First Reset Date, and (ii) on any Interest Payment Date thereafter, the Company shall have the right to redeem all, but not less than all, of the Notes at the option of the Company (an “Optional Redemption”), at a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus, in each case, any accrued and unpaid interest on the principal amount of the Notes, if any, to, but not including, the date of redemption and any deferred interest and arrears of interest thereon upon giving not less than ten (10) and not more than sixty (60) calendar days’ irrevocable notice of redemption to the Trustee and the Holders as set forth under Section 9.01.
Section 3.02. Notice of Redemption.
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(a) The Company shall give or cause the Trustee to give notice of redemption, in the manner provided for in Section 9.01, not less than ten (10) and not more than sixty (60) days prior to the Redemption Date to each Holder of Notes to be redeemed at its registered address. If the Company itself gives the notice, it shall also deliver a copy to the Trustee.
(b) If the Company elects to have the Trustee give notice of redemption, then the Company shall deliver to the Trustee, at least fifteen (15) days prior to the Redemption Date (unless the Trustee agrees to a shorter period), an Officer’s Certificate requesting that the Trustee give notice of redemption and setting forth the information required by paragraph (c) of this Section 3.02. If the Company elects to have the Trustee give notice of redemption, the Trustee shall give the notice in the name of the Company and at the Company’s expense.
(c) All notices of redemption shall state:
| (1) | the Redemption Date, |
| (2) | the redemption price and the amount of any accrued interest payable as provided in Section 3.04, |
| (3) | that on the Redemption Date the redemption price and any accrued interest payable to the Redemption Date as provided in Section 3.04 will become due and payable in respect of each Note, or the portion of each Note, to be redeemed, and, unless the Company defaults in making the redemption payment, that interest on each Note, or the portion of each Note, to be redeemed, will cease to accrue on and after the Redemption Date, |
| (4) | the place or places where a Holder must surrender the Holder’s Notes for payment of the redemption price, and |
| (5) | the CUSIP or ISIN number, if any, listed in the notice or printed on the Notes, and that no representation is made as to the accuracy or correctness of such CUSIP or ISIN number. |
(d) Any redemption and notice thereof pursuant to this Article III may, in the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, in which case such notice will describe each such condition. If any such condition precedent has not been satisfied (or waived), the Company shall provide notice to the Trustee prior to the Redemption Date (or such shorter period as may be acceptable to the Trustee). Upon receipt of such notice, the notice of redemption shall be rescinded or delayed, and the redemption of the Notes shall be rescinded or delayed as provided in such notice. Upon receipt, the Trustee shall provide such notice to each Holder in the same manner in which the notice of redemption was given.
(e) Failure to give notice or any defect in the notice to any Holder shall not affect the validity of notice to any other Holder.
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Section 3.03. Deposit of Redemption Price. On or prior to 10:00 a.m. New York City time one Business Day prior to the relevant Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as Paying Agent, segregate and hold in trust as provided in Section 2.04) an amount of money in immediately available funds sufficient to pay the redemption price of, and accrued interest on, all the Notes that the Company is redeeming on that date.
Section 3.04. Notes Payable on Redemption Date. If the Company, or the Trustee on behalf of the Company, gives notice of redemption in accordance with this Article III, the Notes, or the portions of the Notes called for redemption, shall, on the Redemption Date, become due and payable at the redemption price specified in the notice (together with accrued interest, if any, to the Redemption Date), and from and after the Redemption Date (unless the Company shall default in the payment of the redemption price and accrued interest) such Notes or such portions of Notes shall cease to bear interest. Upon surrender of any Note for redemption in accordance with the notice, the Company shall pay such Notes at the redemption price, together with accrued interest, if any, to the Redemption Date (subject to the rights of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date). If the Company shall fail to pay any Note called for redemption upon its surrender for redemption, the principal shall, until paid, bear interest from the Redemption Date at the rate borne by the Notes.
Section 3.05. Optional Redemption for a Rating Methodology Event.
(a) If a Rating Methodology Event occurs with respect to the Notes, the Company may redeem all, but not less than all, of the Notes at any time at the applicable Redemption Price upon giving not less than ten (10) and not more than sixty (60) calendar days’ irrevocable notice of redemption to the Trustee and the Holders pursuant to Section 9.01.
(b) Prior to giving such notice to the Holders following a Rating Methodology Event, the Company shall deliver to the Trustee in a form reasonably satisfactory to the Trustee an Officer’s Certificate stating that the Company is, or at the time of redemption will be, entitled to effect such redemption as a result of the Rating Methodology Event and setting forth a statement of facts showing that the conditions precedent to the right of the Company to redeem the Notes in accordance with this Indenture have been satisfied, and the Trustee shall be entitled to accept and conclusively rely on the above Officer’s Certificate as sufficient evidence of the satisfaction of the conditions precedent set out above and the facts set out therein, in which event the same shall be conclusive and binding on Holders of such Notes.
Section 3.06. Optional Redemption for a Tax Deductibility Event.
(a) If a Tax Deductibility Event occurs with respect to the Notes, the Company may redeem all, but not less than all, of the Notes at any time at the applicable Redemption Price upon giving not less than ten (10) and not more than sixty (60) calendar days’ irrevocable notice of redemption to the Trustee and the Holders pursuant to Section 9.01.
(b) Prior to giving such notice to the Holders, the Company shall deliver to the Trustee in a form reasonably satisfactory to the Trustee:
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| (1) | an Officer’s Certificate stating that the Company is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Company to redeem the Notes in accordance with this Indenture have been satisfied; and |
| (2) | an opinion of an independent legal or tax adviser, appointed by the Company at the expense of the Company, of recognized standing in Mexico to the effect that payments of interest by the Company in respect of the Notes are no longer, or within ninety (90) calendar days of the date of that opinion shall no longer be, deductible in whole or in part for corporate income tax purposes in Mexico or any political subdivision or taxing authority thereof or therein affecting taxation as a result of a Tax Law Change (even if such change is not yet effective). |
(c) The Trustee shall be entitled to accept and conclusively rely on the above Officer’s Certificate and opinion as sufficient evidence of the satisfaction of the conditions precedent set out above and the facts set out therein in which event the same shall be conclusive and binding on the Holders.
Section 3.07. Optional Redemption for Changes in Withholding Taxes.
(a) If a Withholding Tax Event occurs with respect to the Notes, then, at the option of the Company, all, but not less than all, of the Notes may be redeemed at any time at the applicable Redemption Price upon giving not less than ten (10) and not more than sixty (60) calendar days’ irrevocable notice of redemption to the Trustee and the Holders pursuant to Section 9.01; provided, however, that (x) no notice of redemption for tax reasons may be given earlier than ninety (90) days prior to the earliest date on which the Company would be obligated to pay these Additional Amounts if a payment on the Notes were then due and (y) at the time such notice of redemption is given, such obligation to pay such Additional Amounts remains in effect.
(b) Prior to the publication of any notice of redemption pursuant to Section 3.07(a) above, the Company shall deliver to the Trustee:
| (1) | an Officer’s Certificate stating that the Company is entitled to effect the redemption and setting forth a statement of facts showing that the conditions precedent to the right of redemption of the Company for taxation reasons have occurred; and |
| (2) | an opinion of an independent legal or tax adviser (which may be the Company’s outside legal counsel) of recognized standing in the affected Taxing Jurisdiction to the effect that the Company has or shall become obligated to pay Additional Amounts as a result of such change or amendment. |
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(c) The Trustee shall be entitled to accept and conclusively rely on the above Officer’s Certificate and Opinion of Counsel as sufficient evidence of the satisfaction of the conditions precedent set out above and the facts set out therein in which event the same shall be conclusive and binding on the Holders.
Section 3.08. Optional Redemption upon a Substantial Repurchase Event.
(a) In the event that a Substantial Repurchase Event occurs, the Company may redeem all, but not less than all, of the Notes at any time at the applicable Redemption Price upon giving not less than ten (10) and not more than sixty (60) calendar days’ irrevocable notice of redemption to the Trustee and the Holders pursuant to Section 9.01.
(b) Prior to giving such notice to the Holders, the Company shall deliver to the Trustee in a form reasonably satisfactory to the Trustee an Officer’s Certificate stating that the Company is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Company to redeem the Notes in accordance with this Indenture have been satisfied and the Trustee shall be entitled to accept and conclusively rely on the above Officer’s Certificate as sufficient evidence of the satisfaction of the conditions precedent set out above and the facts set out therein, in which event the same shall be conclusive and binding on Holders of such Notes.
Section 3.09. Optional Redemption for an Accounting Event.
(a) If an Accounting Event occurs, then the Company may redeem all, but not less than all, of the Notes at any time at the applicable Redemption Price upon giving not less than ten (10) and not more than sixty (60) calendar days’ irrevocable notice of redemption to the Trustee and the Holders pursuant to Section 9.01.
(b) Prior to giving such notice to the Holders following an Accounting Event, the Company shall deliver to the Trustee in a form reasonably satisfactory to the Trustee:
| (1) | an Officer’s Certificate stating that the Company is or at the time of the redemption will be entitled to effect such a redemption pursuant to this Indenture and setting forth in reasonable detail the circumstances giving rise to such right of redemption; and |
| (2) | a copy of the letter, opinion or the report referred to in the definition of “Accounting Event” relating to the applicable Accounting Event, and the Trustee shall be entitled to accept and rely conclusively upon the above certificate and a copy of such letter or report as sufficient evidence of the satisfaction of the conditions precedent set out above, in which event the same shall be conclusive and binding on the Holders. |
Section 3.10. Optional Redemption upon a Change of Control that Results in a Ratings Downgrade Event.
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(a) If a Change of Control Event occurs, then the Company may redeem all, but not less than all, of the Notes at any time at the applicable Redemption Price upon giving not less than ten (10) and not more than sixty (60) calendar days’ irrevocable notice of redemption to the Trustee and the Holders pursuant to Section 9.01.
(b) Prior to giving such notice to the Holders, the Company will deliver to the Trustee an Officer’s Certificate stating that the Company is entitled to effect such redemption pursuant to this Indenture and setting forth a statement of facts showing that the conditions precedent to the right of the Company to redeem the Notes in accordance with this Indenture have been satisfied and the Trustee shall be entitled to accept and conclusively rely on such certificate as sufficient evidence of the satisfaction of the conditions precedent set out above and the facts set out therein, in which event the same shall be conclusive and binding on the Holders.
(c) If, upon the occurrence of any Change of Control Event, the Company does not redeem the Notes pursuant to the provisions of this Indenture, the Company will permanently pay additional interest on the Notes at a rate of 5.0% per annum. Unless the Company has redeemed the Notes in connection with the occurrence of such event, the additional interest will become effective on the ninetieth (90th) day after the date on which a Change of Control Event occurred. Accrued additional interest will be payable on the same dates and in the same manner as interest is generally paid on the Notes.
Section 3.11. Substitution or Variation.
(a) If at any time the Company determines that a Rating Methodology Event, a Tax Deductibility Event, a Withholding Tax Event or an Accounting Event has occurred and is continuing (a “Substitution or Variation Event”), then the Company may, as an alternative to redemption of the Notes as described in this Article III, subject to Section 3.11(c) and subject to having given not less than ten (10) and not more than sixty (60) calendar days’ irrevocable notice of redemption to the Trustee and the Holders in accordance with Section 9.01, either (i) substitute all, but not less than all, of the Notes for Qualifying Equivalent Securities, or (ii) vary any term or condition of the Notes with the effect that they remain or become (as the case may be) Qualifying Equivalent Securities, and the Holders shall be bound by such substitution or variation.
(b) Upon the date provided for in such notice, the Company shall either vary the terms of or, as the case may be, substitute the Notes in accordance with this Section 3.11.
(c) Prior to any substitution or variation of the Notes in accordance with the provisions set forth above, the Company will deliver to the Trustee an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee to the effect that:
| (1) | the relevant requirement or circumstance giving rise to the right to substitute or vary the Notes has been satisfied; |
| (2) | the Company has determined that the terms of the Qualifying Equivalent Securities are not materially less favorable to Holders than the terms of the Notes and that determination was reasonably reached by the Company in consultation with an independent investment bank, independent financial adviser or legal counsel of recognized standing; |
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| (3) | the criteria specified in paragraphs (a) to (g) of the definition of Qualifying Equivalent Securities will be satisfied upon issuance thereof; and |
| (4) | the relevant substitution or variation (as the case may be) will not result in the occurrence of a Rating Methodology Event, a Tax Deductibility Event, a Withholding Tax Event or an Accounting Event. |
Section 3.12. Selection of Notes to Be Redeemed in Part.
(a) If the Company is not redeeming all Outstanding Notes, the Trustee shall select the Notes to be redeemed in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not then listed on a national securities exchange, on a pro rata basis, by lot or by any other method in accordance with the applicable provisions of DTC, Euroclear or Clearstream, as applicable, or at the discretion of the Company. The Trustee shall make the selection from the then Outstanding Notes not previously called for redemption. The Trustee shall promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Notes selected for partial redemption, the principal amount of the Notes to be redeemed. In the case of a partial redemption, selection of the Notes to be redeemed will be made according to DTC rules or if no longer in DTC, by lot. In the event of a partial redemption by lot, the Trustee shall select the particular Notes to be redeemed not less than ten (10) nor more than sixty (60) days prior to the relevant Redemption Date from the then Outstanding Notes not previously called-for redemption. No Notes of $200,000 principal amount or less shall be redeemed in part. The Trustee may select for redemption in part Notes of a principal amount in excess of $200,000, which may be redeemed in part in integral multiples of $1,000 in excess thereof (provided that the unredeemed portion will be in a minimum denomination of at least $200,000).
(b) For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to redemption of Notes shall relate, in the case of any Note redeemed or to be redeemed only in part, to the portion of the principal amount of that Note which has been or is to be redeemed.
Section 3.13. Unredeemed Portions of Partially Redeemed Note. Upon surrender of a Note that is to be redeemed in part, the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder, at the expense of the Company, a new Note or Notes, of any authorized denomination as requested by the Holder, in an aggregate principal amount equal to, and in exchange for, the unredeemed portion of the principal of the Note surrendered.
Section 3.14. No Limitation. Notwithstanding the foregoing provisions of this Article III, the Company and its Subsidiaries are not prohibited from acquiring the Notes by means other than a redemption, whether pursuant to a tender offer, open market purchase, private transaction or otherwise.
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Section 3.15. No Scheduled Maturity. The Notes have no scheduled maturity date.
ARTICLE IV
COVENANTS
Section 4.01. Payment of Notes. Subject to the Company’s right to defer interest on the Notes as set forth in Section 2.16, the Company shall pay the principal of and interest (including Defaulted Interest) on the Notes on the dates and in the manner provided in the Notes and in this Indenture. Prior to 10:00 a.m. (New York City time) on the Business Day prior to each Interest Payment Date and the Redemption Date (if any), the Company shall deposit with the Paying Agent in immediately available funds U.S. Dollars sufficient to make cash payments due on such Interest Payment Date or Redemption Date, as the case may be. If the Company or an Affiliate of the Company is acting as Paying Agent, the Company or such Affiliate shall, prior to 10:00 a.m. (New York City time) on each Interest Payment Date and the Redemption Date (if any), segregate and hold in trust U.S. Dollars sufficient to make cash payments due on such Interest Payment Date or Redemption Date, as the case may be. Principal and interest shall be considered paid on the date due if on such date the Trustee or the Paying Agent (other than the Company or an Affiliate of the Company) holds in accordance with this Indenture U.S. Legal Tender designated for and sufficient to pay all principal and interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture.
Section 4.02. Merger, Consolidation or Sale of Assets.
(a) The Company shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the Company’s properties and assets (determined on a consolidated basis), to any Person unless:
| (1) | the Company shall be the surviving or continuing corporation, or |
| (2) | the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition all or substantially all of the properties and assets of the Company (determined on a consolidated basis) substantially as an entirety (the “Successor Issuer”): |
(A) shall be a Person organized and validly existing under the laws of Mexico, the United States of America, any State thereof or the District of Columbia, Canada, France, Belgium, Germany, Italy, Luxembourg, the Netherlands, Portugal, Spain, Switzerland or the United Kingdom, or any political subdivision thereof; and
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(B) shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, the Company’s obligations under the Notes and this Indenture and provide the Trustee with an Officer’s Certificate and Opinion of Counsel, each stating that such transaction is in compliance with this Section 4.02 and that all conditions precedent to such transaction provided for in this Indenture have been satisfied.
The Successor Issuer will succeed to, and be substituted for, the Company under this Indenture and the Notes, as applicable.
(b) If the conditions of paragraph (a) above are satisfied, the Company will not have to obtain the approval of the Holders of the majority Notes in order to merge or consolidate or to sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the Company’s properties and assets (determined on a consolidated basis). The Company will not need to satisfy these conditions if the Company enters into other types of transactions, including any transaction in which the Company acquires the stock or assets of another Person, any transaction that involves a Change of Control (but in which the Company does not merge or consolidate) and any transaction in which the Company sells, assigns, transfers, leases, conveys or otherwise disposes of less than all or substantially all of its properties and assets (determined on a consolidated basis).
Section 4.03. Reports to Holders.
(a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, so long as any Notes remain outstanding, the Company shall:
| (1) | provide the Trustee and the Holders with: |
(A) annual reports on Form 20-F (or any successor form) containing the information required to be contained therein (or such successor form) within the time period required under the rules of the Commission for the filing of Form 20-F (or any successor form) by “foreign private issuers” (as defined in Rule 3b-4 of the Exchange Act (or any successor rule));
(B) reports on Form 6-K (or any successor form) including, whether or not required, unaudited quarterly financial statements (which shall include at least a balance sheet, income statement and cash flow statement) including a discussion of financial condition and results of operations of the Company in accordance with past practice, within 45 days after the end of each of the first three fiscal quarters of each fiscal year;
(C) such other reports on Form 6-K (or any successor form) promptly from time to time after the occurrence of an event that would be required to be reported on a Form 6-K (or any successor form); and
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| (2) | file with the Commission, to the extent permitted, the information, documents and reports referred to in clause (1) within the periods specified for such filings under the Exchange Act (whether or not applicable to the Company). |
(b) In addition, at any time when the Company is not subject to or is not current in its reporting obligations under clause (2) of Section 4.03(a), the Company shall make available, upon request, to any Holder and any prospective purchaser of Notes the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely transferable under the Securities Act.
(c) Notwithstanding anything in this Indenture to the contrary, the Company shall not be deemed to have failed to comply with any of its obligations in this Section 4.03 until seventy-five (75) days after the date any item under this Section 4.03 is due.
(d) Delivery of such reports, information and documents to the Trustee pursuant to this Section 4.03 is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
Section 4.04. Payment of Additional Amounts.
(a) All payments made by the Company under, or with respect to, the Notes shall be made free and clear of, and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of any taxing authority in or of the United States, Mexico, any jurisdiction in which the Company is, or any successor of the Company is, organized (wherein any successor assumes the obligations of the Notes and this Indenture following a consolidation or merger or a transfer, conveyance, sale, lease or disposition of all or substantially all of the Company’s assets and properties), or any other jurisdiction through which payments on the Notes are made (a “Taxing Jurisdiction”), unless the Company is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Company is so required to withhold or deduct any amount for, or on account of, such Taxes from any payment made under or with respect to the Notes, the Company shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if such Taxes had not been required to be withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to:
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| (1) | any Taxes imposed solely because at any time there is or was a connection between the Holder or beneficial owner of the Notes, as the case may be, and a Taxing Jurisdiction, including such Holder or beneficial owner being or having been a citizen or resident of such Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business or having had a permanent establishment therein (other than the mere purchase of the Notes, or receipt of a payment or the ownership or holding of the Notes); |
| (2) | any estate, inheritance, gift, sales, transfer, personal property or similar Tax imposed with respect to the Notes; |
| (3) | any Taxes imposed solely because the Holder or any other person fails to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with a Taxing Jurisdiction of the Holder or any beneficial owner of the Note, if compliance is required by the applicable law, regulation or by an applicable income tax treaty of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of, the tax, assessment or other governmental charge, and the Company has given the Holders at least thirty (30) days’ notice that Holders shall be required to provide such information and identification; |
| (4) | any Taxes payable otherwise than by deduction or withholding from payments on the Notes; |
| (5) | any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another Paying Agent; |
| (6) | any Taxes with respect to such Note presented for payment more than thirty (30) days after the date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30-day period; |
| (7) | any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note; |
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| (8) | any Taxes withheld or deducted on or in respect of any Note pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), as amended (commonly referred to “FATCA”), any treaty, law, regulation or other official guidance enacted by the United States implementing FATCA, any agreement between the Company and the United States implementing FATCA pursuant to Section 1471(b)(1) of the Code, as amended, or any law of any jurisdiction implementing an intergovernmental approach to FATCA; or |
| (9) | any combination of the foregoing. |
(c) The obligations in Section 4.04(a) and Section 4.04(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor to the Company. The Company shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Company shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within thirty (30) days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Company, furnish such other documentation that provides reasonable evidence of such payment by the Company.
(d) The exception to the Company’s obligations to pay Additional Amounts pursuant to clause (iii) of Section 4.04(b) will not apply if (i) the provision of information, documentation or other evidence described in such clause would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulation (including proposed regulations) and administrative practice, or (ii) Article 166, Section II, paragraph a), of the Mexican Income Tax Law (Ley del Impuesto Sobre la Renta) (or a substitute or equivalent provision) is in effect, unless (A) the provision of the information, documentation or other evidence described in clause (iii) of Section 4.04(b) is expressly required by the applicable Mexican laws and regulations in order to apply Article 166, Section II, paragraph a), of the Mexican Income Tax Law (or substitute or equivalent provision), (B) the Company cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican laws and regulations on its own through reasonable diligence and (C) the Company would not otherwise meet the requirements for application of the applicable Mexican laws and regulations.
(e) Clause (iii) of Section 4.04(b) does not require, and shall not be construed to require, that any Holder, including any non-Mexican pension fund, retirement fund, tax-exempt organization or financial institution, register with the Mexican Tax Management Service (Servicio de Administración Tributaria) or the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) to establish eligibility for an exemption from, or a reduction of, Mexican withholding taxes.
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(f) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Company shall be deemed to include all Additional Amounts, if any that may be payable with respect to that amount under the obligations referred to in this subsection. Payment of any Additional Amounts with respect to interest shall be considered as an interest payment under, or with respect to, the Notes.
(g) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 4.04 are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and without any further action, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to the Company. However, by making such assignment, the Holder makes no representation or warranty that the Company shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
(h) Notwithstanding anything to the contrary contained in this Indenture, the Company may, to the extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America from principal or interest payments.
Section 4.05. Further Instruments and Acts. Upon request of the Trustee, the Company shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out the purpose of this Indenture.
ARTICLE V
NO EVENTS OF DEFAULT; REMEDIES
Section 5.01. No Defaults or Events of Default. There are no defaults or events of default under the Notes and there is no cross-default or cross-acceleration under the Notes. Subject to Section 6.01 of this Indenture relating to the duties of the Trustee, in case the Company shall fail to comply with its obligations under this Indenture or the Notes and such failure shall be continuing, the Trustee will be under no obligation to exercise any of its rights or powers under this Indenture if requested or directed by any of the Holders acting in accordance with, and as expressly permitted by, this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction.
Section 5.02. Acceleration. (a) There is no right of acceleration of the payment of principal of the Notes if the Company fails to pay interest, Arrears of Interest and Additional Amounts thereon when any such payment becomes due pursuant to this Indenture.
(b) The entire principal amount of all the Notes and any accrued interest, Arrears of Interest and Additional Amounts thereon will be automatically accelerated, without any action by the Trustee or any Holder and any principal, interest or Additional Amounts will become immediately due and payable, in case of a Bankruptcy Event or a Liquidation Event. No payments will be made to holders of any class of the Company’s Capital Stock before all amounts due, but unpaid, to all Holders have been paid by the Company. The Company shall provide the Trustee prompt notice of a Bankruptcy Event or Liquidation Event.
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Section 5.03. Remedies. If any of the events described in Section 5.02(a) shall occur and be continuing, the Trustee may or, at the written request of the Holders of not less than 25% in principal amount of the Outstanding Notes, shall (subject to the Trustee’s rights under this Indenture) (a) pursue any available remedy under this Indenture (excluding acceleration of principal, except pursuant to Section 5.02(b) in case of a Bankruptcy Event or a Liquidation Event) to collect the payment of any such amounts due and unpaid, or (b) enforce the performance of any provision of the Notes or this Indenture.
Section 5.04. [Reserved.]
Section 5.05. Control by Majority. Subject to the provisions of this Indenture and applicable law, the Holders of a majority in aggregate principal amount of the Outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee with respect to the Notes. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or, subject to Section 6.01, that the Trustee determines is unduly prejudicial to the rights of other Holders or would involve the Trustee in personal liability (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any such directions are unduly prejudicial to such Holders); provided, however, that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. Prior to taking any action hereunder, the Trustee shall be entitled to security or indemnity reasonably satisfactory to it against any loss, liability and expense caused by taking or not taking such action.
Section 5.06. Limitation on Suits. (a) The Trustee will have exclusive right, to the fullest extent permitted under applicable law, to file in any liquidation, dissolution, winding up, reorganization, assignment for the benefit of creditors, marshaling of assets or any bankruptcy, insolvency, concurso mercantil, quiebra or similar proceeding to which the Company is a party for the recognition of the claims of all Holders, and Holders will not be permitted to bring their lawsuit or other formal legal action under any of these circumstances.
(b) Subject to the limitations set forth in Section 2.15, no Holder shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture or the Notes, or for the appointment of a receiver or trustee, or for any other remedy with respect to this Indenture or the Notes, unless:
| (1) | such Holder shall have previously given to the Trustee written notice of the event in respect of which the applicable remedy is being sought; |
| (2) | the Holders of at least 25% in aggregate principal amount of the Outstanding Notes shall have made a written request that the Trustee take action with respect to the Notes; |
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| (3) | such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to it against the cost, expenses and liabilities to be incurred in compliance with such request; |
| (4) | the Trustee for sixty (60) days after its receipt of such notice, request and offer of indemnity has failed to institute any such action or proceeding; and |
| (5) | during those 60 days, the Holders of a majority in principal amount of the Notes must not have given the Trustee directions that are inconsistent with the written request of the Holders of not less than 25% in principal amount of the Notes. |
(c) (1) In no event shall the Company, by virtue of any proceedings or otherwise, be obligated to pay any sum or sums sooner than the same would otherwise have been payable by the Company and (2) no one or more Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture or the Notes (x) to affect, disturb or prejudice the rights of any other Holder, or (y) to obtain or to seek to obtain priority or preference over any other Holder, or (z) to enforce any right under this Indenture or the Notes, except as expressly provided in this Article V and for the equal and ratable benefit of all Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to any Holders). For the protection and enforcement of the provisions of this Section 5.06, each and every Holder and the Trustee shall be entitled, subject to Section 2.15 and this Section 5.06, to such relief as may be granted at law or in equity.
Section 5.07. Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture (including, without limitation, Section 5.06), the right of any Holder to receive payment of principal (including Additional Amounts, if any) of or interest on the Notes held by such Holder, subject to the Company’s right to defer interest payments on the Notes as set forth in Section 2.16, on or after the respective due dates, Redemption Dates or repurchase date expressed in the Notes, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 5.08. Trustee May File Proofs of Claim.
(a) The Trustee may (irrespective of whether the principal of the Notes is then due):
| (1) | file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Holders under this Indenture and the Notes allowed in any Bankruptcy Event or Liquidation Event to which the Company is a party; and |
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| (2) | collect and receive any moneys or other property payable or deliverable in respect of any such claims and distribute them in accordance with this Indenture. |
(b) The Trustee shall be entitled and empowered to participate as a member of any official committee of creditors appointed in such matter. Any receiver, trustee, assignee, liquidator, sequestrator, custodian or other similar official in any such proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, taxes, disbursements and advances of the Trustee, its agent and counsel, and any other amounts due to the Trustee pursuant to Section 6.07.
(c) Nothing in this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 5.09. Priorities. If the Trustee collects any money or property pursuant to this Article V, it shall pay out the money or property in the following order:
FIRST: to the Trustee for amounts due under Section 6.07;
SECOND: if the Holders proceed against the Company directly without the Trustee in accordance with this Indenture, to Holders for their collection costs;
THIRD: to Holders for amounts due and unpaid on the Notes for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal and interest, respectively; and
FOURTH: to the Company or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 5.09. At least five (5) days before such record date, the Company shall instruct the Trustee to give notice to each Holder that states the record date, the payment date and amount to be paid.
Section 5.10. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section does not apply to a suit by the Trustee, a suit by the Company, a suit by a Holder pursuant to Section 5.10 or a suit by Holders of more than 10% in principal amount of the Outstanding Notes.
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Section 5.11. Waiver of Stay or Extension Laws. The Company (to the fullest extent permitted by applicable law) shall not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company (to the fullest extent permitted by applicable law) hereby expressly waives all benefit or advantage of any such law, and shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted.
Section 5.12. No Additional Remedies. No remedy against the Company, other than as referred to in this Article V shall be available to the Holders, whether for the recovery of amounts owing in respect of the Notes or in respect of any other breach by the Company of any of its other obligations under or in respect of the Notes or this Indenture.
ARTICLE VI
TRUSTEE
Section 6.01. Duties of Trustee.
(a) If any of the events specified in Section 5.02 has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(b) Except during the continuance of an event specified in Section 5.02:
| (1) | the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and |
| (2) | in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions that by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such certificates and opinions to determine whether or not they conform to the requirements of this Indenture. |
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
| (1) | this paragraph (c) does not limit the effect of paragraph (b) of this Section 6.01; |
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| (2) | the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and |
| (3) | the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 5.06. |
(d) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.
(e) Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(f) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if the Trustee shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article VI, and the provisions of this Article VI shall apply to the Trustee in its role as Registrar, Paying Agent, Transfer Agent and Note Custodian.
(h) Unless otherwise specifically provided in this Indenture, any demand, request, direction, instruction or notice from the Company shall be sufficient if signed by an Officer of the Company.
(i) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders acting in accordance with, and as expressly permitted by, this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction.
(j) Every provision of this Indenture that in any way relates to the Trustee is subject to this Section 6.01.
Section 6.02. Rights of Trustee.
(a) The Trustee may rely on any document reasonably believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting at the direction of the Company, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate or Opinion of Counsel.
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(c) The Trustee may act through agents and attorneys and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith and which it believes to be authorized or within its rights or powers; provided, however, that the Trustee’s conduct does not constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the Notes shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(f) If the Trustee shall determine, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney.
(g) The permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as duties.
(h) In no event shall the Trustee be liable, directly or indirectly, for any special, indirect, punitive or consequential damages, even if the Trustee has been advised of the possibility of such damages.
(i) The Trustee shall not be deemed to have notice of any event specified in Section 5.02 unless written notice of any such event is received by a Trust Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.
(j) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each Agent and each agent, custodian and other Person employed to act hereunder.
(k) The Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of Officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any Person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.
(l) The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; epidemics; riots, interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; it being understood that the Trustee shall use its best efforts to resume performance as soon as practicable under the circumstances.
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Section 6.03. Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any of its Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent, Transfer Agent, Registrar or co-Registrar may do the same with like rights. However, the Trustee must comply with Section 6.10.
Section 6.04. Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity, priority or adequacy of any offering materials, this Indenture, the Notes, it shall not be accountable for the Company’s use of the proceeds from the Notes, and it shall not be responsible for any statement of the Company in this Indenture or in any document issued in connection with the sale of the Notes or in the Notes other than the Trustee’s certificate of authentication.
Section 6.05. Notice of Certain Events. If any event mentioned in Section 5.02 occurs and is continuing and if it is known to the Trustee, the Trustee shall deliver to each Holder notice of such event within 90 days after it is known to a Trust Officer or written notice of it is received by the Trustee. The Trustee may withhold the notice if and so long as it in good faith determines that withholding the notice is in the interests of Holders.
Section 6.06. [Reserved].
Section 6.07. Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services hereunder as the Company and the Trustee shall from time to time agree in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred or made by it, including costs of collection, costs of preparing and reviewing reports, certificates and other documents, costs of preparation and giving of notices to Holders and reasonable costs of counsel retained by the Trustee in connection with the review, negotiation, execution and delivery of this Indenture or otherwise, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Trustee’s agents, counsel, accountants and experts.
(b) The Company shall indemnify the Trustee against any and all loss, liability, fees, cost or expense (including reasonable attorneys’ fees and expenses of counsel) incurred by it without negligence, willful misconduct or bad faith on its part in connection with the acceptance and administration of this trust and the performance of its duties hereunder, including the costs and expenses of enforcing this Indenture (including this Section 6.07) and of defending itself against any claims (whether asserted by any Holder, the Company or otherwise). The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder. The Company shall defend the claim and the Trustee may have separate counsel and
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the Company shall pay the fees and expenses of such counsel; provided, that the Company shall not be required to pay such fees and expenses if it assumes the Trustee’s defense, and, in the reasonable judgment of outside counsel to the Trustee, there is no conflict of interest between the Company and the Trustee in connection with such defense. The Company need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustee’s own willful misconduct, negligence or bad faith.
(c) To secure the payment obligations of the Company in this Section 6.07, the Trustee shall have a lien prior to the Notes on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of and interest on particular Notes. The Trustee’s right to receive payment of any amounts due under this Section 6.07 shall not be subordinate to any other liability or indebtedness of the Company.
(d) The Company’s obligations pursuant to this Section 6.07 shall survive the discharge of this Indenture and the resignation or removal of the Trustee. When the Trustee incurs expenses after the occurrence of the events specified in Section 5.02 with respect to the Company, the expenses (including the fees and expenses of its counsel) are intended to constitute expenses of administration under any Bankruptcy Law; provided, however, that this shall not affect the Trustee’s right as set forth in this Section 6.07 or Section 5.09.
Section 6.08. Replacement of Trustee.
(a) The Trustee may resign at any time by so notifying the Company. The Holders of a majority in principal amount of the then Outstanding Notes may remove the Trustee by so notifying the Company and the Trustee in writing not less than thirty (30) days prior to the effective date of such removal. The Company shall remove the Trustee if:
| (1) | the Trustee fails to comply with Section 6.10; |
| (2) | the Trustee is adjudged bankrupt or insolvent; |
| (3) | a receiver or other public officer takes charge of the Trustee or its property; or |
| (4) | the Trustee otherwise becomes incapable of acting. |
(b) If the Trustee resigns, is removed by the Company or by the Holders of a majority in principal amount of the Outstanding Notes and such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall give or send a notice of its succession to the Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 6.07.
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(d) If a successor Trustee does not take office within thirty (30) days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of 10% in aggregate principal amount of the then Outstanding Notes may petition, at the Company’s expense, any court of competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 6.10, any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to this Section 6.08, the Company’s obligations under Section 6.07 shall continue for the benefit of the retiring Trustee.
Section 6.09. Successor Trustee by Merger.
(a) I(b) n case at the time such successor or successors to the Trustee shall succeed to the trusts created by this Indenture any of the Notes shall have been authenticated but not delivered, any successor to the Trustee may adopt the certificate of authentication of any predecessor trustee and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any such successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall be valid for purposes of this Indenture.
Section 6.10. Eligibility; Disqualification. The Trustee shall at all times be a Trustee hereunder that is a Person organized and doing business under the laws of the United States or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has, together with its parent, a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition.
ARTICLE VII
DISCHARGE OF INDENTURE
Section 7.01. [Reserved].
Section 7.02. [Reserved].
Section 7.03. Application of Trust Money. The Trustee shall hold in trust U.S. Legal Tender or U.S. Government Obligations deposited with it pursuant to this Article VII. It shall apply the deposited U.S. Legal Tender and the U.S. Legal Tender received from U.S. Government Obligations through the Paying Agent and in accordance with this Indenture to the payment of principal of and interest on the Notes.
Section 7.04. Repayment to Company. The Trustee and the Paying Agent shall promptly turn over to the Company upon written request any excess money or securities held by them upon payment of all the obligations under this Indenture. Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of principal of or interest on the Notes that remains unclaimed for two years, and, thereafter, Holders entitled to the money must look to the Company for payment as general creditors (and not to the Trustee or any Paying Agent).
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Section 7.05. Indemnity for U.S. Government Obligations. The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or the principal and interest received on such U.S. Government Obligations.
Section 7.06. Reinstatement. If the Trustee or Paying Agent is unable to apply any U.S. Legal Tender or U.S. Government Obligations in accordance with this Article VII by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to this Article VII until such time as the Trustee or Paying Agent is permitted to apply all such U.S. Legal Tender or U.S. Government Obligations in accordance with this Article VII; provided, however, that, if the Company has made any payment of principal of or interest on any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from U.S. Legal Tender or U.S. Government Obligations held by the Trustee or Paying Agent.
Section 7.07. Satisfaction and Discharge. This Indenture will be discharged and will cease to be of further effect (except as to surviving rights of registration of transfer of the Notes, as expressly provided for herein) as to all Outstanding Notes when:
(a) either:
| (1) | all the Notes theretofore authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust) have been delivered to the Trustee for cancellation; or |
| (2) | (x) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable by reason of the giving of one or more notices of redemption or otherwise (in the case that such Notes have become due and payable as a result of the giving of a notice of redemption, after any conditions precedent to redemption have been satisfied or waived in writing by the Company), will become due and payable within one year or may be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company has irrevocably deposited or caused to be deposited with the Trustee, in trust, for the benefit of the Holders, cash in U.S. Legal Tender, U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient without |
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| reinvestment, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest (including Additional Amounts) on the Notes to the stated date of deposit thereof or on the applicable redemption date, as the case may be; provided that (1) upon any redemption that requires the payment of a Make-Whole Amount, the amount deposited will be sufficient for purposes of the Indenture to the extent that an amount is deposited with the Trustee equal to the Make-Whole Amount calculated as of the date of the notice of redemption, with any deficit as of the date of redemption only required to be deposited with the Trustee on or prior to the date of redemption and (2) such deficit amount will be set forth in an Officer’s Certificate delivered to the Trustee simultaneously with the deposit of such deficit amount that confirms that such deficit amount will be applied toward such redemption; and (y) the Company has delivered irrevocable instructions directing the Trustee to apply such funds to the payment of the Notes at maturity or the redemption date, as the case may be; |
(b) the Company has paid all other sums payable under this Indenture and the Notes by the Company; and
(c) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with.
ARTICLE VIII
AMENDMENTS
Section 8.01. Without Consent of Holders.
(a) The Company and the Trustee may amend or supplement this Indenture or the Notes without notice to or consent of any Holder:
| (1) | to cure any ambiguity, or to cure, correct or supplement any omission, defect or inconsistency; |
| (2) | to issue additional notes; |
| (3) | to comply with Section 4.02 in respect of the assumption by a Successor Issuer of the obligations of the Company under the Notes and this Indenture; |
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| (4) | to provide for uncertificated Notes in addition to or in place of Certificated Notes; provided, however, that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code or in a manner such that the uncertificated Notes are described in Section 163(f)(2)(B) of the Code; |
| (5) | to add guarantees with respect to the Notes or to secure the Notes; |
| (6) | to add to the covenants of the Company for the benefit of the Holders or to surrender any right or power herein conferred upon the Company; |
| (7) | to conform the text of this Indenture or the Notes to any provision of the section “Description of Notes” in the offering memorandum issued in relation to the Notes to the extent that such provision in such “Description of Notes” was intended to be a verbatim recitation or a provision of this Indenture or the Notes; |
| (8) | to comply with the requirements of any applicable securities depositary; |
| (9) | to provide for a successor Trustee in accordance with the terms of this Indenture or to otherwise comply with any requirement of this Indenture; |
| (10) | to provide for and effect a substitution or variation in accordance with Section 3.11; and |
| (11) | to make any change that is determined by the Company to not adversely affect the Holders in any material respect. |
(b) After an amendment under this Section 8.01 becomes effective, the Company shall give to Holders a notice briefly describing such amendment. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment under this Section 8.01.
Section 8.02. With Consent of Holders.
(a) The Company and the Trustee may amend or supplement this Indenture or the Notes without notice to any Holder but with the written consent of the Holders of at least a majority in principal amount of the then Outstanding Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes). However, without the consent each Holder affected thereby, an amendment may not:
| (i) | reduce the amount of Notes whose Holders must consent to an amendment, supplement or waiver; |
| (ii) | reduce the rate of interest, including Defaulted Interest, on any Notes; |
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| (iii) | reduce the principal of any Notes or reduce the redemption price therefor; |
| (iv) | make any Notes payable in money other than that stated in the Notes; |
| (v) | make any change in the provisions of this Indenture described under Section 4.04 that in the Company’s determination adversely affects the rights of any Holder or amend the terms of the Notes in any way that would result in a loss of exemption from Taxes; or |
| (vi) | impair the right of any Holder to institute suit for the enforcement of any payment of any amount on or with respect to such Holder’s Notes. |
(b) It shall not be necessary for the consent of the Holders under this Section 8.02 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent approves the substance thereof.
(c) After an amendment or supplement under this Section 8.02 becomes effective, the Company shall give to Holders a notice briefly describing such amendment. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment under this Section 8.02.
(d) The Notes issued on the Issue Date, and any Additional Notes that are part of the same series, will be treated as a single series for all purposes under this Indenture, including with respect to waivers and amendments.
Section 8.03. Revocation and Effect of Consents and Waivers.
(a) A consent to an amendment or a waiver by a Holder of a Note shall bind the Holder and every subsequent Holder of that Note or portion of the Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent or waiver is not made on the Note. However, any such Holder or subsequent Holder may revoke the consent or waiver as to such Holder’s Note or portion of the Note if the Trustee receives the notice of revocation before the date the amendment, supplement or waiver becomes effective. After an amendment or waiver becomes effective, it shall bind every Holder except as provided in this Article VIII. An amendment, supplement or waiver shall become effective upon the receipt by Trustee of the requisite number of consents under Section 8.02.
(b) The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date.
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Section 8.04. Notation on or Exchange of Notes. If an amendment or supplement changes the terms of a Note, the Trustee may require the Holder of the Note to deliver such Note to the Trustee. The Trustee may place an appropriate notation on the Note regarding the changed terms and return such Note to the Holder. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Note, will execute and upon an Authentication Order shall issue and the Trustee shall authenticate and make available for delivery a new Note that reflects the changed terms. Failure to make the appropriate notation or to issue a new Note shall not affect the validity of such amendment or supplement.
Section 8.05. Trustee to Sign Amendments. The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article VIII if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign it. In signing such amendment, supplement or waiver, the Trustee shall be entitled to receive indemnity reasonably satisfactory to it and to receive, and (subject to Section 6.01) shall be fully protected in relying upon, in addition to the documents required by Section 9.04, an Officer’s Certificate and an Opinion of Counsel each stating that such amendment, supplement or waiver is authorized or permitted by this Indenture and that all conditions precedent to the execution of such amendment, supplement or waiver have been complied with.
Section 8.06. Payment for Consent. Neither the Company nor any Affiliate of the Company shall, directly or indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid to all Holders that so consent, waive or agree to amend in the time frame set forth in solicitation documents relating to such consent, waiver or agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Notices.
(a) Any notice or communication shall be in writing and delivered in person or mailed by first-class mail, postage prepaid, addressed as follows:
if to the Company:
c/o CEMEX, S.A.B. de C.V.
Avenida Ricardo Margáin Zozaya #325
Colonia Valle del Campestre
San Pedro Garza García, Nuevo León
México 66265
Attention: Finance Department—Chief Financial Officer
Fax: +1 (212)-317-6047
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West
New York, New York 10001
Facsimile: +1 212-735-2000/1
Attention: Gregory Fernicola
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if to the Trustee:
The Bank of New York Mellon
240 Greenwich Street, Floor 7 East
New York, NY 10286
Attention: International Corporate Trust
Fax: 724-540-6330
The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.
(b) All notices to Holders will be validly given if mailed or otherwise delivered to them at their respective addresses in the register of Holders, if any, maintained by the Registrar. For so long as any Notes are represented by Global Notes, all notices to Holders will be given to DTC in accordance with its procedures, which shall be deemed to satisfy the requirements of this paragraph.
(c) Each such notice shall be deemed to have been given on the date of delivery, transmission or mailing. Any notice or communication mailed to a Holder shall be mailed to such Person by first class mail or other equivalent means, including electronically delivered or otherwise transmitted in accordance with DTC’s procedures, and shall be sufficiently given to them if so mailed within the time prescribed. Failure to give a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is given in the manner provided above, it is duly given, whether or not the addressee receives it.
(d) The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to the Indenture and delivered using Electronic Means; provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions, and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of the applicable user and authorization codes, passwords and/or authentication keys upon receipt by
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the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction, except for any such losses, costs or expenses due to the Trustee’s gross negligence or willful misconduct. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
Section 9.02. Communication by Holders with Other Holders. Holders may communicate with other Holders with respect to their rights under this Indenture or the Notes.
Section 9.03. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take or refrain from taking any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; provided, however, that such Officer’s Certificate shall not be given in connection with the original issuance of the Issue Date Notes; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent have been complied with; provided, however that such Opinion of Counsel shall not have been given in connection with the original issuance of the Issue Date Notes.
Notwithstanding the foregoing, no such Officer’s Certificate or Opinion of Counsel shall be given with respect to the authentication and delivery of any Issue Date Notes.
Section 9.04. Statements Required in Certificate or Opinion. Each certificate or opinion, including an Opinion of Counsel or Officer’s Certificate, with respect to compliance with a covenant or condition provided for in this Indenture shall include substantially:
(a) a statement that the individual making such certificate or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
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(c) a statement that, in the opinion of such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such individual, such covenant or condition has been complied with.
In giving an Opinion of Counsel, counsel may rely as to factual matters on an Officer’s Certificate or on certificates of public officials.
Section 9.05. Rules by Trustee, Paying Agent, Transfer Agent and Registrar. The Trustee may make reasonable rules for action by or a meeting of Holders. The Registrar, Transfer Agent and Paying Agent may make reasonable rules for their functions.
Section 9.06. Legal Holidays. A “Legal Holiday” is a Saturday, a Sunday or other day on which commercial banking institutions are authorized or required to be closed in New York City or Mexico City. If a payment date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected
Section 9.07. Governing Law, etc.
(a) THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. THE PARTIES HERETO EACH HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES OR ANY TRANSACTION RELATED HERETO OR THERETO TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
(b) Each of the parties hereto hereby:
| (1) | agrees that any suit, action or proceeding against it arising out of or relating to this Indenture or the Notes, as the case may be, may be instituted in any Federal or state court sitting in the City of New York and County of New York and in the courts of its own corporate domicile, in respect of actions brought against it as a defendant; |
| (2) | waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding, any claim that any suit, action or proceeding in such a court has been brought in an inconvenient forum, and the right to any other jurisdiction to which it may be entitled on account of law, of its present or future place of residence or domicile or for any other reason; |
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| (3) | irrevocably submits to the jurisdiction of such courts in any suit, action or proceeding; |
| (4) | agrees that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding may be enforced in the courts of the jurisdiction of which it is subject by a suit upon judgment; and |
| (5) | agrees that service of process by mail to the addresses specified herein shall constitute personal service of such process on it in any such suit, action or proceeding. |
(c) The Company has appointed CEMEX NY Corporation, 590 Madison Avenue, 27th Floor, New York, NY 10022, as its authorized agent (the “Authorized Agent”) upon whom all writs, process and summonses may be served in any suit, action or proceeding arising out of or based upon this Indenture or the Notes which may be instituted in any state or federal court in the City of New York and County of New York. The Company hereby represents and warrants that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and the Company agrees to take any and all action, including the filing of any and all documents, that may be necessary to continue each such appointment in full force and effect as aforesaid so long as the Notes remain outstanding. The Company agrees that the appointment of the Authorized Agent shall be irrevocable so long as any of the Notes remain outstanding or until the irrevocable appointment by the Company of a successor agent in the City of New York, as its authorized agent for such purpose and the acceptance of such appointment by such successor. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Company.
(d) To the extent that the Company has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, the Company to the fullest extent permitted by applicable law hereby irrevocably waives and agrees not to plead or claim such immunity in respect of its obligations under this Indenture or the Notes.
(e) Nothing in this Section 9.07 shall affect the right of the Trustee or any Holder to serve process in any other manner permitted by law.
Section 9.08. No Recourse Against Others. An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Company shall not have any liability for any obligations of the Company under the Notes or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder shall waive and release all such liability.
Section 9.09. Successors. All agreements of the Company in this Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors.
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Section 9.10. Duplicate and Counterpart Originals. The parties may sign any number of copies of this Indenture. One signed copy is enough to prove this Indenture. This Indenture may be executed in any number of counterparts, each of which so executed shall be an original, but all of them together represent the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile, PDF, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile, PDF, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method shall be deemed to be their original signatures for all purposes.
Section 9.11. Severability. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 9.12. Table of Contents; Headings. The table of contents and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
Section 9.13. Currency Indemnity.
(a) U.S. Legal Tender is the sole currency of account and payment for all sums payable by the Company under or in connection with the Notes or this Indenture, including damages. Any amount received or recovered in currency other than U.S. Legal Tender in respect of the Notes (whether as a result of, or of the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Company, any Subsidiary or otherwise) by any Holder in respect of any sum expressed to be due to such Holder from the Company shall only constitute a discharge of them under the Notes and this Indenture only to the extent of the U.S. Legal Tender amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable to do so). If that U.S. Legal Tender amount is less than the U.S. Legal Tender amount expressed to be due to the recipient under the Notes or this Indenture, the Company shall indemnify and hold harmless the recipient, to the greatest extent permitted by law, against any loss or cost sustained by it in making any such purchase. For the purposes of this Section 9.13, it will be sufficient for the Holder to certify that it would have suffered a loss had an actual purchase of U.S. Legal Tender been made with the amount so received in that other currency on the date of receipt or recovery (or, if a purchase of U.S. Legal Tender on such date had not been practicable, on the first date on which it would have been practicable).
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(b) The indemnities of the Company contained in this Section 9.13, to the extent permitted by law: (i) constitute a separate and independent obligation from the other obligations of the Company under this Indenture and the Notes; (ii) shall give rise to a separate and independent cause of action against the Company; (iii) shall apply irrespective of any waiver granted by any Holder or the Trustee from time to time; and (iv) shall continue in full force and effect notwithstanding any other judgment, order, claim or proof of claim for a liquidated amount in respect of any sum due under the Notes or this Indenture or any other judgment or order.
Section 9.14. U.S.A. Patriot Act. The parties hereto acknowledge that, in accordance with Section 326 of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law on October 26, 2001)) (as amended, modified or supplemented from time to time, the “USA PATRIOT Act”), the Trustee, like all financial institutions, is required to obtain, verify, and record information that identifies each person or legal entity that opens an account. The parties to this Agreement agree that they will provide the Trustee with such information as the Trustee may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
Section 9.15. FATCA. In order to comply with Sections 1471 through 1474 of the U.S. Internal Revenue Code and the rules and regulations thereunder (as in effect from time to time, collectively, the “Applicable Law”), the Company agrees (i) to use commercially reasonable efforts to provide to the Trustee upon its reasonable request sufficient information in the Company’s possession about holders or other applicable parties and/or transactions (including any modification to the terms of such transactions) so the Trustee can determine whether it has tax related obligations under the Applicable Law and (ii) that the Trustee shall be entitled to make any withholding or deduction from payments under this Indenture to the extent necessary to comply with the Applicable Law for which the Trustee shall not have any liability for its withholding or deduction from payment under this Indenture to the extent necessary to comply with Applicable Law. The terms of this section shall survive the termination of this Indenture.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.
| CEMEX, S.A.B de C.V., | ||
| as the Company | ||
| By: | /s/ Fernando José Reiter Landa | |
| Name: Fernando José Reiter Landa | ||
| Title: Attorney-in-fact | ||
| THE BANK OF NEW YORK MELLON, as Trustee | ||
| By: | /s/ Francine Kincaid | |
| Name: Francine Kincaid | ||
| Title: Vice President | ||
EXHIBIT A
FORM OF NOTE
Include the following legend for Global Notes only:
THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
Include the following legend on all Notes that are Restricted Notes:
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND [Include the following on all Regulation S Notes that are Restricted Notes: , PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT),] MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO THE ISSUER, (2) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS MADE IN RELIANCE ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES. THIS LEGEND CAN ONLY BE REMOVED AT THE OPTION OF THE ISSUER.
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Include the following on all Regulation S Notes that are Restricted Notes:
PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT), EACH PERSON ACQUIRING AN OWNERSHIP INTEREST IN THE NOTES (1) SHALL BE DEEMED TO REPRESENT AND WARRANT THAT IT EITHER (A) IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IS NOT A U.S. PERSON (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) AND IS OUTSIDE THE UNITED STATES OR (C) IS ACQUIRING SUCH OWNERSHIP INTEREST PURSUANT TO A VALID REGISTRATION STATEMENT OR IN ANOTHER TRANSACTION EXEMPT FROM SUCH REGISTRATION; (2) AGREES THAT PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT), (X) IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT IN ACCORDANCE WITH THE FOREGOING RESTRICTIONS, AND IN ANY CASE IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION; (Y) PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE BANK OF NEW YORK MELLON, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (Z) IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS “UNITED STATES”, “U.S. PERSON” AND “OFFSHORE TRANSACTION” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.”
Include the following legend on all Notes as the Mexican law legend:
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED WITH THE NATIONAL SECURITIES REGISTRY (REGISTRO NACIONAL DE VALORES) MAINTAINED BY THE MEXICAN NATIONAL BANKING AND SECURITIES COMMISSION (COMISIÓN NACIONAL BANCARIA Y DE VALORES), AND THEREFORE MAY NOT BE OFFERED OR SOLD PUBLICLY IN MEXICO, EXCEPT THAT THE NOTES MAY BE OFFERED IN MEXICO TO INVESTORS THAT QUALIFY AS INSTITUTIONAL AND QUALIFIED INVESTORS PURSUANT TO THE PRIVATE PLACEMENT EXEMPTION SET FORTH UNDER ARTICLE 8 OF THE MEXICAN SECURITIES MARKET LAW (LEY DEL MERCADO DE VALORES).”
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[FORM OF FACE OF NOTE]
Subordinated Notes
| No. [______] | Principal Amount $[_________] [If the Note is a Global Note, include the following two lines: as revised by the Schedule of Increases and Decreases in Global Note attached hereto] | |
| CUSIP NO. [________]1 | ||
| ISIN NO. [________]2 | ||
CEMEX, S.A.B. de C.V., a publicly traded variable stock corporation (sociedad anónima bursátil de capital variable) organized under the laws of the United Mexican States (together with its successors and assigns), promises to pay to CEDE & CO., or registered assigns, the principal sum of [_________] U.S. Dollars [If this Note is a Global Note, add the following:, as revised by the Schedule of Increases and Decreases in Global Note attached hereto,] upon redemption, if any, of this Note.
Interest Payment Dates: June 14 and December 14.
Record Dates: May 31 or November 30.
The Notes are subordinated to all Senior Indebtedness to the extent and in the manner provided for in the Indenture, including Section 2.15 thereof. In addition, each Holder is making the agreements with the Company specified in Section 2.15(b) and elsewhere in the Indenture.
Additional provisions of this Note are set forth on the other side of this Note.
[Signature page follows]
| 1 | CUSIP No. for Rule 144A Note: 151290 CB7; CUSIP No. for Regulation S Note: P2253T JT7. |
| 2 | ISIN No. for Rule 144A Note: US151290CB70; ISIN No. for Regulation S Note: USP2253TJT71. |
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Additional provisions of this Note are set forth on the other side of this Note.
| CEMEX, S.A.B. de C.V. | ||
| By: |
| |
| Name: | ||
| Title: | ||
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK MELLON
as Trustee, certifies that this is one of the Notes
referred to in the Indenture.
| By: |
|
Date: | ||||
| Authorized Signatory |
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[FORM OF REVERSE SIDE OF NOTE]
SUBORDINATED NOTES
1. Interest.
Subject to Section 3 hereof and unless previously redeemed or repurchased and cancelled or substituted and varied, CEMEX, S.A.B. de C.V., a publicly traded variable stock corporation (sociedad anónima bursátil de capital variable) organized under the laws of the United Mexican States (such corporation, and its successors and assigns under the Indenture, being referred to herein as the “Company”), promises to pay interest semi-annually on the principal amount of this Note as follows:
| (i) | from and including March 14, 2023 to but excluding June 14, 2028 (or the applicable date of redemption if redeemed prior to such date), the Notes will bear interest at a rate of 9.125% per annum; |
| (ii) | from and including June 14, 2028 to, but excluding, the last day of the applicable Reset Period specified below (or the applicable date of redemption if redeemed prior to such date), at an interest rate per annum which shall be equal to the applicable Reference Rate of the relevant Reset Period expressed as a percentage plus 4.907% per annum (the “Initial Margin”) plus: |
| i. | 0.25% per annum in respect of Reset Periods commencing on and after June 14, 2028 but before the Second Step-up Date (as defined below); and |
| ii. | 1.00% per annum in respect of Reset Periods commencing on and after the Second Step-up Date. |
As used herein “Second Step-up Date” means (i) June 14, 2048, if by (and effective on) May 15, 2028 the Company is assigned an Investment Grade Rating by S&P; and, if not, (ii) June 14, 2043.
The Company will give notice of the applicable Reference Rate as soon as practicable to each paying agent, the Holders of the Notes and the Trustee.
The Company will pay interest semi-annually in arrears on June 14 and December 14 of each year, commencing June 14, 2023; provided that if any such Interest Payment Date is not a Business Day or is not a day where banks are open for business in a particular place of payment, then such payment shall be made on the next succeeding Business Day. There will be a short first interest period, from and including March 14, 2023 to, but excluding, June 14. Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from March 14, 2023. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. Subject to the Company’s right to defer interest payments on the Notes as set forth in Section 3, the Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (“Defaulted Interest”), without regard to any applicable grace period, at the same rate to the extent lawful.
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All payments made by the Company in respect of the Notes will be made free and clear of and without deduction or withholding for or on account of any Taxes imposed or levied by or on behalf of any Taxing Jurisdiction, unless such withholding or deduction is required by law or by the interpretation or administration thereof. In that event, the Company will pay to each Holder Additional Amounts as provided in the Indenture subject to the limitations set forth in the Indenture.
2. Maturity
The Notes have no scheduled maturity date.
3. Option to Defer Interest Payments
The Company, in its sole discretion, may defer payment of interest on the Notes that would otherwise be payable as provided in the Indenture.
4. Payment of Deferred Interest
The Company may elect, in its sole discretion, to pay Deferred Interest at any time, together with any related Arrears of Interest in whole or in part, with respect to the Notes, as provided in the Indenture. The Company shall pay any Deferred Interest and the related Arrears of Interest, in respect of the Notes, on the first occurring Mandatory Payment Date following the Interest Payment Date on which such Deferred Interest first arose, as provided in the Indenture.
5. Method of Payment.
The Company will pay interest on this Note (except Defaulted Interest) to the Persons who are registered Holders of this Note at the close of business on May 31 or November 30 (each a “Record Date”) next preceding the Interest Payment Date even if Notes are canceled, repurchased or redeemed after the Record Date and on or before the Interest Payment Date. For the purpose of determining the Holder at the close of business on a regular record date when business is not being conducted, the close of business will mean 5:00 p.m., New York City time, on that day. Holders must surrender this Note to a Paying Agent to collect principal payments. The Company will pay principal and interest in U.S. Legal Tender.
Prior to 11:00 a.m. New York City time on the Business Day prior to the date on which any principal of or interest on this Note is due and payable, the Company shall irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay such principal and/or interest. Payments in respect of this Note if represented by a Global Note (including principal, premium and interest) will be made by wire transfer of immediately available funds to the accounts specified by DTC. Payments on this Note will be made at the office or agency of the Paying Agent in the United States unless the Company elects to make interest payments by check mailed to the Holders at their address set forth in the Note Register; provided, however, that payments on this Note may also be made, in the case of a Holder of at least $1,000,000 in
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aggregate principal amount of Notes, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the City of New York if such Holder elects payment by wire transfer by giving written notice to the Company to such effect designating such account no later than ten (10) Business Days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
6. Paying Agent and Registrar.
Initially, The Bank of New York Mellon (the “Trustee”), will act as Paying Agent and Registrar. The Company may appoint and change any Paying Agent, Transfer Agent, Registrar or co-Registrar without prior notice to the Holders of this Note. The Company may act as Paying Agent, Transfer Agent or Registrar.
7. Indenture.
The Company issued this Note under an Indenture, dated as of March 14, 2023 (as it may be amended or supplemented from time to time in accordance with the terms thereof, the “Indenture”), among the Company and the Trustee. The terms of this Note include those stated in the Indenture. Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Indenture. This Note is subject to all such terms, and Holders are referred to the Indenture for a statement of those terms. Each Holder by accepting a Note agrees to be bound by all of the terms and provisions of the Indenture, as amended or supplemented from time to time.
This Note is a subordinated unsecured obligation of the Company unlimited in principal amount. Subject to the conditions set forth in the Indenture and without the consent of the Holders, the Company may issue Additional Notes. All Notes will be treated as a single class of securities under the Indenture.
8. Optional Redemption.
The Company may redeem the Notes in the circumstances, in the manner and at the prices described in the Indenture.
9. Sinking Fund.
The Notes are not subject to any sinking fund.
10. Persons Deemed Owners.
The registered Holder of this Note may be treated as the owner of it for all purposes.
11. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its written request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
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12. Amendment, Waiver.
Subject to certain exceptions set forth in the Indenture, the Indenture or the Notes may be amended (for the provisions thereof waived) with the consent of the Holders of at least a majority in aggregate principal amount of the then Outstanding Notes.
13. Defaults and Remedies.
There are no defaults or events of default in respect of the Notes. There is no cross default under the Notes. However, the entire principal amount of all the Notes and any accrued interest, arrears of interest and Additional Amounts thereon will be automatically accelerated, without any action by the Trustee or any holder and any principal, interest or Additional Amounts will become immediately due and payable, in case of a Bankruptcy Event or a Liquidation Event. No payments will be made to holders of any class of the Company’s Capital Stock before all amounts due, but unpaid, to all holders of the Notes have been paid by the Company.
There is no right of acceleration of the payment of principal of the Notes if the Company fails to pay interest, Arrears of Interest and Additional Amounts thereon when any such payment becomes due pursuant to the Indenture. The rights of Holders to enforce the provisions of the Indenture and the Notes are expressly limited by the provisions of the Indenture.
14. Trustee Dealings with the Company.
Subject to certain limitations set forth in the Indenture, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.
15. No Recourse Against Others.
An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Company or any Subsidiary shall not have any liability for any obligations of the Company under the Notes or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder waives and releases all such liability.
16. Authentication.
Any Officer of the Company may sign the Notes for the Company by manual, facsimile or electronic signature. This Note shall not be valid until an authorized signatory of the Trustee (or an Authenticating Agent) electronically or manually signs the certificate of authentication on the other side of this Note.
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17. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/GIMIA (=Uniform Gift to Minors Act).
18. Governing Law, etc.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
19. CUSIP Number.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP or other similar numbers to be printed on the Notes and has directed the Trustee to use CUSIP number in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
20. Currency of Account; Conversion of Currency.
U.S. Legal Tender is the sole currency of account and payment for all sums payable by the Company under or in connection with the Notes or the Indenture, including damages. The Company will indemnify the Holders as provided in respect of the conversion of currency relating to the Notes and the Indenture.
21. Agent for Service; Submission to Jurisdiction; Waiver of Immunities.
The Company has agreed that any suit, action or proceeding against the Company brought by any Holder or the Trustee arising out of or based upon the Indenture or the Notes may be instituted in any state or federal court in the City of New York and County of New York and in the courts of their respective corporate domiciles, in respect of actions brought against them as defendants. The Company has irrevocably submitted to the jurisdiction of such courts for such purpose and waived, to the fullest extent permitted by law, trial by jury and any objection they may now or hereafter have to the laying of venue of any such proceeding, and any claim they may now or hereafter have that any proceeding in any such court is brought in an inconvenient forum and irrevocably waived the right to any other jurisdiction to which it may be entitled on account of law, of its present or future place of residence or domicile or for any other reason. The Company has appointed CEMEX NY Corporation, 590 Madison Avenue, 27th Floor, New York, NY 10022, its authorized agent upon whom all writs, process and summonses may be served in any suit, action or proceeding arising out of or based upon the Indenture or the Notes which may be instituted in any state or federal court in the City of New York and County of New York. To the extent that the Company has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, the Company has, to the fullest extent permitted by applicable law, irrevocably waived and agreed not to plead or claim such immunity in respect of its obligations under the Indenture or the Notes.
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The Company will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture which has in it the text of this Note in larger type. Requests may be made to:
CEMEX, S.A.B. de C.V.
Avenida Ricardo Margáin Zozaya #325
Colonia Valle del Campestre
San Pedro Garza García, Nuevo León, México 66265
Tel: +5281-8888-8888
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
|
|
| (Print or type assignee’s name, address and zip code) |
|
|
| (Insert assignee’s Social Security or Tax I.D. Number) |
and irrevocably appoint agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.
| Date: | Your Signature: |
| Signature Guarantee: |
|
|||
| (Signature must be guaranteed) |
Sign exactly as your name appears on the other side of this Note.
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program); pursuant to Exchange Act Rule 17Ad-15.
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[To be attached to Global Notes only]
SCHEDULE OF INCREASES AND DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
| Date of Exchange |
Amount of decrease in Principal Amount of this Global Note |
Amount of increase in Principal Amount of this Global Note |
Principal Amount of this Global Note following such decrease or increase |
Signature of authorized signatory of Trustee or Note Custodian |
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EXHIBIT B
FORM OF CERTIFICATE FOR TRANSFER PURSUANT TO REGULATION S
[Date]
The Bank of New York Mellon
240 Greenwich Street, Floor 7 East
New York, NY 10286
Attention: International Corporate Trust
| Re: | Subordinated Notes (the “Notes”) |
of CEMEX, S.A.B. de C.V. (the “Company”)
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of March 14, 2023 (as amended and supplemented from time to time, the “Indenture”), among the Company and The Bank of New York Mellon, as Trustee. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture or Regulation S under the Securities Act of 1933, as amended (the “Securities Act”), as the case may be.
In connection with our proposed sale of $[________] aggregate principal amount of the Notes, which represent an interest in a 144A Global Note beneficially owned by the undersigned (“Transferor”), we confirm that such sale has been effected pursuant to and in accordance with Regulation S and, accordingly, we represent that:
(a) the offer of the Notes was not made to a person in the United States;
(b) either (i) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (ii) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable;
(d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and
(e) we are the beneficial owner of the principal amount of Notes being transferred.
In addition, if the transfer is made during a Distribution Compliance Period and the provisions of Rule 904(b)(1) or Rule 904(b)(2) of Regulation S are applicable thereto, we confirm that such transfer has been made in accordance with the applicable provisions of Rule 904(b)(1) or Rule 904(b)(2), as the case may be.
B-1
You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:
Authorized Signature
Signature Guarantee:
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
B-2
EXHIBIT C
FORM OF CERTIFICATE FOR TRANSFER PURSUANT TO RULE 144
[Date]
The Bank of New York Mellon
240 Greenwich Street, Floor 7 East
New York, NY 10286
Attention: International Corporate Trust
| Re: | Subordinated Notes (the “Notes”) |
of CEMEX, S.A.B. de C.V. (the “Company”)
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of March 14, 2023 (as amended and supplemented from time to time, the “Indenture”), among the Company and The Bank of New York Mellon, as Trustee. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.
In connection with our proposed sale of $[__________] aggregate principal amount of the Notes, which represent an interest in a 144A Global Note beneficially owned by the undersigned (“Transferor”), we confirm that such sale has been effected pursuant to and in accordance with Rule 144 under the Securities Act.
You and the Company are entitled to conclusively rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
| Very truly yours, | ||
| [Name of Transferor] | ||
| By: |
| |
| Authorized Signature | ||
C-1
EXHIBIT D
FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144A
[Date]
The Bank of New York Mellon
240 Greenwich Street, Floor 7 East
New York, NY 10286
Attention: International Corporate Trust
| Re: | Subordinated Notes (the “Notes”) |
of CEMEX, S.A.B. de C.V. (the “Company”)
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of March 14, 2023 (as amended and supplemented from time to time, the “Indenture”), among the Company and The Bank of New York Mellon, as Trustee. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.
In connection with our proposed transfer of $[___________] aggregate principal amount of the Notes, which represent an interest in a Regulation S Global Note beneficially owned by the undersigned (“Transferor”), we confirm that such transfer has been effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended, and, accordingly, we represent that the beneficial interest will be transferred to a Person that we reasonably believe is purchasing the beneficial interest for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such transfer is in compliance with any applicable blue sky securities laws of any state of the United States.
You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
D-1
| Very truly yours, |
| [Name of Transferor] |
| By: |
| Authorized Signature |
| Signature Guarantee: | ||
| (Signature must be guaranteed) |
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
D-2
Exhibit 4.9
December 21, 2021
CREDIT AGREEMENT
among
CEMEX, S.A.B. de C.V.,
as Borrower,
CEMEX Concretos, S.A. de C.V.,
as Joint Obligor,
CEMEX Operaciones México, S.A. de C.V.,
as Joint Obligor (Fiadora),
and
Banco Mercantil del Norte, S.A., Institución de Banca Múltiple, Grupo Financiero Banorte,
as Lender
| TABLE OF CONTENTS | Page | |||||
| REPRESENTATIONS |
1 | |||||
| I. |
Representations by the Loan Parties | 1 | ||||
| II. |
Representations by the Lender | 6 | ||||
| ARTICLES |
7 | |||||
| Article I. |
Defined Terms; Interpretation | 7 | ||||
| Article II. |
The Loan | 23 | ||||
| Section 2.1. |
Commitment | 23 | ||||
| Section 2.2. |
Borrowing | 23 | ||||
| Section 2.3. |
Use of Proceeds | 24 | ||||
| Section 2.4. |
Repayment of the Loan; Fees | 24 | ||||
| Section 2.5. |
Ordinary Interest | 26 | ||||
| Section 2.6. |
Default Interest | 28 | ||||
| Section 2.7. |
Payments Generally | 28 | ||||
| Section 2.8. |
Performance Protection; Change in Applicable Law; Illegality | 29 | ||||
| Section 2.9. |
Taxes | 31 | ||||
| Section 2.10. |
Sustainability Adjustments | 31 | ||||
| Article III. Guarantors |
33 | |||||
| Section 3.1. |
Joint Obligors (Fiadoras) | 33 | ||||
| Section 3.2. |
Joint Obligors | 35 | ||||
| Section 3.3. |
Guarantor Release | 35 | ||||
| Article IV. |
Certain Conditions Precedent and Requirements for the Borrowing of the Loan | 35 | ||||
| Article V. |
Affirmative Covenants | 37 | ||||
| Section 5.1. |
Financial Statements | 38 | ||||
| Section 5.2. |
Certificates; Other Information | 38 | ||||
| Section 5.3. |
Notices | 39 | ||||
| Section 5.4. |
Pari Passu Obligations | 40 | ||||
| Section 5.5. |
Payment of Obligations | 40 | ||||
| Section 5.6. |
Preservation of Licenses and Existence | 40 | ||||
| Section 5.7. |
Property | 40 | ||||
| Section 5.8. |
Insurance | 40 | ||||
| Section 5.9. |
Compliance with Applicable Law | 40 | ||||
| Section 5.10. |
Books and Records | 41 | ||||
| Section 5.11. |
Use of Loan Proceeds | 41 | ||||
| Section 5.12. |
Anti-Corruption Laws; Sanctions | 41 | ||||
| Section 5.13. |
Proceeds of Lawful Origin | 41 | ||||
| Section 5.14. |
Sustainability Reporting | 41 | ||||
| Section 5.15. |
Substitution of promissory notes; Inconsistencies | 42 | ||||
ii
| Article VI. |
Negative Covenants | 42 | ||||
| Section 6.1. |
Liens | 42 | ||||
| Section 6.2. |
Subsidiary Debt | 44 | ||||
| Section 6.3. |
Relevant Changes and Sale of Assets | 45 | ||||
| Section 6.4. |
Restricted Payments | 45 | ||||
| Section 6.5. |
Financial Covenants | 46 | ||||
| Article VII. |
Defaults; Events of Defaults; Acceleration | 46 | ||||
| Article VIII. |
Indemnification | 48 | ||||
| Article IX. |
Miscellaneous | 49 | ||||
| Section 9.1. |
Amendments | 49 | ||||
| Section 9.2. |
Assignments | 49 | ||||
| Section 9.3. |
Costs and Expenses | 51 | ||||
| Section 9.4. |
Addresses; Notices | 51 | ||||
| Section 9.5. |
Waiver of Rights | 52 | ||||
| Section 9.6. |
Exhibits; Schedules; Headings | 52 | ||||
| Section 9.7. |
Severability | 52 | ||||
| Section 9.8. |
Entire Agreement | 52 | ||||
| Section 9.9. |
Confidentiality | 52 | ||||
| Section 9.10. |
Instrument Coupled with Enforcement | 53 | ||||
| Section 9.11. |
Advisory; Mutual Negotiation | 53 | ||||
| Section 9.12. |
Applicable Law; Competent Courts | 53 | ||||
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List of Schedules
| I.6 | List of conflicts, litigations and proceedings | |
| I.12 | Subsidiaries and equity investments | |
| 1(a) | Existing Debts | |
| 5.2 | Web Pages | |
| 6.1(f) | Existing Liens |
List of Exhibits
| A | Form of Compliance Certificate | |
| B | Form of Pricing Certificate | |
| C | Form of Guaranty | |
| D | Form of Promissory Note | |
| E | Form of Borrowing Notice | |
| F-1 | Form of legal opinion of outside counsel in Mexico to the Borrower and the Guarantors | |
| F-2 | Form of legal opinion of outside counsel in New York to the Borrower and the Guarantors | |
| F-3 | Form of legal opinion of outside counsel in Switzerland to the Borrower and the Guarantors | |
| F-4 | Form of legal opinion of outside counsel in Mexico to the Lender | |
| G-1 | Form of Secretary’s Certificate | |
| G-2 | Form of Authorized Officer |
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This CREDIT AGREEMENT is entered into as of December 20, 2021 (this “Agreement”) among:
(1) CEMEX, S.A.B. de C.V., a sociedad anónima bursátil de capital variable, organized and existing under the laws of the United Mexican States (“Mexico”), as borrower (indistinctively, the “Borrower” or “CEMEX”), herein represented by its representative, Mr. Fernando José Reiter Landa;
(2) CEMEX Concretos, S.A. de C.V., a sociedad anónima de capital variable, organized and existing under the laws of Mexico and herein represented by its representative, Mr. Fernando José Reiter Landa, as joint obligor of the Borrower (the “Initial Joint Obligor”); and
(3) CEMEXOperaciones México, S.A. de C.V., a sociedad anónima de capital variable, organized and existing under the laws of México and herein represented by its representative, Mr. Fernando José Reiter Landa, as fiadora of the Borrower (the “Joint Obligor (Fiadora)”); and
(4) Banco Mercantil del Norte, S.A., Institución de Banca Múltiple, Grupo Financiero Banorte, herein represented by its representatives, Messrs. Manuel Ramírez García and Fidel Garza Chapa, as lender, together with its successors and assigns (“Banorte” or the “Lender”).
Pursuant to the following Representations and Clauses:
REPRESENTATIONS
I. Representations by the Loan Parties. Each of the Loan Parties, individually, through their representative, represents on this date (except for Representation I.18) and on any other date referred to in any specific Representation, that:
I.1 Existence and Powers. Each Loan Party and each Subsidiary thereof (a) is duly organized or formed and validly existing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite licenses, authorizations, consents and governmental approvals to (i) own or lease its assets and conduct its business as currently conducted and (ii) execute the Loan Documents to which it is a party and comply with its respective obligations thereunder, and (c) has the capacity and licenses, necessary to conduct its business as currently conducted, and as applicable, is in compliance with the Applicable Law at the location where it owns, leases and operates, except for defaults of clauses (b)(i) or (c) that could not reasonably be expected to have a Material Adverse Effect.
I.2 Authorization; No Contravention. The execution and performance by each Loan Party of each Loan Document to which such Person is party, have been duly authorized by all necessary corporate action, and do not (a) contravene the terms of any of the Organization Documents, (b) with or result in any breach or contravention of, or the creation of Liens or payment accelerated or anticipated (as opposed to calendarized) to be made under (i) any Contractual Obligation of the Loan Parties, as applicable, or any of their Subsidiaries or to which their respective property is subject, or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Loan Parties or any of their Subsidiaries, or their respective property is subject, and (c) violate any Applicable Law in any material respect.
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I.3 Authorizations. The execution or performance by, or enforceability against, any of the Loan Parties hereof or any other Loan Document, does not require the approval, consent, exemption, authorization or other action by, or notice to, or filing with, any Authority Government or any other Person, except for those that have already been obtained, approved, granted, taken, given or made, as the case may be.
I.4 Binding Effect. This Agreement has been, and each other Loan Document, when delivered hereunder, shall have been, at the time of execution, legally executed, and constitute, or shall constitute at the time of execution, a legal, valid and binding obligation of such Loan Party, and enforceable against each one of them in accordance with their respective terms, subject to applicable concurso mercantil, bankruptcy, insolvency, reorganization or other similar laws or other laws affecting creditors’ rights generally and provisions of public order.
I.5 Financial Statements; No Material Adverse Effect.
(a) The Borrower’s audited Financial Statements for the year ended December 31, 2020 (i) were prepared in accordance with International Financial Reporting Standards consistently applied during the relevant periods, except as otherwise expressly noted therein; (ii) reasonably present the financial and accounting condition of the Borrower and its Subsidiaries, in all its important aspects, in accordance with the International Financial Reporting Standards, as of the date thereof, as well as their funds for the periods covered thereby, except as otherwise expressly noted therein; and (iii) show all indebtedness and other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the year ended December 31, 2020, including, without limitation, liabilities for taxes, material commitments and Indebtedness.
(b) The internal consolidated Financial Statements of the Borrower and its Subsidiaries for the fiscal quarter ended September 30, 2021 (i) were prepared in accordance with International Financial Reporting Standards consistently applied during the relevant periods, except as otherwise expressly noted therein, and (ii) reasonably present the financial and accounting condition and results of operations of the Borrower and its Subsidiaries, in all its important aspects, as of the date thereof, subject to ordinary notes and adjustments derived from the year-end audit.
(c) Since December 31, 2020, there has been no event or circumstance, either individually or in the aggregate, that has had or would reasonably be expected to have a Material Adverse Effect.
I.6 Litigation. To September 30, 2021, there are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower, threatened, by or against the Borrower or any of its Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby or (b) would reasonably be expected to have a Material Adverse Effect if determined adversely, except as specifically disclosed in Schedule [I.6].
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I.7 No Default. No Loan Party nor any Subsidiary thereof is in default under or with respect to any Contractual Obligation that would, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
I.8 Ownership of Property; Liens. Each of the Borrower and each Subsidiary has good record and marketable title to, or rights to use, all real property necessary and/or used in the ordinary conduct of its business, except for such defects in title or use rights as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
I.9 Environmental. The Borrower and its Subsidiaries conduct in the ordinary course of business a review of existing Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on their respective businesses, operations and properties. To September 30, 2021, except as specifically disclosed in Schedule I.6 or as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, to the knowledge of the Borrower: (a) the Borrower and its Subsidiaries have been and are in compliance with such Environmental Laws; (b) there are no claims, disputes, proceedings or actions against the Borrower or its Subsidiaries, disputes, proceedings or actions against the Borrower or its Subsidiaries, pursuant to such Environmental Laws or exists threat of claim, dispute, litigation or proceeding against the Licensee or its Subsidiaries, in connection with an alleged violation of Environmental Laws; and (c) there are no events or circumstances relating to the business or operations of the Borrower and its Subsidiaries that are reasonably likely to cause the Borrower or its Subsidiaries to incur Environmental Liabilities.
I.10 Insurance. The properties of the Borrower and its Subsidiaries are insured by financially sound insurance companies (which may be Affiliates of the Borrower), in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Borrower or the relevant Subsidiaries operate.
I.11 Taxes. The Borrower and its Subsidiaries have filed all Federal, state and other Tax returns and reports required to be filed, and have paid or withheld all Federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided to the extent required by International Financial Reporting Standards, or (b) to the extent that the failure to do so would not have a Material Adverse Effect.
I.12 Subsidiaries. To September 30, 2021, (a) the Borrower has no Subsidiaries other than those specifically disclosed in Part (a) of Schedule I.12, and except as indicated in Part (a) of Schedule I.12 all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and nonassessable and are owned by the Borrower and/or one or more Subsidiaries of the Borrower, free and clear of all Liens (other than non-consensual Liens which may arise by Applicable Law), (b) the Borrower has no equity investments in any other corporation or entity other than those specifically disclosed in Part (b) of Schedule I.12, and (c) all of the outstanding Equity Interests in the Borrower have been validly issued and are fully paid and nonassessable.
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I.13 Disclosure. No written report, Financial Statement, certificate or other written information furnished by or on behalf of any Loan Party to the Lender, as of the execution date hereof, in connection with the transactions contemplated hereby and the negotiation of this Agreement (in each case, as amended or supplemented by other information furnished by or on behalf of any Loan Party) contains any material misstatement of material fact or omits to state any material fact necessary to make the statements therein, when furnished and after giving effect to all supplements thereto, in the light of the circumstances in accordance which they were made, not misleading in any material respect; provided that, with respect to projected financial information and other projections, the Borrower represents only that such projections were prepared in good faith based upon assumptions believed to be reasonable at the time were furnished (it being understood by the Lender that such projections are as to future events and are not to be viewed as facts consummated or existing, such projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Borrower and its Subsidiaries, that no assurance can be given that any particular projections shall be realized and that actual results during the period or periods covered by any such projections may significantly differ from the projected results and such differences may be material).
I.14 Compliance with Laws. Each Loan Party and each Subsidiary thereof is in compliance in all material respects with the requirements of all Applicable Laws and all orders, writs, injunctions and decrees applicable to each of them or it or to its properties, except in such instances in which (a) the Applicable Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
I.15 Intellectual Property; Licenses, Etc. The Borrower and its Subsidiaries own, license or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, trade secrets, know-how and other intellectual property rights (collectively, “Intellectual Property Rights”) that are reasonably necessary for the operation of their respective businesses as currently conducted, without, to the knowledge of the Borrower, infringement, misappropriation or other violation of the Intellectual Property Rights of any other Person, except for any such failure to own, license or possess, or such infringement, that would not reasonably be expected to have a Material Adverse Effect. To the knowledge of the Borrower, no product, service, process, method, substance, part or other material now used by the Borrower or any Subsidiary in the conduct of their business as currently conducted infringes, misappropriates or otherwise violates upon any Intellectual Property Rights held by any other Person, except for any such infringement, misappropriation or violation which would not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any of the foregoing is pending or, to the knowledge of the Borrower, threatened against the Borrower or any Subsidiary, which, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. To the knowledge of the Borrower, in the two (2) year period preceding the execution date hereof, there has been no unauthorized use, access,
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interruption, modification, or corruption of any information technology systems (or any sensitive or personal information stored or contained therein or transmitted thereby) owned or controlled by the Borrower or any of its Subsidiaries, which, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
I.16 Sanctions. None of the Borrower, any of its Subsidiaries, or the directors of the Borrower or, to the knowledge of the Borrower, any director, officer, agent, employee, or Affiliate or other person acting on behalf of the Borrower or any of its Subsidiaries is, or is Controlled or 50% or more owned in the aggregate by or is acting on behalf of, one or more individuals or entities that are currently the subject or the target of any Sanction (including the designation as a “specially designated national” or “blocked person”), nor is the Borrower, any of its Subsidiaries located, organized or resident in a Designated Jurisdiction; and the Borrower shall not directly or knowingly indirectly use the proceeds of the Loan, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any Person that, at the time of such funding or facilitation, is the subject or the target of Sanctions, (ii) to fund or facilitate any activities of or business in any Designated Jurisdiction or (iii) in any other manner that shall result in a violation of Sanctions by any Person participating in the transaction, whether as an initial purchaser, advisor, investor or otherwise. The Borrower and its Subsidiaries are not now knowingly engaged in any dealings or transactions with any Person that is the subject or the target of Sanctions or with any Designated Jurisdiction.
I.17 Anti-Corruption Laws. During the five (5) years prior to the execution date hereof, none of the Borrower, any of its Subsidiaries, or the directors of the Borrower or, to the knowledge of the Borrower, any director, officer, agent, employee or Affiliate or other person acting on behalf of the Borrower or any of its Subsidiaries has (i) used any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government or regulatory official or employee, including of any government-owned or -controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) (except for any violation of Applicable Law resulting from matters under investigation as of the execution date hereof, as disclosed in the Borrower’s annual report on Form 20-F for 2020 filed with the SEC) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, the Mexican General Law of the National Anticorruption System (Ley General del Sistema Nacional Anticorrupción), the Mexican Federal Criminal Code (Código Penal Federal), the Mexican General Law of Administrative Responsibilities (Ley General de Responsabilidades Administrativas), or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption laws; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit; except, in each case, for matters under investigation by the U.S. Department of Justice and the staff of the SEC. During the five (5) years prior to the execution date hereof, the Borrower and its Subsidiaries have instituted, and maintain and enforce, policies and procedures reasonably designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
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I.18 Solvency. As of the execution date hereof, the Borrower is Solvent.
I.19 Immunity. Each Loan Party is subject to civil and commercial law with respect to its obligations under the Loan Documents to which it is a party, and the execution, delivery and performance by it of such Loan Documents constitute private and commercial acts rather than public or governmental acts. None of the Loan Parties nor any of their respective properties is entitled to any right of immunity on the grounds of sovereignty or otherwise from the jurisdiction of any court or from any action, suit, setoff or proceeding, (either by summons to court, attachment prior to judgment or any other proceeding) arising under the Loan Documents.
I.20 Pari Passu Status. The obligations of the Borrower and each Guarantor under the Loan Documents to which such Person is a party constitute direct, senior, unsecured, and unsubordinated obligations of the Borrower or such Guarantor, as applicable, and, under current Applicable Law, rank at least pari passu in right of payment with all other direct, senior, unsecured, and unsubordinated obligations of the Borrower or such Guarantor (other than Indebtedness having priority by operation of law).
II. Representations by Lender. The Lender, through its representatives, represents on this date that:
II.1 Existence. It is a sociedad anónima legally organized and existing under the laws of Mexico, authorized by the Ministry of Finance and Public Credit to operate as a multiple banking institution.
II.2 Powers. Its representatives have the legal powers necessary to bind it under the terms of this Agreement and the other Loan Documents to which it is a party, powers that have not been amended, restricted, limited or revoked in any manner as of this date.
II.3 Authorizations. It has all the legal and corporate authorizations necessary to enter into this Agreement, as well as to comply with its obligations hereunder.
II.4 No Contravention. The execution of this Agreement and the other Loan Documents to which it is a party, as well as the performance of the obligations herein and therein, do not constitute a violation of its Organization Documents, nor do they constitute a violation, breach or event of prepayment of, or pursuant to (i) any contract or agreement to which it is a party or by virtue of which they are bound, or (ii) any Applicable Law.
II.5 Binding Effect. This Agreement and the other Loan Documents are and create a legal, valid and binding obligation of the Lender, and enforceable against it in accordance with their terms, subject to applicable concurso mercantil, bankruptcy, insolvency, reorganization or other similar laws or other laws affecting creditors’ rights generally and provisions of public order.
NOW, THEREFORE, the Parties hereto agree to the following:
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ARTICLES
Article I. Defined Terms; Interpretation. (a) Defined Terms. Capitalized terms used herein and not otherwise defined in any other Article or Section hereof shall have the meanings assigned to them in this Article.
“Additional Foreign Guarantors” means any Person organized and existing under the laws of a country other than Mexico, and who, with the written acknowledgment of the Borrower, executes a guarantee as a guarantor for the purposes of guaranteeing the Borrower’s obligations under the Loan Documents, substantially in the form of Exhibit C, and who, in a timely manner, but no later than ten (10) Business Days following the following any request from the Lender, delivers information and documentation reasonably requested by the Lender in order to comply with the applicable regulations and provisions regarding anti-money laundering and customer identification (“know your customer”).
“Additional Guarantors” means the Additional Mexican Guarantors and the Additional Foreign Guarantors.
“Additional Joint Obligors (Fiadoras)” means any Person organized and existing under the laws of Mexico, who adheres to this Agreement as fiadora for purposes of securing the Borrower’s obligations under the Loan Documents, through an additional satisfactory agreement for the Lender, and whom in due course, but no later than 10 (ten) Business Days following a written request of the Lender , that provides information and documentation reasonably requested by the Lender in order to comply with the applicable regulations and provisions regarding anti-money laundering and customer identification (“know your customer”).
“Additional Joint Obligors” means any Person organized and existing under the laws of Mexico, and who adheres to this Agreement as joint obligor for purposes of guaranteeing the Borrower’s obligations under the Loan Documents, through an additional satisfactory agreement for the Lender, and whom in due course, but no later than 10 (ten) Business Days following a written request of the Lender , that provides information and documentation reasonably requested by the Lender in order to comply with the applicable regulations and provisions regarding anti-money laundering and customer identification (“know your customer”).
“Additional Mexican Guarantors” means the Additional Joint Obligors and the Additional Joint Obligors (Fiadoras).
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Agreement” means, this loan agreement, including its schedules and exhibits and any amendment or restatement thereof.
“Alternative Fuels” are defined following the Global Cement and Concrete Association Sustainability Guidelines, as in effect on the execution date hereof, for co-processing fuels and raw materials in cement manufacturing and include, industrial waste, municipal solid waste, biomass residues and tires.
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“Annual Period” means each calendar year.
“Applicable Law” means, with respect to any Person, (i) any law (including Environmental Laws), regulations, ordinances, rules, norms, judgments, orders, decrees, permits, official standards (normas técnicas), guidelines, international sanctions regime, judicial orders, concessions, or other governmental provisions or restrictions or any interpretation or administration of any of the foregoing by any Governmental Authority, any of the foregoing, local or foreign, by virtue of which said Person or all or any of its assets, are bound, and (ii) any directive, guideline, policy, requirement or any form of decision or similar determination by any Governmental Authority that is mandatory, in each case, currently or in the future.
“Applicable Margin” means, for each Interest Period, the relevant basis points according to the following table based on the Borrower’s Consolidated Leverage Ratio (calculated in accordance with Section 6.4), in force at the beginning of the Interest Period in question, provided that said basis points shall be subject to increases and decreases in the Sustainability Margin Adjustment applicable in terms ofthis Agreement:
| Consolidated Leverage Ratio |
Applicable Margin | |
| Greater than three point twenty-five times (3.25x) | one hundred seventy-five (175) basis points | |
| Less than or equal to three point twenty-five times (3.25x) but greater than two point seventy-five times (2.75x) | one hundred fifty (150) basis points | |
| Less than or equal to two point seventy-five times (2.75x) but greater than two point twenty-five times (2.25x) | one hundred twenty-five (125) basis points | |
| Less than or equal to two point twenty-five times (2.25x) | one hundred (100) basis points | |
“Approved Fund” means any Person (except for an Individual) who is involved in the realization, purchase, holding or otherwise investment of commercial credits and similar loans in the ordinary course of its activities; that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages the Lender.
“Availability Period” means, the period that begins on the execution date hereof and ends thirty (30) calendar days from the execution date hereof.
“Banorte” has the meaning assigned to it in the preamble hereof.
“Borrower Materials” has the meaning assigned to it in Section 5.2.
“Borrower’s Account” means, the account for deposits in Mexican currency number 0213505532, CLABE 072580002135055324, that the Borrower maintains with Banorte, or any other account that the Borrower opens and maintains with Banorte, for the purpose of receiving the proceeds of the Borrowing disbursed by Banorte, as indicated by the Borrower in the relevant Borrowing Notice.
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“Borrower” has the meaning assigned to it in the preamble hereof.
“Borrowing Date” means, the date means the date on which the Borrower receives the Borrowing.
“Borrowing Notice” has the meaning assigned to it in Section 2.2(b) hereof.
“Borrowing” has the meaning assigned to it in Section 2.2(a) hereof.
“Business Day” means, any day other a Saturday or Sunday, or a day on which credit institutions are authorized or required to close in Mexico City, Mexico, in accordance with the applicable provisions issued by the National Banking and Securities Commission.
“CCP Rate” means the Cost of Term Funding of Liabilities denominated in Mexican pesos published by Banco de México on its official website (www.banxico.org.mx or any other that replaces it)..
“Cementitious Product” means all clinker volumes produced by a company for cement making or direct clinker sale, plus gypsum, limestone, cement kiln dust and all clinkers consumed for blending, plus all cement substitutes produced. Clinker bought from third parties for the production of cement shall not constitute Cementitious Product.
“CEMEX” has the meaning assigned to it in the preamble hereof.
“CETE Rate” means the rate of the Certificados de la Tesorería de la Federación published by Banco de Mexico on its official website (www.banxico.org.mx or any other that replaces it) and for a term similar to the Interest Period notified by the Borrower..
“Change of Control” means the beneficial ownership of twenty percent (20%) or more in voting power of the outstanding Voting Stock of the Borrower is acquired by any Person. Notwithstanding the foregoing, a transaction shall not be deemed to constitute a Change of Control if (1) the Borrower becomes a direct or indirect Wholly Owned Subsidiary of a holding company and (2)(A) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Borrower’s Voting Stock immediately prior to that transaction or (B) immediately following that transaction no Person (other than a holding company satisfying the requirements of this sentence) has beneficial ownership of twenty percent (20%) or more in voting power of the Voting Stock of such holding company.
“Commitment” has the meaning indicated in Section 2.1 of this Agreement.
“Common Stock” means, with respect to any Person, any and all shares, equity interests (partes sociales), interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of such Person’s common equity interests, whether outstanding on the execution date of this Agreement or issued thereafter, and includes, without limitation, all series and classes of such common equity interests. For the avoidance of doubt, “Common Stock” of the Borrower shall be deemed to include the Borrower’s American Depositary Receipts and ordinary participation certificates (certificados de participación ordinarios).
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“Compliance Certificate” means, a certificate signed by a Responsible Officer of CEMEX as appropriate, substantially in the form of Exhibit A.
“Consolidated Coverage Ratio” means, on any date of determination, the ratio of (a) Consolidated EBITDA for the last one (1) year period ending on such date to (b) Consolidated Interest Expense payable during the last one (1) year period ending on such date.
“Consolidated Debt” means, at any date, the sum (without duplicating) of (a) the aggregate amount of all Financial Debt of the Borrower and its Subsidiaries on a consolidated basis at such date, plus or minus, as applicable, (b) to the extent not included in Financial Debt, the aggregate net mark-to-market amount, which may be positive or negative, of all Swap Contracts (except to the extent such exposure is cash collateralized to the extent permitted under, or not restricted by, the Loan Documents). Notwithstanding the foregoing, Consolidated Debt shall exclude any existing or future obligations under any Securitization, any subordinated notes with no fixed maturity (which shall include, for the avoidance of doubt, the Borrower’s US$1,000 million 5.125% subordinated notes with no fixed maturity), and any Indebtedness (whether in the form of perpetual, convertible, hybrid or similar securities or financial instruments) that is subordinated to the obligations under the Loan Documents.
“Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, operating income before other (expense) income, plus net depreciation and amortization expense, in each case determined in accordance with International Financial Reporting Standards, adjusted for any Discontinued EBITDA, and solely for the purpose of calculating the Consolidated Leverage Ratio on a Pro Forma Basis for any Significant Disposal and/or Significant Acquisition.
“Consolidated Interest Expense” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, the sum of: (a) consolidated interest expense, to the extent such expense was deducted (and not added back) in computing consolidated net income (or loss), including (i) amortization of original issue discount resulting from the issuance of indebtedness at less than par, (ii) all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptances, (iii) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark-to-market valuation of obligations under any hedge agreements or other derivative instruments pursuant to International Financial Reporting Standards), (iv) net payments, if any, made (less net payments, if any, received) pursuant to interest rate obligations under any hedge agreements with respect to indebtedness, (v) penalties and interest relating to taxes, (vi) any expensing of bridge, commitment or other financing fees, and excluding amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses; plus (b) consolidated capitalized interest and the interest component of Leases that constitute Indebtedness of such person for such period, whether paid or accrued.
“Consolidated Leverage Ratio” means, on any date of determination, the ratio of (a) Consolidated Net Debt on such date to (b) Consolidated EBITDA of such Person for the last one (1) year period prior to said date.
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“Consolidated Net Debt” means, at any date, for the Borrower and its Subsidiaries on a consolidated basis, the Consolidated Debt net of Cash (as stated in the relevant line item of the Financial Statements in question, as determined in accordance with the International Financial Reporting Standards) of the Borrower and its Subsidiaries that would not appear as “restricted” on a balance sheet in accordance with Internaional Financial Reporting Standards on such date.
“Contractual Obligation” means, as to any Person, any disposition contained in (a) any provision of any security issued by such Person or (b) any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control” the power to direct the management and policies of a Person, directly or indirectly, whether through the ability to exercise voting power, by contract or otherwise.
“Convertible Debt” means any (a) Indebtedness the terms of which provide for the conversion to or exchange for Common Stock of the Borrower, cash and/or a combination of Common Stock of the Borrower and cash, or (b) contingent convertible units and related credit note purchase agreements.
“Default Interest Rate” has the meaning assigned to it in Section 2.6 hereof.
“Default” means any event, action or condition that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is the subject of any comprehensive Sanction (at the time of this Agreement, Cuba, Iran, North Korea, Syria, and the Crimea region).
“Discontinued EBITDA” means, for any period, the sum for Discontinued Operations of operating income for such period plus, without duplication and to the extent deducted in determining such discontinued operating income, depreciation, amortization expense and impairment of assets of Discontinued Operations. For clarification purposes, Discontinued EBITDA shall be aggregated with Consolidated EBITDA for any period in which the Discontinued Operations Disposal has not yet occurred.
“Discontinued Operations” means operations that are accounted for as discontinued operations for which the Disposition of the corresponding assets has not yet occurred.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (in one transaction or in a series of transactions and whether effected pursuant to a Division or otherwise) of any property by any Person (including any sale and leaseback transaction and any issuance of Equity Interests by a Subsidiary of such Person), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“Disqualified Lender” means (a) certain financial institutions and other institutional lenders that have been specified to the Lender by the Borrower in writing at any time prior to the execution date hereof, (b) any of the Borrower’s competitors that have been specified to the Lender by the Borrower in writing at any time and periodically, and (c) in the case of each of clauses (a) and (b), any of their respective Affiliates that are either (i) identified in writing by the Borrower periodically, or (ii) clearly identifiable with the basis in the name such Affiliate’s name.
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“Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.
“Dollars” or “US$” means, dollars, lawful currency in the United States of America.
“Environmental Law” means, the General Law of Ecological Balance and Environmental Protection, the General Law of Wildlife, the Regulations of the General Law of Ecological Balance and Environmental Protection in Matters of Environmental Impact Assessment, and any law, treaty, regulation, rule, ordinance, statute, decree, order or judicial resolution, issued by a Governmental Authority, in matters of, or that refers to, the protection and conservation of the environment or the use and exploitation of natural resources, as well as those that regulate the use, disposal, storage, final disposal and in general the management or release into the environment of pollutants or hazardous materials, in each case, that are applicable to the Loan Parties and the real estate owned or in possession of saidparties.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law, pursuant to or arising from (a) any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” means, with respect to any Person, all of the shares or equity interest of Capital Stock of such Person and any warrants, rights or options to purchase any of the foregoing (but excluding any Convertible Debt), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
“Event of Default” means each of the events described in Article VII.
“Excluded Taxes” means any Tax imposed on or in respect of the Lender (or any successor, successor assignee or assignee) (the “Recipient”) required to be withheld or deducted from payments to such Recipient as or resulting from (a) Taxes resulting from or measured considering net income (as determined), Franchise Taxes or Branch Income Taxes, in each case (i) taxes as a result of the Recipient being incorporated, or has its principal office or the office from which it makes any loan provided for in this Agreement, in the jurisdiction assessing such Tax, or (ii) Taxes as a result of a present or past connection between the Recipient and the jurisdiction imposing or assessing such Tax, or (b) any Withholding Taxes in the amount that exceeds the Withholding Taxes that would be applicable if the Recipient were a Qualified Entity precisely at the time of the applicable payment.
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“Existing Debt” means the Indebtedness described Schedule [*] hereof.
“Final Repayment Date” means the fifth anniversary of the execution date of this Agreement and, if it is not a Business Day, the immediately preceding Business Day.
“Financial Debt” means, at any date with respect to any Person, the sum (without duplicating) of the following, in each case, as determined in accordance with Financial Reporting Standards:
| (a) | Indebtedness of such Person pursuant to clause (a) of the definition thereof; |
| (b) | Indebtedness of such Person pursuant to clause (b) of the definition thereof; |
| (c) | Indebtedness of such Person pursuant to clause (c) of the definition thereof; |
| (d) | Indebtedness of such Person pursuant to clause (e) of the definition thereof; |
| (e) | Indebtedness of such Person pursuant to clause (f) of the definition thereof; and |
| (f) | all Guarantees of such Person in respect of any of the foregoing. |
“International Financial Reporting Standards” means, the International Financial Reporting Standards (IFRS), as they are in force from time to time.
“Financial Statements” means, with respect to any Person, the statement of financial position, the statement of income and the statement of cash flows, viewed as a whole, which may or may not be audited, as indicated in this Agreement.
“Foreign Guarantors” means the Additional Foreign Guarantors and the Initial Foreign Guarantors.
“Governmental Authority” means any of the executive, legislative or judicial branches, regardless of the manner in which they act, either Federal, state or municipal, as well as any municipal government body, any government agency, instrumentality, ministry, stock or futures exchange, administrative department, administrative or regulatory authority, registry, entity or court (including, without limitation, banking and tax authorities), decentralized body or equivalent entity or any state, department or other political subdivision thereof, or any governmental body, authority (including any central bank or tax authority) or any entity that exercises government, executive, legislative or judicial functions, whether of Mexico, United States of America or other nations.
“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “Primary Obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the
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payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the Primary Obligor to permit to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Guarantor” or “Guarantors” means, jointly or individually, as the context may require, the Initial Guarantors and the Additional Guarantors.
“Guaranty” means the Guaranty made by the Initial Foreign Guarantors in favor of the Lender, substantially in the form of Exhibit C.
“Hazardous Materials” means explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or refined petroleum, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, and all other substances or wastes of any nature regulated under any Environmental Law.
“Income Tax” means, the income tax, payable by the Lender or any successor or assign thereof, to any Governmental Authority, with respect to its total income in accordance with Applicable Law.
“Indebtedness” means, as to any Person at a particular time, without duplicating, all of the following, whether or not included as indebtedness or liabilities in accordance with the International Financial Reporting Standards (except as expressly set forth below):
(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments which, for the avoidance of doubt, shall not deemed Indebtedness until they are required to be funded;
(c) net obligations of such Person under any Swap Contract (as determined in accordance with the International Financial Reporting Standards);
(d) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business) if (i) one of the primary reasons behind entering into such obligation is to raise finance or to finance the acquisition or construction of the asset or service in question or (ii) the agreement is in respect of the supply of assets or services and payment is due more than 90 days after the date of supply;
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(e) Indebtedness (excluding prepaid interest with respect thereof) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements) but only to the extent of the fair market value of the property secured thereby, whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f) the aggregate amount of all financial obligations arising under any Leases of such Person recognized in the consolidated statement of financial position of such Person in accordance with the International Financial Reporting Standards less the sum (without duplicating) of (i) all obligations of such Person to pay the deferred purchase price of property or services and (ii) all obligations of such Person with respect to product invoices incurred in connection with export financing;
(g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment before the Final Repayment Date (other than at the option of such Person) in respect of any Equity Interest in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and
(h) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person, and in any case only to the extent of the recourse to such Person.
“Indemnitee” has the meaning assigned to it in Article VIII hereof.
“Initial Foreign Guarantors” means Cemex Corp., a company organized and existing under the laws of the United States of America, and Cemex Innovation Holding Ltd., a company organized and existing under the laws of the Switzerland.
“Initial Guarantors” means the Initial Mexican Guarantors and the Initial Foreign Guarantors.
“Initial Joint Obligor” has the meaning assigned to it in the preamble hereof.
“Initial Mexican Guarantors” means the Initial Joint Obligor and the Joint Obligor (Fiadora).
“Intellectual Property Rights” has the meaning assigned to it in Representation I.15 hereof.
“Interest Payment Date” means, with respect to the Loan, the last day of each Interest Period of the Loan.
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“Interest Period” means (i) initially the period beginning on (and including) the Borrowing Date and ending on (but excluding for purposes of computing interest) the twenty-third calendar day of the month occurring one (1), three (3) or six (6) months after the Disposition Date, as notified by the Borrower to the Lender in the Disposition Request, and (ii) thereafter, the period commencing on (and including) the last day of the immediately preceding Interest Period and ending on (but excluding for purposes of computing interest) the twenty-third calendar day of the month occurring one (1), three (3) or six (6) months after the beginning of the Interest Period in question, as notified by the Borrower to the Lender in writing, at least five (5) Business Days before the beginning of the Interest Period to which the term in question shall be applicable, provided that:
| (a) | no Interest Period may end after the Final Payment Date; |
| (b) | any Interest Period that ends on a non-business day shall be extended to the next Business Day, unless such Business Day occurs in a subsequent calendar month, in which case the Interest Period shall end on the preceding Business Day, and |
| (c) | in the event that the Borrower fails to notify the duration of an Interest Period, it shall be understood that the period in question shall have a term equal to the term of the Interest Period immediately preceding the Interest Period in question.. |
“Joint Obligor (Fiadora)” has the meaning assigned to it in the preamble hereof.
“Joint Obligor (Fiadora)” or “Joint Obligors (Fiadoras)” means jointly or individually, as the context may require, the Initial Joint Obligor (Fiadora) and the Additional Joint Obligors (Fiadoras).
“Joint Obligor” or “Joint Obligors” means, jointly or collectively, as the context may require, the Initial Joint Obligor and the Additional Joint Obligors.
“KPI Metrics Auditor” means, with respect to any KPI Metric, KPMG Cárdenas Dosal, S.C.; provided that the Borrower may periodically to time designate any independent public accountants of recognized national standing reasonably acceptable to the Lender as a replacement KPI Metric Auditor, it being understood that any “big four” auditing firm or other auditing firm of recognized national standing acting in its capacity as an independent auditor of the Borrower shall be acceptable to the Lender; provided, further, that the Borrower shall use commercially reasonable efforts to cause such replacement KPI Metric Auditor to apply substantially the same auditing standards and methodology used in the first KPI Metrics Report delivered by the Borrower.
“KPI Metrics Report” means a report that may take the form of any nonfinancial disclosure of the Borrower’s performance of one or more KPI Metrics, prepared by or on behalf of the Borrower for one or more KPI Metrics for a specific Annual Period, and published on an Internet or intranet website to which each Lender has been granted access free of charge (or at the expense of the Borrower). Such KPI Metrics Report shall be audited by the KPI Metrics Auditor.
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“KPI Metrics” means:
(a) direct CO2 emissions measured in kg of CO2 per ton of Cementitious Product (excluding on site electricity production) minus emissions from biomass fuel sources and Alternative Fuels;
(b) power consumption from clean energy sources in cement, including renewable energy sources such as solar, wind, hydro, and biomass, and power generated from waste heat recovery systems; and
(c) the percentage of fuel consumption from Alternative Fuels compared to the total fuel consumption for cement plant operations in a given period.
“Lease” means, with respect to any Person, the obligations of such Person under a contract, or part of a contract, that conveys the right to use an asset (the underlying asset) for a period of time in exchange for consideration. For the avoidance of doubt, for purposes of this definition and its application to the Borrower, short-term and low-value leases as defined by the Borrower’s policy under International Financial Reporting Standards are excluded.
“Lender” has the meaning assigned to it in the preamble hereof.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, easement, right-of-way or other encumbrance on title to real property, lien (statutory or otherwise), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, and any financing lease having substantially the same economic effect as any of the foregoing); provided, however, that the following shall only constitute a Lien in circumstances where the arrangement or transaction is entered into primarily as a method of raising Indebtedness or of financing the acquisition of an asset:
(i) the sale, transfer or other Disposition of any of the assets of the Borrower or its Subsidiaries on terms that may be leased to or re-acquired the Borrower or its Subsidiaries;
(ii) the sale, transfer or other Disposition of any of the Borrower’s or its Subsidiaries’ receivables on recourse terms;
(iii) the entering into any arrangement under which money or the benefit of a bank account or other account may be applied, set-off or made subject to a consolidation of accounts; or
(iv) the entering into any other preferential arrangement having a similar effect as those described in (i) to (iii) above.
“Loan Documents” means, the collective reference to this Agreement, the Promissory Note, the Guaranty, their respective schedules and exhibits, as well as any other document executed or granted thereunder, including, in each case, any amendments, supplements or additions thereto.
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“Loan Party” or “Loan Parties” means the collective reference to the Borrower and the Guarantors, or any of them individually, as the context may require.
“Loan” has the meaning assigned to it in Section 2.1(a) hereof.
“Material Acquisition” means any (a) acquisition of property or series of related acquisitions of property that constitutes assets comprising all or on part substantially of all of an operating unit, division or line of business or (b) acquisition of or other investment in the Equity Interests of any Subsidiary or any person which becomes a Subsidiary or is merged or consolidated with the Borrower or any of its Subsidiaries, in each case, which involves the payment of consideration by the Borrower and its Subsidiaries in excess of US$250.0 million (or the equivalent in other currencies).
“Material Adverse Effect” means (a) a material adverse change in the business, financial condition, operation, performance or assets of the Loan Parties and their Subsidiaries taken as a whole; or (b) a material adverse change in (i) the ability of the Loan Parties to comply with their payment Obligations under any Loan Document, or (ii) the legality, validity, binding effect or enforceability against the Loan Parties of any Loan Document to which it is a party or (iii) the rights, remedies and benefits available to, granted to, the Borrower under any Loan Document.
“Material Disposition” means any Disposition of assets or series of Dispositions of related assets that generate gross profit for the Borrower or any of its Subsidiaries in excess of US$250.0 million (or the equivalent in other currencies).
“Mexican Guarantors” means the Additional Mexican Guarantors and the Initial Mexican Guarantors.
“Mexico” has the meaning assigned to it in the preamble hereof.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof, as a result of, any insolvency or bankruptcy proceeding naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the foregoing, Obligations include (a) the obligation to pay principal, interest, charges, expenses, fees, indemnities, reimbursements and other amounts (including all fees, charges, expenses and disbursements of counsel to the Lender) payable by any Loan Party under any Loan Document to the Lender and (b) the obligation of the Loan Parties to reimburse any amount in respect of any of the foregoing that the Lender, in each case in its sole discretion, may elect to pay or advance on behalf of the Borrower, precisely in accordance with the terms and conditions of the Loan Documents.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Ordinary Interest Rate” means, in connection with the Loan and for each Interest Period thereof, the TIIE Rate plus the Applicable Margin, provided that, if the TIIE Rate is not published on the first Business Day of any Interest Period, the Ordinary Interest Rate shall be the Successor Rate plus the Applicable Margin.
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“Organization Documents” means, with respect to any Person, its articles of incorporation and its current bylaws, or equivalent documents, however designated.
“Participant Register” has the meaning assigned to it in Section 9.2(d) hereof.
“Participant” has the meaning assigned to it in Section 9.2(d).
“Payment Account” means, the account for deposits in local currency number 1129-82758-3, CLABE 072580011298275838, opened with Banorte, or any other account in Banorte that the Lender notifies in writing to the Borrower prior to the corresponding payment, in which the amounts corresponding to principal, interest or any other amount owed to the Lender in accordance with the Loan Documents will be deposited. “Person” means any individual, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Pesos” or “$” means, pesos, lawful currency in Mexico.
“Pricing Certificate Inaccuracy” has the meaning assigned to it in Section 2.10(d) hereof.
“Pricing Certificate” means a certificate substantially in the form of Exhibit B signed by a Responsible Officer of the Borrower attaching (a) true and correct copies of each KPI Metrics Report for the immediate preceding Annual Period and setting forth the Sustainability Margin Adjustment for the period covered thereby and for the KPI Metrics disclosed therein, and computations in reasonable detail in respect thereof and (b) if any KPI Metrics Report was audited or reviewed by the KPI Metrics Auditor, a review report of the KPI Metrics Auditor containing its customary limited assurances with respect to the computations in such KPI Metrics Report.
“Principal Repayment Date” means (i) the twenty-third calendar day of the calendar months indicated in the table contained in Section 2.4(a), provided that if such day is not a Business Day, the Principal Repayment Date shall be the next succeeding Business Day, unless such Business Day occurs in the following calendar month, in which case the Principal Repayment Date shall be the preceding Business Day; and (ii) the Final Payment Date.
“Pro Forma Basis” means, with respect to compliance with any test or covenant hereunder in respect of a specified measurement period, compliance with such covenant or test after giving effect to any Material Acquisition or Material Disposition, using, for purposes of determining such compliance, the historical financial statements of all entities or assets so acquired or disposed of and the consolidated financial statements of the Borrower and its Subsidiaries which shall be reformulated as if such Material Acquisition or Material Disposition which has been consummated during such period had been consummated on the first day of such period.
“Process Agent” means CEMEX NY Corporation, or any other Person designated by the Foreign Guarantors periodically pursuant to the Guaranty.
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“Promissory Note” means, with respect to the Loan, non-negotiable promissory note (pagaré no negociable) made by the Borrower as issuer and the Mexican Guarantors, as guarantors (avalistas) in favor of a Lender, for the principal amount of the Loan borrowed by the Borrower, and substantially in the form of Exhibit D.
“Qualified Entity” means any Recipient (or if such Recipient extends any credit under this Agreement through any agency or branch, the principal office of the Recipient) that, (i) is the beneficial owner of any interest payments made by the Borrower or a Mexican Guarantor, (ii) satisfies the requirements imposed by Article 166, section I, subsection (a), paragraph 2 of the Income Tax Law and delivers to the Borrower, if requested, the information described in Rule 3. 18.18 and 3.18.19 of the Miscellaneous Tax Resolution for 2021 (or the provisions that respectively replace them), and (iii) is a resident for tax purposes of a state with which Mexico has entered into a treaty to avoid double taxation that is in force.
“Recipient” has the meaning indicated in the definition of Excluded Taxes.
“Register” has the meaning assigned to it in Section 9.2(c) hereof.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the directors, officers, employees, agents, and advisors of such Person and of such Person’s Affiliates.
“Responsible Officer” means the chairman of the board, the chief executive officer, president, chief financial officer, any vice president, treasurer, assistant treasurer, comptroller, secretary, assistant secretary or representative of theParties, and solely for purposes of the delivery of incumbency certificates pursuant to Articles 2 and 4, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Lender. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of the Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to the Borrower’s stockholders, partners or members (or the equivalent Person thereof).
“Sanctioned Lender” means any Person reasonably believed by the Borrower to be either a sanctioned Person or any Person to which an assignment of right and/or obligations hereunder could put the Borrower and/or any of its Affiliates in a position of actual or potential non-compliance with Applicable Law (including, but not limited to, Sanctions).
“Sanctions” means any economic or financial sanction administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, or Her Majesty’s Treasury.
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“Securitization” means a transaction or series of related transactions providing for the securitization of receivables and related assets by the Borrower or its Subsidiaries, including a sale at a discount; provided that (i) such receivables have been transferred, directly or indirectly, by the originator thereof to a person that is not the Borrower or any of its Subsidiaries in a manner that satisfies the requirements for an absolute conveyance (or, where the originator is organized under the laws of Mexico, a true sale), and not merely a pledge, under the laws and regulations of the jurisdiction in which such originator is organized; and (ii) except for customary representations, covenants and indemnities, such sale, transfer or other securitization is carried out on a non-recourse basis or on a basis where recovery is limited solely to the collection of the relevant receivables (other than where such recourse or recovery is required pursuant to the Applicable Laws or regulations in any jurisdiction).
“Solvent” means, with respect to the Borrower, that as of the date of determination, (a) the sum of the debt (including contingent liabilities) of the Borrower and its Subsidiaries on a consolidated basis does not exceed the present fair saleable value of the present assets of the Borrower and its Subsidiaries on a consolidated basis; (b) the capital of the Borrower and its Subsidiaries on a consolidated basis is not unreasonably small in relation to its business as contemplated on the date of determination; (c) the Borrower and its Subsidiaries on a consolidated basis do not intend to incur, or believe that they shall incur, debts beyond their ability to pay such debts as they become due in the ordinary course of business; or (d) the Borrower and its Subsidiaries do not fall in any of the events of Articles 9, 10 or 11 of the Bankruptcy Law or Article 2166 of the Civil Code. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under FASB Accounting Standards Codification Topic 450-20).
“Structuring Fee” has the meaning assigned to it in Section 2.4, clause (e) hereof.
“Subsidiary” means, with respect to any Person and at any time, any corporation, partnership, joint venture, trust, estate or any other entity of which (or in which) more than fifty percent (50%) of its voting stock are, in that time, directly or indirectly, owned by, or Controlled by, said Person, directly or indirectly, or that is Controlled by said Person.
“Successor Rate” has the meaning assigned to it in Section 2.5(b) hereof.
“Sustainability Margin Adjustment” means an adjustment to the Applicable Margin for any KPI Metric as provided by this Agreement.
“Sustainability Pricing Adjustment Date” has the meaning assigned to it in Section 2.10(a) hereof.
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“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Swiss Federal Tax Administration” means the tax authorities referred in article 34 of the Swiss Federal Act on Withholding Tax of 13 October 1965, as amended periodically (Bundesgesetz über die Verrechnungssteuer).
“Taxes” means, any tax, assessment, use, withholding, fee, deduction, charge or other fiscal obligation together with interests, penalties, fines or surcharges derived therefrom, payable to any Governmental Authority in accordance with Applicable Law, including social security fees, housing or retirement savings.
“TIIE Rate” means, for each Interest Period, the 182-day, 28-day and 91-day, Interbank Equilibrium Interest Rate published by the Banco de México in the Official Gazette of the Federation, the first Business Day of said Interest Period, as applicable to the term of the Interest Period notified by the Borrower to the Lender.
“Use of Loan Proceeds” has the meaning assigned to it in Section 5.11 hereof.
“Voting Stock” means, any shares or equity interests representing the capital stock of a commercial company, and any interests, participations or other equivalents (however designated) in any Person (other than a commercial company), Mexican or foreign, that grant their holders in general full voting rights (excluding any Convertible Debt) to appoint members of the board of directors (or equivalent officials).
“Wholly Owned Subsidiary” means, for any Person, any Subsidiary of which at least 99.5% of the outstanding Equity Interests (other than, in the case of a Subsidiary not organized in the United States, directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to Applicable Law) is owned by such Person or any other Person that satisfies this definition in respect of such Person.
(b) Rules of Interpretation. In this Agreement:
(i) capitalized terms shall be equally applicable in the singular and plural forms according to their respective meanings;
(ii) when the context so requires, any pronoun must include the corresponding masculine or feminine or neutral form;
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(iii) references to this Agreement or any other contract, agreement or document, or any specific provision thereof, should be construed as references to said instrument or provision as amended in accordance with their respective terms;
(iv) references to Article, Sections, clauses, paragraphs, schedules and exhibits, shall be understood to be made with respect to the Article, Sections, clauses, paragraphs, schedules and exhibits of this Agreement, unless otherwise inferred from the context;
(v) each of the schedules and exhibits attached to this Agreement form an integral part hereof;
(vi) the words “including,” “includes” and “include” shall be deemed to be followed by the phrase “without limitation,” unless otherwise expressly provided in this Agreement; and
(vii) any accounting terms that are not defined in clause (a) immediately above shall have the meaning that corresponds to said items in accordance with the Financial Reporting Standards.
Article II. The Loan.
Section 2.1. Commitment.
(a) Loan. Subject to the terms and conditions set forth herein, the Lender makes available to the Borrower, during the Availability Period, a loan (apertura de crédito simple) (the “Loan”) up to the aggregate amount not exceeding the equivalent in Pesos of US$250.0 million, calculated using the exchange rate to settle foreign currency denominated obligations published in the Official Gazette of the Federation on the Business Day immediately preceding the date of the Disposition Request (the “Commitment”)..
(b) Acceptance; Items included in the Loan; Non-Revolving Loan. The Borrower accepts the Loan made available to it and agrees to repay, once disbursed and received, it in accordance with the terms of this Agreement and the Promissory Note. Notwithstanding the Use of Loan Proceeds, the Loan does not include the interests the Borrower is required pay and stated in this Agreement. The Loan is made as a crédito simple, and so any amounts borrowed and repaid by the Borrower of said Loan may not be borrowed again.
Section 2.2. Borrowing.
(a) Borrowing of the Loan. Subject to the provisions of Article IV, the Borrower shall use the Loan in Pesos in a single borrowing (the “Borrowing”) within the Availability Period, up to an amount equal to the Commitment, , provided that the conditions precedent described in Article IV have been satisfied. The Commitment shall terminate without liability for the Lender once the Availability Period has ended. Therefore, the Lender shall not have any obligation to disburse any balance (if any) of the Commitment, which the Borrower would not have borrowed of during the Availability Period.
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(b) Borrowing Notice. No later than 08:00 pm, Central Mexico time, at least three (3) Business Days prior to the proposed Borrowing Date, the Borrower shall provide to the Lender a borrowing notice substantially in the form of Exhibit E (the “Borrowing Notice”), which shall include (i) the amount in Pesos, which shall not exceed the amount of the Commitment, (ii) the exchange rate used to calculate the amount of the Borrowing, which must correspond to the exchange rate to settle obligations denominated in foreign currency, published in the Official Journey of the Federation on the Business Day immediately prior to the date of the Borrowing Notice, (iii) the proposed Borrowing Date, and (iv) the duration of the initial Interest Period. Delivery to the Lender of the Borrowing Notice constitutes the irrevocable request by the Borrower requiring the Lender to disburse the amounts set forth therein in accordance with the terms hereof.
(c) Deposit of the Borrowing. If the Borrowing Notice has been delivered to the Lender as provided in this Section 2.2 and the conditions precedent described in Article IV have been satisfied (or the Lender has waived in writing), no later than 1:00 pm, Central Mexico time of the Borrowing Date proposed in the Borrowing Notice, the Lender shall deposit to the Borrower, in the Borrower’s Account, in Pesos and in immediately available funds, the amount of the Loan, which is required to disburse in accordance with clause (b) above.
(d) Reduction of the Loan. If the Borrower has not borrowed all or a portion of the Loan funds in a timely manner, the Borrower agrees that the full amount of the Loan shall be automatically reduced by an amount equal to the amount of the Loan that has not been borrowed by the Borrower.
Section 2.3. Use of Proceeds. The Borrower shall use the full amount of the Loan solely and exclusively for the purposes included in the Use of Loan Proceed.
Section 2.4. Repayment of the Loan; Fees.
(a) Repayment of the Loan. The Borrower shall repay the Lender the unpaid principal amount of the Loan in five (5) consecutive semiannual installment on each of the Principal Repayment Dates that occur in the months indicated in the following table. On each Principal Repayment Date , the Borrower shall pay an amount equal to that resulting from calculating the repayment percentage indicated in the following table with respect to the amount borrowed from the Loan as it has been reduced as a result of any advance payment (not scheduled) above, provided that no balance, or amount payable on or under the Loan may remain unpaid beyond the Final Repayment Date.
| Main Repayment Date |
Prepayment | |
| Main Repayment Date that occurs in the thirty sixth (36) month after the Borrowing Date |
20% | |
| Main Repayment Date that occurs in the month forty two (42) after the Borrowing Date |
20% |
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| Main Repayment Date |
Prepayment | |
| Main Repayment Date that occurs in the forty eighth (48) month after the Borrowing Date |
20% | |
| Main Repayment Date that occurs in the fifty fourth (54) month after the Borrowing Date |
20% | |
| Final Repayment Date |
Unpaid balance of the Loan |
(b) Voluntary Loan Prepayments. The Borrower shall be able to prepay, without any penalties, at any time, in whole or in part, the unpaid balance of the Loan, prior written notice delivered to the Lender no later than 01:00 pm , Central Mexico time, at least three (3) Business Days before the date on which the prepayment is intended to be made, specifying the relevant amount. Any prepayment of the Loan shall be for a minimum amount of principal equal to] $ 50,000,000.00 (fifty million Pesos 00/100), or a multiple of $ 1,000,000.00 (one million Pesos 00/100) in excess of said amount. All principal prepayments shall be paid together with (i) any interest accrued on said principal amount on the date of the relevant prepayment and (ii) any breakage costs in accordance with Section 2.8, clause (a), only if that said payment is made on a date other than an Interest Payment Date. The prepayment notice by the Borrower shall constitute an irrevocable obligation to pay, at its expense, the amount of the Loan indicated therein, due precisely on the date indicated therein; with the understanding that the notification of reference may be revoked by the Borrower by notifying the Lender no later than 5:00 pm, central Mexico time, one (1) Business Day before the date on the that it is intended to make the advance payment, without cost or penalty of any nature. Said partial prepayments shall be applied to the payment of the unpaid principal amounts of the Loan, in the manner indicated by the Borrower to the Lender in the relevant prepayment notice.
(c) Mandatory Loan Prepayments. If a Change of Control occurs, the Borrower shall pay the full unpaid balance of the principal of the Loan on the date that said Change of Control becomes effective, provided that payment shall include (i) the interest accrued on said principal amount on the date of the relevant prepayment and (ii) any breakage costs in accordance with Section 2.8, clause (a), only if that said payment is made on a date other than an Interest Payment Date.
(d) Fees. The Borrower shall pay the Lender a structuring fee equal to 65 basis points with respect to the amount of the Commitment plus the applicable Value Added Tax (the “Structuring Fee”). Said fee shall be generated on the execution date of this Agreement and shall be payable no later than the earlier of (i) the Date on which the Borrowing is made, or (ii) the last Business Day of the Availability Period.
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The Lender shall notify the Borrower of the amount of the fee described above, and the Borrower shall notify the Lender of the payment made of such fee. The lack of such determination and notice by the Lender shall not exempt Borrower from the obligation to make the relevant payment as calculated in good faith by the Borrower. Once the relevant payment has been made, the Lender shall provide a copy to the Borrower of the applicable tax receipts.
Section 2.5. Ordinary Interest.
(a) Ordinary Interest Rate. The Borrower is hereby required to pay the Lender, without any prior request, on each Interest Payment Date, ordinary interest on the unpaid balance of the Loan, as of the Borrowing Date and until it is fully repaid, at an annual interest rate for each Interest Period equal to the Ordinary Interest Rate.
(b) Impossibility to Determine the TIIE Rate. If on the first day of any Interest Period it is impossible to determine the value of the TIIE Rate according to the definition provided for in this Agreement, either because the TIIE Rate ceases to exist or its publication is temporarily suspended, during said Interest Period, instead of the TIIE Rate, the following rates shall be used, precisely in the order indicated below (and the rate that results from applying the following rules shall be the “Successor Rate”)1:
| first, | the rate published by Banco de México as the successor rate of the TIIE Rate or, if Banco de México does not publish any successor rate for the TIIE Rate, then; | |
| second, | a rate equal to the sum of the CETE Rate (corresponding to the Interest Period notified by the Lender) as published on the date closest to the first Business Day of the relevant Interest Period (or, if it is not published on that date, the most recent published price available on that date) plus the difference between the CETE Rate and the TIIE Rate according to the values of said rates published on the Business Day immediately prior to the date on which the TIIE Rate ceased to be published, or, if the CETE Rate is not published in accordance with this Agreement, then; | |
| third, | the CCP Rate as published on the date closest to the first Business Day of the relevant Interest Period (or, if it is not published on that date, the most recently published price available on that date) plus the difference between the CCP Rate and the TIIE Rate in accordance with the values of said rates published on the Business Day immediately preceding the date on which the TIIE Rate ceased to be published, or, in the event that the TIIE Rate, the CETE Rate and the CCP Rate cease to exist, or at the time of making the interest calculation, its price is not known, then; | |
| fourth, | any rate the Lender agrees with the Borrower, in good faith and in writing, as the substitute interest rate for the TIIE Rate for the purposes hereof. | |
| 1 | Note to Cemex: Please consider that Banorte is analyzing this Section. |
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provided that (i) from the date on which the TIIE Rate or the CETE Rate or the CCP Rate, as the case may be, ceases to exist and until the date on which the quote of the relevant successor rate is known, or the date on which the TIIE Rate is published again or the date on which the parties agree on the applicable successor interest rate, the Successor Rate shall be the interest rate applicable to the immediately preceding Interest Period, (ii) if the TIIE Rate ceases to be published for a period exceeding thirty (30) calendar days, and in said period the quote of a successor interest rate or the CETE Rate or the CCP Rate was not known, and the Lender and the Borrower could not agree on the applicable successor interest rate, then the applicable interest rate shall be the market rate determined by the Lender as the rate that has a financial cost substantially similar to the cost of the TIIE Rate, which shall immediately be notified to the Borrower, including in such notice the base assumptions for its determination, and (iii) any interest rate determined in accordance with this Section 2.5, clause (b), shall cease to be applicable when, at the beginning of any subsequent Interest Period, Banco de México republishes the TIIE Rate, its successor rate, or the CETE Rate or CCP Rate is known.
(c) Computation of Interest. Ordinary interest shall be paid on each Interest Payment Date, in arrears, and shall be calculated by the number of days actually elapsed on the basis of a 360-day year. The Lender shall communicate to the Borrower, as soon as possible, but in any case, at least seven (7) Business Days prior to each Interest Payment Date, any determination of the interest rate that it makes based on the provisions of this Agreement. Said determinations shall be, absent manifest error, shall be conclusive and binding upon the Loan Parties, as appropriate. The lack of such determination by the Lender shall not exempt the Borrower from the obligation to make the relevant payment as calculated in good faith by the Borrower.
| (d) | Retroactive Applicable Margin Adjustments. If, as a result of any restatement of or other adjustment to the Financial Statements of the Borrower or for any other reason, the Borrower or the Lender determines that (i) the Consolidated Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate, and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in higher pricing of the Applicable Margin for such period, the Borrower shall immediately and retroactively be required to pay to the Lender, on demand by the Lender, no later than within ten (10) days from the date of the relevant demand, an amount equal to the excess of the amount of interest that should have been paid for such period if the Consolidated Leverage Ratio had been properly calculated, minus the amount of interest actually paid for such period. This clause (b) shall not limit the rights of the Lender under Section 2.6 or Article VII; provided that any inaccuracy described in this clause (b) shall not constitute a Default or Event of Default with respect to Article VII, clause (a) or (c) so long as (x) the Lender complies with the terms of this clause (b) and (y) the Borrower was in compliance with the covenants in Section 6.5 at the date the Consolidated Leverage Ratio was inaccurately calculated (as evidenced by a proper calculation of the Consolidated Leverage Ratio as of such date). The Borrower’s obligations under this clause (b) shall survive the termination of the Commitment and the repayment of all other Obligations hereunder. |
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Section 2.6. Default Interest. In case of delay in the payment of any amount (or portion thereof) payable under the Loan Documents (except for interest), said amount shall accrue default interest (instead of ordinary interest) on the amount due and unpaid since, and including, the date said payment should have been made and up to the date of its full payment, excluding payment day, at an annual rate equal to the applicable Ordinary Interest Rate multiplied by two (2) (the “Default Interest Rate”). Default interest shall be paid on demand by the Borrower and shall be calculated by the number of days of the default (as indicated in this paragraph) based on a 360-day year.
Section 2.7. Payments Generally.
(a) Payments Generally. (i) The Borrower’s obligations are absolute and all payments of principal, interest and other amounts payable by Borrower hereunder or under the other Loan Documents, shall be made in Pesos to the Lender’s address indicated in Section 9.4 or such other address as indicated in accordance with said Section 9.4, or in the Payments Account, before 1:00 pm (Central Mexico time), in accordance with the terms of this Agreement, unconditionally, and without withholding or setoff. All payments and prepayments under this Agreement or the other Loan Documents shall be made by wire transfer of immediately available funds. Any payment received by the Lender after 1:00 pm (Central Mexico time) shall be deemed made the next Business Day and the applicable interest shall continue to accrue. The Borrower shall provide the Lender with the documentation and information that proves the respective payment within three (3) Business Days after receiving the relevant repayment date.
The account statement issued by the Lender shall describe the amounts of interest, fees or expenses paid under this Agreement.
(ii) No amount payable on or under the Loan may remain unpaid beyond the Final Repayment Date.
(b) Charges to Account; Setoff. Notwithstanding the foregoing, each of the Loan Parties expressly authorizes and irrevocably instructs the Lender, who shall have the right but not the obligation, to:
(i) withdraw and charge from the Payments Account, all amounts payable under this Agreement and the other Loan Documents, on the applicable payment dates, with the Borrower required to maintain sufficient funds to make said payments on the applicable dates. The authorization contained in this paragraph does not release the Borrower from its payment obligation but until the Lender receives all the amounts owed
to it, this authorization is irrevocable as long as there are unpaid balances of the Loan; and
(ii) in case an Event of Default happens and any Loan Party is required to pay the Lender any amount under the Loan Documents and said Loan Party fails to comply with said payment obligation, offset any unpaid and payable debt under the Loan Documents the Lender may have in its favor and payable by any Loan Party for any reason, precisely up to an amount equal to the amount due and unpaid to the Lender, without the need for any requirement, notice or demand.; and
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(iii) for that, the Lender may charge to any account of the Borrower maintains with the Lender, that is liquid, including deposit, demand, savings, term, provisional or definitive and/or investment accounts, any overdue and unpaid debts payable by the Loan Party in question, as principal, interest, fees, documented expenses and accessories under the Loan Documents. Within the following 3 Business Days to the date that the compensation or charge is made, the Lender obliges to notify to the Borrower of such compensation or charge that it may have done according to the irrevocable instructions contained in this Section, under the understanding that if this notification is not done, it will not affect the validity of such compensation or charge.
Additionally, this authorization is irrevocable as long as there are unpaid balances of the Loan. The parties expressly agree that the accounting entries, account statements and records and documents that the Lender issues due to the withdrawals, charges and payments made from or to the Borrower’s Account, or regarding the entries or movements accounting carried out in accordance with the Loan Documents, will constitute proof against the Borrower, both as regards the Borrower’s Account and the Loan Documents.
(c) Waterfall. The parties undertake and agree that the amounts any of the Borrower or Guarantors, as appropriate pays to the Lender in connection with the Loan under the Loan Documents shall be applied in the following order (to the extent existing):
| first, | to the payment of the value added tax on fees and expenses payable to the Lender, if any; | |
| second, | to the payment of any expense or fee the Borrower owes to the Lender under the Loan Documents; | |
| third, | to the payment of the value added tax on delinquent interest on the Credit, where applicable, accrued in accordance with this Agreement; | |
| fourth, | to the payment of the delinquent interest of the Loan, in its case accrued in accordance with this Agreement until the date in which the payment in question is made; | |
| fifth, | to the payment of the value added tax on the ordinary interests of the Loan, in its case accrued in accordance with this Agreement; | |
| sixth, | to the payment of ordinary interest on the Loan, if any, accrued under this Agreement, until the date on which the payment in question is made; | |
| seventh, | to the payment of unpaid and past due principal amounts of the Loan; and | |
Section 2.8. Performance Protection; Change in Applicable Law; Illegality.
(a) Breakage Costs. Unless otherwise indicated in this Agreement, if the Borrower makes any payment or advance payment of the principal amount of the Loan, on a date other than an Interest Payment Datethe Borrower hereby irrevocably agrees to indemnify the Lender for any loss, cost or expense documented in the certificate described in the following paragraph and suffered by it as a result of the foregoing.
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Upon request from the Borrower, the Lender shall inform in detail and in writing, if will incur any costs due to breakage costs derived from the circumstances described in the preceding paragraph, through the delivery of a certificate from the Lender indicating the relevant amount. Said certificate shall be conclusive and binding for the Borrower absent manifest or explicit error in its calculation. The Borrower is required to pay on demand the amounts that derived from said certificate.
(b) Change in Applicable Law. In the event of (a) adoption or entry into force of any law, regulation, regulation or treaty, (b) changes to any law, regulation, or treaty or in the administration, interpretation, implementation or application of any of them by any Government Authority, or (c) decree of any guideline, guideline, norm (with or without force of law) by any Governmental Authority that enters into force after the execution date of this Agreement, and that (1) subjects the Lender to Additional taxes (other than the Taxes subject to payment of additional amounts under Section 2.9 and the Taxes describes in paragraph (c) of the definition “Tax Excluded”) on the Loan or Commitment of the Lender, or any portion thereof, or on the payments of principal or interest payable to the Lender under the Loan Documents, or (2) imposes any additional requirement for the establishment of reserves with respect to assets, deposits or other obligations on loans made by the Lender or imposes on the Lender, , any additional requirements in terms of capitalization requirements or indices (including any requirements or requests or agreements that affect the manner in which the Lender distributes its capital resources to its various obligations) or affects the cost of the Lender’s funding as a result of any of the foregoing events, and provided that said legal provisions or interpretations are general and binding, have not been legally contested by the Lender, and their application has been temporarily or permanently suspended or declared not definitively applicable in its favor, then (i) the Borrower shall have the right (but not the obligation) to pay in advance and without any fees, the unpaid balance of the Loan owed to the Lender on the earlier of (a) the following Interest Payment Date, or (b) the date on which the provision of general application of any Applicable Law or interpretation enters into force, and if it decides not to make said payment, (ii) the Borrower irrevocably agrees to pay the Lender, with the prior written request of the Lender, the amount or additional amounts detailed and necessary to offset said additional costs or reductions.
The Lender shall deliver a certificate indicating the applicability of the regulation or interpretation, with detail and such additional amounts; the provisions of said certificate shall be final and mandatory for the Borrower, manifest or explicit error absent, in the calculation thereof, the Borrower agrees to pay to the Lender the amounts indicated in said certificate no later than the following Interest Payment Date or the date that is ten (10) Business Days after the request, whichever is later.
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(c) Illegality. If after the execution date hereof, any Applicable Law to the Lender or any of its offices in charge of the management and funding of the Loan is modified, or the interpretation of any Applicable Law is changed by any competent Governmental Authority and, as a consequence thereof, it is illegal for the Lender to make or maintain the Loan in its favor, the Borrower, at the request of the Lender, shall prepay, on the earlier of, (i) within ninety (90) days following the Lender’s request or (ii) within the period of entry into force of, or that indicated in, the modified applicable provisions, the unpaid balance of the Loan owed to the Lender without any penalty, together with any interest, costs and expenses and the amounts that are required to offset the Lender for any additional cost or expense incurred as a result of said prepayment since the last Interest Payment Date and until the date of the prepayment in question, provided that the Lender shall deliver to the Borrower the calculations related to said costs or expenses, and said costs and expenses shall be conclusive and binding, absent manifest error in the calculation thereof.
Section 2.9. Taxes. (a) The Loan Parties agree to pay the amounts payable under the Loan Documents without any withholding, deduction or setoff, and free and clear of any present or future Taxes, except as required by Applicable Law.
If at any time, under Applicable Law, any Loan Party is required to withhold from any payment to be made to the Lender under the Loan Documents, any Tax imposed by any Governmental Authority, provided that said legal provisions are of general and binding application, and that have not been legally contested by the Lender, or their application has been temporarily or permanently suspended or declared not definitively applicable in its favor, and, in all and any case, said Taxes are not Excluded Taxes (in which case this provision will not be applicable), then, the Loan Parties shall pay the Lender on the corresponding payment date the additional required amounts for it to receive the full amount that it would have received if said withholding or deduction (to the extent that said payment does not violate Applicable Laws), had not been made, shall make the applicable withholding or deduction on said amounts and shall make the payment of the Tax in question to the applicable Governmental Authority, no later than the date on which said Tax is due and payable, and shall deliver to the Lender any other information and documentation that is required by the Lender to prove that said Tax has been paid in full and in a timely manner, in accordance with the provisions of the Applicable Law.
(b) The Loan Parties shall release and hold harmless the Lender from any liability that may exist for any Taxes withheld and not disclosed to the relevant Government Authorities, excluding in all and any case for and with respect to Excluded Taxes, and agree to reimburse for any amount that has been effectively paid, derived from Taxes except as required by Applicable Law and excluding in any and all cases for and with respect to Excluded Taxes) caused as a consequence of any payment in accordance with this Agreement.
(c) the obligations of the Loan Parties under this Section 2.9 shall survive during the full period of statute of limitations of the Taxes, regardless of whether the Loan made hereunder is fully repaid prior to the end of said period.
Section 2.10. Sustainability Adjustments.
(a) Following the date on which the Borrower provides a Pricing Certificate pursuant to Section 5.14 in respect of its most recently Annual Period, the Applicable Margin shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in such Pricing Certificate. For purposes of the foregoing, (A) the Sustainability Margin Adjustment shall be determined as of the fifth (5th)
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Business Day following receipt by the Lender of a Pricing Certificate based upon the KPI Metrics set forth in such Pricing Certificate and the calculation of the Sustainability Margin Adjustment therein (such day, the “Sustainability Pricing Adjustment Date”), and (B) each change in the Applicable Margin resulting from a Pricing Certificate shall be come into force on the first date of the Interest Period immediately following the applicable Sustainability Pricing Adjustment Date or, if the Sustainability Pricing Adjustment Date is the same as the commencement of an Interest Period, on said date, and shall end the last day of the Interest Period on which the Sustainability Pricing Adjustment Date occurred (or, in the case of non-delivery of a Pricing Certificate, the last day of the Interest Period in which said Pricing Certificate could have been delivered under Section 5.14).
(b) For the avoidance of doubt (i) the Borrower may only deliver a Pricing Certificate with respect to any Annual Period, (ii) any Sustainability Margin Adjustment shall be iterative and not cumulative year after year.
(c) If the Borrower fails to provide a Pricing Certificate within the period indicated in Section 5.14, the Sustainability Margin Adjustment shall be positive five (5) basis points, commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 5.14 and shall come into force as of the first day of the Interest Period immediately following the date on which the Pricing Certificate should have been delivered and until the Borrower delivers a Pricing Certificate to the Lender and a new Applicable Margin is determined pursuant to Section 2.10(a) above, provided that pending delivery of a Pricing Certificate no Default or Event of Default shall occur.
(d) If (i) (A) any of the Borrower or the Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment or the KPI Metrics as reported on the applicable Pricing Certificate (a “Pricing Certificate Inaccuracy”) and, if it was the Borrower who had knowledge of the Pricing Certificate Inaccuracy, not later than thirty (30) Business Days after obtaining knowledge thereof delivers a written notice to the Lender describing such Pricing Certificate Inaccuracy in reasonable detail, or (B) the Borrower and the Lender agree that there was a Pricing Certificate Inaccuracy at the time of delivery of the relevant Pricing Certificate and, (ii) a proper calculation of the Sustainability Margin Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Margin for such period, then the Borrower shall be required to pay to the Lender, promptly on demand by the Lender, but in no event in less than ten (10) Business Days after the Borrower has received written notice of, or has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to: (x) the amount of interest that should have been paid for such period, according to the proper calculation, less (y) the amount of interest actually paid for such period. If the Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Margin for such period, then, upon receipt by the Lender of notice from the Borrower of such Pricing Certificate Inaccuracy or variation in the Sustainability Margin Adjustment (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Lender of such notice, the Applicable Margin shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment or the KPI Metrics, as applicable.
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(e) To the extent any event occurs (which would include, without limitation, a material disposal or material acquisition) which, in the opinion of the Borrower and the Lender, acting reasonably and in good faith, means that one or more of the KPI Metrics are no longer appropriate, the Borrower shall then cease to refer to the applicable KPI Metrics in the Pricing Certificate for such period and the Applicable Margin shall be adjusted to reflect the corrected calculations of such KPI Metrics.
(f) The parties agree that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default under this Agreement, provided that the Borrower complies with the terms of this Section with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, (i) any additional amounts required to be paid pursuant to clause (d) above shall not be due and payable until a written demand is made for such payment by the Borrower or the Lender in accordance with clause (d) above, (ii) any nonpayment of such additional amounts prior to such demand for payment by the Borrower or the Lender shall not constitute a Default (whether retroactively or otherwise), and (iii) none of such additional amounts shall be deemed overdue prior to such a demand or shall accrue interest at the Default Rate prior to such a demand, unless said amounts are owed with respect to the entry of an order, judgment or resolution with respect to the Borrower in accordance with Applicable Law.
(g) The Lender shall have no responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by the Borrower of any Sustainability Margin Adjustment (or for the KPI Metrics or any of the other data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate, or for evaluating or determining any Pricing Certificate Inaccuracy (and the Lender may rely conclusively, and shall not incur any liability in so relying, on any such certificate or related notice, without further inquiry).
Article III. Guarantors.
Section 3.1. Joint Obligors (Fiadoras).
(a) Guarantee (Fianza). Each Joint Obligor (Fiadora) agrees to become and hereby becomes a joint obligor (fiadora) of the Borrower with respect to the Lender and hereby absolutely guarantees the full and timely payment of each of the present and future payment obligations of the Borrower under this Agreement and under the other Loan Documents, and waives the benefits of order, excuse, division, remove and expects in accordance with Articles 2813, 2814 , 2815, 2817, 2818, 2820, 2821, 2822, 2824, 2827, 2830, 2836, 2840, 2842, 2844, 2845, 2846, 2847, 2848, 2849 and other applicable articles of the Federal Civil Code and their correlative articles in the Civil Codes of the states of the Mexican Republic. The guarantee made herein secures the payment obligations even if such obligations are subject to restructuring, amendment, renewal, extension or waiting, events the occurrence of which this guarantee shall survive as granted, with this being the consent of each Joint Obligor (Fiadora) referred to in Article 2846 of the Federal Civil Code and other applicable articles of the Federal Civil Code and its correlative articles in the Civil Codes of the states of the Mexican Republic.
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Under no circumstances may the Joint Obligors (Fiadoras) excuse themselves from their obligations assumed hereby, except upon full payment or total extinction of the secured payment obligations. Also, it shall not be necessary to prove the full or partial default of said secured obligations to demand, in or out of court, full payment thereof to any of the Joint Obligors (Fiadoras). If the due date of the secured payment obligations has occurred and said payment obligations have not been fully satisfied, the Lender may demand payment thereof to the Joint Obligors (Fiadoras) without any further action needed.
The obligations of each Joint Obligor (Fiadora) pursuant to the guarantee made hereunder are valid and fully enforceable and shall (i) be in full force and effect until all the secured payment obligations have been fully paid and discharged (as the case may be), and (ii) benefit, and be enforceable by the Lender and its assigns allowed under the present Agreement. Therefore, this guarantee may only be extinguished and released, in all its parts, by the Lender and its or assigns allowed under the present Agreement, as appropriate, upon full satisfaction of the secured payment obligations.
Each Guarantor undertakes to sign the Promissory Note to document the Disposition of the Credit as guarantor in terms of the General Law of Credit Securities and Operations, as well as any Promissory Note that substitutes it, if applicable.
(b) Each Joint Obligor (Fiadora) also hereby waives the benefit provided in Article 2812 of the Federal Civil Code and its correlative articles in the Civil Codes of the states of the Mexican Republic, that is, it expressly and unconditionally waives to claim any exception established in said Article of the payment secured obligations, unless this guarantee has been extinguished and released, in all its parts, by the Lender or its successors or assigns, as appropriate, allowed under this Agreement upon full satisfaction or otherwise extinction of the payment secured obligations.
Subordination. If this guarantee becomes enforceable or any of the Joint Obligors (Fiadoras) has disbursed in favor of the Lender any amount as a result of this guarantee, the Joint Obligors (Fiadoras) hereby agree not to take any action or enforce any right available against the Borrower, by virtue of the legal subrogation to the rights of the Lender to receive payments from the Borrower in accordance with Articles 2829 and 2830 of the Federal Civil Code and their correlative articles in the Civil Codes of the states of the Mexican Republic, expressly waiving in favor of the Lender the right to take such actions or exercise such rights until the date on which the Lender has received full payment of the secured payment obligations and this situation has been informed in writing by the Lender to the Joint Obligors (Fiadoras). The waiver and subordination contained in this section have been agreed and are established for the benefit of the Lender.
Each Joint Obligor (Fiadora) accepts and agrees that, in case of a Default or Event of Default or in case of bankruptcy (concurso mercantil) of any Loan Party, any collection right or action of the Joint Obligor (Fiadora) or any of its Subsidiaries may have against the Borrower, under any inter-company loan or otherwise, shall rank junior to all rights and actions of the Lender against the Borrower under the Loan Documents until the obligations with the Lender had been satisfied. If any of the Joint Obligors (Fiadoras) makes a partial payment under the Loan Documents, said Joint Obligor (Fiadora) agrees with the Lender not to exercise its collection rights or any other available legal actions against the Borrower until the Lender has received full payment of the Borrower’s obligations under the Loan Documents or the obligations with the Creditor have been satisfied.
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Section 3.2. Joint Obligors.
(a) Joint and Several Obligation. Each Joint Obligor expresses its express consent with the Loan being formalized herein, including with respect to breakage costs, if any, reason for which, it assumes the capacity of joint obligor of the Borrower and acknowledges the execution of this Agreement to become, a joint obligor of the Borrower vis-à-vis the Lender, pursuant to Articles 1987, 1988, 1989 and other applicable Articles of the Federal Civil Code and their correlatives in the Civil Codes of the states of the Mexican Republic, and agrees to be absolutely and unconditionally liable for the full and time payment of each of the present or future of the payment obligations of the Borrower hereunder and under the other Loans Documents. For the purposes of the joint and several obligation assumed herein, each Joint Obligor agrees that the obligations of the Borrower under the Loan Documents are indivisible, and so, each Joint Obligor is fully liable for the Loan and other obligations of the Borrower under the Loan Documents.
Each Joint Obligor agrees to execute the relevant Promissory Note to document the borrowing of the Loan as guarantor (avalista) in accordance with the General Law on Negotiable Instruments and Credit Transactions of Mexico, as well as any promissory note to replace it, if applicable.
(b) Subordination. Each Joint Obligor accepts and agrees that, in the event of a Default or Event of Default or bankruptcy of any Loan Party, any right of collection or action the Joint Obligors or any of their Subsidiaries may have against the Borrower, derived from any inter-company loan, shall be subordinate to the rights and actions of the Lender against the Borrower under the Loan Documents. If any of the Joint Obligors makes a partial payment under the Loan Documents, said Joint Obligor agrees with the Lender not to exercise its collection rights or any other available legal actions against the Borrower until they have received full payment of the Borrower’s obligations under the Loan Documents.
Section 3.3. Release of Guarantors. The Lender may release any Guarantor from its obligations under the Loan Documents. If any Guarantor ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents, then such Guarantor shall be automatically released from its obligations under the Loan Documents. The Lender shall, without delay, upon written request from Borrower and at the sole expense of the Borrower, execute any documentation reasonably requested to evidence or confirm said release.
Article IV. Certain Conditions Precedent and Requirements for the Borrowing of the Loan. The obligation of the Lender to make the Loan available to the Borrower, and the right of the Borrower to make the Borrowing of the Loan, are subject to having been fulfilled or considered fulfilled, within the Availability Period and previously to the Borrowing (or simultaneously to the Borrowing, if so indicated in this section), the conditions precedent and other requirements mentioned in this section, in a form and substance reazonably acceptable to the Lender.
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(i) The Lender shall have received:
(1) this Agreement, executed by the Borrower, the Initial Mexican Guarantors and the other parties hereto, with ratification of signatures before a notary public;
(2) the Guaranty duly executed by all the parties thereof;
(3) on the Borrowing Date, the Promissory Note documenting said Borrowing in accordance with the terms of this Agreement, signed by the Borrower, as issuer (suscriptor), and the Mexican Guarantors as guarantors (avalistas);
(4) copy of the Financial Statements described in Representation I(5);
(5) a legal opinion from Ritch, Mueller y Nicolau, S.C., outside counsel in Mexico to the Borrower and the Initial Mexican Guarantors, substantially in the form of Exhibit [F-1]attached hereto;
(6) a legal opinion from Skadden, Arps, Slate, Meagher & Flom LLP, outside counsel in New York to the Borrower and the Guarantors, substantially in the form of Exhibit [F-2] attached hereto;
(7) a legal opinion from GHR Rechtsanwälte AG, outside counsel in Switzerland to the Borrower and the Guarantors, substantially in the form of Exhibit [F-3] attached hereto;
(8) a legal opinion from Galicia Abogados, S.C., outside counsel in Mexico to the Lender, substantially in the form of Exhibit [F-4] attached hereto;
(9) with respect to the Borrower each of the Mexican Guarantors, a certificate from the secretary of the board of directors, or its equivalent, substantially in the form of Exhibit [G-1], attaching copies of the public deeds containing the corporate authorizations granted by the party in question, to execute the Loan Documents to which it is a party, and copies of the public deeds that contain (i) its current Organization Documents, and (ii) the powers of the legal representatives that sign the Loan Documents to which it is a party, provided that the powers of the representatives of the Borrower and the Mexican Guarantors must be granted in accordance with Article 9 of the General Law on Negotiable Instruments and Credit Transactions, and (a) be registered in the Public Registry of Property and Commerce, or (b) be granted by letter or statement signed by the party , addressed to the Lender.
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(10) with respect to each of the Foreign Guarantors, a Certificate of Authorized Official of the Borrower, substantially in the terms of Exhibit G-2, to which it must be attached copies of the corporate authorizations grantes by the party in question to execute the Loan Documents to which it is a party, and simple copies of (i) its Constitutive Documents and (ii) the powers of attorney of the legal representatives who will execute the Loan Documents to which it is a party, which evidences (A) the powers of each Authorized Official who enters into Loan Documents on behalf of the Part of the Loan in question, and (B) that said Part of the Loan has been validly constituted and exists, in accordance with the laws of its place of incorporation and existence, and has the necessary capacity to conduct its business in each of the jurisdictions in which it has properties, leases and carries out operations. , except for breaches that could not reasonably be expected to have a Significant Adverse Effect;
(11) the Borrowing Notice, delivered within the term mentioned in Section 2.2, clause (b);
(12) evidence of payment, or the granting of irrevocable instructions to the Lender, which may be stated in the Borrowing Notice, for the Lender to pay, once the amounts have been transferred to the Borrower’s Account, with funds corresponding to the Loan, Structuring Fee and the costs and expenses incurred by the Lender, accepted by the Borrower in the making of the Loan and the negotiation and execution of the Loan Documents,
(13) any document the Lender previously requests in writing in accordance with its know your customer policies;
(14) evidence of the appointment by the Foreign Guarantors of the Process Agent as their agent for service of process in connection with any proceeding initiated under the Guaranty in the State of New York and of the Process Agent’s acceptance of such appointment.
(ii) That no Default or Event of Default has occurred
(iii) The representations of the Loan Parties, as appropriate, contained in the Loan Documents shall be true, complete and correct in all their aspects as of the relevant Borrowing Date, as if made on that date (except for those specifically referred to a specific different date in which case it will be understood as of that date).
Article V. Affirmative Covenants. The Borrower agrees with the Lender that, as of the Borrowing Date and so long as any unpaid balance of the Loan shall remain unpaid and outstanding, it shall comply, and shall make its Subsidiaries to comply (except for the provisions of sections 5.1, 5.2 and 5.3) with the following obligations:
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Section 5.1. Financial Statements. Provide to the Lender:
(a) as soon as available, but in any event within 120 (one hundred twenty) days after the end of each fiscal year of the Borrower, the annual consolidated Financial Statements of the Borrower and its Subsidiaries, for the relevant fiscal year, signed by a Responsible Officer of the Borrower, audited by a firm of public accountants of recognized standing and accompanied in each case by the relevant report of said auditor (which should not contain “going concern” or similar qualifications, except for any exception regarding the expiration of the Loan within twelve (12) months following the audit in question or for any non-compliance or anticipated non-compliance with obligations to do of a financial nature), in each case, prepared in accordance with the International Financial Reporting Standards, including the relevant balance sheets and the related statements of income, changes in shareholders’ equity, and cash flows setting forth in each case in comparative form the figures for the immediately previous fiscal year; and
(b) as soon as available, but in any event within 60 (sixty) days after the end of each of the first three fiscal quarters, the consolidated internal quarterly Financial Statements of the Borrower and its Subsidiaries, corresponding to the quarter in question and the completed portion of the annual fiscal year which must be signed by a Responsible Officer of the Borrower, including the relevant balance sheets and statements of income, changes in shareholders’ equity, and cash flows setting forth in each case in comparative form the respective figures against those of the relevant quarter in the immediately preceding fiscal year and the relevant concluded portion of the immediately preceding annual fiscal year, subject to end-of-year settings and no notes
Section 5.2. Certificates; Other Information. Provide to the Lender:
(a) concurrently with the delivery of the Financial Statements referred to in Sections 5.1(a) and (b), a completed Compliance Certificate signed by a Responsible Officer of the Borrower (which delivery may be by electronic communication including email and shall be deemed to be an original authentic counterpart thereof for all purposes);
(b) within five (5) Business Days any request by the Lender, copies of any audit report, management letters or communications or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower, that having been prepared by independent accountants in connection with the accounts, records or books of the Borrower or any Subsidiary, or any audit of any of them;
(c) within five (5) Business Days after the same are available, copies of each annual reportor financial statement or other report or communication sent to the stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and prospect which the Borrower may file or be required to file with any Governmental Authority, and not otherwise required to be delivered to the Lender pursuant hereto;
(d) within five (5) Business Days after the furnishing thereof , copies of any financial statements, compliance certificate or notice of default furnished to any holder of debt securities of any Loan Party or any Subsidiary pursuant to the terms of any financing, indenture, loan or credit or similar agreement relating to debt or borrowed money and not otherwise required to be furnished to the Lender pursuant to any other clause of this Section 5.2; provided that this clause (d) shall not apply to any such financing, indenture, loan or credit or similar agreement with an outstanding principal amount or unused commitments less than US$50.0 million (fifty million Dollars 00/100); and
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(e) as soon as requested by the Lender, but in any case within fifteen (15) calendar days following receipt of the relevant request by the Lender, the information that it reasonably requests, which is necessary for the purpose of complying with the applicable regulations and provisions regarding anti-money laundering and customer identification (“know your customer”).
Documents required to be delivered pursuant to Section 5.1 or Section 5.2 (whether or not any such documents are included in materials otherwise filed with the Governmental Authorities) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on its website on the Internet at the website address listed on Schedule [*];5.2, or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender have access (whether a commercial, third-party website or whether sponsored by the Lender); provided that the Borrower shall notify the Lender (by electronic mail) of the posting of any such documents and provide to the Lender by electronic mail electronic versions (i.e., soft copies) of such documents.
The Borrower hereby acknowledges that the Lender may have personnel who do not wish to receive relevant non-public information regarding the Borrower or its Affiliates, or the respective securities of any of them, who may participate in investment activities and other securities market related activities of said Persons. The Borrower agrees that (x) all materials and/or information provided by or on behalf of the Borrower in accordance with the terms hereof (together, the “Borrower Materials”) that shall be made available to the Lender shall be marked clearly and visibly as “PUBLIC”, which as a minimum shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, and (y) by marking the Borrower Materials as “PUBLIC,” the Borrower shall be deemed to have authorized the Lender to treat said Borrower Materials as not containing important non-public information in relation to the Borrower or its securities for the purposes of the Applicable Law in matters of securities (provided, however, that to the extent such Borrower Materials constitute information, they shall be treated as set forth in [9.9]).
Section 5.3. Notices. Promptly notify the Lender any of the following events as soon as possible but in any case within five (5) Business Days after the date it occurs, except for the case of subsection (a), which must be notified within ten (10) Business Days following which occurs first of (x) a notice of the Lender, or (y) that the Borrower has knowledge of the Default or Event of Default..
(a) the occurrence of any Default or Event of Default;
(b) any circumstance that has resulted or would reasonably be expected to result in a Material Adverse Effect; and
(c) any relevan change in the accounting policies or financial reporting practices by the Borrower or any Subsidiary.
Each notice pursuant to this Section 5.3 shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the event referred to therein in reasonable detail and stating what action, if any, the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.3(a) shall describe in reasonable detail any and all provisions of this Agreement and any other Loan Document that have been breached.
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Section 5.4. Pari Passu Obligations. The Borrower shall take actions so that its obligations under this Agreement always rank at least pari passu with respect to the payment of any other unsecured and unsubordinated obligations, present or future, of the Borrower that result from the Borrower’s Indebtedness (except for those indebtedness having priority by operation of law).
Section 5.5. Payment of Obligations. Pay, as they are due and payable (a) all Taxes that are determined or required, (b) all claims that are made according to law, the non-payment of which results or could result in a Lien; provided that, for purposes of clauses (a) and (b) above, neither the Loan Parties nor their Subsidiaries shall be required to pay or cause to be paid any Taxes or claims that are being contested by the party in good faith, by proper proceedings and as to which appropriate reserves are being maintained (if required in accordance with the International Financial Reporting Standards), and (c) all Indebtedness, when enforceable and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness, except in each case to the extent that it cannot be reasonably expected that the has a Material Adverse Effect.
Section 5.6. Preservation of Licenses and Existence. (a) Maintain its legal existence, and comply with its obligations, except for (i) the provisions of Section 6.3, or (ii) any default from a Subsidiary that is not a Loan Party, that does not have, nor could be reasonably expected to have, a Material Adverse Effect, (b) take all reasonable action to maintain all rights, licenses, permits, notices, and, in general, any authorizations necessary in the normal conduct of its business, except for those rights, licenses, permits, registrations or authorizations whose lack or absence do not have, and could not be reasonably expected to have, a Material Adverse Effect, and (c) to the extent reasonably possible under Applicable Law, preserve and renew all its patents, trademarks and other industrial property, except for those cases that do not have, nor could be reasonably expected to have, a Material Adverse Effect.
Section 5.7. Property. Maintain the ownership of any tangible or relevant equipment that are necessary in the ordinary conduct of its business and keep said assets working and in good condition (without prejudice to the natural wear and tear of said assets derived from their use according to their nature), except for those cases that do not have, and could not be reasonably expected to have, a Material Adverse Effect.
Section 5.8. Insurance. Maintain, with financially sound companies, (which can be Affiliates of the Borrower), insurance regarding their assets and the business with the coverage and in such amounts as maintained by other merchants engaged in the same line of business as the Loan Parties and in similar circumstances.
Section 5.9. Compliance with Applicable Law. Comply, in the totality of its relevant aspects, with the Applicable Law and with all the requirements, judgments, awards , precautionary measures and decrees applicable to its business, except for defaults that do not have, nor could be reasonably expected to have, a Material Adverse Effect, or that are being contested in good faith, by proper proceedings diligently conducted.
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Section 5.10. Books and Records. Keep and maintain proper books of record (including corporate records) and accounts, in which complete and correct entries are made in the totality of its relevant aspects regarding all financial transactions and assets and relevant businesses of each Loan Party and its Subsidiaries, in all cases of compliance with the International Financial Reporting Standards consistently applied.
Section 5.11. Use of Loan Proceeds. The Borrower shall use the Loan proceeds to pay the fees, costs and expenses related to the negotiation and execution of the Loan Documents and for general corporate purposes (the “Use of Loan Proceeds”). The Borrower shall (a) procure that no funds received under the Loan shall be directly or indirectly used in Switzerland or be, directly or indirectly, remitted to any Swiss tax resident company or Swiss tax resident permanent establishment unless a written confirmation or countersigned tax ruling application from the Swiss Federal Tax Administration has been obtained confirming that such use does not result in interest payments under this Agreement being subject to Swiss withholding tax, (b) not permit or authorize any Person to use, directly or knowingly indirectly, all or any portion of the Loan to finance any transaction, business or activity (i) involving any Sanctions Target or Designated Jurisdiction, in each case, in violation of Sanctions or (ii) that would result in the Borrower failing to comply with any Sanctions applicable to it or becoming a Sanctions Target and (c) not finance, directly or knowingly indirectly, any payments in respect of this Agreement to the Lender with income from or involving (i) a Sanctions Target or a Designated Jurisdiction, in each case, in violation of Sanctions or (ii) any activity that would result in the Borrower failing to comply with any Sanctions applicable to it or becoming a Sanctions Target.
Section 5.12. Anti-Corruption Laws; Sanctions. Conduct its businesses in compliance in all material respects with the Applicable Law in matters of anti-corruption and Sanctions and maintain policies and procedures reasonably designed to promote and achieve compliance with said Applicable Laws and Sanctions (with the understanding that any violation of Applicable Law resulting from the matters under investigation as of the date hereof that have been disclosed in the Borrower’s annual report presented in form 20-F corresponding to fiscal year 2020, will not imply or result in a violation of this Section 5.12).
Section 5.13. Proceeds of Lawful Origin. Each Loan Party, as appropriate, shall (i) pay the Loan only with funds that have legal origin; and (ii) have the relevant policies, processes, and supervision required under Applicable Law and designated to prevent their income from having illicit origin.
Section 5.14. Sustainability Reporting. The Borrower shall provide to the Lender:
(a) opportunely after becoming available and in any event within 150 (one hundred fifty) days following the end of each fiscal year of the Borrower (commencing with the fiscal year ending December 31, 2021), a Pricing Certificate for the most recently ended Annual Period for each KPI Metric; provided that, in any fiscal year, the Borrower may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 150-day period shall result in the Sustainability Margin Adjustment being applied as set forth in Section 2.10(c)).
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(b) the KPI Metrics Auditor, all information the KPI Metrics Auditor may reasonably request in order to perform the tasks contemplated to be performed by it under the Loan Documents.
Section 5.15 Substitution of Promissory Notes; Inconsistencies. (a) Not later than ten (10) Business Days following the written request of the Lender, the Borrower and each of the Mexican Guarantors agree to substitute any Promissory Note issued under this Agreement, in the event that the Promissory Note in question does not reflect the terms and conditions of this Agreement, including, without limitation, the Applicable Margin; notwithstanding the foregoing, neither the Borrower nor the Mexican Guarantors shall be obligated to make such substitution, except upon delivery of the Promissory Note to be substituted.(b) The parties agree that, in the event of any inconsistency or difference between the terms of this Agreement and the terms of any Promissory Note, the terms of this Agreement shall prevail.
Article VI. Negative Covenants. Starting at the Borrowing Date, and meanwhile any amount to any of the Loan Documents remains unpaid:
Section 6.1. Liens. The Borrower and its Subsidiaries, directly or indirectly, agree not to constitute, assume or allow any Liens to exist on any of their respective assets, whether they are currently owned or acquired after this date, except for the following Liens:
(a) Liens derived from any obligation of a tax, labor or social security nature or created by operation of Law, provided that any of said Liens is being contested in good faith by appropriate proceedings diligently conducted and for which such reserves or other appropriate provision, as shall be required by the IFRS, shall have been made;
(b) Liens granted pursuant to or in connection with (i) any netting or set-off arrangements entered into in the ordinary course of trading (including, for the avoidance of doubt, any cash pooling or cash management arrangements with a bank or financial institution) or (ii) any intragroup loans granted or any intragroup Indebtedness incurred or entered into or any cash pooling or cash management arrangements entered into by and between the Borrower and its Subsidiaries or between Subsidiaries (for so long as such Persons continue to be Subsidiaries);
(c) statutory Liens derived from the Applicable Law in benefit of landlords carriers, warehousemen, mechanics and materialmen incurred in the ordinary course of business for sums not yet due or the payment of which is being contested in good faith by appropriate proceedings diligently conducted and for which such reserves, as shall be required by the IFRS, shall have been made;
(d) Liens incurred or deposits made in the ordinary course of business in connection with (i) workers’ compensation, unemployment insurance and other types of social security obligations, or (ii) other insurance that maintains the Borrower or any of its Subsidiaries in accordance with Section 5.8;
(e) any attachment or Lien under a judgment, unless, within 60 days after the entry thereof, the judgment has been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after the expiration of any such stay;
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(f) Liens existing as of September 30, 2021 and described in Schedule 6.1(f) and Liens that currently secure any Indebtedness that is being refinanced or replaced; provided that the principal amount secured is not increased, save that principal amounts secured by Liens in respect of (i) Swap Contracts where there are fluctuations in the mark-to-market exposures of those Swap Contracts and (ii) Indebtedness where the principal may increase by virtue of capitalization of interest, the principal of which may be increased by the amount of such fluctuations or capitalizations, as the case may be;
(g) Liens expressly permitted by the Lender;
(h) licenses of, or other grants of rights to use with respect to, Intellectual Property Rights granted by Borrower or any Subsidiary (i) in the ordinary course of business and not materially interfering with the business of the Borrower and its Subsidiaries, taken as a whole, (ii) existing as of the Borrowing Date, or (iii) between or among Borrower and any of its Subsidiaries or between or among any of its Subsidiaries;
(i) any Liens created or deemed created pursuant to a Securitization;
(j) any Liens granted in connection with any Swap Contract; provided that the aggregate value of the assets that are the subject of such Liens does not exceed US$200.0 million (or its equivalent in other currencies) at any time;
(k) Liens granted or arising over receivables, inventory, plant or equipment that fall within Section 5.2(d);
(l) (i) any Liens over bank accounts arising under clause 24 or clause 25 of the general terms and conditions (algemene bankvoorwaarden) of any member of the Dutch Bankers’ Association (Nederlandse Vereniging van Banken) and (ii) other Liens granted to any financial institution with whom it maintains accounts to the extent required by the relevant institution’s (or custodian’s or trustee’s, as applicable) standard terms and conditions, in each case, which are within the general parameters customary in the banking industry;
(m) any Liens that are created or deemed created on shares of the Borrower or any of its Subsidiaries, pursuant to an obligation in respect of an executive compensation plan by virtue of such shares being held on trust for the holders of the convertible securities pending exercise of any conversion option, where such Lien is customary for such transaction;
(n) any Liens granted in connection with any Indebtedness referred to Section 6.2(f);
(o) other Liens securing obligations of the Borrower and its Subsidiaries at any one time outstanding equal to the greater of (x) 10% of consolidated tangible assets of the Borrower and its Subsidiaries based on the last balance sheet delivered pursuant to Section 5.1, and (y) US$1,500.0 million; and
(p) Liens granted in connection with or arising out of a Lease; provided that such Liens are over the right to use the asset or equipment that is the subject of the lease in question pursuant to the terms and conditions of said lease, or the rights of the Borrower or any of its Subsidiaries over the asset or equipment which is the subject of the Lease.
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Section 6.2. Subsidiaries Debt. The Borrower shall not permit any of its Subsidiaries that is not a Loan Party to create, incur, assume or suffer to exist or otherwise become or be liable in respect of any Indebtedness, except:
(a) Indebtedness existing at September 30, 2021 and described Schedule 1(a) and any renewals, extensions or refinancings thereof; provided that Indebtedness of any Loan Party shall not be refinanced with Indebtedness of a Subsidiary that is not a Loan Party and the aggregate principal amount of such Indebtedness shall not be increased except by the amount of any capitalized interest under any facility or instrument that provides for capitalization of interest on those terms as at the execution date hereof or by an amount equal to a reasonable premium or other reasonable amount paid in connection with, and fees and expenses reasonably incurred with respect to, any renewal, extension or refinancing thereof and by an amount equal to any existing commitments unutilized thereunder;
(b) Indebtedness owed by any Subsidiary to the Borrower or to any other Subsidiary (which shall include, without limitation, liabilities arising from cash management agreements, tax and accounting operations); provided that such Indebtedness shall not have been transferred or assigned to any Person other than the Borrower or any Subsidiary;
(c) Indebtedness product of a Securitization;
(d) Indebtedness arising under factoring arrangements, inventory financing arrangements or export credit facilities or any similar arrangements (including Leases) for the purchase of equipment (provided that any Lien granted to guarantee financing for the purchase of said equipment) or pursuant to sale and lease-back transactions, provided that the maximum aggregate Indebtedness of members of the Borrower and its Subsidiaries, which are not Loan Parties under such transactions does not exceed US$500.0 million at any time (disregarding, for the purpose of such limit, any amount of Indebtedness of the Borrower and its Subsidiaries arising under such arrangements permitted under this paragraph (d) and in place on the execution date of this Agreement, including any amounts under such Indebtedness which has been repaid and reborrowed whether pursuant to the terms of the arrangement constituting such Indebtedness when originally advanced or otherwise);
(e) Indebtedness of the Borrower and its Subsidiaries pursuant to any acquisition provided that: (i) such Indebtedness existed prior to the date of the acquisition and was not incurred, increased or extended in contemplation of, or since, the relevant acquisition; and (ii) the aggregate amount of any such Indebtedness of the Borrower and its Subsidiaries which are not Loan Parties does not exceed US$200.0 million at any time;
(f) Indebtedness incurred pursuant to or in connection with any cash pooling or other cash management agreements with a bank or financial institution, but only to the extent of offsetting and compensable credit balances of the Borrower and its Subsidiaries which are not Loan Parties. (g) Indebtedness for Taxes levied, assessments due and other governmental charges required to be paid as a matter of law or regulation in the ordinary course of business; and
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(h) additional Indebtedness, if, after giving effect to the incurrence of any such Indebtedness, the aggregate outstanding amount of Indebtedness of all Guarantor Subsidiaries would not exceed the greater of (x) 15% of the consolidated tangible assets of the Borrower and its Subsidiaries based on the last balance sheet delivered pursuant to Section 5.1, and (y) US$2,000.0 million.
For the avoidance of doubt, the aggregate amount of any Indebtedness shall be calculated for purposes of this Section 6.2 solely by reference to such Indebtedness of each of the Borrower’s Subsidiaries that is not a Loan Party.
Section 6.3. Relevant Changes and Sale of Assets.
(a) The Borrower shall not, nor shall it permit any of its Subsidiaries, whether in a single transaction or in a series of related transactions to consolidate or merge with any other Person, unless no Default would exist and such transaction would not be prohibited by clause (b) below; provided that (i) in the case of a merger or consolidation involving the Borrower, the surviving entity thereof (1) is the Borrower or (2) (A) assumes the Obligations of the Borrower pursuant to an agreement reasobaly satisfactory to the Lender and (B) is a Person organized and validly existing under the laws of Mexico, the United States, any State thereof or the District of Columbia, Canada, France, Belgium, Germany, Italy, Luxembourg, the Netherlands, Portugal, Spain, Switzerland or the United Kingdom, or any political subdivision thereof or any other jurisdiction reasonably acceptable to the Lender and (ii) in the case of a merger or consolidation involving a Guarantor, (1) the surviving entity thereof is the Borrower, is (or shall concurrently become) a Guarantor or otherwise assumes the Obligations of the Guarantors pursuant to an agreement reasonably satisfactory agreement to the Lender or (2) such transaction (A) results in the Guarantor no longer being a direct or indirect Subsidiary of the Borrower and (B) is not prohibited under Section 6.3(b).
(b) The Borrower shall not, nor shall it permit any of its Subsidiaries to, whether in a single transaction or in a series or related transactions (including through liquidation, division, bankruptcy or other insolvency proceedings), Dispose all or substantially all of the assets of the Borrower and its Subsidiaries, taken as a whole, other than through a contribution of assets to a newly-formed Wholly Owned Subsidiary of the Borrower.
Section 6.4. Restricted Payments. The Borrower shall not, nor shall it permit any of its Subsidiaries, to make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary may make Restricted Payments to the Borrower, any Subsidiary of the Borrower and any other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of Equity Interest in respect of the Restricted Payment in question;
(b) the Borrower and each Subsidiary may make Restricted Payments payable in the Common Stock or other common Equity Interests of such Person;
45
(c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by them with the proceeds from the issuance substantially concurrent with the issuance of new shares of Common Stock or other common Equity Interests;
(d) the Borrower may make Restricted Payments to comply with any obligation in respect of any executive compensation plan of the Borrower; and
(e) the Borrower and each Subsidiary may make any Restricted Payment, so long as (i) no Default shall have occurred and be continuing at the time of such Restricted Payment, or would result therefrom and (ii) the Borrower shall be in compliance with the covenants in Section 6.5 after giving pro forma effect to such Restricted Payment.
Section 6.5. Financial Covenants.
(a) The Borrower shall not permit the Consolidated Leverage Ratio to be greater than 3.75:1.0 on the last day of any fiscal quarter of the Borrower as of the Borrowing Date.
(b) The Borrower shall not permit the Consolidated Coverage Ratio to be less than 2.75:1.0 on the last day of any fiscal quarter of the Borrower as of the Borrowing Date.
Each of the financial ratios referred to above shall be calculated for the Borrower and its Subsidiaries on a consolidated basis for each consecutive four (4) fiscal quarter period.
Article VII. Defaults; Events of Defaults; Acceleration. The Lender may early terminate the term for the payment of any unpaid amount under the Loan and its accessories (with the Loan Parties required, as appropriate, to pay the total unpaid amount of the Loan and its accessories), by a written statement notified to the Borrower in accordance with the Section 10.4 hereof, in any of the following events (once elapsed the cure periods applicable to each of said events, an “Event of Default”), without the need for a demand, resolution or judicial procedure or any other notice, once the cure periods that, if applicable, are provided in this section have elapsed:
(a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of the Loan, or (ii) any amount for interest on the Loan within three (3) Business Days after the same becomes due, any interest on the Loan, or (iii) any amount due hereunder or under any other Loan Document.
(b) Specific Obligations. The Borrower fails to perform or observe any obligation contained in Article V (and such failure shall continue uncured within the next 30 thirty (30) days after the Borrower becomes aware of such failure) or Article VI hereof; or
(c) Representations and Warranties. Any representation made by the Loan Parties herein, in any other Loan Document, or in any document or delivered in connection herewith or therewith, or any documentation provided under this Agreement or under any of the other Loan Documents, shall be incorrect, misleading or fake, in any relevant respect, when it is carried out or considered carried out, on the understood that t any such representation or documentation that might be cured , can be cured within a period of 30 days after the Borrower becomes aware of the representation, information or documentation that misleads.
46
(d) Cross Payment Default. The Borrower or any Subsidiary fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder), after giving effect to any applicable grace period, having an outstanding aggregate principal amount equal to or greater than US$50.0 million (or the equivalent thereof in other currencies); provided that such failure is unremedied and is not waived by the holders of such Indebtedness prior to any termination of the Commitment or acceleration or early maturity of the Loan hereunder.
(e) Cross-Default. The Borrower or any of its Subsidiaries shall default in the observance or performance of any obligation, agreement condition relating to any Indebtedness in an outstanding principal amount equal to or greater than US$50.0 million, individually or in the aggregate, or contained in any agreement or instrument evidencing, securing, governing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a third party on behalf of said holder or holders) to cause, any such Indebtedness to become due prior to its stated maturity and such default shall continue unremedied beyond the applicable period of grace set forth in the documents evidencing such Indebtedness; or any such Indebtedness in an outstanding principal amount equal to or greater than US$50.0 million, individually or in the aggregate, of the Borrower or any of its Subsidiaries is declared to be due and payable, is required to be prepaid in a manner other than regularly scheduled required payments prior to the stated maturity thereof; provided that this clause (e) shall apply to (i) secured Indebtedness that becomes due as a result of the Disposition (including as a result of a casualty or condemnation event) of the property or assets securing such Indebtedness, (ii) Guarantees of Indebtedness that are satisfied promptly or (iii) with respect to Indebtedness incurred under any Swap Contract, termination events or equivalent events pursuant to the terms of the relevant Swap Contract which are not the result of any default thereunder by the Borrower or any of its Subsidiaries; provided, further, that such default is unremedied and is not waived by the holders of such Indebtedness prior to any termination of Commitments or acceleration or maturity of the Loans pursuant to this Agreement.
(f) Insolvency; Concurso Mercantil; Bankruptcy. (A) Any Loan Party shall institute any proceeding or action (i) in accordance with any law, present or future, of any country (whether in Mexico or abroad) related to concurso mercantil, insolvency, bankruptcy, reorganization or debtor relief the purpose of which is to request its respective concurso mercantil, bankruptcy, insolvency, reorganization, restructuring, dissolution, liquidation or any other legal assistance regarding any Loan Party or its debts, or (ii) seeking the appointment of a receiver, conciliator, auditor, trustee, custodian, administrator or any similar official with respect to all or a substantial portion of its assets or if any Loan Party makes a general assignment of its assets for the benefit of its creditors, or (B) any proceeding or action of the types mentioned in subsection (A) above shall be initiated against any of the Loan Parties, which (i) results in the entering of an order of judicial assistance or concurso mercantil or the appointment of officials to carry out judicial assistance or insolvency-related functions or (ii) continues without being legally dismissed for a period of sixty (60) calendar days, or (C) any proceeding or other action that seeks the issuance of an order of seizure, foreclosure or similar process against all or a relevant portion of its assets that results in an order for such purposes and that it is not dismissed or rendered ineffective within sixty (60) days following the date on which said order is entered shall be initiated against any of the Loan Parties, as to any present or future law of Mexico or any other applicable country, or (D) any of the Loan Parties shall become unable to generally pay its debts when due or shall admit in writing its inability to pay its debts when due; or
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(g) Judgments. If any judgment or final payment order is issued against the Borrower or any of its Subsidiaries that does not admit any recourse, in an aggregate amount (for all judgments or payment orders) exceeding, , US$100.0 million (or its equivalent in other currencies), and (i) not (i) covered by independent third-party insurance as to which the insurer does not dispute coverage or (ii) paid, discharged or bonded within sixty (60) days after the entry of such judgment); or
(h) Invalidity of Loan Documents. Any provision of the Loan Documents ceases to be legal, valid or enforceable, except to the extent permitted in this Agreement, or if any Loan Party contests the validity or enforceability of any Loan Document except to the extent permitted in this Agreement, or any Loan Party denies being bound by the Loan Documents, or purports to revoke, terminate or rescind any provision of the Loan Documents for any reason other than as expressly permitted hereunder.
(i) Invalidity of Guarantees. Any guarantee issued under any Loan Document ceases to be in full force and effect; or any Loan Party contests, in writing, in any manner the validity or enforceability of any guarantee issued under any Loan Document for any reason other than as expressly permitted hereunder.
(j) Condemnation; Revocation; Ownership Extinction. Any Governmental Authority shall condemn, seize, take possession, or otherwise expropriate, all or a portion, that taken as a whole is considered relevant, of the assets of any of the Loan Parties, or carry out any act (including the foregoing) in such a way that, based on the value of the property condemned, expropriated or seized, such action would be reasonably expected to have a Material Adverse Effect.
(k) Moratorium. Any Governmental Authority shall, by moratorium laws or other similar laws (except for any such law relating to matters of public health or national emergency), cancel, suspend or defer any material payment obligation when the same becomes due and payable and such cancellation, suspension or deferral shall continue for sixty (60) or more consecutive days.
For clarification purposes, the failure of the Borrower to comply with its obligations contained in Section 5.14 (a) will not give rise to the existence of an Event of Default.
Article VIII. Indemnification. (a) Each Loan Party shall jointly and severally indemnify the Lender, its holding company, and its respective Affiliates and Subsidiaries, and their directors, shareholders, managers, officers, advisors and employees (each, an “Indemnitee”) and hold them harmless from any actions, obligations, damages, losses, penalties, lawsuits, judgments, claims, costs and documented expenses (including reasonable legal expenses) or payments incurred by or attributed to or imposed against any Indemnitee, in each case arising out of or in connection with (1) the execution of this Contract or any Loan Document, or any agreement or instrument contemplated in the present or those, or the fulfillment by the respective
48
parties of their obligations under the present or those, (2) the Loan or the use that is given to the product thereof, (3) any exposure or release of Hazardous Materials in or from any property owned or managed by the Borrower or any of its Subsidiaries, and (4) any investigation, litigation related to the foreseen in the subsections (1), (2) or (3) above, initiated by any third party or any Party of the Loan, with the understanding that the obligations to indemnify under this Eighth Clause will not be applicable, and no Indemnified Party will have rights in accordance with the same, if said action, obligation, damage, loss, penalty, demand, judgment, claim, cost or expense is declared in a final and unappealable judgment issued by a competent court, as a result of the willful misconduct, bad faith or negligence of said Indemnitee or the default of said Indemnitee of its obligations contained in the Loan Documents or the Applicable Law provided that said default is not caused by an action or omission of any Loan Party or its Subsidiaries or results from any claim that does not result from an act or omission of any Credit Party but from controversies or claims between the Indemnified Parties.
(b) The obligations of the Loan Parties, as appropriate, in accordance with this Section shall remain in force even after the termination of this Agreement and until expiration of their statute of limitation under Applicable Law.
(c) The compensation contained in this Eighth Clause will not be applicable with respect to any Tax, except for Taxes with respect to losses, damages or costs derived from a claim that has not been presented with respect to any Tax.
Article IX. Miscellaneous.
Section 9.1. Amendments. This Agreement may only be amended by a written agreement entered into by the Lender and the Loan Parties that acknowledge the execution of this Agreement (for clarification purposes, the acknowledge of the Foreign Guarantors is not required).
Section 9.2. Assignments.
(a) Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither the Borrower nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder or under the other Loan Documents without the prior written consent of the Lender (except as otherwise permitted pursuant to Section 5.3).
(b) Assignments by Lender. (i) The Lender may, at any time, assign in whole or in part of its rights and obligations under the present Agreement subject to the consent of the Borrower (not to be unreasonably withheld or delayed; it being understood that withholding or delaying consent with respect to an assignment to any Disqualified Lender or any Sanctioned Lender shall not be deemed unreasonable) unless (a) an Event of Default has occurred and is continuing, in which case such assignment may be made to any Person other than a Disqualified Lender or a Sanctioned Lender, or (b) the assignment is an Affiliate of the Lender or an Approved Fund in each case that is not a Disqualified Lender. For any assignments for which the Borrower’s consent is required, such consent shall be deemed to have been given if the
49
Borrower shall not have responded within ten (10) Business Days of receipt of a written request for such consent. The Borrower and each of the Mexican Guarantors agree, at the request of the Lender, to substitute any Promissory Note issued pursuant to this Agreement, if the Lender so requires by reason of the assignments made in accordance with this Section. Notwithstanding the foregoing, neither the Borrower nor the Mexican Guarantors shall be required to make such substitution if it is not upon delivery of the Promissory Note to be substituted.
(ii) The Lender shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Lenders or Sanctioned Lenders. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be required to ascertain, monitor or inquire as to whether any prospective Lender is a Disqualified Lender or Sanctioned Lender or (y) have any liability with respect to or arising out of any assignment, or disclosure of confidential information, to any Disqualified Lender or Sanctioned Lender.
(iii) The assignments mentioned above shall not constitute any novation of the Loan or this Agreement and any documented costs and expenses derived therefrom shall be paid by the Lender and the relevant assignee.
(c) Participations. The Lender may participate, totally or partially, even before the expiration of this Agreement or of any Promissory Note, the Loan made hereunder and under any Promissory Note (as well as the rights that result in its favor according to the Loan Documents), without the need to give notice to, or obtain the consent of, the Loan Parties, any Person (other than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of one or more natural Persons, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”). The participations made by the Lender, provided that it maintains the ownership of the Loan and other rights under the Loan Documents and only assumes the obligation to pay certain interest and principal payments thereon to a third party, shall not be considered assignments. Notwithstanding any participation under this subsection (c), the Lender (or its permitted assignees, assignees or successors) (i) will have all, and will be responsible for, each of its obligations under this Agreement and the rest of the Loan Documents, (ii) will be responsible for any part of its obligations under this Agreement and the rest of the Loan Documents. In no event shall the Participant have any action against the Loan Parties. A participant shall have the same benefits as the Lender granting such participation with respect to (a) yield protection and increased cost (but not requiring payments in excess of those payable to such Lender in the absence of such participation), (b) with respect to pro rata treatment provisions and (c) Section 3.1, except (i) that such Participant shall not be entitled to receive any greater payment under Section 3.1, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation, and (ii) the Participant (as a consequence of the participation or even if it is kept hidden, will not have the right to receive any additional sum, which exceeds that which would correspond to the Lender or its assignees permitted in terms of Section 2.9..
50
Section 9.3. Costs and Expenses. The Borrower shall pay the documented costs or expenses (including reasonable expenses and costs of legal advisors of the Lender) incurred in the preparation and execution of this Agreement and the other Loan Documents. The Borrower shall pay the Lender, within five (5) Business Days immediately following the date on which it is requested in writing, any expenses and documented fees (including expenses and costs of legal advisors of the Lender), incurred as a result of any amendment to this Agreement or any other Loan Document, and any cost or documented expenses, if any, in connection with the specific performance or the enforcement (including expenses and documented costs of legal advisors of the Lender) of any Loan Document.
Section 9.4. Addresses; Notices. (a) For the purposes related to this Agreement, each of the parties designates the following as its domicile:
The Loan Parties
Avenida Ricardo Margáin Zozaya #325
Colonia Valle del Campestre
San Pedro Garza García
Nuevo León, 66265
México
Attention: Director of Corporate Finance
Tel: +528188884150
Email: fernando.reiter@cemex.com , and
Attention: Legal Department
Tel: +5281-8888-4054
Email: guillermof.hernandez@cemex.com
The Lender
David Alfaro Siqueiros No. 106 Floor 16
Col. Valle Oriente
C.P. 66278
San Pedro Garza García, Nuevo León, México
Attention: Manuel Ramírez García y Fidel Garza Chapa
Tel: 81 81739000
Email: manuel.ramirez.garcia@banorte.com and fidel.garza.chapa@banorte.com
(b) Notices and other communications to any party shall be in writing and may be delivered by email or other electronic means, in person, by a Mexican parcel service with next day delivery, to the address indicated in this Article for said purposes.
(c) Notices made hereunder shall be deemed to have been made at the time they are delivered to the recipient thereof, or at the time their delivery is denied by said recipient, as indicated in the acknowledgment of receipt, in case of having been sent by mail, or in the receipt of delivery in case of having been sent by parcel or other service, as the case may be or, in the case of notices sent by email or any other electronic means, at the time they are transmitted and confirmation of transmission is obtained.
51
(d) As long as a change of address is not notified in writing to the other parties hereto, notices and other judicial and extrajudicial proceedings that are made at the addresses indicated shall be fully effective.
Section 9.5. Waiver of Rights. (a) No failure by the parties in exercising any rights under the Loan Documents shall operate as a waiver thereof nor shall any single or partial exercise thereof by said person of any right under the Loan Documents excludes any other right, power or privilege (including those provided in the Applicable Law).
(b) No waiver or approval by any of the parties shall be applicable to subsequent transactions, unless otherwise stated in said waiver or approval. No waiver or approval hereunder shall require the granting or denial of any subsequent waiver or approval hereunder.
Section 9.6. Exhibits; Schedules; Headings. The parties agree that the exhibits and schedules referred to in this Agreement form an integral part hereof. The headings of the Articles and Sections that appear in this Agreement have been inserted with the sole purpose of facilitating their reading; therefore, they do not define or limit their content. For the purposes of interpreting this Agreement, only the content of its Representations and Articles, and not the headings, shall be considered.
Section 9.7. Severability. If any of the provisions of this Agreement is held to be illegal, invalid or unenforceable, said provision shall be considered independent from the remainder of this Agreement, and the validity, legality and enforceability of the remainder of the provisions shall not be affected or annulled.
Section 9.8. Entire Agreement. The parties agree that this Agreement, together with the other Loan Documents, constitutes the entire agreement between them and supersedes all other prior agreements and understandings, verbal and written, between the parties regarding the subject matter of this Agreement (or the other Loan Documents, as the case may be).
Section 9.9. Confidentiality. (a) None of the parties to this Agreement shall disclose Confidential Information to any Person, without the prior consent of the other parties, except to (i) their respective Affiliates and Subsidiaries and their officers, directors, employees, agents, auditors, accounting, financial or legal advisors and, in the case of the Lender, to its current or potential assignees and participants, and only on a confidential basis, or (ii) as required under Applicable Law or by order of the competent Governmental Authority.
(b) For purposes of this Section 9.9, “Confidential Information” means any information, whether written, oral or contained in electromagnetic media that is provided by the parties in relation to, or derived from, the Loan Documents, before or after the date of this Agreement, regarding its business, finances or transactions, provided that Confidential Information excludes any information that (i) is or becomes public, except for a breach of this section, (ii) was in the possession of the party in question before the other party made any disclosure of Confidential Information, (iii) the party obtains from other sources from which, after having made a reasonable investigation, were not aware of being subject to confidentiality obligations, (iv) is developed independently by the party in question, or (v) is disclosed with the written consent of the other parties.
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Section 9.10. Instrument Coupled with Enforcement. This Agreement, together with the account statements certified by the accountant legally authorized by the Lender, shall be an instrument coupled with enforcement (título ejecutivo) in accordance with the provisions of Article 68 of the Banking Law.
Section 9.11. Advisory; Mutual Negotiation. Each of the parties has had legal representation by legal advisors of their choice for the negotiation of this Agreement. Therefore, the parties agree that this Agreement has been negotiated and prepared in accordance with the request, direction and joint interpretation of the parties under equal conditions, with the advice and participation of their respective legal advisors, and therefore, it shall be construed in accordance with its terms without favoring any of the parties. The Loan Parties acknowledge and agree that they have been in charge of preparing or supervising the preparation of the Schedules of this Agreement.
Section 9.12. Applicable Law; Competent Courts. The parties agree that for the interpretation and performance of this Agreement, the laws of Mexico shall be applicable and the parties expressly and irrevocably submit to the exclusive jurisdiction of the competent Federal courts sitting in Mexico City, Mexico, in any dispute that may arise due to the interpretation or enforcement of this Agreement, expressly and irrevocably waiving any other jurisdiction that may correspond to them due to their domicile, present or future, or for any other reason.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of December 20, 2021 in Monterrey, Nuevo León, México.
The Borrower
CEMEX, S.A.B. de C.V.
| /s/ Fernando José Reiter Landa | ||
| Name: Fernando José Reiter Landa | ||
| Title: Representative | ||
54
The Initial Joint Obligor
CEMEX Concretos, S.A. de C.V., and
| /s/ Fernando José Reiter Landa |
| Name: Fernando José Reiter Landa |
| Title: Representative |
The Joint Obligor (Fiadora)
CEMEX Operaciones México, S.A. de C.V.,
| /s/ Fernando José Reiter Landa |
| Name: Fernando José Reiter Landa |
| Title: Representative |
55
The Lender
Banco Mercantil del Norte, S.A.,
Institución de Banca Múltiple,
Grupo Financiero Banorte
| /s/ Manuel Ramírez García |
| Name: Manuel Ramírez García |
| Title: Representative |
| /s/ Fidel Garza Chapa |
| Name: Fidel Garza Chapa |
| Title: Representative |
56
Exhibit 4.10
€500,000,000 CREDIT AGREEMENT
DATED AS OF OCTOBER 7, 2022
among
CEMEX, S.A.B. de C.V.,
as the Borrower,
BBVA México, S.A., Institución de Banca Múltiple, Grupo Financiero BBVA México,
as Administrative Agent,
BBVA México, S.A., Institución de Banca Múltiple, Grupo Financiero BBVA México,
as Sustainability Structuring Agent,
BBVA México, S.A., Institución de Banca Múltiple, Grupo Financiero BBVA México,
BNP Paribas,
Citigroup Global Markets Inc., and
Mizuho Bank Ltd., New York Branch,
as Joint Bookrunners and Joint Lead Arrangers
and
The Lenders Party Hereto
TABLE OF CONTENTS
| Section | Page | |||||
| ARTICLE I DEFINITIONS AND ACCOUNTING TERMS |
7 | |||||
| Section 1.1 |
Defined Terms | 7 | ||||
| Section 1.2 |
Other Interpretive Provisions | 30 | ||||
| Section 1.3 |
Accounting Terms | 31 | ||||
| Section 1.4 |
Rounding | 32 | ||||
| Section 1.5 |
Times of Day | 32 | ||||
| Section 1.6 |
Interest Rates | 32 | ||||
| ARTICLE II THE COMMITMENTS AND LOANS |
32 | |||||
| Section 2.1 |
Loans | 32 | ||||
| Section 2.2 |
Borrowing and Continuation of Loans | 32 | ||||
| Section 2.3 |
Prepayments | 33 | ||||
| Section 2.4 |
Termination or Reduction of Commitments | 33 | ||||
| Section 2.5 |
Repayment of Loans | 34 | ||||
| Section 2.6 |
Interest | 34 | ||||
| Section 2.7 |
Fees | 34 | ||||
| Section 2.8 |
Computation of Interest and Fees; Retroactive Adjustments of Applicable Margin | 35 | ||||
| Section 2.9 |
Evidence of Debt | 35 | ||||
| Section 2.10 |
Payments Generally; Administrative Agent’s Clawback | 36 | ||||
| Section 2.11 |
Sharing of Payments by Lenders | 37 | ||||
| Section 2.12 |
Defaulting Lenders | 38 | ||||
| Section 2.13 |
Sustainability Adjustments | 39 | ||||
| ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY |
41 | |||||
| Section 3.1 |
Taxes | 41 | ||||
| Section 3.2 |
Illegality | 43 | ||||
| Section 3.3 |
[Reserved] | 44 | ||||
| Section 3.4 |
Increased Costs; Reserves | 44 | ||||
| Section 3.5 |
Compensation for Losses | 45 | ||||
| Section 3.6 |
Mitigation Obligations; Replacement of Lenders | 46 | ||||
| Section 3.7 |
Survival | 46 | ||||
2
| Section 3.8 |
Inability to Determine Rates | 46 | ||||
| ARTICLE IV CONDITIONS PRECEDENT TO LOANS |
47 | |||||
| Section 4.1 |
Conditions to Effective Date | 47 | ||||
| Section 4.2 |
Conditions to the Term Loans on the Funding Date | 49 | ||||
| ARTICLE V REPRESENTATIONS AND WARRANTIES |
50 | |||||
| Section 5.1 |
Existence, Qualification and Power | 50 | ||||
| Section 5.2 |
Authorization; No Contravention | 51 | ||||
| Section 5.3 |
Governmental Authorization; Other Consents | 51 | ||||
| Section 5.4 |
Binding Effect | 51 | ||||
| Section 5.5 |
Financial Statements; No Material Adverse Effect | 51 | ||||
| Section 5.6 |
Litigation | 52 | ||||
| Section 5.7 |
No Default | 52 | ||||
| Section 5.8 |
Ownership of Property; Liens | 52 | ||||
| Section 5.9 |
Environmental Compliance | 52 | ||||
| Section 5.10 |
Insurance | 52 | ||||
| Section 5.11 |
Taxes | 53 | ||||
| Section 5.12 |
ERISA Compliance | 53 | ||||
| Section 5.13 |
Subsidiaries; Equity Interests | 54 | ||||
| Section 5.14 |
Margin Regulations; Investment Company Act | 54 | ||||
| Section 5.15 |
Disclosure | 54 | ||||
| Section 5.16 |
Compliance with Laws | 55 | ||||
| Section 5.17 |
Intellectual Property; Licenses, Etc | 55 | ||||
| Section 5.18 |
Sanctions | 55 | ||||
| Section 5.19 |
Anti-Corruption Laws | 55 | ||||
| Section 5.20 |
EEA Financial Institutions | 56 | ||||
| Section 5.21 |
Covered Entities | 56 | ||||
| Section 5.22 |
Solvency | 56 | ||||
| Section 5.23 |
Immunity | 56 | ||||
| Section 5.24 |
Pari Passu Status | 56 | ||||
| ARTICLE VI AFFIRMATIVE COVENANTS |
57 | |||||
| Section 6.1 |
Financial Statements | 57 | ||||
| Section 6.2 |
Certificates; Other Information | 57 | ||||
| Section 6.3 |
Notices | 59 | ||||
3
| Section 6.4 |
Pari Passu Obligations | 59 | ||||
| Section 6.5 |
Payment of Obligations | 59 | ||||
| Section 6.6 |
Preservation of Existence, Etc. | 60 | ||||
| Section 6.7 |
Maintenance of Properties | 60 | ||||
| Section 6.8 |
Maintenance of Insurance | 60 | ||||
| Section 6.9 |
Compliance with Laws | 60 | ||||
| Section 6.10 |
Books and Records | 60 | ||||
| Section 6.11 |
Use of Proceeds | 61 | ||||
| Section 6.12 |
Anti-Corruption Laws; Sanctions | 61 | ||||
| Section 6.13 |
Delivery of Notes and Appointment of Custodian | 61 | ||||
| Section 6.14 |
Sustainability Reporting | 61 | ||||
| ARTICLE VII NEGATIVE COVENANTS |
62 | |||||
| Section 7.1 |
Liens | 62 | ||||
| Section 7.2 |
Subsidiary Debt | 63 | ||||
| Section 7.3 |
Fundamental Changes and Asset Dispositions | 65 | ||||
| Section 7.4 |
Restricted Payments | 65 | ||||
| Section 7.5 |
Financial Covenants | 66 | ||||
| ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES |
66 | |||||
| Section 8.1 |
Events of Default | 66 | ||||
| Section 8.2 |
Remedies Upon Event of Default | 69 | ||||
| Section 8.3 |
Application of Funds | 69 | ||||
| ARTICLE IX ADMINISTRATIVE AGENT |
69 | |||||
| Section 9.1 |
Appointment and Authority | 69 | ||||
| Section 9.2 |
Rights as a Lender | 70 | ||||
| Section 9.3 |
Exculpatory Provisions | 70 | ||||
| Section 9.4 |
Reliance by Administrative Agent | 72 | ||||
| Section 9.5 |
Erroneous Payments | 73 | ||||
| Section 9.6 |
Delegation of Duties | 75 | ||||
| Section 9.7 |
Resignation of Administrative Agent | 75 | ||||
| Section 9.8 |
Non-Reliance on the Administrative Agent, the Lead Arrangers and the Other Lenders | 77 | ||||
| Section 9.9 |
No Other Duties, Etc. | 77 | ||||
| Section 9.10 |
Guaranty Matters | 77 | ||||
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| Section 9.11 |
Certain ERISA Matters | 78 | ||||
| Section 9.12 |
Administrative Agent May File Proofs of Claim | 79 | ||||
| ARTICLE X MISCELLANEOUS |
79 | |||||
| Section 10.1 |
Amendments, Etc. | 79 | ||||
| Section 10.2 |
Notices; Effectiveness; Electronic Communication | 81 | ||||
| Section 10.3 |
Reliance by Administrative Agent and Lenders | 83 | ||||
| Section 10.4 |
No Waiver; Cumulative Remedies; Enforcement | 83 | ||||
| Section 10.5 |
Expenses; Indemnity; Damage Waiver | 84 | ||||
| Section 10.6 |
Payments Set Aside | 86 | ||||
| Section 10.7 |
Successors and Assigns | 86 | ||||
| Section 10.8 |
Treatment of Certain Information; Confidentiality | 88 | ||||
| Section 10.9 |
Right of Setoff | 89 | ||||
| Section 10.10 |
Interest Rate Limitation | 90 | ||||
| Section 10.11 |
Counterparts; Integration; Effectiveness | 90 | ||||
| Section 10.12 |
Survival of Representations and Warranties | 91 | ||||
| Section 10.13 |
Severability | 91 | ||||
| Section 10.14 |
Replacement of Lenders | 91 | ||||
| Section 10.15 |
Governing Law; Jurisdiction; Etc. | 92 | ||||
| Section 10.16 |
WAIVER OF JURY TRIAL | 93 | ||||
| Section 10.17 |
Waiver of Immunities | 94 | ||||
| Section 10.18 |
Judgment Currency | 94 | ||||
| Section 10.19 |
No Advisory or Fiduciary Responsibility | 94 | ||||
| Section 10.20 |
Electronic Execution of Assignments and Certain Other Documents | 95 | ||||
| Section 10.21 |
USA PATRIOT Act | 95 | ||||
| Section 10.22 |
Acknowledgement and Consent to Bail-In of Affected Financial Institutions | 96 | ||||
| Section 10.23 |
Acknowledgement Regarding Any Supported QFCs | 96 | ||||
| Section 10.24 |
Use of English Language | 97 | ||||
| Section 10.25 |
Swiss Guarantee Limitation | 98 | ||||
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SCHEDULES
| 1.1 | Applicable Margin and KPI Targets | |
| 2.1 | Commitments and Applicable Percentages | |
| 5.6 | Litigation and Environmental Matters | |
| 5.13 | Subsidiaries and Other Equity Investments | |
| 5.17 | Intellectual Property Matters | |
| 7.1 | Existing Liens | |
| 7.2 | Existing Indebtedness | |
| 10.2 | Administrative Agent’s Office; Certain Addresses for Notices |
EXHIBITS
| A | Form of Committed Loan Notice | |
| B | Form of Note | |
| C | Form of Compliance Certificate | |
| D | Form of Pricing Certificate | |
| E | Form of Assignment and Assumption | |
| F | Form of Guaranty | |
| G | Form of Notice of Loan Prepayment | |
| H | Form of Acceptable Assumption Agreement |
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CREDIT AGREEMENT
This CREDIT AGREEMENT (“Agreement”) is entered into as of October 7, 2022, among CEMEX, S.A.B. de C.V., a sociedad anónima bursátil de capital variable (the “Borrower”), BBVA México, S.A., Institución de Banca Múltiple, Grupo Financiero BBVA México, not in its individual capacity but solely in its capacity as administrative agent for the Lenders (the “Administrative Agent”), BBVA México, S.A., Institución de Banca Múltiple, Grupo Financiero BBVA México, solely in its capacity as sustainability structuring agent (the “Sustainability Structuring Agent”), BBVA México, S.A., Institución de Banca Múltiple, Grupo Financiero BBVA México, BNP Paribas, Citigroup Global Markets Inc., and Mizuho Bank Ltd., New York Branch, as joint bookrunners and joint lead arrangers (collectively, the “Lead Arrangers” and individually, a “Lead Arranger”), and each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”).
The Borrower has requested that the Lenders provide a term credit facility denominated in Euros, and the Lenders are willing to do so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
“Acceptable Assumption Agreement” means an Assumption Agreement with respect to the Obligations of the Borrower or a Guarantor, as applicable, in substantially the form of Exhibit H.
“Additional Guarantor” means any Person that, with the written acknowledgment of the Borrower, executes a guaranty in favor of the Administrative Agent and the Lenders, substantially in the form of Exhibit F, and who shall, promptly following any request from the Administrative Agent or any Lender, provide information and documentation reasonably requested by the Administrative Agent or such Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation.
“Administrative Agent” has the meaning set forth in the preamble of this Agreement.
“Administrative Agent’s Account” means the Administrative Agent’s account as set forth on Schedule 10.2, or such other account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.
“Administrative Agent’s Office” means the Administrative Agent’s address as set forth on Schedule 10.2, or such other address as the Administrative Agent may from time to time notify to the Borrower and the Lenders.
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“Administrative Questionnaire” means an Administrative Questionnaire delivered by each Lender in a form supplied by the Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Agreement” means this Credit Agreement.
“Alternative Fuels” are defined following the Global Cement and Concrete Association Sustainability Guidelines, as in effect on the Effective Date, for co-processing fuels and raw materials in cement manufacturing and include, but are not limited to, industrial waste, municipal solid waste, biomass residues and tires.
“Annual Period” means each calendar year.
“Applicable Law” means, as to any Person, all applicable Laws binding upon such Person or to which such a Person is subject.
“Applicable Margin” means the percentage per annum, based on the Consolidated Leverage Ratio, applicable to each Loan as set forth in Schedule 1.1 hereto, and after giving effect to any Sustainability Margin Adjustment.
“Applicable Percentage” means with respect to any Lender in respect of the Term Facility, (i) on or prior to the Funding Date, the percentage of the total Commitments of all Lenders represented by such Lender’s Commitment at such time and (ii) thereafter, the percentage of the aggregate outstanding Term Loans under the Term Facility of all Lenders represented by the aggregate outstanding Term Loans under the Term Loan Facility of such Lender at such time. The initial Applicable Percentage of each Lender with respect to the Term Loan Facility is set forth opposite the name of such Lender on Schedule 2.1 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.7), and acknowledged by the Administrative Agent, in substantially the form of Exhibit E.
“Audited Financial Statements” means the audited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2021, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Borrower and its Subsidiaries, including the notes thereto.
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“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time that is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their Affiliate (other than through liquidation, administration or other insolvency proceedings).
“Benchmark Replacement Rate” has the meaning specified in Section 3.8.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“Borrower” has the meaning specified in the preamble hereto.
“Borrower Materials” has the meaning specified in Section 6.2.
“Borrowing” means the borrowing of Term Loans under this Agreement.
“Business Day” means any day (a) other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, Mexico City or New York, New York and (b) if such day relates to the Borrowing of Term Loans on the Funding Date or any continuation of Term Loans, means any such day that is also a TARGET Day.
“Capital Stock” means:
(a) with respect to any Person that is a corporation, any and all shares, equity quotas (partes sociales), interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, including each class of Common Stock and Preferred Stock of such Person; and
(b) with respect to any Person that is not a corporation, any and all partnership or other equity or ownership interests of such Person.
“Cash” means the amount of “Cash and cash equivalents” as set out in the relevant line in the relevant financial statements as determined in accordance with IFRS.
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“Cementitious Product” means all clinker volumes produced by a company for cement making or direct clinker sale, plus gypsum, limestone, cement kiln dust and all clinkers consumed for blending, plus all cement substitutes produced. Clinker bought from third parties for the production of cement shall not constitute Cementitious Product.
“Central Bank Rate” means (a) the greater of (i) one of the following three rates as may be selected by the Administrative Agent: (1) the fixed rate for the main refinancing operations of the European Central Bank (or any successor thereto), or, if that rate is not published, the minimum bid rate for the main refinancing operations of the European Central Bank (or any successor thereto), each as published by the European Central Bank (or any successor thereto) from time to time, (2) the rate for the marginal lending facility of the European Central Bank (or any successor thereto), as published by the European Central Bank (or any successor thereto) from time to time or (3) the rate for the deposit facility of the central banking system of the Participating Member States, as published by the European Central Bank from time to time and (ii) the Floor; plus (b) the applicable Central Bank Rate Adjustment.
“Central Bank Rate Adjustment” means, for any day, a rate equal to the difference (which may be a positive or negative value or zero) of (a) the average of the EURIBOR Rate for the five most recent Business Days preceding such day for which the EURIBOR Rate was available (excluding, from such averaging, the highest and the lowest EURIBOR Rate applicable during such period of five Business Days) minus (b) the Central Bank Rate in respect of Euro in effect on the last Business Day in such period.
“Change in Law” means the occurrence, after the Effective Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.
“Change of Control” means the beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC under the Securities and Exchange Act of 1934, as amended) of twenty percent (20%) or more in voting power of the outstanding Voting Stock of the Borrower is acquired by any Person. Notwithstanding the foregoing, a transaction will not be deemed to constitute a Change of Control if (1) the Borrower becomes a direct or indirect Wholly Owned Subsidiary of a holding company and (2)(A) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Borrower’s Voting Stock immediately prior to that transaction or (B) immediately following that transaction no Person (other than a holding company satisfying the requirements of this sentence) has beneficial ownership of twenty percent (20%) or more in voting power of the Voting Stock of such holding company.
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“Code” means the Internal Revenue Code of 1986.
“Commitment” means, as to each Lender, its obligation to make a Term Loan on the Funding Date in the amount of such Lender’s Commitment set forth on Schedule 2.1, as such commitment shall be terminated pursuant to Section 2.4.
“Committed Loan Notice” means a request for the Borrowing or a continuation of any Loan, which shall be substantially in the form of Exhibit A, duly completed and signed by a Responsible Officer of the Borrower.
“Common Stock” of any Person means any and all shares, equity quotas (partes sociales), interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of such Person’s common equity interests, whether outstanding on the Effective Date or issued after the Effective Date, and includes, without limitation, all series and classes of such common equity interests. For the avoidance of doubt, “Common Stock” of the Borrower will be deemed to include the Borrower’s American Depositary Receipts and Ordinary Participation Certificates (Certificados de Participación Ordinarios).
“Compliance Certificate” means a certificate substantially in the form of Exhibit C.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated Coverage Ratio” means, on any date of determination, the ratio of (a) ratio Consolidated EBITDA for the one (1) year period ending on such date to (b) Consolidated Interest Expense for the one (1) year period ending on such date.
“Consolidated Debt” means, at any date, the sum (without duplication) of (a) the aggregate amount of all Financial Debt of the Borrower and its Subsidiaries on a consolidated basis at such date, plus or minus, as applicable, (b) to the extent not included in Financial Debt, the aggregate net mark-to-market amount, which may be positive or negative, of all Swap Contracts (except to the extent such exposure is cash collateralized to the extent permitted under, or not restricted by, the Loan Documents). Notwithstanding the foregoing, Consolidated Debt shall exclude any existing or future obligations under any Securitization, any subordinated notes with no fixed maturity (which shall include, for the avoidance of doubt, the Borrower’s U.S.$1.0 billion 5.125% subordinated notes with no fixed maturity), and any Indebtedness (whether in the form of perpetual, convertible, hybrid or similar securities or financial instruments) that is subordinated to the Obligations.
“Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, operating earnings before other (expenses) income, plus net depreciation and amortization expense, in each case determined in accordance with IFRS, as adjusted for any Discontinued EBITDA, and solely for the purpose of calculating the Consolidated Leverage Ratio on a Pro Forma Basis for any Material Disposition and/or Material Acquisition.
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“Consolidated Interest Expense” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, the sum of: (a) consolidated interest expense, to the extent such expense was deducted (and not added back) in computing consolidated net income (or loss), including (i) amortization of original issue discount resulting from the issuance of indebtedness at less than par, (ii) all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptances, (iii) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark-to-market valuation of obligations under any hedge agreements or other derivative instruments pursuant to IFRS), (iv) net payments, if any, made (less net payments, if any, received) pursuant to interest rate obligations under any hedge agreements with respect to indebtedness, (v) penalties and interest relating to taxes, (vi) any expensing of bridge, commitment or other financing fees, and excluding amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses; plus (b) consolidated capitalized interest and the interest component of Leases that constitute Indebtedness of such person for such period, whether paid or accrued.
“Consolidated Leverage Ratio” means, on any date of determination, the ratio of (a) Consolidated Net Debt on such date to (b) Consolidated EBITDA for the one (1) year period ending on such date.
“Consolidated Net Debt” means, at any date, for the Borrower and its Subsidiaries on a consolidated basis, the Consolidated Debt net of Cash of the Borrower and its Subsidiaries that would not appear as “restricted” on a balance sheet in accordance with IFRS on such date.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Convertible Indebtedness” means any (a) Indebtedness the terms of which provide for conversion into, or exchange for, Common Stock of the Borrower, cash in lieu thereof and/or a combination of Common Stock of the Borrower and cash in lieu thereof or (b) contingent convertible units and related note purchase contracts.
“Corporate Office” means the Borrower’s corporate office located at Avenida Ricardo Margain Zozaya 325, Colonia Valle del Campestre, San Pedro Garza Garcia, Nuevo Leon, Mexico, Zip Code 66265, or any other office that might be notified from time to time to the Administrative Agent.
“Custodian” means any custodian of the Notes acting as agent for and on behalf of the Lenders for the time being appointed on behalf of the Lenders by the Administrative Agent (acting at the direction of the Required Lenders) with the Borrower’s prior written consent (not to be unreasonably withheld, conditioned or delayed) provided that such Custodian must maintain an office in the metropolitan area of Monterrey, Nuevo Leon, Mexico.
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“Debtor Relief Laws” means the Bankruptcy Code of the United States, the Mexican Bankruptcy Law (Ley de Concursos Mercantiles), and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, concurso mercantil, quiebra or similar debtor relief Laws of the United States, Mexico or other applicable jurisdictions from time to time in effect.
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means the Interest Rate plus 2.00% per annum.
“Defaulting Lender” means, subject to Section 2.12(b), any Lender that has failed to (a) fund all or any portion of its Loans on the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing prior to such date that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (b) pay to the Administrative Agent, or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due, or has notified the Borrower or the Administrative Agent, in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied); (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, visitador, conciliador, síndico, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of (i) an Undisclosed Administration and (ii) the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent (in each case, acting at the written direction of the Required Lenders) that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.12(b)) upon written notice of such determination to the Borrower and each other Lender.
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“Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is the subject of any comprehensive Sanction (at the time of this Agreement, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region of Ukraine, Cuba, Iran, North Korea and Syria).
“Discontinued EBITDA” means, for any period, the sum for Discontinued Operations of the operating income for such period plus, without duplication and to the extent deducted in determining such discontinued operating income, depreciation, amortization expense and impairment of assets of the Discontinued Operations. For the avoidance of doubt, the Discontinued EBITDA will be added to the Consolidated EBITDA for any period for which the Disposition of the Discontinued Operations has not yet occurred.
“Discontinued Operations” means operations that are accounted for as discontinued operations for which the Disposition of such assets has not yet occurred.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (in one transaction or in a series of transactions and whether effected pursuant to a Division or otherwise) of any property by any Person (including any sale and leaseback transaction and any issuance of Equity Interests by a Subsidiary of such Person), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“Disqualified Lender” means (a) certain financial institutions and other institutional lenders that have been specified to the Administrative Agent by the Borrower in writing at any time prior to the Effective Date, (b) any of the Borrower’s competitors that have been specified to the Administrative Agent by the Borrower in writing at any time and from time to time, and (c) in the case of each of clauses (a) and (b), any of their respective Affiliates that are either (x) identified in writing by the Borrower from time to time, or (y) clearly identifiable on the basis of such Affiliate’s name.
“Dividing Person” has the meaning assigned to it in the definition of “Division.”
“Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.
“Dollar” and “$” mean lawful money of the United States.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
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“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means the first date all the conditions precedent in Section 4.1 are satisfied or waived in accordance with Section 10.1, but no later than thirty (30) days after the execution of this Agreement.
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.7 (subject to such consents, if any, as may be required under Section 10.7).
“Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws (including common law), official standards (normas técnicas), regulations, ordinances, rules, applicable judgments, applicable orders, applicable decrees, permits and licenses relating to pollution and the protection of human health and safety with respect to exposure to Hazardous Materials, protection of the environment and natural resources or the release of Hazardous Materials into the environment, including any of the foregoing related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law, pursuant to or arising from (a) any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” means, with respect to any Person, all of the shares of Capital Stock of such Person and any warrants, rights or options to purchase any of the foregoing (but excluding any Convertible Indebtedness), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan (if any resulting liability has not been satisfied or payments of such liability are delinquent) or notification that a Multiemployer Plan is in reorganization; (d)
15
the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.
“Erroneous Payment” has the meaning assigned to it in Section 9.5(a).
“Erroneous Payment Deficiency Assignment” has the meaning assigned to it in Section 9.5(d).
“Erroneous Payment Impacted Class” has the meaning assigned to it in Section 9.5(d).
“Erroneous Payment Return Deficiency” has the meaning assigned to it in Section 9.5(d).
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“EURIBOR Rate” means, in relation to any Loan: (a) the applicable Screen Rate; or (b) (if no Screen Rate is available for the Interest Period of that Loan) the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Administrative Agent at its request quoted by the Reference Banks to leading banks in the European interbank market, in each case as of 11:00 a.m. (Brussels time) two TARGET Days prior to the commencement of such Interest Period; provided that the EURIBOR Rate for any Loan shall be not less than the Floor.
“Euro” and “€” mean the single currency of the Participating Member States.
“Event of Default” has the meaning specified in Section 8.1.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 10.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.1, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) any Mexican withholding Taxes imposed on amounts payable under any Loan Document to or for the account of any Lender, in excess of the withholding Taxes that would have been imposed had such recipient been a Qualified Entity at the time of payment, and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.
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“Executive Compensation Plan” means any stock option plan, restricted stock plan or retirement plan which the Borrower or any of its Subsidiaries, any other obligor customarily provides to its employees, consultants and directors.
“FATCA” means Sections 1471 through 1474 of the Code, as of the Effective Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities entered into in connection with the implementation of the foregoing.
“Fee Letters” means, collectively, (a) the letter agreement, dated September 6, 2022, between the Borrower and the Lead Arrangers and (b) the letter agreement, dated October 7, 2022, between the Borrower and the Administrative Agent.
“Financial Debt” means, at any date with respect to any Person, the sum (without duplication) of the following, in each case, as determined in accordance with IFRS:
(a) Indebtedness of such Person pursuant to clause (a) of the definition thereof;
(b) Indebtedness of such Person pursuant to clause (b) of the definition thereof;
(c) Indebtedness of such Person pursuant to clause (c) of the definition thereof;
(d) Indebtedness of such Person pursuant to clause (d) of the definition thereof;
(e) Indebtedness of such Person pursuant to clause (e) of the definition thereof; and
(f) all Guarantees of such Person in respect of any of the foregoing.
“Floor” means a rate equal to 0.00% per annum.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“Funding Date” means the date of the Borrowing specified in the initial Committed Loan Notice pursuant to Section 2.2.
“Governmental Authority” means the government of the United States, Mexico or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
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“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Guarantors” means (a) as of the Funding Date, the Initial Guarantors, and (b) after the Funding Date, the Initial Guarantors together with any Additional Guarantor.
“Guaranty” means the Guaranty made by the Guarantors in favor of the Administrative Agent and the Lenders, substantially in the form of Exhibit F.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“IFRS” means international accounting standards within the meaning of International Accounting Standards Regulation 1606/2002 to the extent applicable to the relevant financial statements delivered under or referred to herein.
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with IFRS (except as expressly set forth below):
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| (a) | all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments; |
| (b) | all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments which, for the avoidance of doubt, shall not deemed Indebtedness until they are required to be funded; |
| (c) | net obligations of such Person under any Swap Contract (as determined in accordance with IFRS); |
| (d) | all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business) if (i) one of the primary reasons behind entering into such obligation is to raise finance or to finance the acquisition or construction of the asset or service in question or (ii) the agreement is in respect of the supply of assets or services and payment is due more than 90 days after the date of supply; |
| (e) | Indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements) but only to the extent of the fair market value of the property secured thereby, whether or not such indebtedness shall have been assumed by such Person or is limited in recourse; |
| (f) | the aggregate amount of all financial obligations arising under any Leases of such Person recognized in the consolidated statement of financial position of such Person in accordance with IFRS less the sum (without duplication) of (i) all obligations of such Person to pay the deferred purchase price of property or services and (ii) all obligations of such Person with respect to product invoices incurred in connection with export financing; |
| (g) | all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment before the Maturity Date (other than at the option of such Person) in respect of any Equity Interest in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and |
| (h) | all Guarantees of such Person in respect of any of the foregoing. |
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person, and in any case only to the extent of the recourse to such Person.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
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“Indemnitees” has the meaning specified in Section 10.5(a).
“Information” has the meaning specified in Section 10.8.
“Initial Guarantors” means, collectively, CEMEX Concretos, S.A. de C.V., CEMEX Operaciones México, S.A. de C.V., CEMEX Corp. and Cemex Innovation Holding Ltd. (formerly known as CEMEX TRADEMARKS HOLDING Ltd.).
“Interest Payment Date” means (a) the last day of each Interest Period applicable to such Loan, and (b) the applicable Maturity Date.
“Interest Period” means as to the Borrowing on the Funding Date of the Term Loans, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, three or six months thereafter, as selected by the Borrower in its Committed Loan Notice; provided that:
(a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c) no Interest Period shall extend beyond the Maturity Date.
“Interest Rate” means, at any time of determination, the interest rate applicable to the Loans at such time, as determined in accordance with this Agreement.
“Inventory Financing” means any arrangement pursuant to which the Borrower or any of its Subsidiaries sells or otherwise disposes of inventory to a counterparty (including a bank or other institution or a special purpose vehicle or partnership incorporated or established by or on behalf of such bank or other institution or an Affiliate of such bank or other institution) and has an obligation to repurchase such inventory to the extent that it is not sold to a third party within a specified period.
“IP Rights” has the meaning specified in Section 5.17.
“IRS” means the United States Internal Revenue Service.
“KPI Metrics” means:
| (a) | direct CO2 emissions measured in kg of CO2 per ton of Cementitious Product (excluding on site electricity production) minus emissions from biomass fuel sources and Alternative Fuels; |
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| (b) | power consumption from clean energy sources in cement, including renewable energy sources such as solar, wind, hydro, and biomass, and power generated from waste heat recovery systems; and |
| (c) | the percentage of fuel consumption from Alternative Fuels compared to the total fuel consumption for cement plant operations in a given period. |
“KPI Metrics Auditor” means, with respect to any KPI Metric, KPMG Cárdenas Dosal, S.C.; provided that the Borrower may from time to time designate any independent public accountants of recognized national standing reasonably acceptable to the Sustainability Structuring Agent as a replacement KPI Metric Auditor, it being understood that any “big four” auditing firm or other auditing firm of recognized national standing acting in its capacity as an independent auditor of the Borrower shall be acceptable to the Sustainability Structuring Agent; provided, further, that the Borrower shall use commercially reasonable efforts to cause such replacement KPI Metric Auditor to apply substantially the same auditing standards and methodology used in the first KPI Metrics Report delivered by the Borrower.
“KPI Metrics Report” means a report that may take the form of any nonfinancial disclosure of the Borrower’s performance of one or more KPI Metrics, prepared by or on behalf of the Borrower for one or more KPI Metrics for a specific Annual Period, and published on an Internet or intranet website to which each Lender and the Administrative Agent have been granted access free of charge (or at the expense of the Borrower). Such KPI Metrics Report shall be audited by the KPI Metrics Auditor.
“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, official standards (normas técnicas), regulations, ordinances, codes, and all applicable administrative orders, directed duties, licenses, authorizations and permits issued by any Governmental Authority.
“Lead Arrangers” has the meaning set forth in the preamble of this Agreement.
“Lease” means, as to any Person, the obligations of such Person under a contract, or part of a contract, that conveys the right to use an asset (the underlying asset) for a period of time in exchange for consideration. For the avoidance of doubt, for purposes of this definition and its application to the Borrower, short-term and low-value leases as defined by the Borrower’s policy under IFRS are excluded.
“Lender” means the Persons listed on Schedule 2.1 holding a Commitment or Term Loans under the Term Facility and any other Person that shall have become party hereto holding Term Loans under the Term Facility pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto holding Term Loans under the Term Facility pursuant to an Assignment and Assumption.
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent, which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires each reference to a Lender shall include its applicable Lending Office.
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“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, easement, right-of-way or other encumbrance on title to real property, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, and any financing lease having substantially the same economic effect as any of the foregoing); provided, however, that the following shall only constitute a Lien in circumstances where the arrangement or transaction is entered into primarily as a method of raising Indebtedness or of financing the acquisition of an asset:
(i) the sale, transfer or other Disposition of any of the assets of the Borrower or its Subsidiaries on terms whereby they are or may be leased to or re-acquired the Borrower or its Subsidiaries;
(ii) the sale, transfer or other Disposition of any of the Borrower’s or its Subsidiaries’ receivables on recourse terms;
(iii) the entering into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) the entering into any other preferential arrangement having a similar effect as those described in (i) to (iii) above.
“Loan” means an extension of credit by a Lender to the Borrower under Article II.
“Loan Documents” means this Agreement, including schedules and exhibits hereto, each Note, the Guaranty, the Fee Letters (other than for purposes of Section 10.1), each Committed Loan Notice, and any amendments, modifications or supplements hereto or to any other Loan Document or waivers hereof or to any other Loan Document.
“Loan Parties” means, collectively, the Borrower and each Guarantor.
“Material Acquisition” means any (a) acquisition of property or series of related acquisitions of property that constitutes assets comprising all or substantially all of an operating unit, division or line of business or (b) acquisition of or other investment in the Equity Interests of any Subsidiary or any person which becomes a Subsidiary or is merged or consolidated with the Borrower or any of its Subsidiaries, in each case, which involves the payment of consideration by the Borrower and its Subsidiaries in excess of U.S.$250.0 million (or the equivalent in other currencies).
“Material Adverse Effect” means (a) a material adverse change in the business, financial condition, operations, performance or properties of the Borrower and its Subsidiaries taken as a whole; or (b) a material adverse effect on (i) the ability of any Loan Party to perform its payment Obligations under any Loan Document or (ii) the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party or (iii) the rights, remedies and benefits available to, or conferred upon, the Administrative Agent or any Lender under any Loan Documents.
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“Material Disposition” means any Disposition of property or series of related Dispositions of property that yields gross proceeds to the Borrower or any of its Subsidiaries in excess of U.S.$250.0 million (or the equivalent in other currencies).
“Maturity Date” means the date that is three years from the Funding Date; provided, however, that if such date is not a Business Day, the Maturity Date shall be the immediately preceding Business Day.
“Mexico” means the United Mexican States (Estados Unidos Mexicanos).
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 10.1 and (b) has been approved by the Required Lenders.
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Note” means a non-negotiable promissory note (pagaré no negociable) made by the Borrower as issuer (suscriptor), and by each Guarantor organized under the laws of Mexico as guarantor (avalista), in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit B, delivered pursuant to Section 2.9, Section 4.2 or Section 6.13.
“Notice of Loan Prepayment” means a notice of prepayment with respect to a Loan, which shall be substantially in the form of Exhibit G, duly completed and signed by a Responsible Officer.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the foregoing, the Obligations include (a) the obligation to pay principal, interest, charges, expenses, fees, indemnities, reimbursements and other amounts (including all fees, charges, expenses and disbursements of counsel to the Administrative Agent or any Lender) payable by any Loan Party
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under any Loan Document to the Administrative Agent or any Lender and (b) the obligation of the Loan Parties to reimburse any amount in respect of any of the foregoing that the Administrative Agent or any Lender, in each case in its sole discretion, may elect to pay or advance on behalf of the Loan Parties in accordance with the terms and conditions of the Loan Documents.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Organization Documents” means, as applicable (a) with respect to any corporation, the charter or certificate or articles of incorporation (including acta constitutiva) and the bylaws (estatutos sociales or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating or limited liability agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.6).
“Participant” has the meaning specified in Section 10.7(d).
“Participant Register” has the meaning specified in Section 10.7(d).
“Participating Member State” means any member state of the European Union that has the Euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
“PATRIOT Act” has the meaning specified in Section 10.21.
“Payment Recipient” has the meaning assigned to it in Section 9.5(a).
“PBGC” means the Pension Benefit Guaranty Corporation.
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“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum funding standards with respect to Pension Plans and set forth in Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan and other than a Multiemployer Plan) that is maintained by the Borrower and any ERISA Affiliate or with respect to which the Borrower or any ERISA Affiliate has any liability and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained by the Borrower and any Pension Plan maintained by an ERISA Affiliate.
“Platform” has the meaning specified in Section 6.2.
“Preferred Stock” of any Person means any Equity Interests of such Person that has preferential rights over any other Equity Interests of such Person with respect to dividends, distributions or mandatory redemptions or upon liquidation.
“Pricing Certificate” means a certificate substantially in the form of Exhibit D signed by a Responsible Officer of the Borrower attaching (a) true and correct copies of each KPI Metrics Report for the immediately preceding Annual Period and setting forth the Sustainability Margin Adjustment for the period covered thereby and for the KPI Metrics disclosed therein, and computations in reasonable detail in respect thereof and (b) if any KPI Metrics Report was audited or reviewed by the KPI Metrics Auditor, a review report of the KPI Metrics Auditor containing its customary limited assurances with respect to the computations in such KPI Metrics Report.
“Process Agent” means (a) as of the Effective Date, CEMEX NY Corporation, and (b) after the Effective Date, such other Person as the Borrower may appoint from time to time pursuant to provisions substantially similar to Section 10.15(d) and designated in writing to the Administrative Agent.
“Pro Forma Basis” means, with respect to compliance with any test or covenant hereunder in respect of a specified measurement period, compliance with such covenant or test after giving effect to any Material Acquisition or Material Disposition, using, for purposes of determining such compliance, the historical financial statements of all entities or assets so acquired or disposed of and the consolidated financial statements of the Borrower and its Subsidiaries which shall be reformulated as if such Material Acquisition or Material Disposition which has been consummated during such period had been consummated on the first day of such period.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender” has the meaning specified in Section 6.2.
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“Qualified Entity” means any Lender (or, if such Lender acts through a branch, agency, the principal office of such Lender) that (a) is the effective beneficiary of the payments made by any Loan Party organized under the laws of Mexico hereunder, (b) meets the requirements imposed by article 166-I, paragraph (a), Section (2) (or any other successor provision) of the Mexican Income Tax Law (Ley del Impuesto Sobre la Renta) and delivers to the Borrower the information described in Sections 3.18.18. and/or 3.18.19, as applicable, of the Resolución Miscelánea Fiscal para 2022 (Tax Resolution for 2022) (or any substitute or successor provisions), and (c) is a resident for tax purposes of a country with which Mexico has entered into a treaty for the avoidance of double taxation that is in effect.
“Recipient” means the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder.
“Reference Banks” means the main offices of HSBC Holdings plc., Banco Santander, S.A. and UniCredit Bank AG, and failing that, of any other lender institution or institutions not linked to the Lenders originally or subsequently, that the Administrative Agent designates at any given time with the consent of the Required Lenders. If a Reference Bank merges, begins liquidation or ceases to exist for any other reason, the Administrative Agent shall (in consultation with the Borrower) appoint the replacement financial institution, and shall notify the designated financial institution to the Lenders and to the Borrower as soon as possible.
“Register” has the meaning specified in Section 10.7(c).
“Regulation U” means Regulation U of the FRB, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the directors, officers, employees, agents, and advisors of such Person and of such Person’s Affiliates.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30-day notice period has been waived.
“Required Lenders” means, at any time, Lenders having Total Credit Exposures representing more than 50% of the Total Credit Exposures of all Lenders. The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chairman of the board, the chief executive officer, president, chief financial officer, any vice president, treasurer, assistant treasurer, controller, secretary, assistant secretary or attorney-in-fact of a Loan Party, and solely for purposes of the delivery of incumbency certificates pursuant to Section 4.1 and notices given pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
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“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of the Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to the Borrower’s stockholders, partners or members (or the equivalent Person thereof).
“Sanctioned Lender” means any Person reasonably believed by the Borrower to be either a sanctioned person or any Person an assignment to which could put the Borrower and/or any of its Affiliates in a position of actual or potential non-compliance with Applicable Law (including, but not limited to, Sanctions).
“Sanctions” means any economic or financial sanction administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, or His Majesty’s Treasury.
“Sanctions Target” means any Person that is (a) listed on, or 50% or more owned or Controlled by a Person listed on, a Sanctions list, (b) the government of a Designated Jurisdiction or a member of the government of a Designated Jurisdiction, or (c) located in or incorporated under the laws of any Designated Jurisdiction.
“Screen Rate” means the percentage rate per annum as determined by the European Money Markets Institute (or any other person which takes over the administration of the relevant rate) for the relevant period displayed on the appropriate page of the Bloomberg screen. If the agreed page is replaced or service ceases to be available, the Administrative Agent may specify another page or service displaying the appropriate rate after consultation with the Borrower and the Lenders.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Securitization” means a transaction or series of related transactions providing for the securitization of receivables and related assets by the Borrower or its Subsidiaries, including a sale at a discount; provided that (i) such receivables have been transferred, directly or indirectly, by the originator thereof to a person that is not the Borrower or any of its Subsidiaries in a manner that satisfies the requirements for an absolute conveyance (or, where the originator is organized under the laws of Mexico, a true sale), and not merely a pledge, under the laws and regulations of the jurisdiction in which such originator is organized; and (ii) except for customary representations, warranties, covenants and indemnities, such sale, transfer or other securitization is carried out on a non-recourse basis or on a basis where recovery is limited solely to the collection of the relevant receivables (other than where such recourse or recovery is required pursuant to the Applicable Laws or regulations in any jurisdiction).
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“Solvent” means, with respect to the Borrower, that as of the date of determination, (a) the sum of the debt (including contingent liabilities) of the Borrower and its Subsidiaries on a consolidated basis does not exceed the present fair saleable value of the present assets of the Borrower and its Subsidiaries on a consolidated basis; (b) the capital of the Borrower and its Subsidiaries on a consolidated basis is not unreasonably small in relation to its business as contemplated on the date of determination; or (c) the Borrower and its Subsidiaries on a consolidated basis do not intend to incur, or believe that they will incur, debts beyond their ability to pay such debts as they become due in the ordinary course of business. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under FASB Accounting Standards Codification Topic 450-20).
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise Controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.
“Sustainability Margin Adjustment” means an adjustment to the Applicable Margin for any KPI Metric as provided by this Agreement.
“Sustainability Structuring Agent” has the meaning set forth in the preamble of this Agreement.
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Swiss Federal Tax Administration” means the tax authorities referred to in article 34 of the Swiss Federal Act on Withholding Tax of 13 October 1965, as from time to time amended (Bundesgesetz über die Verrechnungssteuer).
“Swiss Guarantor” means a Guarantor which is incorporated in Switzerland.
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“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007.
“TARGET Day” means any day on which TARGET2 is open for the settlement of payments in Euros.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Credit Exposure” means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Term Loans.
“Term Facility” means the senior unsecured term loan facility in an aggregate principal amount of €500 million provided under this Agreement.
“Term Loan” has the meaning specified in Section 2.1.
“Total Credit Exposure” means, as to any Lender at any time, the unused Commitments and Term Credit Exposure of such Lender at such time.
“Transfer and Inconvertibility Event” means any action by Mexico, Banco de México or any other Governmental Authority of Mexico asserting or exercising de jure governmental, legislative, regulatory, administrative, judicial or police powers which (a) renders any Loan Party unable legally to convert Pesos to make any payment in Euros to the Administrative Agent or any Lender in respect of any Obligation in accordance with the Loan Documents, or (b) restricts the availability of Euros through the Mexican banking system or authorized exchange bureaus (“casas de cambio” regulated in the Mexican Ley General de Organizaciones y Actividades Auxiliares del Crédito) to enable each Loan Party to lawfully perform its payment Obligations under the Loan Documents.
“UK Financial Institution” shall mean any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain Affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Undisclosed Administration” means, in relation to a Lender or its direct or indirect parent company, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian, or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or such parent company is subject to home jurisdiction, if applicable law requires that such appointment not be disclosed.
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“United States” and “U.S.” mean the United States of America.
“Voting Stock” with respect to any Person, means securities of any class of Equity Interests of such Person entitling the holders thereof (whether pursuant to contract or otherwise, or at all times or only so long as no senior class of stock has voting power by reason of any contingency) to vote in the election of members of the Board of Directors (or equivalent governing body) of such Person.
“Wholly Owned Subsidiary” means, for any Person, any Subsidiary of which at least 99.5% of the outstanding Equity Interests (other than, in the case of a Subsidiary not organized in the United States, directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to Applicable Law) is owned by such Person or any other Person that satisfies this definition in respect of such Person.
“Withholding Agent” means the Borrower, the Guarantors organized under the laws of Mexico and the Administrative Agent.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
Section 1.2 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan
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Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law, rule or regulation shall, unless otherwise specified, refer to such law, rule or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(b) Unless the context otherwise requires, in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”
(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
(d) Any reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a statutory division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any statutory division of a limited liability company shall constitute a separate Person hereunder (and each such division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
Section 1.3 Accounting Terms.
(a) Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, IFRS applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.
(b) Changes in IFRS. If at any time any change in IFRS or the application thereof would affect the computation or interpretation of any financial ratio, basket, requirement or other provision set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Lenders and the Borrower shall negotiate in good faith to amend such ratio, basket, requirement or other provision to preserve the original intent thereof in light of such change in IFRS (subject to the approval of the Required Lenders); provided that, until so amended, (A) such ratio, basket, requirement or other provision shall continue to be computed or interpreted in accordance with IFRS or the application thereof prior to such change therein and (B) the Borrower shall provide to the Administrative Agent (for distribution to the Lenders) financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio, basket, requirement or other provision made before and after giving effect to such change in IFRS.
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Section 1.4 Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
Section 1.5 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
Section 1.6 Interest Rates. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to the continuation of, administration of, submission of, calculation of or any other matter related to the EURIBOR Rate, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto, including whether the composition or characteristics of any such alternative, successor or replacement rate, will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as the EURIBOR Rate prior to its discontinuance or unavailability.
ARTICLE II THE COMMITMENTS AND LOANS
Section 2.1 Loans. Subject to the terms and conditions set forth herein, each Lender severally agrees to make a loan (each, a “Term Loan” and, collectively, the “Term Loans”) to the Borrower, on the Funding Date, in an aggregate amount equal to such Lender’s Commitment. Any amount borrowed under this Section 2.1 and repaid or prepaid may not be reborrowed.
Section 2.2 Borrowing and Continuation of Loans.
(a) The Borrowing of the Term Loans on the Funding Date shall be made in a single disbursement for the total facility amount and each continuation of the Term Loans shall be made, in each case, upon the Borrower’s irrevocable notice to the Administrative Agent in the form of a Committed Loan Notice. The Committed Loan Notice must be received by the Administrative Agent not later than 12:00 noon New York City time three (3) Business Days prior to (x) the requested date of the Borrowing, which shall be no later than seven (7) Business Days after the Effective Date, or (y) any continuation of Term Loans. The Committed Loan Notice shall specify (i) whether the Borrower is requesting the Borrowing or a continuation of the Term Loans, (ii) the requested date of the Borrowing or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed or continued, and (iv) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify an Interest Period in any Committed Loan Notice, it will be deemed to have specified an Interest Period of three months.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the applicable Loans. In the case of a Borrowing, each Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds in Euros at the Administrative Agent’s Account not later than 11:00 a.m. Madrid, Spain time on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.2 (or waiver thereof by the Lenders), the Administrative Agent shall make all funds so received available to the Borrower by crediting the account of the Borrower designated by the Borrower in the Committed Loan Notice.
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(c) During the existence of a Default, no Loans may be requested without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the Interest Rate applicable to any Interest Period upon determination of such Interest Rate.
(e) Notwithstanding anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all or a portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative Agent (acting at the direction of the Required Lenders), and such Lender.
Section 2.3 Prepayments.
(a) The Borrower may, upon notice to the Administrative Agent pursuant to delivery to the Administrative Agent of a Notice of Loan Prepayment, at any time or from time to time voluntarily prepay Loans in whole or in part without premium or penalty (except for any compensation required by the terms of Section 3.5(a)); provided that (i) such notice must be received by the Administrative Agent not later than 12:00 noon New York City time three (3) Business Days prior to any date of prepayment; (ii) any prepayment of Loans shall be in a principal amount of €5.0 million or a whole multiple of €1.0 million in excess thereof or, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Interest Period(s) of the Loan to be prepaid. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Loan shall be made in Euros and accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.5. Subject to Section 2.13, each such prepayment shall be applied to the Loan of the Lenders in accordance with their respective Applicable Percentages.
(b) Loans may be prepaid at any time without premium or penalty, other than the payment of breakage costs reasonably determined by the Lenders and notified in writing to the Administrative Agent one Business Day prior to the date of such prepayment.
(c) Upon the occurrence of a Change of Control, (i) the Term Facility will be immediately payable in full, (ii) any outstanding Commitments will be immediately terminated and (iii) any prepayment of Loans shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.5. Subject to Section 2.13, each such prepayment shall be applied to the Loans of the Lenders in accordance with their respective Applicable Percentages.
Section 2.4 Termination or Reduction of Commitments. The Commitments shall automatically and permanently terminate at the earlier of (x) the funding of the Term Loans under the Term Facility on the Funding Date and (y) 5:00 p.m. (Madrid, Spain time) on the seventh (7th) Business Day after the Effective Date.
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Section 2.5 Repayment of Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the Lenders the aggregate principal amount of all Term Loans outstanding under the Term Facility on the Maturity Date.
Section 2.6 Interest.
(a) Subject to the provisions of subsection (i) below, each Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the EURIBOR Rate for such Interest Period plus the Applicable Margin.
(i) If any amount of principal of any Loan is not paid when due, whether at stated maturity, by acceleration or otherwise, then such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the applicable Default Rate.
(ii) If any amount (other than principal of any Loan) payable by the Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, to the extent permitted by applicable law, then such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the applicable Default Rate.
(b) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
(c) The Borrower shall specify under the Committed Loan Notice its election for the Interest Periods to have a duration of one, three or six months. Upon receipt of such notice from the Borrower, the Administrative Agent shall promptly notify each Lender thereof. In the event that the Borrower fails to timely select in accordance herewith the duration of the Interest Period, the Borrower will be deemed to have selected an Interest Period of three months’ duration. For the avoidance of doubt, the Interest Period duration shall only be selected prior to the Borrowing or continuation, as applicable.
Section 2.7 Fees. Administrative Agent and Lead Arrangers Fees. The Borrower shall pay to the Administrative Agent and the Lead Arrangers the fees and expenses payable in the amounts and at the times separately agreed upon in the applicable Fee Letter between the Borrower and such Person, together with the expenses of the Administrative Agent and the Lead Arrangers as specified in Section 10.5.
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Section 2.8 Computation of Interest and Fees; Retroactive Adjustments of Applicable Margin.
(a) Computation of Interest and Fees. All computations of fees and interest hereunder shall be made on the basis of a 360-day year and actual days elapsed. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.11(a), bear interest for one day. The computation of Interest Rate shall be determined by the Administrative Agent, and such determination shall be conclusive and binding for all purposes, absent manifest error.
(b) Retroactive Adjustments of Applicable Margin. If, as a result of any restatement of or other adjustment to the financial statements of the Borrower or for any other reason, the Borrower or the Lenders determine that (i) the Consolidated Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in higher pricing for such period, the Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, automatically and without further action by the Administrative Agent or any Lender), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This clause (b) shall not limit the rights of the Administrative Agent or any Lender, as the case may be, under Section 2.6(a)(i) or under Article VIII; provided that any inaccuracy described in this clause (b) shall not constitute a Default or Event of Default with respect to Section 8.1(a) or Section 8.1(c) so long as (x) the Borrower complies with the terms of this clause (b) and (y) the Borrower was in compliance with the covenants in Section 7.5 at the date the Consolidated Leverage Ratio was inaccurately calculated (as evidenced by a proper calculation of the Consolidated Leverage Ratio as of such date). The Borrower’s obligations under this clause (b) shall survive the termination of the Commitments and the repayment of all other Obligations hereunder.
Section 2.9 Evidence of Debt.
(a) The Loans made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender in the ordinary course of business. The Administrative Agent shall maintain the Register in accordance with Section 10.7(c). The accounts, records and Register maintained pursuant to this clause (a) shall be conclusive absent manifest error of the amount of the Loans made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the Register, the Register shall control in the absence of manifest error. Upon the request of any Lender, including due to an assignment or transfer of Loans, made through the Administrative Agent, the Borrower as issuer (suscriptor) and each Guarantor organized under the laws of Mexico, as guarantor (avalista), shall execute and deliver to such Lender a Note (pagaré), which shall evidence such Lender’s Loans in addition to such accounts or records. It is the intent of the Loan Parties and the Lenders that the Notes qualify as pagarés under Mexican law.
(b) In the event that the Applicable Margin increases or the EURIBOR Rate is substituted pursuant to Section 3.8 with respect to a Loan held by such Lender, the Borrower shall, within ten (10) Business Days of the request of such Lender and only upon the receipt by the Borrower at the Corporate Office or through the Custodian at the Lender’s election, of any then-
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existing Notes evidencing such Loan, execute and deliver to such Lender one or more replacement Notes with respect to each such existing Note, reflecting the new Applicable Margin or the applicable substituted rate as of the date of such increase or replacement, as applicable. Any such replacement Notes shall, at the Lender’s election, be made available at the Corporate Office or delivered to the Custodian on behalf of such Lender, and if the applicable Lender shall assume full liability and provide customary indemnification for the loss thereof in a manner reasonably acceptable to the Borrower, such Lender may elect for the Borrower to deliver such replacement Note by courier or other nationally recognized delivery service.
Section 2.10 Payments Generally; Administrative Agent’s Clawback.
(a) Payments by Borrower. All payments to be made by the Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Account (or to such other account as the Administrative Agent may from time to time specify in writing) in Euros and in immediately available funds not later than 8:00 a.m. New York City time on the date specified herein. The Administrative Agent will, to the extent funds are received from the Borrower as provided herein, promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 8:00 a.m. New York City time shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such next succeeding Business Day would fall after the applicable Maturity Date, payment shall be made on the immediately preceding Business Day. All payments hereunder shall be made in Euros.
(b) Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may (but shall not be obligated to) assume that such Lender has made such share available on such date in accordance with Section 2.2 and may (but shall not be obligated to), in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the applicable Interest Rate, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the Interest Rate applicable to such Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the
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Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(c) Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may (but shall not be obligated to) assume that the Borrower has made such payment on such date in accordance herewith and may (but shall not be obligated to), in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the applicable Interest Rate.
(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make Loans and to make payments pursuant to Section 10.5(c) are several and not joint. The failure of any Lender to make any Loan or to make any payment under Section 10.5(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan or to make its payment under Section 10.5(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Section 2.11 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans made by it, resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Loans and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall notify the Administrative Agent of such fact and make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that:
(a) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(b) the provisions of this Section 2.11 shall not be construed to apply to (x) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than an assignment to the Borrower or any Subsidiary thereof (as to which the provisions of this Section 2.11 shall apply).
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The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
Section 2.12 Defaulting Lenders.
(a) Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law:
(i) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and Section 10.1.
(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.9 shall be applied at such time or times as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement; third, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement; fourth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and fifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans and (y) such Loans were made at a time when the applicable conditions set forth in Section 4.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans are held by the Lenders pro rata in accordance with the Commitments hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
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(b) Defaulting Lender Cure. If the Borrower determines that a Lender is no longer a Defaulting Lender, the Borrower will instruct the Administrative Agent to notify the parties hereto, whereupon as of the date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions necessary to cause the Loans to be held pro rata by the Lenders in accordance with the Commitments, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
Section 2.13 Sustainability Adjustments.
(a) Following the date on which the Borrower provides a Pricing Certificate pursuant to Section 6.14(a) in respect of its most recently ended Annual Period, the Applicable Margin shall be increased or decreased (or neither increased nor decreased), as applicable, pursuant to the Sustainability Margin Adjustment as set forth in such Pricing Certificate. For purposes of the foregoing, (A) the Sustainability Margin Adjustment shall be determined as of the fifth (5th) Business Day following receipt by the Administrative Agent of a Pricing Certificate based upon the KPI Metrics set forth in such Pricing Certificate and the calculation of the Sustainability Margin Adjustment therein (such day, the “Sustainability Pricing Adjustment Date”) and (B) each change in the Applicable Margin resulting from a Pricing Certificate shall be effective during the period commencing on and including the applicable Sustainability Pricing Adjustment Date and ending on the date immediately preceding the next such Sustainability Pricing Adjustment Date (or, in the case of non-delivery of a Pricing Certificate, the last day such Pricing Certificate could have been delivered pursuant to Section 6.14(a)); provided that if any Sustainability Pricing Adjustment Date shall occur before the last day of an Interest Period, no change to the Applicable Margin as a result of the Sustainability Margin Adjustment shall be effective for purposes of Section 2.6 until the first day of the immediately succeeding Interest Period.
(b) For the avoidance of doubt, it is understood and agreed that (i) only one Pricing Certificate may be delivered in respect of any Annual Period, (ii) any Sustainability Margin Adjustment shall be iterative and shall not be cumulative year-over-year and (iii) Sustainalytics delivered a second party opinion to the Borrower on August 17, 2021.
(c) It is hereby understood and agreed that if no Pricing Certificate is delivered by the Borrower within the period set forth in Section 6.14(a), the Sustainability Margin Adjustment will be positive five (5) basis points, commencing on the last day such Pricing Certificate could have been delivered pursuant to the terms of Section 6.14(a) and continuing until the Borrower delivers a Pricing Certificate to the Administrative Agent and a new Applicable Margin is determined pursuant to Section 2.13(a) above and, pending delivery of a Pricing Certificate no Default or Event of Default shall occur in relation to the failure to deliver such Pricing Certificate.
(d) If (i)(A) any of the Borrower or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment or the KPI Metrics as reported on the applicable Pricing Certificate (a “Pricing Certificate Inaccuracy”) and, not later than thirty (30) Business Days after obtaining knowledge thereof delivers a written notice to the Administrative Agent describing such Pricing Certificate Inaccuracy in reasonable detail (who shall furnish a copy
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to each of the Lenders and the Borrower) or (B) the Borrower and the Lenders agree that there was a Pricing Certificate Inaccuracy at the time of delivery of the relevant Pricing Certificate and (ii) a proper calculation of the Sustainability Margin Adjustment or the KPI Metrics would have resulted in an increase in the Applicable Margin for such period, then the Borrower shall be obligated to pay to the Administrative Agent for the account of the Lenders, promptly on demand by the Administrative Agent (acting at the direction of the Required Lenders) (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under any Debtor Relief Law, automatically and without further action by the Administrative Agent or any Lender), but in no event less than ten (10) Business Days after the Borrower has received written notice of, or has agreed in writing that there was, a Pricing Certificate Inaccuracy, an amount equal to: (x) the excess of the amount of interest and fees that should have been paid for such period over (y) the amount of interest and fees actually paid for such period (the “True-Up Amount”). If the Borrower becomes aware of any Pricing Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment or the KPI Metrics would have resulted in a decrease in the Applicable Margin for such period, then, upon receipt by the Administrative Agent of notice from the Borrower of such Pricing Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by the Administrative Agent of such notice, the Applicable Margin shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment or the KPI Metrics, as applicable.
(e) To the extent any event occurs (which would include, without limitation, a material disposal or material acquisition) which, in the opinion of the Borrower and the Sustainability Structuring Agent, acting reasonably and in good faith, means that one or more of the KPI Metrics is no longer appropriate, then the Borrower and the Sustainability Structuring Agent will report to the Lenders that such KPI will no longer apply in relation to the Loans for the remainder of the Term Facility. In such a scenario, the Borrower will then cease to refer to the applicable KPI Metrics in the Pricing Certificate for such period and the Applicable Margin shall be adjusted to reflect the corrected calculations of such KPI Metrics.
(f) To the extent the Sustainability Structuring Agent ceases to be a Lender, the Borrower undertakes to use reasonable endeavors to seek to appoint another entity that is a Lender to fulfil the role of Sustainability Structuring Agent.
(g) It is understood and agreed that any Pricing Certificate Inaccuracy shall not constitute a Default or Event of Default under this Agreement, provided that the Borrower complies with the terms of this Section 2.13 with respect to such Pricing Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under any Debtor Relief Law, (i) any additional amounts required to be paid pursuant to clause (d) above shall not be due and payable until a written demand is made for such payment by the Administrative Agent in accordance with clause (d) above, (ii) any nonpayment of such additional amounts prior to such demand for payment by Administrative Agent shall not constitute a Default (whether retroactively or otherwise), and (iii) none of such additional amounts shall be deemed overdue prior to such a demand or shall accrue interest at the Default Rate prior to such a demand.
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(h) The Administrative Agent and Sustainability Structuring Agent shall not have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by the Borrower of any Sustainability Margin Adjustment (or for the KPI Metrics or any of the other data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate, or for evaluating or determining any Pricing Certificate Inaccuracy (and the Administrative Agent may rely conclusively, and shall not incur any liability in so relying, on any such certificate or related notice, without further inquiry).
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.1 Taxes.
(a) Defined Terms. For purposes of this Section 3.1, the term “Applicable Law” includes FATCA.
(b) Payments Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 3.1) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(c) Payment of Other Taxes by Borrower. The Borrower shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(d) Indemnification by Borrower. The Borrower shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.1) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. A payment shall not be increased under this clause (d) by reason of a tax deduction on account of Tax imposed by Switzerland if so required under Applicable Law (including double tax treaties), to the extent that on the date on which payment falls due, increasing such payment in such way would breach any Swiss law; provided that the Borrower or a Swiss Guarantor, as applicable, shall use commercially reasonable efforts to avoid such tax deduction on account of Tax imposed by Switzerland or to prevent such increase in payment from breaching any Swiss law, including, without limitation, by causing such payment to a Recipient to be made by or through an entity which is not a tax resident in Switzerland.
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(e) Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.7(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this clause (e).
(f) Evidence of Payments. As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority as provided in this Section 3.1, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent (acting at the direction of the Required Lenders).
(g) Status of Lenders; Tax Documentation.
(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation and information reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding, including the information set forth in Sections 3.18.18 and/or 3.19.19 of the Resolución Miscelánea Fiscal para 2022 (or any substitute or successor provisions). In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
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(ii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.1 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(h) Treatment of Certain Refunds. Unless required by Applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender or have any obligation to pay to any Lender any refund of Taxes withheld or deducted from funds paid for the account of such Lender. If any Recipient determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 3.1, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 3.1 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the Borrower, upon the request of the Recipient, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (h), in no event will the applicable Recipient be required to pay any amount to the Borrower pursuant to this clause (h) the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This subsection shall not be construed to require any Recipient to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the Borrower or any other Person.
(i) Survival. Each party’s obligations under this Section 3.1 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.
Section 3.2 Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to the EURIBOR Rate, or to determine or charge interest rates based upon the EURIBOR Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Euros in the applicable offshore interbank market for, then, upon notice thereof by such Lender to the Borrower and the Administrative Agent, (a) any obligation of such Lender to make or continue Loans in Euros shall be suspended, until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (i) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay all Loans. Upon any such prepayment, the Borrower shall also pay accrued interest on the amount so prepaid, together with any additional amounts required pursuant to Section 3.5.
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Section 3.3 [Reserved]
Section 3.4 Increased Costs; Reserves.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement contemplated by Section 3.4(e));
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such Lender of making, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or any other amount) then, upon request of such Lender, the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section 3.4(a) for any increased costs or reductions incurred more than one hundred eighty (180) days prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided, further, that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
(b) Capital Requirements. If any Lender determines that any Change in Law affecting such Lender or any Lending Office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such Lender, to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in clauses (a) or (b) of this Section 3.4 and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
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(d) Delay in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section 3.4 shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to the foregoing provisions of this Section 3.4 for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).
(e) Reserves. The Borrower shall pay to each Lender, as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including eurocurrency funds or deposits, additional interest on the unpaid principal amount of each Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable on such Loan, provided the Borrower shall have received at least 10 days’ prior notice (with a copy to the Administrative Agent) of such additional interest from such Lender. If a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such additional interest shall be due and payable 10 days from receipt of such notice.
Section 3.5 Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, payment or prepayment of any Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow or continue any Loan on the date or in the amount notified by the Borrower; or
(c) any assignment of a Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 10.14; including any loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.5, each Lender shall be deemed to have funded each Loan made by it at the EURIBOR Rate for such Loan by a matching deposit or other borrowing in the eurocurrency market for a comparable amount and for a comparable period, whether or not such Loan was in fact so funded.
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Section 3.6 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. Each Lender may make any Loan to the Borrower through any Lending Office; provided that the exercise of this option shall not affect the obligation of the Borrower to repay the Loan in accordance with the terms of this Agreement. If any Lender requests compensation under Section 3.4, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.1, or if any Lender gives a notice pursuant to Section 3.2, then at the request of the Borrower such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.1 or 3.4, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.2, as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under Section 3.4, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.1 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 3.6(a), the Borrower may replace such Lender in accordance with Section 10.14.
Section 3.7 Survival. All of the Borrower’s obligations under this Article III shall survive termination of the Commitments, repayment of all other Obligations hereunder, and resignation of the Administrative Agent.
Section 3.8 Inability to Determine Rates.
(a) If prior to the first day of any Interest Period for any Loan (i) the Administrative Agent determines (which determination shall be conclusive and binding upon all parties hereto absent manifest error) that adequate and reasonable means do not exist for ascertaining the EURIBOR Rate (including because the Screen Rate is not available or published on a current basis) for such Interest Period, or (ii) the Administrative Agent is advised in writing by the Required Lenders that they have reasonably determined (1) deposits in euros (in the applicable amounts) are not being offered to such Lenders in the European interbank market for such period or (2) the EURIBOR Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their affected Loans during such Interest Period (the first Interest Period as to which (i) or (ii) has occurred, the “Initial CBR Interest Period”), the Administrative Agent shall promptly give written notice thereof to the Borrower and the Lenders.
(b) The Borrower and the Administrative Agent shall negotiate in good faith, with a view to agreeing upon a benchmark replacement rate to be substituted for the EURIBOR Rate (the “Benchmark Replacement Rate”); provided that the Benchmark Replacement Rate for any Loan shall be not less than the Floor. Until the Administrative Agent notifies the Borrower and the Lenders that the Administrative Agent and the Borrower have agreed upon a Benchmark Replacement Rate, (i) the Interest Rate applicable to each Lender’s Loan to which such Initial
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CBR Interest Period (or such other Interest Period) relates, and effective from the commencement of such Initial CBR Interest Period (or such other Interest Period), shall be determined by reference to the Central Bank Rate, instead of the EURIBOR Rate, and (ii) the Borrower and the Administrative Agent shall continue negotiations in good faith, with a view to agreeing upon a Benchmark Replacement Rate.
(c) If at any time the Central Bank Rate is to be used for determining the Interest Rate for any Interest Period (i) the Administrative Agent determines (which determination shall be conclusive and binding upon all parties hereto absent manifest error) that adequate and reasonable means do not exist for ascertaining the Central Bank Rate or (ii) the Administrative Agent is advised in writing by the Required Lenders that they have reasonably determined the Central Bank Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their affected Loans during such Interest Period (the first Interest Period as to which (i) or (ii) has occurred, the “Initial Lender Adjusted Interest Period”), the Interest Rate during such Initial Lender Adjusted Interest Period (and any subsequent Interest Period ending prior to the adoption of a substituted rate in accordance with the foregoing clause (b)) applicable to each Lender’s Loan to which such Initial Lender Adjusted Interest Period relates and effective from the commencement of such Initial Lender Adjusted Interest Period shall be (1) such rate as all the Lenders shall determine in good faith (in a certificate delivered by the Lenders to the Administrative Agent setting forth the basis of the computation of such amount in reasonable detail, which certificate shall constitute prima facie evidence thereof) to be necessary to compensate the Lenders for their cost (rounded upward to the nearest 1/16 of 1%) of funding their Loans as of the commencement of such Initial Lender Adjusted Interest Period for such Initial Lender Adjusted Interest Period plus (2) the Applicable Margin. The Administrative Agent shall notify the Borrower of each such determination as promptly as practicable.
(d) If a Benchmark Replacement Rate is agreed upon by the Borrower and the Administrative Agent in accordance with this Section and approved (or not objected to in writing within five Business Days of written notice to the Lenders of such Benchmark Replacement Rate) by the Required Lenders, it (together with any related conforming changes agreed upon by the Borrower and the Administrative Agent) shall be effective from the first day of the then-current Interest Period.
ARTICLE IV CONDITIONS PRECEDENT TO LOANS
Section 4.1 Conditions to Effective Date. The effectiveness of this Agreement and the obligation of each Lender to make its initial Loans hereunder is subject to satisfaction to each Lender (or waiver by each Lender in accordance with Section 10.1) of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following (in the case of certificates of governmental officials, dated no earlier than a recent date before the Effective Date), each in form and substance satisfactory to the Lenders:
(i) an executed counterpart of this Agreement, properly executed by a duly authorized signatory (apoderado) of the Borrower and a duly authorized signatory of each other party hereto, dated the Effective Date;
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(ii) an executed counterpart of the Guaranty, properly executed by a Responsible Officer of each Initial Guarantor organized under the laws of a country other than Mexico and by a Person holding powers for acts of ownership (actos de dominio) of each Initial Guarantor organized under the laws of Mexico, dated the Effective Date;
(iii) with respect to each Loan Party organized under the laws of Mexico, true, correct and complete copies of (A) the resolutions of the board of directors authorizing the execution and delivery of the Loan Documents, (B) incorporation deed (escritura constitutiva) and current bylaws (estatutos sociales vigentes) evidencing that the execution of the Loan Documents to which such Loan Party is a party is contemplated within the corporate purpose of such Loan Party, and (C) the public deeds containing the powers of attorney granted to the individuals executing the Loan Documents to which such Loan Party is a party on behalf of such Loan Party (including poderes para actos de administración (in case of the Borrower) and poderes para actos de dominio (in case of the Guarantors) and registered poderes para suscribir títulos de crédito conforme al artículo 9 de la Ley General de Títulos y Operaciones de Crédito);
(iv) with respect to each Loan Party other than a Loan Party organized under the laws of Mexico, a certificate of a Responsible Officer of the Borrower evidencing (A) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party and (B) that each Loan Party is duly organized or formed, and that each such Loan Party is validly existing, in good standing (to the extent such concept exists in the relevant jurisdiction) and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect;
(v) favorable opinions of (A) Skadden, Arps, Slate, Meagher & Flom LLP, New York counsel to the Borrower, (B) the Borrower’s General Counsel, (C) GHR Rechtsanwälte AG, special Swiss counsel to the Borrower, (D) Cleary Gottlieb Steen & Hamilton LLP, New York counsel to the Lead Arrangers and (E) Galicia Abogados, S.C, counsel to the Lead Arrangers, addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the representations and warranties of the Borrower contained in Article V are true and correct on and as of the Effective Date, except to the extent that such representations and warranties specifically refer to another date, in which case they shall be true and correct as of such other date and (B) that no Default exists, or would occur immediately after giving effect to this Agreement, on the Effective Date;
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(vii) the acceptance by the Process Agent of an irrevocable appointment to act as agent for service of process for the Loan Parties in connection with any proceeding relating to the Loan Documents brought in the State of New York;
(viii) a copy certified by a Mexican notary public of the irrevocable special power of attorney for lawsuits and collections (poder especial irrevocable para pleitos y cobranzas) granted by each of the Loan Parties organized under the laws of Mexico before a Mexican notary public in favor of the Process Agent; and
(ix) the Audited Financial Statements and the unaudited financial statements of the Borrower referred to in Section 5.5(a) and (b) required to be delivered prior to the Effective Date.
(b) (i) Upon the reasonable request of any Lender or the Administrative Agent made at least ten (10) Business Days prior to the Effective Date, the Borrower shall have provided to such Lender or the Administrative Agent, as applicable, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least three (3) Business Days prior to the Effective Date and (ii) if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered to each Lender that so requests a Beneficial Ownership Certification in relation to the Borrower at least ten (10) Business Days prior to the Effective Date.
Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto.
Section 4.2 Conditions to the Term Loans on the Funding Date. The obligation of each Lender to honor any Committed Loan Notice on the Funding Date is subject to satisfaction of the following conditions precedent satisfactory to each Lender (unless waived by each Lender in accordance with Section 10.1):
(a) The representations and warranties of the Loan Parties contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the date of the proposed Borrowing, except to the extent that such representations and warranties specifically refer to another date, in which case they shall be true and correct as of such other date.
(b) No Default shall exist, or would result from the proposed Borrowing, or from the application of the proceeds thereof.
(c) Any fees of the Lenders, the Lead Arrangers and the Administrative Agent required to be paid on or before the Funding Date shall have been (or, substantially simultaneously with the funding of the Loans on the Funding Date, shall be) paid.
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(d) To the extent invoiced at least three (3) Business Days prior to the Funding Date, the Borrower shall have paid (or, substantially simultaneously with the funding of the Loans on the Funding Date, shall pay) all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent), plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(e) Upon the request of any Lender at least one (1) Business Day prior to the date of the proposed Loan, the Borrower shall issue and make available a Note to that Lender at the Corporate Office or deliver a Note to the Custodian on behalf of that Lender, at the Lender’s election, setting forth the amount of the Loan to be disbursed by that Lender and the relevant Applicable Margin, on the date of the relevant Loan.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof and not more than seven (7) Business Days (or such greater number of days as the Required Lenders may reasonably agree) shall have elapsed since the Effective Date.
(g) The Administrative Agent shall have received a favorable opinion of Skadden, Arps, Slate, Meagher & Flom LLP, New York counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Borrower and the Notes issued on the Funding Date as the Required Lenders may reasonably request.
Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.2, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Funding Date specifying its objection thereto.
ARTICLE V REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the Lenders on the Effective Date (other than with respect to Section 5.22) and on each other occasion to the extent required by the Loan Documents, that:
Section 5.1 Existence, Qualification and Power. Each Loan Party and each Subsidiary thereof (a) is (i) duly organized or formed, validly existing and (ii) as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, if any, and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (a)(ii), (b)(i) or (c), to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect.
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Section 5.2 Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) except as would not reasonably be expected to have a Material Adverse Effect, conflict with or result in any breach or contravention of, or the creation of (or the requirement to create) any Lien under, or require any payment to be made under (i) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Applicable Law in any material respect.
Section 5.3 Governmental Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, except for those which have been already obtained, approved, granted, taken, given or made, as the case may be.
Section 5.4 Binding Effect. This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, capital impairment, recognition of judgments, recognition of choice of law, enforcement of judgments or other similar laws or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law and other matters which are set out as qualifications or reservations as to matters of law of general application in any legal opinion delivered to the Administrative Agent in connection with the Loan Documents.
Section 5.5 Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements (i) were prepared in accordance with IFRS consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present the financial condition of the Borrower and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with IFRS consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Indebtedness.
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(b) The unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated June 30, 2022, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with IFRS consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present the financial condition of the Borrower and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.
(c) Since the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has had or would reasonably be expected to have a Material Adverse Effect.
Section 5.6 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower, threatened, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower or any of its Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or (b) would reasonably be expected to have a Material Adverse Effect if determined adversely, except as specifically disclosed in Schedule 5.6.
Section 5.7 No Default. Neither any Loan Party nor any Subsidiary thereof is in default under or with respect to any Contractual Obligation that would, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
Section 5.8 Ownership of Property; Liens. Each of the Borrower and each Subsidiary has good record and marketable title in fee simple to, or valid leasehold interests in or other rights to use, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 5.9 Environmental Compliance. The Borrower and its Subsidiaries conduct in the ordinary course of business a review of the effect of existing Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on their respective businesses, operations and properties. Except as specifically disclosed in Schedule 5.6 or as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, to the knowledge of the Borrower: (a) the Borrower and its Subsidiaries have been and are in compliance with such Environmental Laws; (b) there are no claims, disputes, proceedings or actions against the Borrower or its Subsidiaries, or threatened claims, disputes, proceedings or actions against the Borrower or its Subsidiaries, pursuant to such Environmental Laws; and (c) there are no facts and circumstances relating to the business or operations of the Borrower and its Subsidiaries that are reasonably likely to cause the Borrower or its Subsidiaries to incur Environmental Liabilities.
Section 5.10 Insurance. The properties of the Borrower and its Subsidiaries are insured by financially sound companies (which may be Affiliates of the Borrower), in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Borrower or the applicable Subsidiary operates.
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Section 5.11 Taxes. The Borrower and its Subsidiaries have filed all Federal, state and other tax returns and reports required to be filed, and have paid all Federal, state and other taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided to the extent required by IFRS, or (b) to the extent that the failure to do so would not have a Material Adverse Effect.
Section 5.12 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state laws. Each Pension Plan that is sponsored by the Borrower or an ERISA Affiliate and that is intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination letter from the IRS to the effect that the form of such Pension Plan is qualified under Section 401(a) of the Code and the trust related thereto has been determined by the IRS to be exempt from federal income tax under Section 501(a) of the Code, or an application for such a letter is currently being processed by the IRS. To the best knowledge of the Borrower, nothing has occurred that would prevent or cause the loss of such tax-qualified status.
(b) There are no pending or, to the best knowledge of the Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that would reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or would reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred, and neither the Borrower nor any ERISA Affiliate is aware of any fact, event or circumstance that would reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan; (ii) the Borrower and each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained; (iii) neither the Borrower nor any ERISA Affiliate has incurred any liability to the PBGC other than for the payment of premiums, and there are no premium payments which have become due that are unpaid; (iv) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that would reasonably be expected to be subject to Section 4069 or Section 4212(c) of ERISA; and (v) no Pension Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that would reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan, except where any events set forth in clauses (i)-(v) would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect. As of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher and neither the Borrower nor any ERISA Affiliate knows of any facts or circumstances that would reasonably be expected to cause the funding target attainment percentage for any such plan to drop below 60% as of the most recent valuation date.
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(d) The Borrower represents and warrants as of the Effective Date that the Borrower’s assets are not and will not be deemed to constitute “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA).
Section 5.13 Subsidiaries; Equity Interests. As of the Effective Date: (a) the Borrower has no Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.13, and except as indicated in Part (a) of Schedule 5.13 all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and nonassessable and are owned by the Borrower and/or one or more Subsidiaries of the Borrower free and clear of all Liens (other than non-consensual Liens which may arise by operation of law), (b) the Borrower has no direct equity investments in any other corporation or entity other than those specifically disclosed in Part (b) of Schedule 5.13, and (c) all of the outstanding Equity Interests in the Borrower have been validly issued and are fully paid and nonassessable.
Section 5.14 Margin Regulations; Investment Company Act.
(a) The Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U), or extending credit for the purpose of purchasing or carrying margin stock.
(b) None of the Borrower or any Subsidiary is required to be registered as an “investment company” under the Investment Company Act of 1940.
Section 5.15 Disclosure.
(a) No written report, financial statement, certificate or other written information furnished by or on behalf of any Loan Party as of the Effective Date to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement (in each case, as modified or supplemented by other information furnished by or on behalf of any Loan Party) contains any material misstatement of material fact or omits to state any material fact necessary to make the statements therein, when furnished and after giving effect to all supplements thereto, in the light of the circumstances under which they were made, not misleading in any material respect; provided that, with respect to projected financial information and other projections, the Borrower represents only that such projections were prepared in good faith based upon assumptions believed to be reasonable at the time such projections were furnished (it being understood by the Administrative Agent and the Lenders that such projections are as to future events and are not to be viewed as facts, such projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Borrower and its Subsidiaries, that no assurance can be given that any particular projections will be realized and that actual results during the period or periods covered by any such projections may significantly differ from the projected results and such differences may be material).
(b) As of the Effective Date, the information included in the Beneficial Ownership Certification, if applicable, is true and correct in all respects.
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Section 5.16 Compliance with Laws. Each Loan Party and each Subsidiary thereof is in compliance in all material respects with the requirements of all Applicable Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
Section 5.17 Intellectual Property; Licenses, Etc. The Borrower and its Subsidiaries own, license or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, trade secrets, know-how and other intellectual property rights (collectively, “IP Rights”) that are reasonably necessary for the operation of their respective businesses as currently conducted, without, to the knowledge of the Borrower, infringement, misappropriation or other violation of the IP Rights of any other Person, except for any such failure to own, license or possess, or such infringement, that would not reasonably be expected to have a Material Adverse Effect. To the knowledge of the Borrower, no product, service, process, method, substance, part or other material now used by the Borrower or any Subsidiary in the conduct of their business as currently conducted infringes, misappropriates or otherwise violates upon any IP Rights held by any other Person, except for any such infringement, misappropriation or violation which would not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any of the foregoing is pending or, to the knowledge of the Borrower, threatened against the Borrower or any Subsidiary, which, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. To the knowledge of the Borrower, in the two (2) year period preceding the Effective Date, there has been no unauthorized use, access, interruption, modification, or corruption of any information technology systems (or any sensitive or personal information stored or contained therein or transmitted thereby) owned or controlled by the Borrower or any of its Subsidiaries, which, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
Section 5.18 Sanctions. None of the Borrower, any of its Subsidiaries, or the directors of the Borrower or, to the knowledge of the Borrower, any director, officer, agent, employee, or Affiliate or other person acting on behalf of the Borrower or any of its Subsidiaries is a Sanctions Target, nor is the Borrower, any of its Subsidiaries located, organized or resident in a Designated Jurisdiction; and the Borrower will not directly or knowingly indirectly use the proceeds of the Agreement hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is a Sanctions Target, (ii) to fund or facilitate any activities of or business in any Designated Jurisdiction or (iii) in any other manner that will result, in each case, in a violation by any person participating in the transaction, whether as a Lender, advisor, investor or otherwise, of Sanctions. The Borrower and its Subsidiaries are not now knowingly engaged in any dealings or transactions with any person that is the subject or the target of Sanctions or with any Designated Jurisdiction.
Section 5.19 Anti-Corruption Laws. During the five (5) years prior to the Effective Date, none of the Borrower, any of its Subsidiaries, or the directors of the Borrower or, to the knowledge of the Borrower, any director, officer, agent, employee or Affiliate or other person acting on behalf of the Borrower or any of its Subsidiaries has (i) used any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made
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or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government or regulatory official or employee, including of any government-owned or -controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) except for any violation of Applicable Law resulting from matters under investigation on the Effective Date as disclosed in the Borrower’s annual report on Form 20-F for 2021, violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, the Mexican Ley General del Sistema Nacional Anticorrupción, the Mexican Federal Criminal Code (Código Penal Federal), the Mexican Ley General de Responsabilidades Administrativas, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption laws; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit; except, in each case, for matters under investigation by the U.S. Department of Justice and the staff of the SEC. During the five (5) years prior to the Effective Date, the Borrower and its Subsidiaries have instituted, and maintain and enforce, policies and procedures reasonably designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
Section 5.20 EEA Financial Institutions. No Loan Party is an EEA Financial Institution.
Section 5.21 Covered Entities. No Loan Party is a Covered Entity.
Section 5.22 Solvency. As of the Funding Date, immediately after the consummation of the Transactions to occur on such date, the Borrower is Solvent.
Section 5.23 Immunity. Each Loan Party is subject to civil and commercial law with respect to its obligations under the Loan Documents to which it is a party, and the execution, delivery and performance by it of such Loan Documents constitute private and commercial acts rather than public or governmental acts. None of the Loan Parties nor any of their respective properties is entitled to any right of immunity on the grounds of sovereignty or otherwise from the jurisdiction of any court or from any action, suit, set-off or proceeding, or service of process in connection therewith, arising under the Loan Documents.
Section 5.24 Pari Passu Status. The obligations of the Borrower and each Guarantor under the Loan Documents to which such Person is a party constitute direct, senior, unsecured, and unsubordinated obligations of the Borrower or such Guarantor, as applicable, and, under current law, rank at least pari passu in right of payment with all other direct, senior, unsecured, and unsubordinated obligations of the Borrower or such Guarantor resulting from any Indebtedness of the Borrower or such Guarantor (other than Indebtedness having priority by operation of law).
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ARTICLE VI AFFIRMATIVE COVENANTS
Commencing on the Funding Date and for so long as any Lender shall have any Commitment hereunder or any Loan or other Obligation hereunder (other than contingent obligations for which no claim has been made) shall remain unpaid or unsatisfied, the Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.1, 6.2, and 6.3) cause each Subsidiary to:
Section 6.1 Financial Statements. Deliver to the Administrative Agent:
(a) as soon as available, but in any event within 120 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ended December 31, 2022), a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, changes in shareholders’ equity, and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with IFRS, such consolidated statements to be audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception as to the scope of such audit (except for any such qualification pertaining to the maturity of the Term Facility occurring within twelve (12) months of the relevant audit or any breach or anticipated breach of any financial covenant); and
(b) as soon as available, but in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, the related consolidated statements of income or operations for such fiscal quarter and for the portion of the Borrower’s fiscal year then ended, and the related consolidated statements of changes in shareholders’ equity, and cash flows for the portion of the Borrower’s fiscal year then ended, in each case setting forth in comparative form, as applicable, the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail, such consolidated statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of the Borrower as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of the Borrower and its Subsidiaries in accordance with IFRS, subject only to normal year-end audit adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant to Section 6.2(c), the Borrower shall not be separately required to furnish such information under subsection (a) or (b) above, but the foregoing shall not be in derogation of the obligation of the Borrower to furnish the information and materials described in subsection (a) or (b) above at the times specified therein.
Section 6.2 Certificates; Other Information. Deliver to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred to in Sections 6.1(a) and (b), a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of the Borrower (which delivery may be by electronic communication including email and shall be deemed to be an original authentic counterpart thereof for all purposes);
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(b) promptly after any request by the Administrative Agent (acting at the direction of the Required Lenders), copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;
(c) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after the furnishing thereof, copies of any financial statements, compliance certificate, and notice of default furnished to any holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms of any indenture, loan or credit or similar agreement relating to debt for borrowed money and not otherwise required to be furnished to the Lenders pursuant to any other clause of this Section 6.2; provided that this clause (d) shall not apply to any such indenture, loan or credit or similar agreement with an outstanding principal amount or unused commitments less than U.S.$50.0 million; and
(e) promptly following any request therefor, provide information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation.
Documents required to be delivered pursuant to Section 6.1 or Section 6.2 (whether or not any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.2; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that the Borrower shall notify the Administrative Agent (by electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
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The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Lead Arrangers may, but shall not be obligated to, make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on Debt Domain, IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Lead Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.7); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent and the Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”
Section 6.3 Notices. Promptly notify the Administrative Agent:
(a) of the occurrence of any Default or Event of Default;
(b) of any matter that has resulted or would reasonably be expected to result in a Material Adverse Effect; and
(c) of any material change in accounting policies or financial reporting practices by the Borrower or any Subsidiary.
Each notice pursuant to this Section 6.3 shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein in reasonable particularity and stating what action, if any, the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to Section 6.3(a) shall describe with reasonable particularity any and all provisions of this Agreement and any other Loan Document that have been breached.
Section 6.4 Pari Passu Obligations. Ensure that its Obligations hereunder and under the Notes at all times constitute direct, senior, unsecured and unsubordinated obligations of the Borrower ranking at least pari passu in right of payment with all other present or future direct, senior, unsecured and unsubordinated obligations of the Borrower resulting from any Indebtedness of the Borrower (other than Indebtedness having priority by operation of law).
Section 6.5 Payment of Obligations. Generally pay and discharge as the same shall become due and payable (a) all Tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves to the extent required by IFRS are being
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maintained by the Borrower or such Subsidiary; (b) all lawful claims which, if unpaid, would by law become a Lien upon its property, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves to the extent required by IFRS are being maintained by the Borrower or such Subsidiary; and (c) all Indebtedness, as and when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness, except in each case to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect.
Section 6.6 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization except (i) in a transaction not prohibited by Section 7.3 or (ii) to the extent that failure of any Subsidiary that is not a Loan Party to do so would not reasonably be expected to have a Material Adverse Effect; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect; and (c) to the extent reasonably able to do so under Applicable Law, preserve or renew all of its issued patents and registered trademarks and service marks, the non-preservation or non-renewal of which would reasonably be expected to have a Material Adverse Effect.
Section 6.7 Maintenance of Properties. (a) Maintain, preserve and protect all of its material tangible properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted; and (b) make all necessary repairs thereto and renewals and replacements thereof except, in the case of (a) and (b) where the failure to do so would not reasonably be expected to have a Material Adverse Effect.
Section 6.8 Maintenance of Insurance. Maintain with financially sound companies (which may be Affiliates of the Borrower), insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons.
Section 6.9 Compliance with Laws. Comply in all material respects with the requirements of all Applicable Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith would not reasonably be expected to have a Material Adverse Effect.
Section 6.10 Books and Records. Maintain proper books of record and account, in which full, true and correct entries in all material respects in conformity with IFRS consistently applied shall be made of all material financial transactions and matters involving the assets and business of the Borrower or such Subsidiary, as the case may be.
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Section 6.11 Use of Proceeds. Use the proceeds of the Term Facility for general corporate purposes (including refinancing other financial obligations of the Borrower and its Affiliates) and to pay transactions costs. The Borrower (a) shall procure that no payments received under the Term Facility will be directly or indirectly used in Switzerland or be, directly or indirectly, remitted to any Swiss tax resident company or Swiss tax resident permanent establishment unless a written confirmation or countersigned tax ruling application from the Swiss Federal Tax Administration has been obtained confirming that such use does not result in interest payments under the Agreement being subject to Swiss withholding tax, (b) shall not permit or authorize any Person to use, directly or knowingly indirectly, of all or any part of the Loans to finance any transaction, business or activity (i) involving any Sanctions Target or Designated Jurisdiction, in each case, in violation of Sanctions or (ii) that would result in the Borrower failing to comply with any Sanctions applicable to it or becoming a Sanctions Target and (c) shall not finance, directly or knowingly indirectly, any payments in respect of this Agreement to any of the Administrative Agent or the Lenders with income from or involving (i) a Sanctions Target or a Designated Jurisdiction, in each case, in violation of Sanctions or (ii) any activity that would result in the Borrower failing to comply with any Sanctions applicable to it or becoming a Sanctions Target.
Section 6.12 Anti-Corruption Laws; Sanctions. Conduct its businesses in compliance in all material respects with the United States Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010, and other applicable anti-corruption legislation and with all applicable Sanctions, and maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and Sanctions (it being understood that any violation of Applicable Law resulting from matters under investigation on the Effective Date as disclosed in the Borrower’s annual report on Form 20-F for 2021 shall not constitute a violation of this Section 6.12).
Section 6.13 Delivery of Notes and Appointment of Custodian. Subject to the terms of Section 2.9, the Borrower shall deliver a Note executed by the Borrower as issuer (suscriptor) and each Guarantor organized under the laws of Mexico, as guarantor (avalista) in favor of each Lender that requests a Note within ten (10) Business Days of such request. Any such Note shall be made available at the Corporate Office or delivered to the Custodian on behalf of the applicable Lender, at such Lender’s election, and if the applicable Lender shall assume full liability and provide customary indemnification for the loss thereof in a manner reasonably acceptable to the Borrower, such Lender may elect for the Borrower to deliver such Note by courier or other nationally recognized delivery service.
Section 6.14 Sustainability Reporting. The Borrower shall:
(a) promptly after becoming available and in any event within 150 days following the end of each fiscal year of the Borrower (commencing with the fiscal year ending December 31, 2022), a Pricing Certificate for the most recently ended Annual Period for each KPI Metric; provided that, in any fiscal year the Borrower may elect not to deliver a Pricing Certificate, and such election shall not constitute a Default or Event of Default (but such failure to so deliver a Pricing Certificate by the end of such 150-day period shall result in the Sustainability Margin Adjustment being applied as set forth in Section 2.13(c)).
(b) The Borrower shall provide the KPI Metrics Auditor with all information the KPI Metrics Auditor may reasonably request in order to perform the tasks contemplated to be performed by it under the Loan Documents.
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ARTICLE VII NEGATIVE COVENANTS
Commencing on the Funding Date, and for so long as any Lender shall have any Commitment hereunder or any Loan or other Obligation hereunder (other than contingent obligations for which no claim has been made) shall remain unpaid or unsatisfied:
Section 7.1 Liens. The Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly create, incur, assume or suffer to exist any Liens upon any of its owned property, assets or revenues, whether now owned or hereafter acquired, other than the following Liens:
(a) Liens for taxes, assessments and other governmental charges the payment of which is being contested in good faith by appropriate proceedings promptly initiated and diligently conducted and for which such reserves or appropriate provision, if any, as shall be required by IFRS of the Borrower or the applicable Subsidiary shall have been made;
(b) Liens granted pursuant to or in connection with (i) any netting or set-off arrangements entered into in the ordinary course of trading (including, for the avoidance of doubt, any cash pooling or cash management arrangements with a bank or financial institution) or (ii) any intragroup loans granted or any intragroup Indebtedness incurred or entered into or any cash pooling or cash management arrangements entered into by and between the Borrower and its Subsidiaries or between Subsidiaries (for so long as such Persons continue to be Subsidiaries);
(c) statutory liens of landlords and liens of carriers, warehousemen, mechanics and materialmen incurred in the ordinary course of business for sums not yet due or the payment of which is being contested in good faith by appropriate proceedings promptly initiated and diligently conducted and for which such reserves or other appropriate provision, if any, as shall be required by IFRS of the Borrower or the applicable Subsidiary shall have been made;
(d) Liens incurred or deposits made in the ordinary course of business in connection with (i) workers’ compensation, unemployment insurance and other types of social security, or (ii) other insurance maintained by the Borrower or any of its Subsidiaries in accordance with Section 6.8;
(e) any attachment or judgment lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after the expiration of any such stay;
(f) Liens existing as of the Effective Date and set forth on Schedule 7.1 and Liens in relation to any Indebtedness that is refinancing or replacing any Indebtedness over which Liens are in place; provided that the principal amount secured thereby is not increased, save that principal amounts secured by Liens in respect of (i) Swap Contracts where there are fluctuations in the mark-to-market exposures of those Swap Contracts and (ii) Indebtedness where principal may increase by virtue of capitalization of interest, may be increased by the amount of such fluctuations or capitalizations, as the case may be;
(g) any Liens permitted by the Administrative Agent, acting on the instructions of the Required Lenders;
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(h) licenses of, or other grants of rights to use, IP Rights granted by Borrower or any Subsidiary (i) in the ordinary course of business and not materially interfering with the business of Borrower and its Subsidiaries, taken as a whole, (ii) existing as of the Funding Date, or (iii) between or among Borrower and any of its Subsidiaries or between or among any of its Subsidiaries;
(i) any Liens created or deemed created pursuant to a Securitization;
(j) any Liens granted in connection with any Swap Contract; provided that the aggregate value of the assets that are the subject of such Liens does not exceed U.S.$200.0 million (or its equivalent in other currencies) at any time;
(k) Liens granted or arising over receivables, inventory, plant or equipment that fall within Section 7.2(d);
(l) (i) any Liens over bank accounts arising under clause 24 or clause 25 of the general terms and conditions (algemene bankvoorwaarden) of any member of the Dutch Bankers’ Association (Nederlandse Vereniging van Banken) and (ii) other Liens granted to any financial institution with whom it maintains accounts to the extent required by the relevant institution’s (or custodian’s or trustee’s, as applicable) standard terms and conditions, in each case, which are within the general parameters customary in the banking industry;
(m) any Liens that are created or deemed created on shares of the Borrower or any of its Subsidiaries, pursuant to an obligation in respect of an Executive Compensation Plan by virtue of such shares being held on trust for the holders of the convertible securities pending exercise of any conversion option, where such Lien is customary for such transaction;
(n) any Liens granted in connection with any Indebtedness referred to Section 7.2(f);
(o) other Liens securing obligations of the Borrower and its Subsidiaries at any one time outstanding equal to the greater of (x) 10% of consolidated tangible assets of the Borrower and its Subsidiaries based on the last balance sheet delivered pursuant to Section 6.1, and (y) U.S.$1.5 billion; and
(p) Liens granted in connection with or arising out of a Lease; provided that such Liens are over the right to use the asset or equipment that is the subject of the Lease pursuant to the terms of the Lease, or the rights of the Borrower or any of its Subsidiaries over the asset or equipment which is the subject of the Lease.
Section 7.2 Subsidiary Debt. The Borrower will not permit any of its Subsidiaries that is not a Loan Party to create, incur, assume or suffer to exist or otherwise become or be liable in respect of any Indebtedness, except:
(a) Indebtedness outstanding on the Effective Date and set forth on Schedule 7.2 and any renewals, extensions, replacements or refinancings thereof; provided that Indebtedness of any Loan Party shall not be refinanced with Indebtedness of a Subsidiary that is not a Loan Party and that the aggregate principal amount of such Indebtedness is not increased except by the amount of any capitalized interest under any facility or instrument that provided for capitalization of interest on those terms as at the Effective Date or by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with any renewal, extension or refinancing thereof and by an amount equal to any existing commitments unutilized thereunder;
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(b) Indebtedness owed by any Subsidiary to the Borrower or to any other Subsidiary (which shall include, without limitation, liabilities arising from cash management obligations, tax and accounting operations); provided that such Indebtedness shall not have been transferred or assigned to any Person other than the Borrower or any Subsidiary;
(c) Indebtedness constituting a Securitization;
(d) Indebtedness arising under factoring arrangements, Inventory Financing arrangements or export credit facilities or any similar arrangements (including Leases) for the purchase of equipment (provided that any Lien granted in relation to any such facility relates solely to equipment, the purchase of which was financed under such facility) or pursuant to sale and lease-back transactions provided that the maximum aggregate Indebtedness of members of the Borrower and its Subsidiaries, which are not Loan Parties under such transactions does not exceed U.S.$500.0 million at any time (disregarding, for the purpose of such limit, any amount of Indebtedness of the Borrower and its Subsidiaries arising under such arrangements permitted under this paragraph (d) and in place as at the Funding Date including any amounts under such Indebtedness which has been repaid and reborrowed whether pursuant to the terms of the arrangement constituting such Indebtedness when originally advanced or otherwise);
(e) Indebtedness of the Borrower and its Subsidiaries pursuant to any acquisition provided that: (i) such Indebtedness existed prior to the date of the acquisition and was not incurred, increased or extended in contemplation of, or since, the acquisition; and (ii) the aggregate amount of any such Indebtedness of the Borrower and its Subsidiaries which are not Loan Parties does not exceed U.S.$200.0 million at any time;
(f) Indebtedness incurred pursuant to or in connection with any cash pooling or other cash management agreements with a bank or financial institution, but only to the extent of offsetting credit balances of the Borrower and its Subsidiaries which are not Loan Parties pursuant to such cash pooling or other cash management arrangement;
(g) Indebtedness for taxes levied, assessments due and other governmental charges required to be paid as a matter of law or regulation in the ordinary course of trading; and
(h) additional Indebtedness, if, after giving effect to the incurrence of any such Indebtedness, the aggregate outstanding amount of Indebtedness of all non-guarantor Subsidiaries would not exceed the greater of (x) 15% of consolidated tangible assets of the Borrower and its Subsidiaries based on the last balance sheet delivered pursuant to Section 6.1, and (y) U.S.$2.0 billion.
For the avoidance of doubt, the aggregate amount of any Indebtedness will be calculated for purposes of this Section 7.2 solely by reference to such Indebtedness of each of the Borrower’s Subsidiaries that is not a Loan Party.
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Section 7.3 Fundamental Changes and Asset Dispositions.
(a) The Borrower will not, nor will it permit any of its Subsidiaries, whether in a single transaction or in a series of related transactions to enter into any consolidation or merger with any other Person, unless no Default would exist and such transaction would not be prohibited by clause (b) below; provided that (i) in the case of a merger or consolidation involving the Borrower, the surviving entity thereof (1) is the Borrower or (2) (A) assumes the Obligations of the Borrower pursuant to an Acceptable Assumption Agreement and (B) is a Person organized and validly existing under the laws of Mexico, the United States, any State thereof or the District of Columbia, Canada, France, Belgium, Germany, Italy, Luxembourg, the Netherlands, Portugal, Spain, Switzerland or the United Kingdom, or any political subdivision thereof or any other jurisdiction reasonably acceptable to the Required Lenders and (ii) in the case of a merger or consolidation involving a Guarantor, (1) the surviving entity thereof is the Borrower, is (or will concurrently become) a Guarantor or otherwise assumes the Obligations of a Guarantor pursuant to an Acceptable Assumption Agreement or (2) such transaction (A) results in the Guarantor no longer being a direct or indirect Subsidiary of the Borrower and (B) is not prohibited by Section 7.3(b).
(b) The Borrower will not, nor will it permit any of its Subsidiaries to, whether in a single transaction or in a series or related transactions (including through liquidation, division, administration or other insolvency proceedings), Dispose all or substantially all of the assets of the Borrower and its Subsidiaries, taken as a whole, other than through a contribution of assets to a newly-formed Wholly Owned Subsidiary of the Borrower.
Section 7.4 Restricted Payments.
The Borrower will not, nor will it permit any of its Subsidiaries, to make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary may make Restricted Payments to the Borrower, any Subsidiary of the Borrower and any other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) the Borrower and each Subsidiary may make Restricted Payments payable solely in the Common Stock or other common Equity Interests of such Person;
(c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Common Stock or other common Equity Interests;
(d) the Borrower may make Restricted Payments to comply with any obligation in respect of any Executive Compensation Plan of the Borrower; and
(e) the Borrower and each Subsidiary may make any Restricted Payment, so long as (i) no Default shall have occurred and be continuing at the time of such Restricted Payment, or would result therefrom and (ii) the Borrower shall be in compliance with the covenants in Section 7.5 after giving pro forma effect to such Restricted Payment.
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Section 7.5 Financial Covenants.
(a) The Borrower will not permit the Consolidated Leverage Ratio to be greater than 3.75:1.0 on the last day of any fiscal quarter of the Borrower, commencing with the last day of the first fiscal quarter of the Borrower ended after the Funding Date.
(b) The Borrower will not permit the Consolidated Coverage Ratio to be less than 2.75:1.0 on the last day of any fiscal quarter of the Borrower, commencing with the last day of the first fiscal quarter of the Borrower ended after the Funding Date.
Each of the ratios referred to above will be calculated for the Borrower and its Subsidiaries on a consolidated basis for each consecutive four fiscal quarter period.
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES
Section 8.1 Events of Default. Any of the following shall constitute an event of default (each, an “Event of Default”):
(a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan, or (ii) within three (3) Business Days after the same becomes due, any interest on any Loan, or any fee due hereunder, or (iii) within three (3) Business Days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. The Borrower fails to perform or observe any term, covenant or agreement contained in Article VI (and such failure shall continue uncured for a period of 30 days after the Borrower becomes aware of such failure) or Article VII; or
(c) Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading, in any material respect, when made or deemed made; provided that any such representation, warranty, certification or statement of fact that is curable by its nature may be cured within a period of 30 days after the Borrower becomes aware of such representation, warranty, certification or statement of fact being incorrect or misleading; or
(d) Cross Payment Default. The Borrower or any Subsidiary fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder), after giving effect to any applicable grace period, having an outstanding aggregate principal amount equal to or greater than U.S.$50.0 million (or the equivalent thereof in other currencies); provided that such failure is unremedied and is not waived by the holders of such Indebtedness prior to any termination of Commitments or acceleration of the Loans pursuant to Section 8.2; or
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(e) Cross-Default. The Borrower or any of its Subsidiaries shall default in the observance or performance of any agreement, covenant or condition relating to any Indebtedness in an outstanding principal amount equal to or greater than U.S.$50.0 million, individually or in the aggregate, or contained in any agreement or instrument evidencing, securing, governing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, any such Indebtedness to become due prior to its stated maturity and such default shall continue unremedied beyond the applicable period of grace set forth in the documents evidencing such Indebtedness; or any such Indebtedness in an outstanding principal amount equal to or greater than U.S.$50.0 million, individually or in the aggregate, of the Borrower or any of its Subsidiaries shall be declared to be due and payable, or required to be prepaid other than by a regularly scheduled required prepayment, prior to the stated maturity thereof; provided that this clause (e) shall not apply to (i) secured Indebtedness that becomes due as a result of the Disposition (including as a result of a casualty or condemnation event) of the property or assets securing such Indebtedness, (ii) Guarantees of Indebtedness that are satisfied promptly on demand or (iii) with respect to Indebtedness incurred under any Swap Contract, termination events or equivalent events pursuant to the terms of the relevant Swap Contract which are not the result of any default thereunder by the Borrower or any of its Subsidiaries; provided, further, that such default is unremedied and is not waived by the holders of such Indebtedness prior to any termination of Commitments or acceleration of the Loans pursuant to Section 8.2; or
(f) Insolvency Proceedings, Etc. (i) Any Loan Party or any of its Subsidiaries institutes, or consents to the institution of any proceeding under any Debtor Relief Law, including, but not limited to, reorganization, concurso mercantil, quiebra or bankruptcy, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator, visitador, conciliador, síndico or similar officer for it or for all or substantially all of its property; or
(ii) (1) A court of competent jurisdiction shall enter a decree or order for relief in respect of any Loan Party in an involuntary case under any Debtor Relief Laws, which decree or order is not stayed; or any other similar relief shall be granted under any Applicable Law; or (2) an involuntary case shall be commenced against any Loan Party under any Debtor Relief Laws; or a decree or order of a court having jurisdiction for the appointment of a receiver, trustee, custodian, conservator, liquidator, rehabilitator, visitador, conciliador, síndico or similar officer for any Loan Party or for all or substantially all of its property over any Loan Party, or over all or substantially all of its property, shall have been entered, and any such event described in clauses (1) and (2) above shall continue for 60 consecutive calendar days; or
(iii) any Loan Party shall become unable, admit in writing its inability or fail generally to pay its debts as they become due or any Loan Party organized under the laws of Mexico becomes in a generalized default of its payment obligations (incumplimiento generalizado en el pago de sus obligaciones) within the meaning of Section I of Article 10 of the Mexican Bankruptcy Law (Ley de Concursos Mercantiles); or
(g) Judgments. There is entered against the Borrower or any Subsidiary one or more final non-appealable judgments or orders for the payment of money in an aggregate amount (as to all such judgments or orders) exceeding U.S.$100.0 million (to the extent not (i) covered by independent third-party insurance as to which the insurer does not dispute coverage or (ii) paid, discharged or bonded within 60 days after the entry of such judgment); or
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(h) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or would reasonably be expected to result in liability of the Borrower or any of its Subsidiaries under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount that would reasonably be expected to have a Material Adverse Effect, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount that would reasonably be expected to have a Material Adverse Effect; or
(i) Invalidity of Loan Documents. Any provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party contests, in writing, in any manner the validity or enforceability of any provision of any Loan Document for any reason other than as expressly permitted hereunder or thereunder prior to the satisfaction in full of all the Obligations; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan Document for any reason other than as expressly permitted hereunder or thereunder prior to the satisfaction in full of all the Obligations; or
(j) Invalidity of Guarantees. Any guarantee issued under any Loan Document ceases to be in full force and effect; or any Loan Party contests, in writing, in any manner the validity or enforceability of any guarantee issued under any Loan Document for any reason other than as expressly permitted hereunder or thereunder prior to the satisfaction in full of all the Obligations; or
(k) Exchange Controls. There occurs any Transfer and Inconvertibility Event and shall continue for 60 or more consecutive days; or
(l) Condemnation; Nationalization. Any Governmental Authority asserting or exercising governmental or police powers or any Person acting or purporting to act under such Governmental Authority shall condemn, seize or appropriate, or shall assume custody or control of, all or a substantial portion of the property of the Loan Parties, taken as a whole, such that, based on the value of the asset attached, expropriated or seized, such action would reasonably be expected to have a Material Adverse Effect; or
(m) Moratorium. Any Governmental Authority shall, by moratorium laws or other similar laws (except for any such law relating to matters of public health or national emergency), cancel, suspend or defer any material payment Obligation when the same becomes due and payable and such cancellation, suspension or deferral shall continue for 60 or more consecutive days.
For the avoidance of doubt, no Default or Event of Default shall occur solely by reason of a failure by the Borrower to comply with its obligations under clause (a) of Section 6.14 (Sustainability Reporting).
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Section 8.2 Remedies Upon Event of Default.
If any Event of Default occurs and is continuing, the Administrative Agent upon the request of the Required Lenders, shall, by notice to the Borrower, (a) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable and (b) terminate the Commitments (and thereupon the Commitments shall terminate immediately), in each case, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; provided, however, that upon the occurrence of an event described in Section 8.1(f), the obligation of each Lender to make Loans and any obligation shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable and exercise any other remedy available under the Loan Documents, in each case without further act of the Administrative Agent or any Lender.
Section 8.3 Application of Funds.
After the exercise of remedies provided for in Section 8.2 (or after the Loans have automatically become immediately due and payable), any amounts received on account of the Obligations shall, subject to the provisions of Section 2.13, be applied by the Administrative Agent in the following order:
First. to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;
Second. to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders and (including fees, charges and disbursements of counsel to the respective Lenders and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause Second payable to them;
Third. to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans and other Obligations, ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them;
Fourth. payment of that portion of the Obligations constituting unpaid principal of the Loans, ratably among the Lenders in proportion to the respective amounts described in this clause Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.
ARTICLE IX ADMINISTRATIVE AGENT
Section 9.1 Appointment and Authority. Each of the Lenders hereby irrevocably appoints BBVA México, S.A., Institución de Banca Múltiple, Grupo Financiero BBVA México to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents to which the Administrative Agent is a party and authorizes the Administrative Agent to take such actions on its behalf and to exercise such rights, powers, authorities and privileges as are expressly delegated to the Administrative Agent by the terms hereof or thereof. For such purposes, each
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Lender hereby appoints and authorizes the Administrative Agent as its agent (comisionista) pursuant to articles 273 and 274 of the Mexican Commerce Code (Código de Comercio) to exercise the rights, powers, and authorities specifically given to the Administrative Agent under or in connection with the Loan Documents. The provisions of this Article IX are solely for the benefit of the Administrative Agent, the Lenders and neither the Borrower nor any other Loan Party shall have rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
Section 9.2 Rights as a Lender. If any Person serving as the Administrative Agent hereunder is or becomes a Lender, it shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
Section 9.3 Exculpatory Provisions. The Administrative Agent and the Sustainability Structuring Agent, as applicable, shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents to which it is a party, and its duties hereunder shall be administrative in nature.
(a) Without limiting the generality of the foregoing, the Administrative Agent and the Sustainability Structuring Agent, as applicable:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers (including providing any request, consent, approval, waiver or authorization), except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or Applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law;
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(iii) shall not have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, to any Lender, any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of their Affiliates, that is communicated to, obtained or in the possession of, the Administrative Agent, Lead Arrangers or any of their Related Parties in any capacity, except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent herein;
(iv) shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders expressly provided for herein or in the other Loan Documents to which the Administrative Agent is a party) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final non-appealable judgment. In no event shall the Administrative Agent be liable under or in connection with this Agreement or any other Loan Document for indirect, special, incidental, punitive, or consequential losses or damages of any kind whatsoever, including, but not limited to, lost profits, whether or not foreseeable, even if the Administrative Agent has been advised of the possibility thereof and regardless of the form of action. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given in writing to the Administrative Agent by the Borrower or a Lender; and
(v) shall not be responsible for or have any duty to ascertain or inquire into (i) any recital, statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents or accuracy of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith (including recalculating or determining, confirming or verifying any calculation or information set forth therein), (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the legality, validity, enforceability, effectiveness, genuineness or sufficiency of this Agreement, any other Loan Document or any other agreement, instrument or document, (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or (vi) the properties, books or records of the Borrower.
(b) The Administrative Agent shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder or under any Loan Document to which it is a party, or be required to take any action that is contrary to this Agreement or Applicable Law.
(c) The Administrative Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Administrative Agent (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).
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(d) The authorizations, rights, privileges, protections and benefits given to the Administrative Agent are extended to, and shall be enforceable by, the Administrative Agent, under any Loan Document to which it is a party. In the event any claim of inconsistency between this Agreement and the terms of any Loan Document arises with respect to the duties, liabilities and rights of the Administrative Agent, the terms of this Agreement shall control.
(e) In no event shall the Administrative Agent be responsible or liable for the actions or omissions of the Sustainability Structuring Agent or the Custodian.
Section 9.4 Reliance by Administrative Agent.(a) The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may (but shall not be obligated to) rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. Whenever reference is made in this Agreement or any other Loan Document to any discretionary action by consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Administrative Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Administrative Agent, it is understood that in all cases that the Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such written instruction, advice or concurrence from the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents to which the Administrative Agent is a party), in each case as it deems appropriate. Notwithstanding anything else to the contrary herein, the Administrative Agent may refrain from acting in accordance with any instructions or requests unless it shall first be indemnified to its satisfaction by the Lenders against any and all liability, cost and expense that may be incurred by it by reason of taking or continuing to take any such action in compliance with the instruction or request. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the Required Lenders, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future Lenders.
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Section 9.5 Erroneous Payments.
(a) If the Administrative Agent (x) notifies a Lender or any Person who has received funds on behalf of a Lender (any such Lender or other recipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 9.5 and held in trust for the benefit of the Administrative Agent, and such Lender shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the applicable Interest Rate. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or any Person who has received funds on behalf of a Lender (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each such case:
(ii) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(iii) such Lender shall (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.5(b).
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For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.5(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.5(a) or on whether or not an Erroneous Payment has been made.
(c) Each Payment Recipient hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Payment Recipient under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Payment Recipient under any Loan Document with respect to any payment of principal, interest, fees or other amounts, against any amount that the Administrative Agent has demanded to be returned.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time, (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to the Platform as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Custodian, at the Lender’s election, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees
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that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender under the Loan Documents with respect to each Erroneous Payment Return Deficiency.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by Applicable Law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including, without limitation, any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 9.5 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
Section 9.6 Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article IX shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
Section 9.7 Resignation of Administrative Agent.
(a) The Administrative Agent may at any time give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Date”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that in no event shall any such successor Administrative Agent be a Defaulting Lender. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Date.
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(b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by Applicable Law, by notice in writing to the Borrower and such Person remove such Person as Administrative Agent and, in consultation with the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Date.
(c) With effect from the Resignation Date or the Removal Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other than as provided in Section 3.1(f) and other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Date or the Removal Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section 9.6). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article IX and Section 10.5 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent. Any corporation or entity into which the Administrative Agent may be merged or converted or with which it may be consolidated or any corporation or entity resulting from any merger, conversion or consolidation to which the Administrative Agent shall be a party, or any corporation or entity succeeding to the business of the Administrative Agent or its corporate trust operations shall be the successor of the Administrative Agent hereunder and under the other Loan Documents to which the Administrative Agent is a party without the execution or filing of any paper with any party hereto or thereto or any further act on the part of any of the parties hereto or thereto, anything herein or in any other Loan Document to the contrary notwithstanding.
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Section 9.8 Non-Reliance on the Administrative Agent, the Lead Arrangers and the Other Lenders. Each Lender expressly acknowledges that none of the Administrative Agent nor the Lead Arrangers has made any representation or warranty to it, and that no act by the Administrative Agent or the Lead Arrangers hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of any Loan Party of any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative Agent or the Lead Arrangers to any Lender as to any matter, including whether the Administrative Agent or the Lead Arrangers have disclosed material information in their (or their Related Parties’) possession. Each Lender represents to the Administrative Agent and the Lead Arrangers that it has, independently and without reliance upon the Administrative Agent, the Lead Arrangers, any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis of, appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower hereunder. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Lead Arrangers, any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties. Each Lender represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a Lender for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to such Lender, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender agrees not to assert a claim in contravention of the foregoing. Each Lender represents and warrants that it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities.
Section 9.9 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Lead Arrangers or the Sustainability Structuring Agent shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent or a Lender hereunder.
Section 9.10 Guaranty Matters.(a) The Administrative Agent shall, upon the written instructions of the Required Lenders, release any Guarantor from its obligations under the Guaranty. If any Guarantor ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents, then such Guarantor shall automatically be released from its obligations under the Guaranty. The Administrative Agent shall, promptly upon the written request of the Borrower and at the Borrower’s sole cost, execute all such documentation as may reasonably requested to evidence or confirm such release.
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Section 9.11 Certain ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
(i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments or this Agreement,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement,
(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent (acting at the direction of the Required Lenders), and such Lender.
(b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
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Section 9.12 Administrative Agent May File Proofs of Claim.
(a) In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on any Loan Party) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other obligations of the Loan Parties under any Loan Document that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Section 10.5) allowed in such judicial proceeding; and
(ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same.
(b) Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Section 10.5.
ARTICLE X MISCELLANEOUS
Section 10.1 Amendments, Etc. Subject to Section 3.8, no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders (or by the Administrative Agent on behalf and at the written direction of the Required Lenders) and the Borrower or the applicable Loan Party, as the case may be, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:
(a) waive any condition set forth in Section 4.1(a) and Section 4.2 (other than clause (d) thereof) without the written consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.2) without the written consent of such Lender;
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(c) postpone any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on, any Loan or any fees or other amounts payable hereunder or under any other Loan Document, or change the manner of computation of any financial ratio (including any change in any applicable defined term) used in determining the Applicable Margin that would result in a reduction of any Interest Rate on any Loan or any fee payable hereunder without the written consent of each Lender directly affected thereby; provided, however, that only the consent of the Required Lenders shall be necessary to (i) amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest at the Default Rate or (ii) amend the definition of “KPI Metrics” or any related provision of this Agreement;
(e) change Section 8.3 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender;
(f) change any provision of this Section or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender; or
(g) release all or substantially all of the value of the Guaranty without the written consent of each Lender, except to the extent the release of any Guarantor is permitted pursuant to Section 9.10 (in which case such release may be made by the Administrative Agent acting alone);
provided, further, no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent, amend, modify or otherwise affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document (including any fees, expenses, indemnities or other amounts payable to, or any other provisions expressly for the benefit of Administrative Agent); and any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (y) any waiver, amendment, consent or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely relative to other affected Lenders shall require the consent of such Defaulting Lender.
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Section 10.2 Notices; Effectiveness; Electronic Communication.
(a) Notices Generally. All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or electronic mail as follows:
(i) if to the Borrower or any other Loan Party, or the Administrative Agent, to the address or electronic mail address specified for such Person on Schedule 10.2; and
(ii) if to any other Lender, to the address, facsimile number, electronic mail address specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Borrower).
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in sub clause (b) below, shall be effective as provided in such clause (b). All notices from or to a Loan Party shall be sent through the Administrative Agent. The Borrower may make and/or deliver as agent of each Loan Party notices and/or requests on behalf of each Loan Party.
(b) Electronic Communications. Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail, and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent. The Administrative Agent or the Borrower may each, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications; provided, further, that any notice or other communication delivered by e-mail to the Administrative Agent shall include and contain a scanned or imaged attachment (such as .pdf or similar widely used format). Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available return e-mail or other written acknowledgment), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
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(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s, any Loan Party’s or the Administrative Agent’s transmission of Borrower Materials or notices through the Platform, any other electronic platform or electronic messaging service, or through the Internet.
(d) Change of Address, Etc. Each of the Borrower and the Administrative Agent may change its address or email address (and the department or officer, if any, for whose attention a communication is to be made) for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address or telecopy number for notices and other communications hereunder by notice to the Borrower and the Administrative Agent. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, facsimile number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and Applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States Federal or state securities laws.
(e) Guarantor Agent. Each Guarantor by its execution of any Loan Document (as the case may be) irrevocably appoints the Borrower to act on its behalf as its agent in relation to the Loan Documents and irrevocably authorizes:
(i) the Borrower on its behalf to supply all information concerning itself contemplated by any Loan Document to the Administrative Agent and the Lenders and to give all notices and instructions, to execute on its behalf any documents required hereunder and to make such agreements capable of being given or made by any Guarantor notwithstanding that they may affect such Guarantor, without further reference to or consent of such Guarantor;
(ii) the Borrower on its behalf as its agent (comisionista) pursuant to articles 273 and 274 of the Mexican Commerce Code (Código de Comercio) to exercise the rights, powers, authorities and discretions specifically given to it under or in connection with the Loan Documents; and
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(iii) each of the Administrative Agent and the Lenders to give any notice, demand or other communication to such Guarantor pursuant to the Loan Documents to the Borrower on its behalf,
and in each case such Guarantor shall be bound thereby as though such Guarantor itself had given such notices and instructions or executed or made such agreements or received any notice, demand or other communication.
Every act, agreement, undertaking, settlement, waiver, notice or other communication given or made by the Borrower, or given to the Borrower, in its capacity as agent in accordance with paragraph this clause (e), in connection with any Loan Document shall be binding for all purposes on such Guarantor as if such Guarantor had expressly made, given or concurred with the same. In the event of any conflict between any notices or other communications of the Borrower and any Guarantor, those of the Borrower shall prevail.
Section 10.3 Reliance by Administrative Agent and Lenders. The Administrative Agent and the Lenders shall be entitled to rely and act upon any notices (including Committed Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof.
Section 10.4 No Waiver; Cumulative Remedies; Enforcement. No failure by any party hereto to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.2 for the benefit of all the Lenders; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any Lender from exercising setoff rights in accordance with Section 10.9 (subject to the terms of Section 2.12), or (c) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.2 and (ii) in addition to the matters set forth in clause (b) of the preceding proviso and subject to Section 2.12, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
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Section 10.5 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. Each Loan Party agrees, jointly and severally, to pay (i) (1) all reasonable and documented out-of-pocket expenses of the Administrative Agent (including the reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of United Stated legal counsel) associated with the preparation, execution, delivery and administration of this Agreement and the other Loan Documents and any amendment, modification or waiver with respect thereto (whether or not the transactions contemplated hereby or thereby shall be consummated); provided that, except with respect to any fees, disbursements and other charges of one firm of United States legal counsel to the Administrative Agent, such expenses incurred prior to the Effective Date will be limited to U.S.$25,000 plus VAT, as applicable, taken together with any such expenses incurred in the Administrative Agent’s (or its Affiliate’s) capacity as a Lead Arranger for the Term Facility, and (2) all reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of United States legal counsel and one firm of Mexican legal counsel to the Lenders, taken as a whole, as applicable, and (ii) all out-of-pocket costs and expenses of the Administrative Agent and the Lenders (including the fees, disbursements and other charges of one firm of counsel to each of (1) the Lenders, taken as a whole, and (2) the Administrative Agent, in each relevant jurisdiction) in connection with the enforcement or protection of its rights in connection with this Agreement or any other Loan Documents, including its rights under this Section 10.5, or in connection with the Loans hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans.
(b) Indemnification by the Borrower. Each Loan Party shall jointly and severally indemnify the Administrative Agent (and any sub-agent thereof), the Sustainability Structuring Agent, each Lender and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable and documented out-of-pocket fees, charges and disbursements of any counsel for any Indemnitee), of any kind or nature whatsoever which may at any time be imposed on, incurred by, or asserted against any Indemnitee by any Person (including the Borrower or any other Loan Party) arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.1), (ii) any Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the
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extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim not involving an act or omission of the Borrower or any Subsidiary and that is solely among Indemnitees (other than against the Administrative Agent in its capacity as such). Without limiting the provisions of Section 3.1(c), this Section 10.5(a) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
(c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under clauses (a) or (b) of this Section 10.5 to be paid by it to the Administrative Agent (or any sub-agent thereof) or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent) or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), such payment to be made severally among them based on such Lenders’ Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) in connection with such capacity. The obligations of the Lenders under this clause (c) are subject to the provisions of Section 2.10(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by Applicable Law, no party hereto shall assert, and each party hereto hereby waives, and acknowledges that no other Person shall have, any claim against any other party hereto, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof; provided, however, that this provision shall not apply to any damages in respect of any indemnity obligations to the Administrative Agent under the terms of this Agreement. No Indemnitee referred to in clause (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(e) Payments. All amounts due under this Section 10.5 shall be payable not later than ten (10) Business Days after demand therefor. To the extent that any undertaking in paragraph (b) of this Section 10.5 may be unenforceable because it contravenes any Applicable Law or public policy, the Loan Parties shall contribute the maximum portion that it is permitted to pay and satisfy under Applicable Law to the payment and satisfaction of such undertaking.
(f) Survival. The agreements in this Section 10.5 and the indemnity provisions of Section 10.5 shall survive the resignation or removal of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations.
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(g) No Personal Liability. If an individual signs a certificate on behalf of the Borrower or any of its Subsidiaries and the certificate proves to be incorrect, the individual will incur no personal liability as a result, unless the individual acted fraudulently in giving the certificate.
Section 10.6 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent or any Lender, or the Administrative Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Interest Rate from time to time in effect. The obligations of the Lenders under clause (b) of the preceding sentence shall survive the resignation or removal of the Administrative Agent and the payment in full of the Obligations and the termination of this Agreement.
Section 10.7 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither the Borrower nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender (except as otherwise permitted pursuant to Section 7.3) and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (e) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in clause (d) of this Section 10.7 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it), subject to the consent of the Borrower (not to be unreasonably withheld or delayed; it being understood that withholding or delaying consent with respect to an assignment to any Disqualified Lender or any Sanctioned
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Lender shall not be deemed unreasonable) unless (a) an event of default has occurred and is continuing, in which case such assignment may be made to any Person other than a Disqualified Lender or a Sanctioned Lender, or (b) the assignment is to a Lender, an Affiliate of a Lender or an Approved Fund in each case that is not a Disqualified Lender. Each such assignment (other than an assignment to a Lender, Affiliate of a Lender or an Approved Fund) shall not be less than €1.0 million in respect of loans and commitments under the Term Facility. For any assignments for which the Borrower’s consent is required, such consent shall be deemed to have been given if the Borrower shall not have responded within ten (10) Business Days of a written request for such consent.
Neither the Administrative Agent nor any Lead Arranger shall be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Lenders or Sanctioned Lenders. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or prospective Lender is a Disqualified Lender or Sanctioned Lender or (y) have any liability with respect to or arising out of any assignment, or disclosure of confidential information, to any Disqualified Lender or Sanctioned Lender.
The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of €3,500 plus VAT; provided that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
No such assignment shall be made to (i) any Loan Party or any Loan Party’s Affiliates or Subsidiaries or (ii) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute a Defaulting Lender or a Subsidiary thereof.
No such assignment shall be made to a natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person).
(c) Register. The Administrative Agent, acting solely for this purpose as an agent of the Borrower (and such agency being solely for Tax purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of one or more natural Persons, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s
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rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties for the performance of such obligations and (iii) the Borrower, the Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations. A participant shall have the same benefits as the Lender granting such participation with respect to (a) yield protection and increased cost (but not requiring payments in excess of those payable to such Lender in the absence of such participation), (b) with respect to pro rata treatment provisions and (c) Section 3.1, except such Participant shall not be entitled to receive any greater payment under Section 3.1, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Voting rights of participants shall be limited to those matters with respect to which the affirmative vote of each affected Lender or all Lenders are required as described in Section 10.1. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent shall have no responsibility for maintaining a Participant Register.
(e) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central banks; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
Section 10.8 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates, its auditors and its Related Parties on a need-to-know basis (it being understood that (i) the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential pursuant to the terms hereof and (ii) the Borrower’s prior written consent shall be required prior to providing any such Information to any controlling persons or equity holders of any Arranger or Lender), (b) to the extent required or requested by any regulatory authority having jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), in which case the disclosing Person agrees to inform the Borrower promptly thereof prior to such disclosure,
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unless such Person is prohibited by Applicable Law from so informing the Borrower, or except in connection with any request as part of any audit or regulatory examination, (c) to the extent required by Applicable Laws or regulations or by any subpoena or similar legal process, in which case the disclosing Person (except in connection with any order or request as part of any routine audit or examination conducted by bank accountants or any regulatory examination or audit) agrees to inform the Borrower promptly thereof prior to disclosure, (d) to any other party hereto, (e) to the extent necessary in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section 10.8, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement, (ii) potential investors and re-insurance and insurance brokers or (iii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i) any rating agency in connection with rating the Borrower or its Subsidiaries or the credit facilities provided hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with the application, issuance, publishing and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (h) with the prior written consent of the Borrower or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section 10.8, (y) becomes available to the Administrative Agent, any Lender or any of their respective Affiliates from a source other than the Borrower that is not to the recipient’s (or any of its Related Party’s) knowledge subject to confidentiality obligations to the Borrower or any of its Related Parties or (z) is independently discovered or developed by a party hereto without utilizing any Information received from the Borrower or violating the terms of this Section 10.8. In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and information limited solely to economic and structural terms of the Loans to market data collectors, similar service providers to the lending industry and service providers to the Administrative Agent and the Lenders in connection with the administration of this Agreement, the other Loan Documents, and the Commitments.
For purposes of this Section 10.8, “Information” means all information received from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective businesses, other than any such information that is available to the applicable disclosing party on a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary. Any Person required to maintain the confidentiality of Information as provided in this Section 10.8 shall be principally liable on a several basis to the extent any confidentiality restrictions set forth herein are violated by one or more of its Related Parties.
Section 10.9 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender or any such Affiliate to or for the credit or the account of the Borrower or any other Loan Party against any and all of the obligations of the Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or their respective Affiliates,
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irrespective of whether or not such Lender or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower or such Loan Party may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.13 and, pending such payment, shall be segregated on its books and records by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender and their respective Affiliates under this Section 10.8 are in addition to other rights and remedies (including other rights of setoff) that such Lender or their respective Affiliates may have. Each Lender agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Section 10.10 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by Applicable Law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by Applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
Section 10.11 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.1, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging means (e.g., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.
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Section 10.12 Survival of Representations and Warranties. All covenants, agreements, representations and warranties of the Loan Parties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof and the making of any Loans. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Loan, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied. The provisions of Section 3.1, Section 10.5, Section 10.8, Section 10.15, Section 10.16, Section 10.17, Section 10.18 and Article IX shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Commitments or the termination of this Agreement or any provision hereof or the resignation or removal of the Administrative Agent.
Section 10.13 Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 10.13, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined by the Administrative Agent (acting at the direction of the Required Lenders, acting in good faith), then such provisions shall be deemed to be in effect only to the extent not so limited.
Section 10.14 Replacement of Lenders. If the Borrower is entitled to replace a Lender pursuant to the provisions of Section 3.6, or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.7), all of its interests, rights (other than its existing rights to payments pursuant to Sections 3.1 and 3.4) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:
(a) the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in (b);
(b) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.5) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for compensation under Section 3.4 or payments required to be made pursuant to Section 3.1, such assignment will result in a reduction in such compensation or payments thereafter;
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(d) such assignment does not conflict with Applicable Laws; and
(e) in the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
Each party hereto agrees that (a) an assignment required pursuant to this Section 10.14 may be effected pursuant to an Assignment and Assumption executed by the Borrower and the assignee, and acknowledged by the Administrative Agent and (b) the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender; provided, further, that any such documents shall be without recourse to or warranty by the parties thereto.
Notwithstanding anything in this Section 10.14 to the contrary, the Lender that acts as the Administrative Agent may not be replaced hereunder except in accordance with the terms of Section 9.6.
Section 10.15 Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement and the other Loan Documents (except, as to any Note, as expressly set forth therein) and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement or any other Loan Document (except, as to any other Loan Document, as expressly set forth therein) and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the law of the State of New York.
(b) SUBMISSION TO JURISDICTION. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST ANOTHER PARTY TO THIS AGREEMENT IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE
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FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT AND EXPRESSLY AND IRREVOCABLY WAIVES ANY RIGHT TO ANY OTHER JURISDICTION TO WHICH IT MAY BE ENTITLED ON ACCOUNT OF PLACE OF RESIDENCE OR DOMICILE OR OTHERWISE. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
(c) WAIVER OF VENUE. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN CLAUSE (b) OF THIS SECTION 10.15. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.2. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. THE BORROWER (I) IRREVOCABLY APPOINTS THE PROCESS AGENT FOR A PERIOD ENDING TWELVE (12) MONTHS AFTER THE MATURITY DATE, HAVING OFFICES ON THE EFFECTIVE DATE AT 590 MADISON AVENUE, 27TH FLOOR, NEW YORK, NY 10022 AS ITS AGENT TO RECEIVE ON BEHALF OF SUCH LOAN PARTY SERVICE OF PROCESS IN ANY PROCEEDINGS (WITH RESPECT TO THIS AGREEMENT AND THE LOAN DOCUMENTS GOVERNED BY NEW YORK LAW) IN NEW YORK, NEW YORK; AND (II) DESIGNATES AS ITS CONVENTIONAL ADDRESS THE ADDRESS OF THE PROCESS AGENT REFERRED TO ABOVE OR ANY OTHER ADDRESS NOTIFIED IN THE FUTURE BY THE PROCESS AGENT TO THE BORROWER. SUCH SERVICE MAY BE MADE BY MAILING OR DELIVERING A COPY OF SUCH PROCESS TO THE BORROWER, IN CASE OF THE PROCESS AGENT AT THE ADDRESS SPECIFIED ABOVE, AND THE BORROWER HEREBY IRREVOCABLY AUTHORIZES AND DIRECTS THE PROCESS AGENT TO ACCEPT SUCH SERVICE ON ITS BEHALF.
Section 10.16 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
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OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.16.
Section 10.17 Waiver of Immunities. To the extent permitted by Applicable Law, if the Borrower has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) with respect to itself or any of its property, the Borrower hereby irrevocably waives and agrees not to plead or claim such immunity in respect of its obligations under this Agreement and the Notes. The Borrower agrees that the waivers set forth above shall have the fullest extent permitted under the Foreign Sovereign Immunities Act of 1976 of the United States of America and are intended to be irrevocable and not subject to withdrawal for purposes of such Act.
Section 10.18 Judgment Currency. If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of the Borrower in respect of any such sum due from it to the Administrative Agent or any Lender hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent or such Lender, as the case may be, of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent or such Lender, as the case may be, may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent or any Lender from the Borrower in the Agreement Currency, the Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or such Lender, as the case may be, against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Administrative Agent or any Lender in such Currency, the Administrative Agent or such Lender, as the case may be, agrees to return the amount of any excess to the Borrower (or to any other Person who may be entitled thereto under Applicable Law).
Section 10.19 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower and each other Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Lead Arrangers, the Sustainability Structuring Agent and the Lenders are arm’s-length commercial transactions between the Borrower, each other Loan Party and their respective Affiliates, on the
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one hand, and the Administrative Agent, the Lead Arrangers and the Lenders, on the other hand, (B) each of the Borrower and the other Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower and each other Loan Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative Agent, the Lead Arrangers and each Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower, any other Loan Party or any of their respective Affiliates, or any other Person and (B) neither the Administrative Agent, the Lead Arrangers nor any Lender has any obligation to the Borrower, any other Loan Party or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the Lead Arrangers and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower, the other Loan Parties and their respective Affiliates, and neither the Administrative Agent, the Lead Arrangers nor any Lender has any obligation to disclose any of such interests to the Borrower, any other Loan Party or any of their respective Affiliates. To the fullest extent permitted by law, each of the Borrower and each other Loan Party hereby waives and releases any claims that it may have against the Administrative Agent, the Lead Arrangers or any Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
Section 10.20 Electronic Execution of Assignments and Certain Other Documents. The words “execute,” “execution,” “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including without limitation Assignment and Assumptions, amendments or other modifications, Committed Loan Notices, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Administrative Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it.
Section 10.21 USA PATRIOT Act. Each Lender that is subject to the PATRIOT Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies the Borrower and each other Loan Party, which information includes the name and address of the Borrower and each other Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower and each other Loan Party in accordance with the PATRIOT Act. The Borrower and each other Loan Party shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act.
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Section 10.22 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Solely to the extent any Lender that is an Affected Financial Institution is a party to this Agreement and notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an Affected Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(c) a reduction in full or in part or cancellation of any such liability;
(d) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(e) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.
Section 10.23 Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the
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Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b) As used in this Section 10.23, the following terms have the following meanings:
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
Section 10.24 Use of English Language.(a) This Agreement has been negotiated and executed in the English language, which such English language version shall be the original instrument and shall govern among the parties hereto. Except for any Notes and such documents required to be delivered in connection with the Effective Date or the Funding Date in a different language, all certificates, reports, notices and other documents and communications given or delivered pursuant to this Agreement (including any modifications or supplements hereto) shall be in the English language, or accompanied by an English translation thereof. Except in the case of (i) laws or official communications of Mexico, (ii) documents filed with any Governmental Authority in Mexico or (iii) corporate documents of the Borrower or any Guarantor, and (iv) any other document originally issued in a language other than English, the English language version of any such document shall for purposes of this Agreement, and absent manifest error, control the meaning of the matters set out therein; provided that, the Administrative Agent’s sole obligation in respect of any documents delivered in a language other than English (without limiting its obligations under any corresponding document in the English language) shall be to make such documents available to the Lenders on the Platform, and the Administrative Agent shall have no duties or obligations in respect of such documents.
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Section 10.25 Swiss Guarantee Limitation.(a) Any guarantee, indemnity or other obligation provided under this Agreement or any other Loan Document by a Swiss Guarantor shall be deemed not to be provided by such Swiss Guarantor to the extent that the same would constitute a breach of the financial assistance prohibitions under Swiss law. Under Swiss law, the following restrictions shall be applicable to each Swiss Guarantor:
(b) Any guarantee, indemnity or other obligation and liability by a Swiss Guarantor under this Agreement or any Loan Documents in relation to the obligations, undertakings, indemnities or liabilities of a Guarantor other than that Swiss Guarantor or any of its fully owned or controlled subsidiaries (the “Restricted Obligations”) shall be limited to the amount of that Swiss Guarantor’s Free Reserves Available for Distribution at the time payment is requested or the maximum amount permitted by Swiss law applicable at such time. Such limitations shall only apply to the extent it is a requirement under Applicable Law (including any case law) at the point in time payment is requested. Such limitation (as may apply from time to time or not) shall not free such Swiss Guarantor from payment obligations under this Agreement or any other Loan Documents in excess thereof, but merely postpone the payment date therefor until such times as payment is again permitted notwithstanding such limitation.
(c) For the purpose of this Section 10.25, “Free Reserves Available for Distribution” means an amount equal to the maximum amount in which the relevant Swiss Guarantor can make a dividend payment to its shareholder(s) (being the year to date balance sheet profit and any freely disposable equity available for this purpose, in each case in accordance with applicable Swiss law). The freely disposable equity represents, inter alia, but not by way of limitation, the total shareholder equity less the total of: (i) the aggregate share capital, (ii) the statutory reserves (including reserves for own shares and revaluations), to the extent such reserves cannot be transferred into unrestricted, distributable reserves, and (iii) any freely disposable equity that has to be blocked for any loans granted by the Swiss Guarantor to a direct or indirect shareholder or a direct or indirect subsidiary of such shareholder.
(d) As soon as reasonably practicable after having been requested to discharge a Restricted Obligation, the respective Swiss Guarantor shall provide the Administrative Agent with an interim statutory balance sheet audited by the statutory auditors of such Swiss Guarantor setting out the Free Reserves Available for Distribution and, promptly thereafter, pay the lesser of (i) the Restricted Obligation and (ii) the amount corresponding to the Free Reserves Available for Distribution or the maximum amount permitted by Swiss law applicable at the time payment is requested to the Administrative Agent (acting at the written direction of the Required Lenders) (save to the extent provided below).
(e) In case a Swiss Guarantor who must make a payment in respect of the Restricted Obligations under this Agreement or any other Loan Document is obliged to withhold Swiss withholding tax in respect of such payment, such Swiss Guarantor shall:
(i) if and to the extent required by Applicable Law in force at the relevant time:
| (1) | procure that such payments can be made without deduction of Swiss withholding tax, or with deduction of Swiss withholding tax at a reduced rate, by discharging the liability to such tax by notification (Meldeverfahren) pursuant to Applicable Law (including double tax treaties) rather than payment of the Tax; |
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| (2) | if the notification procedure (Meldeverfahren) pursuant to paragraph (1) above does not apply, deduct Swiss withholding tax at the rate of 35% (or such other rate as in force from time to time), or if the notification procedure (Meldeverfahren) pursuant to paragraph (1) above applies for a part of the Swiss withholding tax only, deduct Swiss withholding tax at the reduced rate resulting after the discharge of part of such Tax by notification under Applicable Law, from any payment made by it in respect of Restricted Obligations and promptly pay any such Taxes to the Swiss Federal Tax Administration; and |
| (3) | notify the Administrative Agent that such notification or, as the case may be, deduction has been made and provide evidence to the Administrative Agent that such a notification of the Swiss Federal Tax Administration has been made, or, as the case may be, that such Swiss withholding tax has been paid to the Swiss Federal Tax Administration; |
(ii) to the extent such deduction is made, not be required to make a gross-up, indemnify or otherwise hold harmless the Lenders for the deduction of the Swiss withholding tax notwithstanding anything to the contrary contained in the Loan Documents, unless grossing-up is permitted under the laws of Switzerland then in force and provided that this should not in any way limit any obligations of any non-Swiss Guarantors under the Loan Documents to indemnify the Lenders in respect of the deduction of the Swiss withholding tax.
(f) The Swiss Guarantor shall use all reasonable efforts to procure that any person which is entitled to a full or partial refund of any Swiss withholding tax paid pursuant to paragraph (d) above will, as soon as possible after the deduction of the Swiss withholding tax: (i) request a refund of the Swiss withholding tax under any Applicable Law (including double taxation treaties) and (ii) pay to the Administrative Agent upon receipt any amount so refunded. The Administrative Agent (acting at the written direction of the Required Lenders) shall take all reasonable steps to cooperate with the Swiss Guarantor to secure such refund.
(g) In case the proceeds irrevocably received by the Administrative Agent and any Lender pursuant to paragraph (e)(ii) above have the effect that the proceeds received by the Administrative Agent and any Lender exceed the amount of obligations guaranteed by the relevant Swiss Guarantor, then the Administrative Agent (acting at the written direction of the Required Lenders) or the relevant Lender, as the case may be, shall promptly return such overcompensation to the relevant Swiss Guarantor.
(h) The Swiss Guarantor will take, and cause to be taken, as soon as reasonably practicable, all and any other action, including, without limitation, the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Document and the receipt of any confirmations from the Swiss Guarantor’s auditors, whether following a request to discharge a Restricted Obligation or which may be required as a matter of mandatory Swiss law in force at the time it is required to make a payment or perform other obligations under this Agreement or any other Loan Document in order to allow a prompt payment of amounts owed by the Swiss Guarantor or the prompt performance of other obligations under this Agreement or any other Loan Document.
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(i) If the enforcement of the Restricted Obligations would be limited due to the effects referred to in this Section 10.25 and if any asset of the Swiss Guarantor has a book value that is less than its market value (an “Undervalued Asset”), the Swiss Guarantor shall, to the extent permitted by Applicable Law and its accounting standards, (i) write up the book value of such Undervalued Asset such that its balance sheet reflects a book value that is equal to the market value of such Undervalued Asset, and (ii) make reasonable efforts to realize the Undervalued Asset for a sum which is at least equal to the market value of such asset. Without prejudice to the rights of the Administrative Agent under this Agreement or any other Loan Document, the Swiss Guarantor will only be required to realize an Undervalued Asset if such asset is not necessary for the Swiss Guarantor’s business (nicht betriebsnotwendig).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
| CEMEX, S.A.B. de C.V. | ||
| By: | /s/ Fernando José Reiter Landa | |
| Name: Fernando José Reiter Landa | ||
| Title: Attorney in Fact | ||
[Signature Page to CEMEX, S.A.B. de C.V. Credit Agreement]
| BBVA México, S.A., Institución de Banca Múltiple, Grupo Financiero BBVA México, | ||
| as Administrative Agent | ||
| By: | /s/ Juan German Voss | |
| Name: Juan German Voss | ||
| Title: Attorney in Fact | ||
| By: | /s/ Alfonso Lorenzo Lopez Ibor Jaume | |
| Name: Alfonso Lorenzo Lopez Ibor Jaume | ||
| Title: Attorney in Fact | ||
[Signature Page to CEMEX, S.A.B. de C.V. Credit Agreement]
| BBVA México, S.A., Institución de Banca Múltiple, Grupo Financiero BBVA México, | ||
| as the Sustainability Structuring Agent | ||
| By: | /s/ Juan German Voss | |
| Name: Juan German Voss | ||
| Title: Attorney in Fact | ||
| By: | /s/ Alfonso Lorenzo Lopez Ibor Jaume | |
| Name: Alfonso Lorenzo Lopez Ibor Jaume | ||
| Title: Attorney in Fact | ||
[Signature Page to CEMEX, S.A.B. de C.V. Credit Agreement]
| BBVA MÉXICO, S.A., INSTITUCIÓN DE BANCA MÚLTIPLE, GRUPO FINANCIERO BBVA MÉXICO, | ||
| as a Lender and Lead Arranger | ||
| By: | /s/ Juan German Voss | |
| Name: Juan German Voss | ||
| Title: Attorney in Fact | ||
| By: | /s/ Alfonso Lorenzo Lopez Ibor Jaume | |
| Name: Alfonso Lorenzo Lopez Ibor Jaume | ||
| Title: Attorney in Fact | ||
[Signature Page to CEMEX, S.A.B. de C.V. Credit Agreement]
| BNP PARIBAS, as a Lender and Lead Arranger | ||
| By: | /s/ Julien Pecoud-Bouvet | |
| Name: Julien Pecoud-Bouvet | ||
| Title: Director | ||
| By: | /s/ Karim Remtoula | |
| Name: Karim Remtoula | ||
| Title: Vice President | ||
[Signature Page to CEMEX, S.A.B. de C.V. Credit Agreement]
| CITIGROUP GLOBAL MARKETS INC. | ||
| as Lead Arranger | ||
| By: | /s/ Adrian Guzzoni | |
| Name: Adrian Guzzoni | ||
| Title: Managing Director Latin America Syndicated Loans | ||
[Signature Page to CEMEX, S.A.B. de C.V. Credit Agreement]
| CITIBANK N.A., | ||
| as a Lender | ||
| By: | /s/ Adrian Guzzoni | |
| Name: Adrian Guzzoni | ||
| Title: Managing Director Latin America Syndicated Loans | ||
[Signature Page to CEMEX, S.A.B. de C.V. Credit Agreement]
| MIZUHO BANK LTD., as a Lender and Lead Arranger | ||
| By: | /s/ Thomas A. McCullough | |
| Name: Thomas A. McCullough | ||
| Title: Executive Director | ||
[Signature Page to CEMEX, S.A.B. de C.V. Credit Agreement]
| BANK OF AMERICA, N.A., as a Lender | ||
| By: | /s/ Gonzalo Isaacs | |
| Name: Gonzalo Isaacs | ||
| Title: Managing Director | ||
[Signature Page to CEMEX, S.A.B. de C.V. Credit Agreement]
| CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender | ||
| By: | /s/ Jill Wong | |
| Name: Jill Wong | ||
| Title: Director | ||
| By: | /s/ Gordon Yip | |
| Name: Gordon Yip | ||
| Title: Director | ||
[Signature Page to CEMEX, S.A.B. de C.V. Credit Agreement]
| ING BANK N.V., DUBLIN BRANCH, as a Lender and Lead Arranger | ||
| By: | /s/ Padraig Matthew | |
| Name: Padraig Matthew | ||
| Title: Director | ||
| By: | /s/ Sean Hasset | |
| Name: Sean Hasset | ||
| Title: Director | ||
[Signature Page to CEMEX, S.A.B. de C.V. Credit Agreement]
| INTESA SANPAOLO S.P.A., NEW YORK BRANCH, | ||
| as a Lender and Lead Arranger | ||
| By: | /s/ Javier Richard Cook | |
| Name: Javier Richard Cook | ||
| Title: Managing Director | ||
| By: | /s/ Jennifer Feldman Facciola | |
| Name: Jennifer Feldman Facciola | ||
| Title: Business Director | ||
[Signature Page to CEMEX, S.A.B. de C.V. Credit Agreement]
| SOCIÉTÉ GÉNÉRAL, as a Lender | ||
| By: | /s/ Henry Schwarz | |
| Name: Henry Schwarz | ||
| Title: Director | ||
[Signature Page to CEMEX, S.A.B. de C.V. Credit Agreement]
| THE BANK OF NOVA SCOTIA, as a Lender | ||
| By: | /s/ Mauricio Maldonado | |
| Name: Mauricio Maldonado | ||
| Title: Director, International Banking | ||
[Signature Page to CEMEX, S.A.B. de C.V. Credit Agreement]
| JPMORGAN CHASE BANK, N.A., as a Lender | ||
| By: | /s/ Christophe Vohmann | |
| Name: Christophe Vohmann | ||
| Title: Executive Director | ||
[Signature Page to CEMEX, S.A.B. de C.V. Credit Agreement]
Exhibit 8.1
The following is a list of subsidiaries of CEMEX, S.A.B. de C.V. as of December 31, 2022, including the name of each subsidiary and its country of incorporation.
| 1 | Alliera, S.A. de C.V. | Mexico | ||
| 2 | BIM Infraestructura, S.A. de C.V. | Mexico | ||
| 3 | CEMEX Concretos, S.A. de C.V. | Mexico | ||
| 4 | CEMEX Energía S.A.P.I. de C.V. | Mexico | ||
| 5 | CEMEX Internacional, S.A. de C.V. | Mexico | ||
| 6 | CEMEX Operaciones México, S.A. de C.V. | Mexico | ||
| 7 | CEMEX Transporte, S.A. de C.V. | Mexico | ||
| 8 | CEMEX Vivienda, S.A. de C.V. | Mexico | ||
| 9 | Comercializadora Construrama, S.A. de C.V. | Mexico | ||
| 10 | Construrama Supply, S.A. de C.V. | Mexico | ||
| 11 | Inmobiliaria Ferri, S.A. de C.V. | Mexico | ||
| 12 | Menkent, S. de R.L. de C.V. | Mexico | ||
| 13 | Mercis, S.A. de C.V. | Mexico | ||
| 14 | Pro Ambiente, S.A. de C.V. | Mexico | ||
| 15 | Proveedora Mexicana de Materiales, S.A. de C.V. | Mexico | ||
| 16 | Servicios Para La Autoconstrucción, S.A. de C.V. | Mexico | ||
| 17 | Servicios Profesionales Cemex, S.A. de C.V. | Mexico | ||
| 18 | Servicios Promexma, S.A. de C.V. | Mexico | ||
| 19 | Sinergia Deportiva, S.A. de C.V. | Mexico | ||
| 20 | TEG Energía, S.A. de C.V. | Mexico | ||
| 21 | ALC Las Vegas Mining Claims, LLC | USA | ||
| 22 | Arkik USA Inc. | USA | ||
| 23 | Cement Transit Company | USA | ||
| 24 | CEMEX Admix USA, LLC | USA | ||
| 25 | CEMEX AM Holdings, LLC | USA | ||
| 26 | CEMEX Caribbean, LLC | USA | ||
| 27 | CEMEX Cement of Louisiana, Inc. | USA | ||
| 28 | CEMEX Construction Materials Atlantic, LLC | USA | ||
| 29 | CEMEX Construction Materials Florida, LLC | USA | ||
| 30 | CEMEX Construction Materials Houston, LLC | USA | ||
| 31 | CEMEX Construction Materials Pacific, LLC | USA | ||
| 32 | CEMEX Construction Materials South, LLC | USA | ||
| 33 | CEMEX Corp. | USA | ||
| 34 | CEMEX Finance LLC | USA | ||
| 35 | CEMEX Global Sourcing, Inc. | USA | ||
| 36 | CEMEX Holdings, Inc. | USA | ||
| 37 | CEMEX International Trading LLC | USA | ||
| 38 | CEMEX Leasing LLC | USA | ||
| 39 | CEMEX Materials, LLC | USA | ||
| 40 | CEMEX Nevada, LLC | USA | ||
| 41 | CEMEX NY Corporation | USA | ||
| 42 | CEMEX Southeast Holdings LLC | USA | ||
| 43 | CEMEX Southeast LLC | USA | ||
| 44 | CEMEX Steel Framing, Inc. | USA | ||
| 45 | CEMEX SW Florida Limestone Holdings, LLC | USA | ||
| 46 | CEMEX SW Florida Sand Holdings, LLC | USA | ||
| 47 | CEMEX, Inc. | USA | ||
| 48 | Guernsey Stone Co. | USA | ||
| 49 | Hogan Island Limestone, LLC | USA | ||
| 50 | Immokalee Sand, LLC | USA | ||
| 51 | Interamerican Investments, Inc. | USA | ||
| 52 | Louisville Cement Assets Transition Company | USA | ||
| 53 | LV Western Mining Claims, LLC | USA | ||
| 54 | MILI, L.L.C. | USA | ||
| 55 | Mineral Resource Technologies, Inc. | USA | ||
| 56 | New Line Transport, LLC | USA | ||
| 57 | OXI, L.L.C. | USA | ||
| 58 | Ready Mix USA, LLC | USA | ||
| 59 | Readymix Materials Holdings, LLC | USA | ||
| 60 | RMC Pacific Materials, LLC | USA | ||
| 61 | Sunbelt Investments Inc. | USA | ||
| 62 | Twin Mountain Rock Company | USA | ||
| 63 | VAPPS, LLC | USA | ||
| 64 | Western Equipment Co. | USA | ||
| 65 | CEMEX Argentina, S.A. | Argentina | ||
| 66 | Sunbulk Shipping Limited | Barbados | ||
| 67 | Apollo Re Ltd. | Barbados | ||
| 68 | Arawak Cement Company Limited | Barbados | ||
| 69 | Cemex LAN Trading Corporation | Barbados | ||
| 70 | Falcon Re Ltd. | Barbados | ||
| 71 | Torino Re Ltd. | Barbados | ||
| 72 | Mustang Re Limited | Bermuda | ||
| 73 | CEMEX Colombia S.A. | Colombia | ||
| 74 | Cemex Premezclados de Colombia S.A. | Colombia | ||
| 75 | Cemex Transportes de Colombia S.A. | Colombia | ||
| 76 | Central de Mezclas S.A. | Colombia | ||
| 77 | ZONA FRANCA ESPECIAL CEMENTERA DEL MAGDALENA MEDIO S.A.S. (ZOMAM S.A.S.) | Colombia | ||
| 78 | CEMEX Dominicana, S.A. | Dominican Republic | ||
| 79 | Cementos de Centroamérica, S.A. | Guatemala | ||
| 80 | Cemex Guatemala, S.A. | Guatemala | ||
| 81 | TCL Guyana Inc. | Guyana | ||
| 82 | CEMEX Haití, S.A. | Haiti | ||
| 83 | CEMEX Jamaica Limited | Jamaica | ||
| 84 | Caribbean Cement Company Limited | Jamaica | ||
| 85 | CEMEX Nicaragua, S.A. | Nicaragua | ||
| 86 | Inversiones Secoya, Sociedad Anónima | Nicaragua | ||
| 87 | Cemento Bayano, S.A. | Panama | ||
| 88 | Pavimentos Especializados, S.A. | Panama | ||
| 89 | SUPERQUIMICOS DE CENTROAMERICA, S. A. | Panama | ||
| 90 | CEMEX Perú, S.A. | Peru | ||
| 91 | Cemex de Puerto Rico Inc. | Puerto Rico | ||
| 92 | CEMEX Imports, Inc. | Puerto Rico | ||
| 93 | Trinidad Cement Limited | Trinidad and Tobago | ||
| 94 | CEMEX Hrvatska d.d. | Croatia | ||
| 95 | CEMEX Czech Republic, s.r.o. | Czech Republic | ||
| 96 | CEMEX Denmark ApS | Denmark | ||
| 97 | Cemex France Gestion (Societe Par Actions Simplifiee) | France | ||
| 98 | CEMEX Deutschland AG | Germany | ||
| 99 | Cemex Luxembourg Holdings S.a.r.l. | Luxembourg | ||
| 100 | CEMEX Polska Sp. z.o.o. | Poland | ||
| 101 | CEMEX España, S.A. | Spain | ||
| 102 | CEMEX ESPAÑA OPERACIONES, S.L.U. | Spain | ||
| 103 | CEMEX LatamATAM HOLDINGS Holdings, S.A. | Spain | ||
| 104 | CCL BUSINESS HOLDINGS, S.L.U. (Sociedad Unipersonal) | Spain | ||
| 105 | Cemex Innovation Holding Ltd. | Switzerland | ||
| 106 | Cemex Africa & Middle East Investments B.V. | The Netherlands | ||
| 107 | Cemex Asia B.V. | The Netherlands | ||
| 108 | Cemex Finance Latam B.V. | The Netherlands | ||
| 109 | CEMEX Ventures B.V. | The Netherlands | ||
| 110 | CxNetworks N.V. | The Netherlands | ||
| 111 | Lomez International B.V. | The Netherlands | ||
| 112 | RMC Holdings B.V. | The Netherlands | ||
| 113 | CEMEX UK | UK | ||
| 114 | CEMEX Investments Limited | UK | ||
| 115 | CEMEX Paving Solutions Limited | UK | ||
| 116 | CEMEX UK Cement Limited | UK | ||
| 117 | CEMEX UK Marine Limited | UK | ||
| 118 | CEMEX UK Materials Limited | UK | ||
| 119 | CEMEX UK Operations Limited | UK | ||
| 120 | CEMEX UK Properties Limited | UK | ||
| 121 | CEMEX UK Services Limited | UK | ||
| 122 | Mineral And Energy Resources (UK) Limited | UK | ||
| 123 | RMC Explorations Ltd | UK | ||
| 124 | RMC Russell Ltd | UK | ||
| 125 | The Rugby Group Ltd | UK | ||
| 126 | APO Cement Corporation | The Philippines | ||
| 127 | CEMEX Holdings Philippines, Inc. | The Philippines | ||
| 128 | Solid Cement Corporation | The Philippines | ||
| 129 | CEMEX ASIAN SOUTHEAST CORPORATION | The Philippines | ||
| 130 | CEMEX Asia Holdings Ltd. | Singapore | ||
| 131 | Assiut Cement Company | Egypt | ||
| 132 | CEMEX Holdings (Israel) Ltd. | Israel | ||
| 133 | Chemocrete Ltd. | Israel | ||
| 134 | Lime & Stone Production Company Ltd. | Israel | ||
| 135 | Readymix Industries (Israel) Ltd. | Israel | ||
| 136 | Kadmani Readymix Concrete Ltd. | Israel | ||
| 137 | Cemex Supermix L.L.C. | United Arab Emirates | ||
| 138 | Cemex Topmix L.L.C. | United Arab Emirates | ||
| 139 | Cemex Falcon L.L.C. | United Arab Emirates | ||
Exhibit 12.1
Certification of the Principal Executive Officer of
CEMEX, S.A.B. de C.V.
Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
CERTIFICATIONS
I, Fernando Ángel González Olivieri, certify that:
| 1. | I have reviewed this annual report on Form 20-F of CEMEX, S.A.B. de C.V.; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report; |
| 4. | The company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have: |
| (a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
| (b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
| (c) | Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
| (d) | Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and |
| 5. | The company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions): |
| (a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and |
| (b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting. |
Date: April 28, 2023
| By: | /s/ Fernando Ángel González Olivieri | |
| Fernando Ángel González Olivieri | ||
| Chief Executive Officer | ||
| CEMEX, S.A.B. de C.V. |
2
Exhibit 12.2
Certification of the Principal Financial Officer of
CEMEX, S.A.B. de C.V.
Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
CERTIFICATIONS
I, Maher Al-Haffar, certify that:
| 1. | I have reviewed this annual report on Form 20-F of CEMEX, S.A.B. de C.V.; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report; |
| 4. | The company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have: |
| (a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
| (b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
| (c) | Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
| (d) | Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and |
| 5. | The company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions): |
| (a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and |
| (b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting. |
Date: April 28, 2023
| By: | /s/ Maher Al-Haffar | |
| Maher Al-Haffar, | ||
| Executive Vice President of Finance and | ||
| Chief Financial Officer | ||
| CEMEX, S.A.B. de C.V. |
2
Exhibit 13.1
Certification of the Principal Executive and Financial Officers of
CEMEX, S.A.B. de C.V.
Pursuant to 18 U.S.C. Section 1350,
as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Annual Report on Form 20-F of CEMEX, S.A.B. de C.V. (the “Company”) for the year ended December 31, 2022, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), Fernando Ángel González Olivieri, as Chief Executive Officer of the Company, and Maher Al-Haffar, as Executive Vice President of Finance and Chief Financial Officer of the Company, each hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of his knowledge:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company as of the dates and periods set forth therein.
| By: | /s/ Fernando Ángel González Olivieri | |
| Name: | Fernando Ángel González Olivieri | |
| Title: | Chief Executive Officer | |
| Date: | April 28, 2023 | |
| By: | /s/ Maher Al-Haffar | |
| Name: | Maher Al-Haffar | |
| Title: | Executive Vice President of Finance and Chief Financial Officer | |
| Date: | April 28, 2023 | |
This certification is furnished as an exhibit to the Report and accompanies the Report pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and shall not be deemed filed by the Company for purposes of Section 18 of the Securities Exchange Act of 1934, as amended.
Exhibit 14.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the registration statements (Nos. 333-83962, 333-86090, and 333-128657) on Form S-8 of our reports dated April 28, 2023, with respect to the consolidated financial statements of CEMEX, S.A.B. de C.V. and subsidiaries and the effectiveness of internal control over financial reporting).
/s/ KPMG Cárdenas Dosal, S.C.
Monterrey, Nuevo León, México
April 28, 2023
Exhibit 15.1
Disclosure of Mine Safety and Health Administration (“MSHA”) Safety Data
Section 1503(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) requires certain disclosures by companies required to file periodic reports under the Securities Exchange Act of 1934 that operate mines regulated under the Mine Act. CEMEX’s U.S. quarry and mining operations are subject to MSHA regulation under the U.S. Federal Mine Safety and Health Act of 1977 (the “Mine Act”). MSHA inspects the Company’s quarries and mines on a regular basis and issues various citations and orders when it believes a violation has occurred under the Mine Act. Whenever MSHA issues a citation or order, it also generally proposes a civil penalty, or fine, related to the alleged violation. Citations or orders can be contested and appealed, and as part of that process, are often reduced in severity and amount, and are sometimes dismissed or vacated.
In January 2012, the SEC issued final rules and regulations implementing the mine safety disclosure requirements of Section 1503(a) of the Dodd-Frank Act. Pursuant to those rules and regulations, we have provided the information below for mining operations in the United States only. The Dodd-Frank Act and the implementing rules and regulations thereunder do not apply to mining and quarry operations outside the U.S.
The information in the table below reflects citations and orders MSHA issued to various U.S. subsidiaries of the Company during the year ended December 31, 2022. The data was compiled primarily from the data maintained on MSHA’s public website, the Mine Data Retrieval System (“MDRS”), as of February 2, 2022. In evaluating this information, consideration should also be given to factors such as: (i) the number of citations and orders may vary depending on the size and operation of the mine, (ii) the number of citations issued may vary from inspector to inspector and mine to mine, and (iii) citations and orders may be contested and appealed, and in that process, may be reduced in severity and amount, and may be dismissed or vacated.
| Mine ID number(1) |
Mine or Operating Name |
Section 104 Significant and Substantial Citations (2) |
Section 104(b) Orders (3) |
Section 104(d) Citations and Orders (4) |
Section 110(b)(2) Violations (5) |
Section 107(a) Orders (6) |
Total dollar value of MSHA assessments proposed (7) |
Total number of Mining Related Fatalities |
Received Notice of Pattern of Violations Under Section 104(e) yes/no |
Received Notice of Potential to Have Pattern under section 104(e) yes/no | ||||||||||
| 0800078 | Alico Road Quarry | 0 | 0 | 0 | 0 | 0 | 266 | 0 | no | no | ||||||||||
| 4102885 | Balcones Plant | 5 | 0 | 0 | 0 | 0 | 58,534 | 0 | no | no | ||||||||||
| 4100994 | Balcones Quarry | 3 | 0 | 0 | 0 | 0 | 13,821 | 0 | no | no | ||||||||||
| 0405701 | Black Mountain Quarry | 15 | 1 | 0 | 0 | 0 | 59,610 | 0 | no | no | ||||||||||
| 0800024 | Brooksville Quarry | 10 | 0 | 2 | 0 | 0 | 181,226 | 0 | no | no | ||||||||||
| 0801287 | Brooksville South Cement Plant | 59 | 2 | 5 | 0 | 1 | 533,920 | 0 | no | no | ||||||||||
| 0103539 | Brierfield | 0 | 0 | 0 | 0 | 0 | 421 | 0 | no | no | ||||||||||
| 0402763 | Cache Creek Quarry | 1 | 0 | 0 | 0 | 0 | 17387 | 0 | no | no | ||||||||||
| 0200988 | CEMEX - 19th Ave | 0 | 0 | 0 | 0 | 0 | 133 | 0 | no | no | ||||||||||
| 0200758 | CEMEX - Bullhead | 3 | 0 | 0 | 0 | 0 | 7875 | 0 | no | no | ||||||||||
| 0202606 | CEMEX - Camp Verde | 0 | 0 | 0 | 0 | 0 | 133 | 0 | no | no | ||||||||||
| 0200717 | CEMEX – Casa Grande | 0 | 0 | 0 | 0 | 0 | 399 | 0 | no | no | ||||||||||
| 0202851 | CEMEX - Gray Mountain | 0 | 0 | 0 | 0 | 0 | 1072 | 0 | no | no | ||||||||||
| 2600789 | CEMEX - Paiute Pit | 0 | 0 | 0 | 0 | 0 | 3465 | 0 | no | no | ||||||||||
| 0202849 | CEMEX - Prescott / Fain | 0 | 0 | 0 | 0 | 0 | 399 | 0 | no | no | ||||||||||
| 0201037 | CEMEX – West Plant #72 | 0 | 0 | 0 | 0 | 0 | 532 | 0 | no | no | ||||||||||
| 0202753 | CEMEX – West Valley | 0 | 0 | 0 | 0 | 0 | 316 | 0 | no | no |
| Mine ID number(1) |
Mine or Operating Name |
Section 104 Significant and Substantial Citations (2) |
Section 104(b) Orders (3) |
Section 104(d) Citations and Orders (4) |
Section 110(b)(2) Violations (5) |
Section 107(a) Orders (6) |
Total dollar value of MSHA assessments proposed (7) |
Total number of Mining Related Fatalities |
Received Notice of Pattern of Violations Under Section 104(e) yes/no |
Received Notice of Potential to Have Pattern under section 104(e) yes/no | ||||||||||
| 4104827 | Chico Quarry | 1 | 0 | 0 | 0 | 0 | 5254 | 0 | no | no | ||||||||||
| 0400173 | Clayton Plant | 0 | 0 | 0 | 0 | 0 | 449 | 0 | no | no | ||||||||||
| 0900053 | Clinchfield Plant | 11 | 0 | 0 | 0 | 0 | 188,311 | 0 | no | no | ||||||||||
| 0100016 | Demopolis Plant Cemex Inc | 6 | 0 | 0 | 0 | 1 | 78,925 | 0 | no | no | ||||||||||
| 0401891 | Eliot Plant | 11 | 1 | 0 | 0 | 0 | 27694 | 0 | no | no | ||||||||||
| 0800519 | FEC Quarry | 1 | 0 | 0 | 0 | 0 | 1555 | 0 | no | no | ||||||||||
| 0801308 | Gator Sand Mine | 0 | 0 | 0 | 0 | 0 | 133 | 0 | no | no | ||||||||||
| 4000840 | Knoxville Cement Plant | 15 | 0 | 0 | 0 | 0 | 8825 | 1 | no | no | ||||||||||
| 0801015 | Krome Quarry | 0 | 0 | 0 | 0 | 0 | 266 | 0 | no | no | ||||||||||
| 0801269 | Lake Wales Sand Mine | 0 | 0 | 0 | 0 | 0 | 266 | 0 | no | no | ||||||||||
| 0402843 | Lapis Plant | 9 | 1 | 0 | 0 | 1 | 15833 | 0 | no | no | ||||||||||
| 0500344 | Lyons Cement Plant Cemex Inc | 15 | 2 | 0 | 0 | 0 | 196,832 | 0 | no | no | ||||||||||
| 0405216 | Lytle Creek Pit | 1 | 0 | 0 | 0 | 0 | 2739 | 0 | no | no | ||||||||||
| 0800046 | Miami Cement Plant | 5 | 0 | 0 | 0 | 0 | 29,031 | 0 | no | no | ||||||||||
| 0404140 | Moorpark Quarry | 0 | 0 | 0 | 0 | 0 | 421 | 0 | no | no | ||||||||||
| 0801216 | Palmdale Sand Mine | 1 | 0 | 0 | 0 | 0 | 1079 | 0 | no | no | ||||||||||
| 0401897 | Rockfield Plant | 0 | 0 | 0 | 0 | 0 | 549 | 0 | no | no | ||||||||||
| 0400281 | Victorville Cement Plant | 3 | 0 | 0 | 0 | 0 | 5242 | 0 | no | no |
| (1) | The definition of a mine under section 3 of the Mine Act includes the mine, as well as other items used in, or to be used in, or resulting from, the work of extracting minerals, such as land, structures, facilities, equipment, machines, and tools. MSHA assigns an identification number to each mine or operation and may or may not assign a separate identification number to related facilities. The information provided in this table is presented by mine identification number. |
| (2) | Represents the total number of citations issued by MSHA for violation of health or safety standards that could significantly and substantially contribute to a serious injury if left unabated. It should be noted that for purposes of this table, S&S citations that are included in another column, such as Section 104(b) citations, are not also included as Section 104 S&S citations in this column. |
| (3) | Represents the total number of orders issued, which represents a failure to abate a citation under section 104(a) within the period prescribed by MSHA. This results in an order of immediate withdrawal from the area of the mine affected by the condition until MSHA determines that the violation has been abated. |
| (4) | Represents the total number of citation and orders issued by MSHA for unwarrantable failure to comply with mandatory health or safety standards. |
| (5) | Represents the total number of flagrant violations identified. |
| (6) | Represents the total number of imminent danger orders issued under section 107(a) of the Mine Act. |
(7) Amounts represent the total dollar value of proposed assessments received from MSHA on the MDRS and do not necessarily relate to the citations or orders issued by MSHA during the period or to the pending or resolved legal actions reported below. Specific orders or citations may not have had proposed assessments on the MDRS as of the date identified above, and as a result, those citations or orders not yet assessed are not included in this column.
The table below sets forth the total number of reportable legal actions for the twelve months ended December 31, 2022.
| Mine ID Number |
Mine or Operating Name |
Legal Actions Pending as of Last Day of Period (#)(8) |
Legal Actions Initiated During Period (#) |
Legal Actions Resolved During Period (#) | ||||||||||||||
| Contests of Citations / Orders (9) |
Contests of Proposed Penalties (9) |
Complaints for Compensation |
Complaints of Discharge / Discrimination / Interference |
Application for Temporary Relief |
Appeals to FMSHRC | |||||||||||||
| 4100994 |
Balcones Quarry | 0 | 0 | 0 | 0 | 0 | 0 | 3 | 9 | |||||||||
| 4102885 |
Balcones Plant | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 8 | |||||||||
| 0801287 |
Brooksville South Cement Plant | 62 | 62 | 0 | 0 | 0 | 0 | 62 | 0 | |||||||||
| 0800024 |
Brooksville Quarry | 3 | 3 | 0 | 0 | 0 | 0 | 6 | 3 | |||||||||
| (8) | Pending legal actions before the Federal Mine Safety and Health Review Commission (the “Commission”) as required to be reported by Section 1503(a)(3) of the Dodd-Frank Act. This data represents legal action activity as derived from the MDRS on the date identified above |
The following provides additional information regarding the types or categories of proceedings that may be brought before the Commission.
| A | Contest Proceedings - a contest proceeding may be filed with the Commission by an operator to challenge the issuance of a citation or order issued by MSHA; |
| B | Civil Penalty Proceedings - a civil penalty proceeding may be filed with the Commission by an operator to challenge a civil penalty MSHA has proposed for a violation contained in a citation or order; |
| C | Compensation Proceedings - a compensation proceeding may be filed with the Commission by miners entitled to compensation when a mine is closed by certain closure orders issued by MSHA. The purpose of the proceeding is to determine the amount of compensation if any, due to miners idled by the orders; |
| D (i) | Discrimination Proceedings – a discrimination proceeding involves a miner’s allegation that he or she has suffered adverse employment action because he or she engaged in activity protected under the Mine Act, such as making a safety complaint; |
| (ii) | Temporary Reinstatement Proceedings – a temporary reinstatement proceeding involves a case in which a miner has filed a complaint with MSHA stating that he or she has suffered discrimination and the miner has lost his or her position; |
| E | Applications for Temporary Relief-applications for temporary relief of any order issued under Section 104; and |
| F | Appeals of judges’ decisions or orders to the FMSHRC. |
| (9) | Contests pending as of year-end on the MDRS, but which are subsequently vacated, are not included in any reports on the MDRS. As a result, discrepancies may appear between the prior reporting year’s “Legal Actions Pending as of Last Day of Period” and “Legal Actions Resolved During Year” for current reporting period. |