Registration No. 333 -
As filed with the Securities and Exchange Commission on September 8, 2009
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM F-6
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933 FOR AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS
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CEMEX, S.A.B. de C.V.
(Exact name of issuer of deposited securities as specified in its charter)
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CEMEX Corp.
(Translation of issuer's name into English)
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United Mexican States
(Jurisdiction of incorporation or organization of issuer)
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CITIBANK, N.A.
(Exact name of depositary as specified in its charter)
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399 Park Avenue
New York, New York 10043
(212) 816-6690
(Address, including zip code, and telephone number, including area code, of
depositary's principal executive offices)
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Corporate Creations Network, Inc.
1040 Avenue of the Americas # 2400
New York, NY 10018
(845) 510-9655
(Address, including zip code, and telephone number, including area code, of
agent for service)
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Copies to:
Robert M. Chilstrom, Esq. Herman H. Raspe, Esq.
Skadden Arps, Slate, Patterson Belknap Webb & Tyler LLP
Meagher & Flom LLP 1133 Avenue of the Americas
Four Times Square New York, New York 10036
New York, New York 10036
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It is proposed that this filing become effective under Rule 466:
|X| immediately upon filing.
|_| on (Date) at (Time).
If a separate registration statement has been filed to register the deposited
shares, check the following box: |X|
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Each Class of Amount to be Aggregate Price Aggregate Offering Amount of
Securities to be Registered Registered Per Unit* Price** Registration Fee
- -------------------------------------- --------------------- -------------------- --------------------- ---------------------
American Depositary Shares, each 400,000,000 $5.00 $20,000,000 $1,116.00
representing ten (10) CPOs, each
CPO representing economic interests
in two (2) Series A Shares and one
(1) Series B Share in each case held
in the CPO Trust of CEMEX, S.A.B. de
C.V.
- -----------------------------------------------------------------------------------------------------------------------------
* Each unit represents 100 American Depositary Shares.
** Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(k), such estimate is computed on the basis of the
maximum aggregate fees or charges to be imposed in connection with the
issuance of American Depositary Shares.
This Registration Statement may be executed in any number of
counterparts, each of which shall be deemed an original, and all
of such counterparts together shall constitute one and the same
instrument.
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PART I
INFORMATION REQUIRED IN PROSPECTUS
Cross Reference Sheet
Item 1. DESCRIPTION OF SECURITIES TO BE REGISTERED
Location in Form of Receipt
Item Number and Caption Filed Herewith as Prospectus
- ----------------------- ----------------------------
1. Name of Depositary and address of its principal executive Face of Receipt - Introductory Article.
office
2. Title of Receipts and identity of deposited securities Face of Receipt - Top Center and Introductory
paragraph.
Terms of Deposit:
(i) The amount of deposited securities represented by Face of Receipt - Upper right corner.
one American Depositary Share ("ADSs")
(ii) The procedure for voting, if any, the deposited Reverse of Receipt - Paragraphs (14), (17)
securities and (18).
(iii) The collection and distribution of dividends Reverse of Receipt - Paragraph (14), (15) and (17).
(iv) The transmission of notices, reports and proxy Face of Receipt - Paragraph (13);
soliciting material Reverse of Receipt - Paragraphs (16) and (17).
(v) The sale or exercise of rights Reverse of Receipt - Paragraphs (14), (15)
and (16).
(vi) The deposit or sale of securities resulting from Face of Receipt - Paragraphs (3) and (6);
dividends, splits or plans of reorganization Reverse of Receipt - Paragraphs (15) and (19).
(vii) Amendment, extension or termination of the deposit Reverse of Receipt - Paragraphs (22), (23) and
agreement (24) (no provision for extensions).
(viii) Rights of holders of Receipts to inspect the Face of Receipt - Paragraph (13).
transfer books of the Depositary and the list of
holders of ADSs
(ix) Restrictions upon the right to deposit or withdraw Face of Receipt - Paragraphs (2), (3), (4), (6),
the underlying securities (7), (9) and (10).
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Location in Form of Receipt
Item Number and Caption Filed Herewith as Prospectus
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(x) Limitation upon the liability of the Depositary Face of Receipt - Paragraph (7);
Reverse of Receipt - Paragraphs (20) and (21).
3. Fees and charges which may be imposed directly or Face of Receipt - Paragraph (10).
indirectly on holders of ADSs
Item 2. AVAILABLE INFORMATION Face of Receipt - Paragraph (13).
The Company is subject to the periodic reporting requirements of the
United States Securities Exchange Act of 1934, as amended, and, accordingly,
files certain reports with, and submits certain reports to, the United States
Securities and Exchange Commission (the "Commission"). These reports can be
retrieved from the Commission's internet website (www.sec.gov), and can be
inspected and copied at the public reference facilities maintained by the
Commission at 100 F Street, N.E., Washington D.C. 20549.
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PROSPECTUS
The Prospectus consists of the proposed form of American
Depositary Receipt included as Exhibit A to Amendment No. 1 to
the Second Amended and Restated Deposit Agreement filed as
Exhibit (a)(i) to this Registration Statement on Form F-6 and is
incorporated herein by reference.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. EXHIBITS
(a)(i) Amendment No. 1 to the Second Amended and Restated Deposit
Agreement, dated as of July 1, 2005, by and among CEMEX, S.A.B.
de C.V. (the "Company"), Citibank, N.A., as Depositary (the
"Depositary"), and all Holders and Beneficial Owners from time to
time of American Depositary Shares ("ADSs") evidenced by American
Depositary Receipts ("ADRs") issued thereunder, including the
form of ADR attached thereto. -- Filed herewith as Exhibit
(a)(i).
(a)(ii) Second Amended and Restated Deposit Agreement, dated as of August
10, 1999, by and among the Company, the Depositary, and all
Holders and Beneficial Owners from time to time of ADSs evidenced
by ADRs issued thereunder. -- Previously filed and incorporated
by reference to the Registration Statement on Form F-6, Reg. No.
333-11338.
(a)(iii) Amended and Restated Deposit Agreement, dated as of March 29,
1999, by and among the Company, the Depositary and all Holders
and Beneficial Owners of ADRs issued thereunder -- Previously
filed and incorporated by reference to the Registration Statement
on Form F-6, Reg. No. 333-10678.
(b) Letter Agreement, dated October 12, 2007, by and between the
Company and the Depositary supplementing the Deposit Agreement to
enable the Depositary to establish a direct registration system
for the ADSs. -- Filed herewith as Exhibit (b).
(c) Every material contract relating to the deposited securities
between the Depositary and the issuer of the deposited securities
in effect at any time within the last three years. -- None.
(d) Opinion of Patterson Belknap Webb & Tyler LLP, counsel for the
Depositary as to the legality of the securities to be registered.
-- Filed herewith as Exhibit (d).
(e) Certificate under Rule 466. -- Filed herewith as Exhibit (e).
(f) Powers of Attorney for certain officers and directors and the
authorized representative of the Company. -- Set forth on the
signature pages hereto.
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Item 4. UNDERTAKINGS
(a) The Depositary undertakes to make available at the principal
office of the Depositary in the United States, for inspection by
holders of ADSs, any reports and communications received from the
issuer of the deposited securities which are both (1) received by
the Depositary as the holder of the deposited securities, and (2)
made generally available to the holders of the underlying
securities by the issuer.
(b) If the amount of fees charged is not disclosed in the prospectus,
the Depositary undertakes to prepare a separate document stating
the amount of any fee charged and describing the service for
which it is charged and to deliver promptly a copy of such fee
schedule without charge to anyone upon request. The Depositary
undertakes to notify each registered holder of an ADS thirty (30)
days before any change in the fee schedule.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Citibank, N.A., acting solely on behalf of the legal entity created by the
Second Amended and Restated Deposit Agreement, dated as of August 10, 1999, by
and among CEMEX, S.A.B. de C.V., Citibank, N.A., as depositary, and all Holders
and Beneficial Owners from time to time of American Depositary Shares evidenced
by American Depositary Receipts to be issued thereunder, as further amended and
supplemented, certifies that it has reasonable grounds to believe that all the
requirements for filing on Form F-6 are met and has duly caused this
Registration Statement on Form F-6 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on the 8th day of September, 2009.
Legal entity created by the Second Amended
and Restated Deposit Agreement, dated as of
August 10, 1999, as further amended and
supplemented, under which the American
Depositary Shares registered hereunder are
to be issued, each American Depositary Share
representing ten (10) CPOs, each CPO
representing economic interests in two (2)
Series A Shares and one (1) Series B Share,
in each case held in the CPO Trust of CEMEX,
S.A.B. de C.V.
CITIBANK, N.A., solely in its capacity as
Depositary
By: /s/ Thomas Crane
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Name: Thomas Crane
Title: Vice President
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form F-6, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Garza Garcia, Nuevo Leon, Mexico on September 8, 2009.
CEMEX, S.A.B. de C.V.
By: /s/ Ramiro Villarreal
----------------------------------------
Name: Ramiro Villarreal
Title: General Counsel
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POWERS OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, each person whose signature appears below
hereby constitutes and appoints each of Lorenzo H. Zambrano, Hector Medina,
Rodrigo Trevino, Ramiro Villarreal and Humberto Moreira or any of them, each
acting alone, his true and lawful attorney-in-fact and agent, with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
under the Securities Act and to sign any instrument, contract, document or other
writing of or in connection with this Registration Statement and any amendments
and supplements thereto (including post-effective amendments) and to file the
same, with all exhibits thereto, and other documents in connection therewith,
including this power of attorney, with the Securities and Exchange Commission
and any applicable securities exchange or securities self-regulatory body,
granting unto said attorneys-in-fact and agents, each acting alone, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, each acting alone, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registrant
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signatures Title Date
- ---------- ----- ----
/s/ Lorenzo H. Zambrano
- ------------------------------------------- Chief Executive Officer and Chairman September 8, 2009
Lorenzo H. Zambrano of the Board of Directors (Principal
Executive Officer)
/s/ Lorenzo Milmo Zambrano
- ------------------------------------------- Director September 8, 2009
Lorenzo Milmo Zambrano
/s/ Armando J. Garcia Segovia
- ------------------------------------------- Director September 8, 2009
Armando J. Garcia Segovia
- ------------------------------------------- Director September, 2009
Rodolfo Garcia Muriel
/s/ Rogelio Zambrano Lozano
- ------------------------------------------- Director September 8, 2009
Rogelio Zambrano Lozano
/s/ Roberto Zambrano Villarreal
- ------------------------------------------- Director September 8, 2009
Roberto Zambrano Villarreal
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Signatures Title Date
- ---------- ----- ----
/s/ Bernardo Quintana Isaac
- ------------------------------------------- Director September 8, 2009
Bernardo Quintana Isaac
/s/ Dionisio Garza Medina
- ------------------------------------------- Director September 8, 2009
Dionisio Garza Medina
/s/ Alfonso Romo Garza
- ------------------------------------------- Director September 8, 2009
Alfonso Romo Garza
/s/ Mauricio Zambrano Villarreal
- ------------------------------------------- Director September 8, 2009
Mauricio Zambrano Villarreal
/s/ Tomas Milmo Santos
- ------------------------------------------- Director September 8, 2009
Tomas Milmo Santos
/s/ Luis Santos de la Garza
- ------------------------------------------- Director September 8, 2009
Luis Santos de la Garza
/s/ Jose Manuel Rincon Gallardo
- ------------------------------------------- Director September 8, 2009
Jose Manuel Rincon Gallardo
/s/ Jose Antonio Fernandez Carbajal
- ------------------------------------------- Director September 8, 2009
Jose Antonio Fernandez Carbajal
/s/ Rafael Rangel Sostmann
- ------------------------------------------- Director September 8, 2009
Rafael Rangel Sostmann
/s/ Hector Medina
- ------------------------------------------- Executive Vice President of Finance September 8, 2009
Hector Medina and Legal
(Principal Financial Officer)
/s/ Rafael Garza
- ------------------------------------------- Senior Vice President September 8, 2009
Rafael Garza (Comptrollership)
/s/ Valerie Hawk
- ------------------------------------------- Authorized Representative in the September 8, 2009
Corporate Creations Network Inc. United States
By: Valerie Hawk
Authorized Signatory
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Index to Exhibits
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Sequentially
Exhibit Document Numbered Page
- ------- -------- -------------
(a)(i) Amendment No. 1 to the Second Amended and
Restated Deposit Agreement
(b) Letter Agreement
(d) Opinion of counsel to the Depositary
(e) Certificate under Rule 466
Exhibit (a)(i)
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CEMEX, S.A. de C.V.
AND
CITIBANK, N.A.,
as Depositary
AND
HOLDERS AND BENEFICIAL OWNERS OF AMERICAN
DEPOSITARY SHARES EVIDENCED
BY AMERICAN DEPOSITARY RECEIPTS
Amendment No. 1
to
Second Amended and Restated Deposit Agreement
Dated as of July 1, 2005
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6AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED DEPOSIT AGREEMENT, is made
as of July 1, 2005 (the "Amendment"), by and among CEMEX, S.A. de C.V., a
company incorporated and existing under the laws of the United Mexican States
(the "Company"), CITIBANK, N.A., a national banking association organized under
the laws of the United States of America and acting solely as depositary (the
"Depositary") for an American Depositary Receipt facility (the "ADR Facility")
and all Holders and Beneficial Owners from time to time of American Depositary
Shares evidenced by American Depositary Receipts issued under the Deposit
Agreement (as defined below).
W I T N E S S E T H T H A T:
WHEREAS, the parties hereto entered into that certain Second Amended and
Restated Deposit Agreement, dated as of August 10, 1999 (the "Deposit
Agreement"), for the creation of American Depositary Receipts ("ADRs")
evidencing American Depositary Shares ("ADSs") representing the Shares (as
defined in the Deposit Agreement) so deposited and for the execution and
delivery of such ADRs evidencing such ADSs;
WHEREAS, the Company has changed the ratio of Shares to ADSs (as set forth
in Section 1.3 of the Deposit Agreement) from (i) five (5) Shares to one (1) ADS
to (ii) ten (10) Shares to one (1) ADS, and desires to amend the Deposit
Agreement to reflect such changes; and
WHEREAS, pursuant to Section 6.1 of the Deposit Agreement, the Company and
the Depositary deem it necessary and desirable to amend the Deposit Agreement,
the form of ADR annexed thereto as Exhibit A for the purposes set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise defined in this Amendment, all
capitalized terms used, but not otherwise defined, herein shall have the meaning
given to such terms in the Deposit Agreement.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01. Deposit Agreement. All references in the Deposit Agreement
to the term "Deposit Agreement" shall, as of the Effective Date (as herein
defined), refer to the Deposit Agreement, dated as of August 10, 1999, as
amended by this Amendment No. 1, together with all exhibits there to, as the
same may be amended and supplemented in accordance with the terms of the Deposit
Agreement.
SECTION 2.02. Change of Ratio. All references made in the Deposit
Agreement to one (1) American Depositary Share representing five (5) Shares
shall, as of the Effective Date, refer to one (1) American Depositary Share
representing ten (10) Shares.
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01. Change of Ratio. All references made in the ADRs issued and
outstanding to one (1) American Depositary Share representing five (5) Shares
shall, as of the Effective Date, refer to one (1) American Depositary Share
representing ten (10) Shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. The Company represents and
warrants to, and agrees with, the Depositary and the Holders, that:
(a) This Amendment, when executed and delivered by the Company, and the
Deposit Agreement and all other documentation executed and delivered by
the Company in connection therewith, will be and have been, respectively,
duly and validly authorized, executed and delivered by the Company, and
constitute the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
subject to bankruptcy, insolvency, fraudulent transfer, moratorium and
similar laws of general applicability relating to or affecting, creditors'
rights and to general equity principles; and
3
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Deposit Agreement as
amended hereby, and any other document furnished hereunder or thereunder
in the United Mexican States, neither of such agreements need to be filed
or recorded with any court or other authority in the United Mexican
States, nor does any stamp or similar tax need to be paid in the United
Mexican States on or in respect of such agreements; and
(c) All of the information provided to the Depositary by the Company in
connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Effective Date. This Amendment is dated as of the date set
forth above and shall be effective as of such date (the "Effective Date").
SECTION 5.02. New ADRs. From and after the Effective Date, the Depositary
shall arrange to have new ADRs printed or amended that reflect the changes to
the form of ADRs effected by this Amendment. All ADRs issued hereunder after the
Effective Date, once such new ADRs are available, whether upon the deposit of
Shares or other Deposited Securities or upon the transfer, combination or
split-up of existing ADRs, shall be substantially in the form of the specimen
ADRs attached as Exhibit A hereto. However, ADRs issued prior or subsequent to
the date hereof, which do not reflect the changes to the form of ADRs effected
hereby, do not need to be called in for exchange and may remain outstanding
until such time as the Holders thereof choose to surrender them for any reason
under the Deposit Agreement. The Depositary is authorized and directed to take
any and all actions deemed necessary to effect the foregoing.
SECTION 5.03. Notice of Amendment to Holders. The Depositary is hereby
directed to send notices informing the Holders of (i) the terms of this
Amendment, (ii) the Effective Date of this Amendment and (iii) that the Holders
shall be given the opportunity, but that it is unnecessary, to surrender
outstanding ADRs.
SECTION 5.04. Indemnification. The Company agrees to indemnify and hold
harmless the Depositary (and any and all of its directors, employees and
officers) for any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
SECTION 5.05. Ratification. Except as expressly amended hereby, the terms,
covenants and conditions of the Deposit Agreement as originally executed shall
remain in full force and effect.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
CEMEX, S.A. de C.V.
By: /s/ Ramiro Villareal
Name: Ramiro Villareal
Title: General Counsel
CITIBANK, N.A., as Depositary
By: /s/ Ana-Maria Carasso
Name: Ana-Maria Carasso
Title: Vice President
5
EXHIBIT A
[FORM OF FACE OF RECEIPT]
Number CUSIP Number _________
American Depositary Shares
(Each American Depositary Share
representing ten (10) CPOs each
representing (i) economic interests in
two (2) Series A Shares
and (ii) one (1) Series B Share)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
each representing
Ten (10) Certificados de Participacion Ordinarios ("CPOs"), each CPO
representing (i) economic interests in two (2) Series A Shares and (ii) one (1)
Series B Share
Of
CEMEX, S.A. de C.V.
(Incorporated under the laws of the United Mexican States)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (herein called the
"Depositary"), hereby certifies that is the owner of ______________ American
Depositary Shares (hereinafter "ADS"), each ADS representing ten (10) CPOs, each
CPO representing (i) economic interests in two (2) Series A Shares of CEMEX,
S.A. de C.V., a corporation incorporated under the laws of the United Mexican
States (the "Company"), and (ii) one (1) Series B Share of the Company held in
the CPO Trust (such CPOs the "Eligible Securities") deposited under the Deposit
Agreement with the Custodian which at the date of execution of the Deposit
Agreement is Banco Nacional de Mexico, S.A. (the "Custodian"). The ratio of
Depositary Shares to Eligible Securities is subject to subsequent amendment as
provided in Article IV of the Deposit Agreement. The Depositary's Principal
Office is located at 388 Greenwich Street, New York, New York 10013, U.S.A.
6
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("Receipts"), all issued and to be issued
upon the terms and conditions set forth in the Second Amended and Restated
Deposit Agreement, dated as of August 10, 1999, as amended by Amendment No.1 to
the Second Amended and Restated Deposit Agreement, dated as of July 1, 2005 (as
amended from time to time, the "Deposit Agreement"), by and among the Company,
the Depositary, and all Holders and Beneficial Owners from time to time of ADSs
issued thereunder, each of whom by accepting an ADSs agrees to become a party
thereto and becomes bound by all the terms and conditions thereof. The Deposit
Agreement sets forth the rights and obligations of Holders and Beneficial Owners
of ADSs and the rights and duties of the Depositary in respect of the Eligible
Securities deposited thereunder and any and all other securities, property and
cash from time to time, received in respect of such Eligible Securities held
thereunder (such Eligible Securities, securities, property and cash are herein
called "Deposited Securities"). Copies of the Deposit Agreement are on file at
the Principal Office of the Depositary and with the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement, the CPO Trust, the Successor
Trust and the Estatutos of the Company (as in effect on the date of the Deposit
Agreement) and are qualified by and subject to the detailed provisions of the
Deposit Agreement, the CPO Trust, the Successor Trust and the Estatutos of the
Company to which reference is hereby made. All capitalized terms used herein
which are not otherwise defined herein shall have the meanings ascribed thereto
in the Deposit Agreement. The Depositary makes no representation or warranty as
to the validity or worth of the Deposited Securities. The Depositary has made
arrangements for the acceptance of the ADSs into DTC. A single ADR in the form
of a "Balance Certificate" will evidence all ADSs held through DTC and will be
registered in the name of the nominee for DTC (currently "Cede & Co."). As such,
7
the nominee for DTC will be the only "Holder" of the ADR evidencing all ADSs
held through DTC. Each Beneficial Owner of ADSs held through DTC must rely upon
the procedures of DTC and the DTC Participants to exercise and be entitled to
any rights attributable to such ADSs. The DTC Participants shall for all
purposes be deemed to have all requisite power and authority to act on behalf of
the Beneficial Owners of the ADSs held in the DTC Participants' respective
accounts in DTC and the Depositary shall for all purposes be authorized to rely
upon any instructions and information given to it by DTC Participants on behalf
of Beneficial Owners of ADSs. So long as ADSs are held through DTC or unless
otherwise required by law, ownership of beneficial interests in the ADR
registered in the name of the nominee for DTC will be shown on, and transfers of
such ownership will be effected only through, records maintained by (i) DTC (or
its nominee), or (ii) DTC Participants (or their nominees).
(2) Surrender of ADSs and Withdrawal of Deposited Securities. Upon
surrender, at the Principal Office of the Depositary, of the ADSs evidenced by
this Receipt for the purpose of withdrawal of the Deposited Securities
represented thereby, and upon payment of (i) the fees and charges of the
Depositary for the making of withdrawals of Deposited Securities and
cancellation of Receipts (as set forth in Article (10) hereof and in Section 5.9
and Exhibit B of the Deposit Agreement) and (ii) all applicable fees, taxes and
governmental charges payable in connection with such surrender and withdrawal,
and, subject to the terms and conditions of this Receipt, the Deposit Agreement
(including, without limitation, Section 7.8 thereof), the Company's Estatutos,
Article (25) of this Receipt and any provisions of or governing the Deposited
Securities and applicable laws, the Holder of the ADSs evidenced hereby shall be
entitled to Delivery at the Custodian's office, to him or upon his order, of the
Deposited Securities at the time represented by the ADS so surrendered. As of
the date hereof, under the terms of the CPO Trust and under Mexican law, holders
of CPOs are not entitled to withdraw the Shares underlying the CPOs. After the
8
Conversion Date, the Shares held in the CPO Trust in respect of ADSs are
expected to be contributed to the Successor Trust with the result that, from and
after the Conversion Date, a Holder of ADSs will, subject to the terms of the
Deposit Agreement, be entitled to receive the Deposited Securities, which are
expected to consist, on and after the Conversion Date, of Successor Trust CPOs.
Under the terms of the Successor Trust, holders of Successor Trust CPOs are not
entitled to withdraw the Shares upon surrender of CPOs to the Successor Trustee.
ADSs may be surrendered for the purpose of withdrawing Deposited Securities by
delivery of a Receipt evidencing such ADSs (if held in registered form) or by
book-entry delivery of such ADSs to the Depositary.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Holder thereof
shall execute and deliver to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be Delivered to
or upon the written order of a person or persons designated in such order.
Thereupon, the Depositary shall direct the Custodian to Deliver (without
unreasonable delay) at the office of the Custodian, subject to the terms and
conditions hereof and of the Deposit Agreement, the Estatutos of the Company,
and the provisions of or governing the Deposited Securities and applicable laws,
now or hereafter in effect (including, without limitation, the terms of the
Trust and Mexican law), to or upon the written order of the person(s) designated
in the order delivered to the Depositary as provided above, the Deposited
Securities represented by such ADSs together with any certificate or other
proper documents of or relating to title for the Deposited Securities, or
evidence of the electronic transfer thereof (if available), as the case may be,
to or for the account of such person(s). The Depositary may make delivery to
such person(s) at the Principal Office of the Depositary of any cash dividends
or cash distributions with respect to the Deposited Securities represented by
such ADSs, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
9
The Depositary shall not accept for surrender a Receipt evidencing ADSs
representing less than one CPO. The Depositary may, in its discretion, refuse to
accept for surrender a number of ADSs representing a number of CPOs other than a
whole number of CPOs. In the case of surrender of a Receipt evidencing a number
of ADSs representing other than a whole number of CPOs, the Depositary shall
cause ownership of the appropriate whole number of CPOs to be delivered in
accordance with the terms hereof, and shall, at the discretion of the
Depositary, either (i) issue and deliver to the person surrendering such Receipt
a new Receipt evidencing ADSs representing any remaining fractional CPO, or (ii)
sell or cause to be sold the fractional CPO represented by the Receipt
surrendered and remit the proceeds of such sale (net of (a) applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes withheld) to
the person surrendering the Receipt.
(3) Transfers, Split-ups and Combinations of Receipts. The Registrar shall
register transfers of Receipts (and of the ADSs represented thereby) on the
books maintained for such purpose and the Depositary shall cancel such receipts
and execute new Receipts evidencing the same aggregate number of ADSs as those
evidenced by the Receipts canceled by the Depositary, shall cause the Registrar
to countersign such new Receipts and shall Deliver such new Receipts to or upon
the order of the person entitled thereto if each of the following conditions are
satisfied: (i) the Receipts have been duly Delivered by the Holder (or by a duly
authorized attorney of the Holder) to the Depositary at its Principal Office for
the purpose of effecting a transfer thereof, (ii) the surrendered Receipts have
been properly endorsed or accompanied by paper instruments of transfer
(including signature guarantees in accordance with standard securities industry
practice), (iii) the surrendered Receipts have been duly stamped (if required by
the laws of the State of New York or of the United States), and (iv) all
applicable fees and charges of, and expenses incurred by, the Depositary and all
applicable governmental charges (as are set forth in the Deposit Agreement and
Paragraph (10) hereof) have been paid , subject, however, in each case, to the
terms and conditions of this Receipt, of the Deposit Agreement and of applicable
law, in each case as in effect of the time thereof.
10
The Registrar shall register the split-up or combination of Receipts (and
of the ADSs represented thereby) on the books maintained for such purpose and
the Depositary shall cancel such Receipts and execute new Receipts for the
number of ADSs requested, but in the aggregate not exceeding the number of ADSs
evidenced by the Receipts canceled by the Depositary, shall cause the Registrar
to countersign such new Receipts, and shall deliver such new Receipts to or upon
the order of the Holder thereof if each of the following conditions has been
satisfied: (i) the Receipts have been duly Delivered by the Holder (or by a duly
authorized attorney of the Holder) to the Depositary at its Principal Office for
the purpose of effecting a split-up or combination thereof, and (ii) all
applicable fees and charges of, and expenses incurred by, the Depositary and all
applicable taxes and governmental charges (as are set forth in the Deposit
Agreement and Paragraph (10) hereof) have been paid, subject, however, in each
case, to the terms and conditions of this Receipt, of the Deposit Agreement and
of applicable law, in each case as in effect at the time thereof.
(4) Pre-Conditions to Registration Transfer, Etc. As a condition precedent
to the execution and delivery, registration of transfer, split-up, combination
or surrender of any Receipt, the delivery of any distribution thereon, or the
withdrawal of any Deposited Securities, the Depositary or the Custodian may
require (i) payment from the depositor of Eligible Securities, or the presenter
of Receipt(s) of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to the Eligible
Securities being deposited or Deposited Securities being withdrawn) and payment
of any applicable fees and charges of the Depositary as provided in the Deposit
Agreement and in this Receipt, (ii) the production of proof satisfactory to it
as to the identity and genuineness of any signature or any other matter
contemplated in the Deposit Agreement, and (iii) compliance with (A) any laws or
governmental regulations relating to the execution and delivery of Receipts and
ADSs or to the withdrawal of Deposited Securities and (B) such reasonable
regulations of the Depositary or the Company may establish consistent with the
Deposit Agreement and applicable law.
11
The issuance of ADSs against deposits of Eligible Securities generally or
against deposits of particular Eligible Securities may be suspended, or the
issuance of ADSs against the deposit of particular Eligible Securities may be
withheld, or the registration of transfer of Receipts in particular instances
may be refused, or the registration of transfer of outstanding Receipts
generally may be suspended, and the withdrawal of Deposited Securities upon
surrender of ADSs may be suspended or refused, during any period when the
transfer books of the Company, the Depositary, a Registrar or the CPO Registrar
or the Share Registrar are closed or if any such action is deemed necessary or
advisable by the Depositary or the Company, in good faith, at any time or from
time to time because of any requirement of law, any government or governmental
body or commission or any securities exchange upon which the ADSs, Shares or
CPOs are listed, or under any provision of the Deposit Agreement or this
Receipt, or provisions of, or governing, the Deposited Securities or any meeting
of shareholders of the Company or of CPO holders or for any other reason,
subject in all cases to Paragraph (25) hereof. Notwithstanding any provision of
the Deposit Agreement or this Receipt to the contrary, the withdrawal of
Deposited Securities upon surrender of outstanding ADSs may not be suspended
except as required in connection with (i) temporary delays caused by the closing
of the transfer books of the Depositary, the Company, the Trustee or the deposit
of Shares in connection with voting at a shareholders' meeting or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the Receipts or to the withdrawal of the Deposited Securities.
12
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this Receipt, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with requests from the
Trustee and the Company pursuant to applicable law, the rules and requirements
of any stock exchange on which Eligible Securities or ADSs are, or will be,
registered, traded or listed or the Estatutos of the Company, or the terms of
the Trust, which are made to provide information, inter alia, as to the capacity
in which such Holder or Beneficial Owner owns ADSs (and Eligible Securities, as
the case may be) and regarding the identity of any other persons then or
previously interested in such ADSs and the nature of such interest and various
other matters whether or not they are Holders and/or Beneficial Owners at the
time of such request.
(6) Ownership Restrictions. Notwithstanding any other provision of the
Deposit Agreement or this Receipt, the Trustee and the Company may restrict
transfers of Eligible Securities or Deposited Securities where such transfer
might result in ownership of Shares, Eligible Securities or Deposited Securities
exceeding limits imposed by the Trust, applicable law or the Estatutos of the
Company. The Company may also restrict, in such manner as it deems appropriate,
transfers of ADSs where such transfer may result in the total number of Shares
or Deposited Securities represented by the ADSs owned by a single Holder or
Beneficial Owner to exceed any such limits. The Company may, in its sole
discretion but subject to applicable law, instruct the Depositary to take action
with respect to the ownership interest of any Holder or Beneficial Owner in
excess of the limits set forth in the preceding sentence, including, but not
limited to, the imposition of restrictions on the transfer of ADSs, the removal
or limitation of voting rights (if any) or a mandatory sale or disposition on
behalf of a Holder or Beneficial Owner of the Deposited Securities represented
by the ADSs held by such Holder or Beneficial Owner in excess of such
limitations, if, and to the extent, such disposition is permitted by applicable
law or regulations and the Estatutos of the Company.
13
(7) Liability of Holder for Taxes and Other Charges. If any tax or other
governmental charge shall become payable with respect to any Receipt or any
Deposited Securities or ADSs, such tax or other governmental charge shall be
payable by the Holders and Beneficial Owners to the Depositary. The Trustee, the
Company, the Custodian and/or Depositary may withhold or deduct from any
distributions made in respect of Deposited Securities and may sell for the
account of the Holder and/or Beneficial Owner any or all of the Deposited
Securities (after attempting by reasonable means to notify the Holder(s) of the
applicable ADR(s) prior to such sale, if time permits) and apply such
distributions and sale proceeds in payment of such taxes (including applicable
interest and penalties) or charges, the Holder and the Beneficial Owner hereof
remaining liable for any deficiency. The Custodian may refuse the deposit of
Eligible Securities and the Depositary may refuse to issue ADSs, to deliver
ADRs, register the transfer, split-up or combination of ADRs and (subject to
Article (25) hereof) the withdrawal of Deposited Securities until payment in
full of such tax, charge, penalty or interest is received. Every Holder and
Beneficial Owner may be required to indemnify the Depositary, the Trustee, the
Company, the Custodian and any of their respective agents, officers, employees
and Affiliates for, and to hold each of them harmless from, any claims with
respect to taxes (including applicable interest and penalties thereon) arising
from any tax benefit obtained for such Holder and/or Beneficial Owner.
(8) Representations and Warranties of Depositors. Each person depositing
Eligible Securities under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Eligible Securities and the certificates
therefor are duly authorized, validly issued, fully paid, non-assessable and
legally obtained by such person, (ii) all preemptive (and similar) rights, if
any, with respect to such Eligible Securities have been validly waived or
exercised, (iii) the person making such deposit is duly authorized so to do,
(iv) the Eligible Securities presented for deposit are free and clear of any
lien, encumbrance, security interest, charge, mortgage or adverse claim and are
14
not, except as contemplated in Section 2.12 of the Deposit Agreement, and the
ADSs issuable upon such deposit will not be, except as contemplated in Section
2.12 of the Deposit Agreement, Restricted Securities, and (v) the Eligible
Securities presented for deposit have not been stripped of any rights or
entitlements. Such representations and warranties shall survive the deposit of
Eligible Securities and the withdrawal of Deposited Securities, and the issuance
and cancellation of such ADSs in respect thereof and the transfer of ADSs. If
any such representations or warranties are false in any way, the Company and
Depositary shall be authorized, at the cost and expense of the person depositing
Eligible Securities, to take any and all actions necessary to correct the
consequences thereof.
(9) Filing Proofs. Certificates and Other Information. Any person
presenting Eligible Securities for deposit, and any Holder and any Beneficial
Owner may be required, and every Holder and Beneficial Owner agrees, from time
to time to provide to the Depositary, the Trustee, and the Custodian such proof
of citizenship or residence, taxpayer status, payment of all applicable taxes or
other governmental charges, exchange control approval, legal or beneficial
ownership of ADSs and Deposited Securities, compliance with applicable laws and
the terms of the Deposit Agreement and the provisions of, or governing, the
Deposited Securities, to execute such certifications and to make such
representations and warranties and to provide such other information and
documentation (or, in the case of Eligible Securities in registered form
presented for deposit, such information relating to the registration on the
books of the Trustee, the Company or of the applicable agent of either of them
appointed for the registration and transfer of Eligible Securities) as the
Depositary or the Custodian may deem reasonably necessary or proper or as the
Company may reasonably require by written request to the Depositary consistent
with its obligations under the Deposit Agreement. The Depositary and the
Registrar, as applicable, may withhold the delivery or registration of transfer
of any Receipt or the distribution or sale of any dividend or distribution of
rights or of the proceeds thereof or, to the extent not limited by Article (25),
the delivery of any Deposited Securities until such proof or other information
is filed or such certifications are executed or such representations made, or
such information and documentation are provided, in each case to the
Depositary's, the Registrar's, the Trustee's and the Company's satisfaction.
15
(10) Charges of Depositary. The Depositary shall charge the following fees
for the services performed under the terms of the Deposit Agreement:
(i) to any person to whom ADSs are issued upon the deposit of
Eligible Securities, a fee not in excess of U.S. $ 5.00 per
100 ADSs (or fraction thereof) so issued under the terms of
the Deposit Agreement (excluding issuances pursuant to
paragraphs (iii) and (iv) below);
(ii) to any person surrendering ADSs for cancellation and
withdrawal of Deposited Securities, a fee not in excess of
U.S. $ 5.00 per 100 ADSs (or fraction thereof) so surrendered;
(iii) to any Holder of ADRs, a fee not in excess of U.S. S 2.00 per
100 ADSs (or fraction thereof) held for the distribution of
cash proceeds (i, e., upon the sale of rights and other
entitlements), under the terms of the Deposit Agreement; no
fee shall be payable for the distribution of cash dividends or
the distribution of ADSs pursuant to stock dividends or other
free distributions of shares as long as such fees are
prohibited by the exchange upon which the ADSs are listed.
(iv) to any Holder of ADRs, a fee not in excess of U. S. $ 5.00 per
100 ADSs (or fraction thereof) issued upon the exercise of
rights.
16
In addition, Holders and Beneficial Owners and persons depositing Eligible
Securities or withdrawing Deposited Securities shall be required to pay (to the
extent applicable) the following charges: (i) taxes (including applicable
interest and penalties) and other governmental charges, (ii) such transfer or
registration fees as may from time to time be in effect for the registration of
Eligible Securities or Deposited Securities and applicable to transfers of
Eligible Securities or Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the making of deposits of
Eligible Securities and withdrawals of Deposited Securities, (iii) such cable,
telex and facsimile transmission and delivery expenses as are expressly provided
in the Deposit Agreement to be at the expense of the person depositing Eligible
Securities or Holders and Beneficial Owners of ADSs, (iv) the expenses and
charges incurred by the Depositary in the conversion of foreign currency, (v)
such fees and expenses as are incurred by the Depositary in connection with
compliance with exchange control regulations and other regulatory requirements
applicable to Eligible Securities, Deposited Securities, ADSs and ADRs, and (vi)
the fees and expenses incurred by the Depositary in connection with the delivery
of Deposited Securities.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of the Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Paragraph (22) hereof, such right shall extend for
those fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
(11) Title to Receipts. Subject to the limitations set forth in the
Deposit Agreement and in this Receipt, title to this Receipt (and to each ADS
evidenced hereby) shall be transferable by delivery of the Receipt with the same
effect as a certificated security under the laws of the State of New York,
provided that the Receipt has been properly endorsed or is accompanied by proper
instruments of transfer. Notwithstanding any notice to the contrary, the
Depositary may deem and treat the Holder of this Receipt (that is, the person in
whose name this Receipt is registered on the books of the Depositary) as the
absolute owner thereof for all purposes. The Depositary shall have no obligation
nor be subject to any liability under the Deposit Agreement or this Receipt to
any holder of this Receipt or any Beneficial Owner unless such holder is the
Holder of this Receipt registered on the books of the Depositary or, in the case
of a Beneficial Owner, such Beneficial Owner or the Beneficial Owner's
representative is the Holder registered on the books of the Depositary.
17
(12) Validity of Receipt. This Receipt shall be (i) dated, (ii) signed by
the manual or facsimile signature of a duly authorized signatory of the
Depositary, (iii) countersigned by the manual or facsimile signature of a duly
authorized signatory of the Registrar, and (iv) registered in the books
maintained by the Registrar for the registration of issuances and transfers of
Receipts. This Receipt and the ADSs evidenced hereby shall not be entitled to
any benefits under the Deposit Agreement or be valid or enforceable for any
purpose against the Depositary or the Company, unless this Receipt shall be so
dated, signed, countersigned and registered. Receipts bearing the facsimile
signature of a duly-authorized signatory of the Depositary or the Registrar, who
at the time of signature was a duly authorized signatory of the Depositary or
the Registrar, as the case may be, shall bind the Depositary, notwithstanding
the fact that such signatory has ceased to be so authorized prior to the
delivery of such Receipt by the Depositary.
(13) Available Information; Reports; Inspection of Transfer Book. The
Company is subject to the periodic reporting requirements of the Exchange Act
and accordingly files certain information with the Commission. These reports and
documents can be inspected and copied at public reference facilities maintained
by the Commission currently located at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549. The Depositary shall make available for inspection by
Holders at its Principal Office the Deposit Agreement and any reports and
communications, including any proxy soliciting materials, received from the
Company which are both (a) received by the Depositary, the Custodian, or the
nominee of either of them as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Company.
18
The Registrar shall keep books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
the Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the Receipts,
at any time or from time to time, when deemed necessary or advisable by it in
good faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to Paragraph
(25) hereof.
Dated: CITIBANK, N.A.,
as Depositary
CITIBANK, N.A.,
Registrar and Transfer Agent
By:
- -------------------------------- ----------------------------
Authorized Signatory Vice President
The address of the Principal Office of the Depositary is 388 Street, New
York, New York 10013, U.S.A.
19
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) CPO Trust/Successor Trust.
(a) The CPO Trust. Banco Nacional de Mexico, S.A. is the CPO Trustee
of the CPO Trust. 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
principal executive office of the CPO Trustee is located as of the date of
the Deposit Agreement at: Ave. Caldaza del Valle No. 350, First Floor, San
Pedro Garza Garcia, N.L. Mexico, 66220. The terms of the CPO Trust (as in
effect as of the date of the Deposit Agreement) are briefly described as
follows (which description may not be considered to be a representation or
warranty by the Company, the Depositary, or any Custodian and is qualified
by and subject to the terms of the CPO Trust Agreement, copies of which in
Spanish and in an English translation are on file at the Principal
Office): (i) each CPO represents economic interests in two (2) A Shares
and one (1) B Share held in the CPO Trust; (ii) the CPOs have no voting
rights (except as described in the Deposit Agreement and in Paragraph (18)
below); (iii) dividends on the A Shares and B Shares underlying the CPOs
are credited to the CPO holders' accounts by the CPO Trustee through
INDEVAL, upon receipt thereof from the Company; (iv) as determined by the
CPO Trustee, CPO holders may receive notices, reports and proxy
solicitation materials at the same times as direct holders of Shares
receive such materials; (v) any rights pertaining to the CPOs may be
exercised by CPO holders through INDEVAL by the CPO Trustee, at the same
time as direct holders of Shares receive any such rights, provided such
rights can be exercised by CPO holders; (vi) any securities resulting from
dividends, splits or plans of reorganization are distributed to CPO
holders through INDEVAL, at the same time as direct holders of Shares
receive any such rights; (vii) the CPO Trust is scheduled to terminate on
or about August 26, 2029, at which point CPOs represented by ADSs will be
converted into Successor Trust CPOs issued under the Successor Trust (see
Paragraph (14)(b) below); (viii) holders of CPOs are not entitled to
withdraw Shares from the CPO Trust. No fees or charges are imposed
directly or indirectly against CPO holders under the CPO Trust.
20
(b) The Successor Trust. The CPO Trustee and the Common
Representative of the CPO holders (acting under the terms of the CPO
Trust) have agreed to constitute a new trust, upon termination of the CPO
Trust, to hold the Shares previously held in the CPO Trust upon
substantially the same terms and conditions as the CPO Trust (as are in
force at the time of termination of the CPO Trust).
(15) Dividends and Distributions in Cash, Eligible Securities, etc.
Whenever the Depositary receives confirmation from the Custodian of receipt of
any cash dividend or other cash distribution on any Deposited Securities, or
receives proceeds from the sale of any Eligible Securities, rights, securities
or other entitlements under the terms of the Deposit Agreement, the Depositary
will, if at the time of receipt thereof any amounts received in a foreign
currency can, in the reasonable judgment of the Depositary (upon the terms of
the Deposit Agreement), be converted on a reasonable basis, into Dollars
transferable to the United States, promptly convert or cause to be converted
upon the terms of the Deposit Agreement such cash dividend, distribution or
proceeds into Dollars (on the terms described in the Deposit Agreement) and will
distribute promptly the amount thus received (net of (a) expenses and charges
incurred by, the Depositary and (b) taxes withheld) to the Holders entitled
thereto as of the ADS Record Date in proportion to the number of ADSs held as of
the ADS Record Date. The Depositary shall distribute only such amount, however,
as can be distributed without attributing to an, Holder a fraction of one cent,
and any balance not so distributed shall be held by the Depositary (without
liability for interest thereon) and shall be added to and become part of the
21
next sum received by the Depositary for distribution to Holders of Receipts
outstanding at the time of the next distribution. If the Company, the Custodian
or the Depositary is required to withhold and does withhold from any cash
dividend or other cash distribution in respect of any Deposited Securities an
amount on account of taxes, duties or other governmental charges, the amount
distributed to Holders of the ADSs representing such Deposited Securities shall
be reduced accordingly. Such withheld amounts shall be forwarded by the Company,
the Trustee, the Custodian or the Depositary to the relevant governmental
authority.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Eligible Securities, the Company shall or cause
such Eligible Securities to be deposited with the Custodian. Upon receipt of
confirmation from the Custodian of such deposit, the Depositary shall establish
the ADS Record Date upon the terms described in the Deposit Agreement and
Paragraph (17) hereof, and subject to the terms of Section 5.9 of the Deposit
Agreement, either (i) distribute to the Holders as of the ADS Record Date in.
proportion to the number of ADSs held as of the ADS Record Date, additional
ADSs, which represent in the aggregate the number of Eligible Securities
received as such dividend, or free distribution, subject to the terms of the
Deposit Agreement (including, without limitation, payment of the expenses
incurred by the Depositary and applicable taxes), or (ii) if additional ADSs are
not so distributed, each ADS issued and outstanding after the ADS Record Date
shall, to the extent permissible by law, thenceforth also represent rights and
interest in the additional Eligible Securities distributed upon the Deposited
Securities represented thereby (net of the expenses incurred by the Depositary
and taxes). In lieu of delivering fractional ADSs, the Depositary shall sell the
number of ADSs representing the aggregate of such fractions (or the Eligible
Securities represented by such ADSs), and, upon conversion of the proceeds of
such sale (if any) into Dollars upon the terms of the Deposit Agreement,
distribute the net proceeds of such conversion upon the terms set forth in the
Deposit Agreement.
22
In the event that the Depositary determines that any distribution in
Eligible Securities is subject to any tax or other governmental charges which
the Depositary is obligated to withhold, or, if the Company, in the fulfillment
of its obligations under the Deposit Agreement, has furnished an opinion of U.S.
counsel. determining that Eligible Securities must be registered under the
Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), the Depositary may dispose
of all or a portion of such Eligible Securities in such amounts and in such
manner, including by public or private sale, as the Depositary deems reasonable
and the Depositary shall (1) cause the proceeds of such sale, if any, to be
converted into Dollars upon the terms described in the Deposit Agreement, and
(ii) distribute the net proceeds of such conversion (after deduction of such (a)
taxes and (b) fees and charges of, and expenses incurred by, the Depositary) to
Holders as of the ADS Record Date upon the terms described in the Deposit
Agreement. The Depositary shall hold and/or distribute any unsold balance of
such property in accordance with the provisions of this Deposit Agreement.
Upon timely receipt of a notice stating that the Company intends to
distribute a dividend payable at the election of holders of Eligible Securities
in cash or in additional Eligible Securities and wishes that such elective
distribution be made available to Holders of ADSs, the Depositary shall consult
with the Company to determine, and the Company has agreed to assist the
Depositary in its determination, whether it is lawful and reasonably practicable
to make such elective distribution available to the Holders of ADSs. The
Depositary shall make such elective distribution available to Holders only if
(i) the Depositary shall have determined that such distribution is reasonably
practicable and (ii) the Depositary shall have received satisfactory
documentation within the terms of the Deposit Agreement. If the above conditions
are not satisfied, the Depositary shall, to the extent permitted by law,
distribute to the Holders, on the basis of the same determination as is made in
the local market in respect of the Eligible Securities for which no election is
23
made, either (X) cash upon the terms described in the Deposit Agreement or (Y)
additional ADSs representing, such additional Eligible Securities upon the terms
described in the Deposit Agreement. If the above conditions are satisfied, the
Depositary shall establish an ADS Record Date (on the terms described in
Paragraph (17) hereof) and establish procedures to enable Holders to elect the
receipt of the proposed dividend in cash or in additional ADSs. The Company has
agreed to assist the Depositary in establishing such procedures to the extent
necessary. If a Holder elects to receive the proposed dividend (X) in cash, the
dividend shall be distributed as in the case of a distribution in cash, or (Y)
in ADSs, the dividend shall be distributed as in the case of a distribution in
Eligible Securities. Nothing herein or in the Deposit Agreement shall obligate
the Depositary to make available to the Holders a method to receive the elective
dividend in Shares or Eligible Securities (rather than ADSs). There can be no
assurance that Holders generally, or any Holder in particular, will be given the
opportunity to receive elective distributions on the same terms and conditions
as the holders of Shares or Eligible Securities.
Upon timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Eligible Securities to be made
available to Holders of ADSs, the Depositary shall consult with the Company to
determine, and the Company has agreed to assist the Depositary in its
determination, whether it is lawful and reasonably practicable to make such
rights available to the Holders. The Depositary shall make such rights available
to any Holders only if (i) the Company shall have requested that such rights be
made available to Holders, (ii) the Depositary shall have received the
documentation required by the Deposit Agreement, and (iii) the Depositary shall
have determined that such distribution of rights is practicable. In the event
any such conditions are not satisfied, the Depositary shall sell the rights as
described below. In the event all conditions set forth above are satisfied, the
Depositary shall establish an ADS Record Date (upon the terms described in
Paragraph (17) hereof) and establish procedures to distribute such rights (by
24
means of warrants or otherwise) to enable the Holders to exercise the rights
(upon payment of the subscription price and of the applicable (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes). The Company
has agreed to assist the Depositary to the extent necessary in establishing such
procedures. Nothing herein or in the Deposit Agreement shall obligate the
Depositary to make available to the Holders a method to exercise such rights to
subscribe for Shares or Eligible Securities (rather than for ADSs). If (i) the
Company does not request the Depositary to make the rights available to Holders
or the Company requests that the rights not be made available to Holders, (ii)
the Depositary fails to receive the documentation required by the Deposit
Agreement or determines it is not reasonably practicable to make the rights
available to Holders, or (iii) any rights made available are not exercised and
appear to be about to lapse, the Depositary shall determine whether it is lawful
and reasonably practicable to sell such rights, in a riskless principal
capacity, at such place and upon such terms (including public and private sale)
as it may deem practicable. The Company has agreed to assist the Depositary to
the extent necessary to determine such legality and practicability. The
Depositary shall, upon such sale, (i) cause the proceeds of such sale, if any,
to be converted into Dollars upon the terms described in the Deposit Agreement,
and (ii) distribute the proceeds of such conversion received by the Depositary
(net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes) to the Holders as of the ADS Record Date upon the
terms set forth herein and in the Deposit Agreement. If the Depositary is unable
to make any rights available to Holders or to arrange for the sale of the rights
upon the terms described above, the Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to determine that it
may be lawful or practicable to make such rights available to Holders in general
or any Holders in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or exercise, or (iii) the content of any
materials forwarded to the ADR Holders on behalf of the Company in connection
with the rights distribution.
25
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable law)
of the rights or the securities to which any rights relate may be required in
order for the Company to offer such rights or such securities to Holders and to
sell the securities represented by such rights, the Depositary will not
distribute such rights to the Holders unless and until a registration statement
under the Securities Act covering such offering is in effect. In the event that
the Company, the Depositary or the Custodian shall be required to withhold and
does withhold from any distribution of rights an amount on account of taxes or
other governmental charges, the amount distributed to the Holders of Receipts
evidencing ADSs representing such Deposited Securities shall be reduced
accordingly and all or a portion of such property may be sold (including
Eligible Securities and rights to subscribe therefor) in such amounts and in
such manner, including by public or private sale, as the Depositary, the Company
or the Custodian deems necessary and practicable to pay any such taxes or
charges. Because Mexican law presently does not contemplate the issuance of
rights in negotiable form and the possibility of such issuance is unlikely, a
liquid market for rights may not exist, and this may adversely affect (1) the
ability of the Depositary to dispose of such rights or (2) the amount the
Depositary would realize upon disposal of rights.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Eligible Securities, or to exercise such rights
at all. Nothing herein or in the Deposit Agreement obligates the Company to file
any registration statement in respect of any rights, Eligible Securities or
other securities to be acquired upon the exercise of such rights.
26
Upon timely receipt of a notice indicating that the Company wishes property
other than cash, Eligible Securities or rights to purchase Eligible Securities,
to be made available to Holders of ADSs, the Depositary shall consult with the
Company, and the Company has agreed to assist the Depositary, to determine
whether such distribution to Holders is lawful' and reasonably practicable. The
Depositary shall not make such distribution unless (i) the Company shall have
requested the Depositary to make such distribution to Holders, (ii) the
Depositary shall have received the documentation required by the Deposit
Agreement, and (iii) the Depositary shall have determined that such distribution
is reasonably practicable. Upon satisfaction of such conditions, the Depositary
shall establish an ADS Record Date (upon the terms described in Paragraph (17)
hereof) and distribute the property so received to the Holders of record as of
the ADS Record Date in proportion to the number of ADSs held by them
respectively and in such manner as the Depositary may deem practicable for
accomplishing such distribution (i) upon receipt of payment of, or net of the
applicable fees and charges of, and expenses incurred by, the Depositary, and
(ii) net of any taxes withheld. The Depositary may dispose of all or a portion
of the property so distributed and deposited, in such amounts and in such manner
(including public or private sale) as the Depositary may deem practicable or
necessary to satisfy any taxes (including applicable interest and penalties) or
other governmental charges applicable to the distribution.
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem practicable and shall (i) cause the
proceeds of such sale, if any, to be converted into Dollars and (ii) distribute
the proceeds of such conversion received by the Depositary (net of applicable
(a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes)
to the Holders upon the terms hereof and of the Deposit Agreement. If the
Depositary is unable to sell such property, the Depositary may dispose of such
property in any way it deems reasonably practicable under the circumstances.
27
(16) Redemption. Upon timely receipt of notice from the Company that it
intends to exercise its right of redemption in respect of any of the Deposited
Securities, and satisfactory documentation from the Company pursuant to the
terms of the Deposit Agreement, and only if the Depositary shall have reasonably
determined that such proposed redemption is practicable, the Depositary shall
mail to each Holder a notice setting forth the Company's intention to exercise
the redemption rights and any other particulars set forth in the Company's
notice to the Depositary. Upon receipt of confirmation from the Custodian that
the redemption has taken place and that funds representing the redemption price
have been received, the Depositary shall convert, transfer and distribute the
proceeds thereof (net of applicable (a) fees and charges of, and expenses
incurred by, the Depositary, and (b) taxes), retire ADSs and cancel ADRs upon
delivery of such ADSs by Holders thereof in accordance with the terms of the
Deposit Agreement. If less than all outstanding Deposited Securities are
redeemed, the ADSs to be retired will be selected by lot or on a pro rata basis,
as may be determined by the Depositary. The redemption price per ADS shall be
the per-Deposited Security amount received by the Depositary upon the redemption
of the Deposited Securities represented by ADSs subject to the terms of the
Deposit Agreement and the applicable fees and charges of, and expenses incurred
by, the Depositary, and taxes) multiplied by the number of Deposited Securities
represented by each ADS redeemed.
(17) Fixing of ADS Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Eligible Securities, rights or other distribution), or whenever for any
reason the Depositary causes a change in the number of Deposited Securities that
are represented by each ADS, or whenever the Depositary shall receive notice of
any meeting of, or solicitation of consent of, holders of Deposited Securities,
or whenever the Depositary shall find it necessary or convenient in connection
with the giving of any notice, solicitation of any consent, or any other matter,
the Depositary shall, after consultation with the Company, fix a record date
(the "ADS Record Date") for the determination of the Holders of Receipts who
28
shall be entitled to receive such dividend or distribution, to give instructions
for the exercise of voting rights at any such meeting, or to give or withhold
such consent, or to receive such notice or solicitation or to otherwise take
action, or to exercise the rights of Holders with respect to such changed number
of Deposited Securities represented by each ADS. Subject to applicable law and
the terms and conditions of this Receipt and the Deposit Agreement, only the
Holders of Receipts at the close of business in New York on such ADS Record Date
shall be entitled to receive such distributions, to give such voting
instructions, to receive such notice or solicitation, or otherwise take action.
(18) Voting of Deposited Securities.
(a) Description of Voting Rights of Deposited Securities. Holders of
ADSs generally have the right to instruct the Depositary to exercise the
voting rights attributable to the Deposited Securities represented by such
Holders' ADSs. All holders of CPOs, including CPOs represented by ADSs,
have the right to vote at meetings of CPO holders. However, the Estatutos
and the agreement establishing the terms of the Trust pursuant to which
CPOs are issued prohibit non-Mexican persons from directly holding or
voting A Shares. The nationality of a holder of CPOs is established by
reference to the information contained in the registry book for CPOs
maintained by the Trustee. Holders of ADSs are deemed to be non-Mexican
nationals, and accordingly, Holders of ADSs do not have any right to
instruct the Depositary to cause the Trustee to vote the A Shares held in
the Trust. Under the terms of the Trust, A Shares underlying CPOs
(including CPOs represented by ADSs) held by non-Mexican nationals will be
voted at each shareholders' meeting by the Trustee according to the votes
cast by the majority of all A Shares held by Mexican nationals and B
Shares voted at the meeting. Under the terms of the Deposit Agreement,
Holders may have the right to instruct the Depositary to cause the Trustee
to exercise the voting rights attributable to the B Shares at any time
held in the Trust. At each meeting of shareholders, the B Shares
underlying CPOs (including CPOs represented by ADSs) will be voted by the
Trustee in accordance with instructions timely received from the holders
thereof. In accordance with the terms of the CPO Trust, the CPO Trustee
will vote the B Shares held in the CPO Trust for which no voting
instructions have been received in cooperation with, and under the
direction of, a technical committee appointed pursuant to the terms of the
CPO Trust.
29
(b) Voting Rights of ADS Holders Prior to Conversion. Holders of
ADSs will not have the right to instruct the Depositary as to the exercise
of voting rights in respect of A Shares held in the CPO Trust but will,
subject to the terms hereof, have the right to instruct the Depositary to
exercise (i) in the case of voting by holders of B Shares, the voting
rights of the B Shares underlying the CPOs, or (ii) in the case of a
meeting of holders of CPOs, the voting rights of such CPOs, in each case
represented by such Holder's ADSs. As soon as practicable after receipt
from the Company or the CPO Trustee of a notice of any meeting at which
the holders of A Shares, B Shares, CPOs or other Deposited Securities are
entitled to vote, or of a solicitation of consents or proxies from holders
of A Shares, B Shares, CPOs or other Deposited Securities, the Depositary
shall fix the ADS Record Date (upon the terms set forth in Paragraph (17)
hereof) in respect of such meeting or solicitation of consent or proxy.
The Depositary shall, at the Company's expense and provided no U.S. legal
prohibitions exist, mail to the Holders as of the ADS Record Date a copy
of such notice of meeting or solicitation of consent or proxy together
with any materials provided to the Depositary by the Company for such
purpose. If (i) such notice and information is provided to the Depositary
on a timely basis, which shall be at least 20 days prior to the date
established by the Company for such meeting, (ii) the Company or the CPO
Trustee informs the Depositary that Holders of ADSs shall have the right
to vote on any of the designated matters under Mexican law (i, e., a
meeting of holders of CPOs or a meeting of holders of B Shares) and (iii)
30
such mailing is not prohibited by U.S. law, the Depositary shall include
in such mailing to Holders (a) a notice from the Depositary to the Holders
stating, inter " that the Holders at the close of business on the ADS
Record Date will be entitled, subject to any applicable law, the Estatutos
of the Company, the provisions of or governing the Deposited Securities
(which provisions, if any, shall be summarized and provided in English by
the Company) and the provisions of the Deposit Agreement, to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to
the Deposited Securities, and (b) a brief statement as to the manner in
which such instructions may be given (including an indication that,
subject to the terms of the Deposit Agreement and applicable law,
instructions may be deemed to be given to the Depositary to give a
discretionary proxy to a person designated by the Company if no voting
instructions are received by the Depositary from such Holder prior to the
deadline set by the Depositary for such purposes). Voting instructions may
be given only in respect of a number of ADSs representing an integral
number of B Shares or CPOs, as the case may be. The Company shall use its
best efforts to provide the Depositary with the notice of meeting and the
materials to be distributed to Holders at least 20 days prior to the date
of the meeting. The Depositary shall coordinate the mailing of materials
to Holders with the Company to coincide as closely as is reasonably
practicable with the publication of the notice of shareholders' meeting in
Mexico.
Upon the timely receipt of voting instructions from Holders of ADSs as of
the ADS Record Date, the Depositary shall endeavor, insofar as practicable and
permitted under applicable law and the provisions of the Estatutos of the
Company and the provisions of or governing the Deposited Securities, (i) in the
case of a meeting of holders of CPOs, to vote or cause the Custodian to vote the
CPOs represented by the ADSs in accordance with such instructions, and (ii) in
the case of a meeting at which holders of B Shares are entitled to vote, to
cause the Custodian to transmit to the CPO Trustee the voting instructions
received from such ADS Holders.
31
Under the terms of the CPO Trust, the CPO Trustee, upon receipt of voting
instructions from a CPO holder, (i) will determine whether such CPO holder is a
Mexican national, (ii) if the CPO holder is a Mexican National, will vote the A
Shares represented by such CPOs in accordance with the instructions of such CPO
holder, and (iii) if such holder is not a Mexican National (all CPOs held in
respect of ADSs will be deemed to be held by non-Mexican nationals), will (a)
disregard such voting instructions in respect of the A Shares held in the CPO
Trust and vote such A Shares according to the votes cast by the majority of all
A Shares held by Mexican nationals and B Shares voted at the meeting, and (b)
vote or cause to be voted the B Shares held in the CPO Trust in accordance with
the voting instructions. If no voting instructions are received from holders of
CPOs, the CPO Trustee will, under the terms of the CPO Trust, vote the Shares
represented by such CPOs as follows: (a) in the case of A Shares represented by
CPOs owned by non-Mexican nationals, in accordance with the majority of A Shares
held by Mexican nationals and B Shares voted at the meeting; (b) in the case of
A Shares represented by CPOs owned by Mexican nationals, in its discretion, in
cooperation with the technical committee for the CPO Trust; and (c) in the case
of B Shares represented by CPOs, in its discretion, in cooperation with the
technical committee for the CPO Trust.
The Depositary agrees not to, and shall take reasonable steps to ensure
that the Custodian and each of its nominees, if any, do not, vote the B Shares
underlying the CPOs represented by a Holder's ADSs other than in accordance with
actual or deemed instructions from such Holder. The Depositary may not itself
exercise any voting discretion over any B Shares underlying the CPOs represented
by ADSs. If the Depositary does not receive voting instructions from a Holder on
or before the date established by the Depositary for such purpose, such Holder
32
shall be deemed, and the Depositary and the Company shall deem such holder, to
have instructed the Depositary to give a discretionary proxy to a person
designated by the Company to vote the B Shares underlying the CPOs represented
by such Holder's ADSs; provided that the Depositary shall not have any
obligation to give such discretionary proxy if (i) the Company does not provide
the Depositary with the requisite materials pertaining to the meeting on a
timely basis (which shall be at least 20 days prior to the date established by
the Company for such meeting), (ii) the Company requests that such discretionary
proxy not be given (which request must be in writing), or (iii) the Company
shall not have delivered to the Depositary the local counsel opinion and the
representation and indemnity letter described in the next paragraph.
Prior to requesting the delivery of a discretionary proxy upon the terms
set forth herein, the Company shall deliver to the Depositary (a) an opinion of
the Company's Mexican counsel (of recognized standing in Mexico and reasonably
satisfactory to the Depositary, which counsel may be internal counsel to the
Company) stating, inter alia, that the Depositary's actions pursuant to Section
4.10 of the Deposit Agreement do not violate any Mexican laws or regulations or
the Company's Estatutos and will not expose the Depositary to liability under
Mexican law and (b) a representation and indemnity letter from the Company
(executed by an authorized officer of the Company) (i) designating the person to
whom any discretionary proxy should be given and (ii) confirming that the
provisions of Section 5.8 of the Deposit Agreement apply to any liabilities or
expenses (including reasonable fees and disbursements of counsel) of the
Depositary and the Custodian and their respective officers, directors and
employees which may arise out of, or in connection with, the Depositary or the
Custodian voting pursuant to deemed instructions specified in Section 4.10 of
the Deposit Agreement.
33
If, at the time of a vote, for any reason the standing instructions deemed
given herein would not be valid and binding on the Holders, the Company has
failed to provide the meeting materials to the Depositary on a timely basis or
the Depositary is unable to obtain from the Company either the legal opinion or
the representation and indemnity letter referenced above, the Depositary shall
not provide the Company with such discretionary proxy.
(c) Voting Rights of ADS Holders After Conversion. Holders of ADSs
will not have the right to instruct the Depositary as to the exercise of
voting rights in respect of any A Shares held in the Successor Trust but
will, subject to the terms hereof, have the right to instruct the
Depositary to exercise (i) in the case of voting by holders of B Shares,
the voting rights in the B Shares underlying the Successor Trust CPOs, or
(ii) in the case of a meeting of holders of Successor Trust CPOs, the
voting rights of such Successor Trust CPOs, in each case represented by
such Holder's ADSs. A Shares represented by Successor Trust CPOs held by
non-Mexican investors will be voted in accordance with the terms of the
Successor Trust which are expected to be substantially identical to the
terms of the CPO Trust (which are described in Paragraphs (18)(a) and
(18)(b) above). As soon as practicable after receipt from the Company or
the Successor Trustee of a notice of any meeting at which the holders of A
Shares, B Shares, Successor Trust CPOs or other Deposited Securities are
entitled to vote, or of solicitation of consents or proxies from holders
of A Shares, B Shares, Successor Trust CPOs or other Deposited Securities,
the Depositary shall fix the ADS Record Date (upon the terms set forth in
Paragraph (17) hereof) in respect of such meeting or solicitation of
consent or proxy. The Depositary shall, at the Company's expense and
provided no U.S. legal prohibitions exist, mail to the Holders as of the
ADS Record Date a copy of such notice of meeting or solicitation of
consent or proxy together with any materials provided to the Depositary by
the Company for such purpose. If (i) such notice and information is
provided to the Depositary on a timely basis, which shall be at least 20
days prior to the date established by the Company for such meeting, (ii)
34
the Company or the Successor Trustee informs the Depositary that the
holders of ADSs shall have the right to vote on any of the designated
matters under Mexican law (i&, a meeting of holders of Successor Trust
CPOs or a meeting of holders of B Shares), and (iii) such mailing is not
prohibited by U.S. law, the Depositary shall include in such mailing to
Holders (a) a notice from the Depositary to the Holders stating, inter,"
that the Holders at the close of business on the ADS Record Date will be
entitled, subject to any applicable law, the Estatutos of the Company, the
provisions of or governing the Deposited Securities (which provisions, if
any, shall be summarized and provided in English by the Company) and the
provisions of the Deposit Agreement, to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the Deposited
Securities, and (b) a brief statement as to the manner in which such
instructions may be given (including an indication that, subject to the
terms of this Deposit Agreement and applicable law, instructions may be
deemed to be given to the Depositary to give a discretionary proxy to a
person designated by the Company if no voting instructions are received by
the Depositary. from such Holder prior to the deadline set by the
Depositary for such purposes). Voting instructions may be given only in
respect of a number of ADSs representing an integral number of B Shares or
Successor Trust CPOs, as the case may be. The Company shall use its best
efforts to provide the Depositary with the notice of meeting and the
materials to be distributed to Holders at least 20 days prior to the date
of the meeting. The Depositary shall coordinate the mailing of materials
to Holders with the Company to coincide as closely as is reasonably
practicable with the publication of the notice of shareholders' meeting in
Mexico.
35
Upon the timely receipt of voting instructions from Holders of ADSs as of
the ADS Record Date, the Depositary shall endeavor, insofar as practicable and
permitted under applicable law and the provisions of the Estatutos of the
Company and the provisions of or governing the Deposited Securities, (i) in the
case of a meeting of Holders of Successor Trust CPOs, to vote or cause the
Custodian to vote the CPOs represented by the ADSs in accordance with such
instructions, and (ii) in the case of a meeting at which holders of B Shares are
entitled to vote, to cause the Custodian to transmit to the Successor Trustee
the voting instructions received from such ADS Holders.
To the extent the terms of the Successor Trust are substantially identical
to the terms of the CPO Trust, the Successor Trustee, upon receipt of voting
instructions from a Successor Trust CPO holder, (i) would determine whether such
Successor Trust CPO holder is a Mexican national, (ii) if the Successor Trust
CPO holder is a Mexican National, would vote the A Shares represented by such
Successor Trust CPOs in accordance with the instructions of such Successor Trust
CPO holder, and (iii) if such holder is not a Mexican National (all Successor
Trust CPOs held in respect of ADSs will be deemed to be held by non-Mexican
nationals) would (a) disregard such voting instructions in respect of the A
Shares held in the Successor Trust and vote such A Shares according to the votes
cast by the majority of all A Shares held by Mexican nationals and B Shares
voted at the meeting, and (b) vote or cause to be voted the B Shares held in the
Successor Trust in accordance with the voting instructions. If no voting
instructions are received from holders of Successor Trust CPOs, the Successor
Trustee would, to the extent the terms of the Successor Trust are identical to
the terms of the CPO Trust, vote the Shares represented by such Successor Trust
CPOs as follows: (a) in the case of A Shares represented by Successor Trust CPOs
owned by non-Mexican nationals, in accordance with the majority of A Shares held
by Mexican nationals and B Shares voted at the meeting; (b) in the case of A
Shares represented by Successor Trust CPOs owned by Mexican nationals, in its
discretion, in cooperation with the technical committee for the Successor Trust;
and (c) in the case of B Shares represented by Successor Trust CPOs, in its
discretion, in cooperation with the technical committee for the Successor Trust.
36
The Depositary agrees not to, and shall take reasonable steps to ensure
that the Custodian and each of its nominees, if any, do not, vote the B Shares
underlying the Successor Trust CPOs represented by a Holder's ADSs other than in
accordance with the actual or deemed instructions received from such Holder. The
Depositary may not itself exercise any voting discretion over any B Shares
underlying the Successor Trust CPOs represented by ADSs. If the Depositary does
not receive voting instructions from a Holder on or before the date established
by the Depositary for such purpose, such Holder shall be deemed, and the
Depositary and the Company shall deem such holder, to have instructed the
Depositary to give a discretionary proxy to a person designated by the Company
to vote the B Shares underlying the Successor Trust CPOs represented by such
Holder's ADSs; provided that the Depositary shall not have any obligation to
give such discretionary proxy if (i) the Company does not provide the Depositary
with the requisite materials pertaining to the meeting on a timely basis (which
should be at least 20 days prior to the date established by the Company for such
meeting), (ii) the Company requests that such discretionary proxy not be given
(which request must be in writing), or (iii) the Company shall not have
delivered to the Depositary the local counsel opinion and the representation and
indemnity letter described in the next paragraph.
Prior to requesting the delivery of a discretionary proxy upon the terms
set forth above and in the Deposit Agreement, the Company shall deliver to the
Depositary (a) an opinion of the Company's Mexican counsel (of recognized
standing in Mexico and reasonably satisfactory to the Depositary, which counsel
may be internal counsel to the Company) stating, inter alia, that the
Depositary's actions pursuant to Section 4.10 of the Deposit Agreement do not
violate any Mexican laws or regulations or the Company's Estatutos and will not
expose the Depositary to liability under Mexican law and (b) a representation
and indemnity letter from the Company (executed by an authorized officer of the
Company) (i) designating the person to whom any discretionary proxy shall be
given and (ii) confirming that the provisions of Section 5.8 of the Deposit
Agreement apply to any liabilities or expenses (including reasonable fees and
disbursements of counsel) of the Depositary and the Custodian and their
respective officer, directors and employees which may arise out of, or in
connection with, the Depositary or the Custodian voting pursuant to deemed
instructions specified in Section 4.10 of the Deposit Agreement.
37
If at the time of a vote, for any reason the standing instructions deemed
given herein would not be valid and binding on the Holders, the Company has
failed to provide the meeting materials to the Depositary on a timely basis or
the Depositary is unable to obtain either the legal opinion or the
representation and indemnity letter referenced above, the Depositary shall not
provide the Company with such discretionary proxy.
Neither the Depositary nor the Custodian shall, under any circumstances,
exercise or be deemed to exercise any discretion as to voting and neither the
Depositary not the Custodian shall vote, or in any way make use of (except for
purposes of establishing a quorum as set forth in the next paragraph) the
Deposited Securities represented by ADSs except pursuant to and in accordance
with voting instructions (including deemed voting instructions) from Holders.
There can be no assurance that Holders generally or any Holder in particular
will receive from the Depositary the notice described above with sufficient time
to enable the Holder(s) to return voting instructions to the Depositary in a
timely manner.
Notwithstanding anything else contained in this Receipt or in the Deposit
Agreement, the Depositary, the Trustee or the Custodian may represent all
Deposited Securities (whether or not voting instructions have been received in
respect of such Deposited Securities from Holders as of the ADS Record Date) at
a meeting of holders of Deposited Securities when attending such meetings and as
such contribute to the establishment of a quorum at such meetings.
38
(19) Changes Affecting Deposited Securities. Upon any change in nominal or
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or a Custodian in
exchange for, or in conversion of or replacement or otherwise in respect of,
such Deposited Securities shall, to the extent permitted by law, be treated as
new Deposited Securities under the Deposit Agreement, and the Receipts shall,
subject to the provisions of the Deposit Agreement and applicable law, evidence
ADSs representing the right to receive such additional securities. The
Depositary may, with the Company's approval, and shall, if the Company shall so
request, subject to the terms of the Deposit Agreement and upon receipt of
satisfactory documentation contemplated by the Deposit Agreement, execute and
deliver additional Receipts as in the case of a stock dividend of Eligible
Securities, or call for the surrender of outstanding Receipts to be exchanged
for new Receipts, in either case, as well as in the event of newly deposited
Eligible Securities with necessary modifications to the form of Receipt
contained in Exhibit A to the Deposit Agreement, specifically describing such
new Deposited Securities or corporate change. Notwithstanding the foregoing, in
the event that any security so received may not be lawfully distributed to some
or all Holders, the Depositary shall use its best efforts to sell such
securities at public or private sale, at such place or places and upon such
terms as it may deem proper. The Depositary shall, upon such sale, cause the
proceeds of such sale, if any, to be converted into Dollars upon the terms of
the Deposit Agreement and allocate the net proceeds of such conversion (net of
(a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes)
for the account of the Holders otherwise entitled to such securities upon an
averaged or other practicable basis without regard for any distinctions among
the Holders and distribute the net proceeds so allocated to the extent
practicable as in the case of a distribution received in cash pursuant to the
Deposit Agreement. The Depositary shall not be responsible for (i) any failure
to determine that it may be lawful or feasible to make such securities available
to Holders in general or any Holder in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any liability
to the purchaser of such securities.
39
(20) Exoneration. Neither the Depositary, the Company nor any of their
respective agents shall be obligated to do or perform any act which is
inconsistent with the provisions of the Deposit Agreement, or incur any
liability (i) if the Depositary or the Company shall be prevented or forbidden
from, or delayed in, doing or performing any act or thing required by the terms
of the Deposit Agreement, or by reason of any provision of any present or future
law or regulation of the United States, Mexico or any other country, or of any
other governmental authority or regulatory authority or stock exchange, or on
account of the possible criminal or civil penalties or restraint, or by reason
of any provision, present or future of the Estatutos of the Company or any
provision of or governing any Deposited Securities, or by reason of any act of
God or war or other circumstances beyond its control (including, without
limitation, nationalization, expropriation, currency restrictions, work
stoppage, strikes, civil unrest, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in the Deposit Agreement or in the Estatutos of the
Company or provisions of or governing Deposited Securities, (iii) for any action
or inaction in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, any
Beneficial Owner or authorized representative thereof, or any other person
believed by it in good faith to be competent to give such advice or information,
(iv) for the inability of a Holder or Beneficial Owner to benefit from any
distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Holders of ADSs or (v) for any consequential or
punitive damages. The Depositary, its controlling persons, its agents, any
Custodian and the Company, its controlling persons and its agents may rely and
shall be protected in acting upon any written notice, request or other document
believed by it to be genuine and to have been signed or presented by the proper
party or parties. No disclaimer of liability under the Securities Act is
intended by any provision of the Deposit Agreement or this Receipt.
40
(21) Standard of Care. The Company and its agents assume no obligation and
shall not be subject to any liability under the Deposit Agreement or the
Receipts to Holders or Beneficial Owners or other persons, except that the
Company and its agents agree to perform their obligations specifically set forth
in the Deposit Agreement without gross negligence or bad faith. The Depositary
and its agents assume no obligation and shall not be subject to any liability
under the Deposit Agreement or the Receipts to Holders or Beneficial Owners or
other persons, except that the Depositary and its agents agree to perform their
obligations specifically set forth in the Deposit Agreement without gross
negligence or bad faith. Without limitation of the foregoing, neither the
Depositary, nor the Company, nor any of their respective controlling persons or
agents, shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of any Deposited Securities or in
respect of the Receipts, which in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense (including
fees and disbursements of counsel) and liability be furnished as often as may be
required (and no Custodian shall be under any obligation whatsoever with respect
to such proceedings, the responsibility of the Custodian being solely to the
Depositary). The Depositary and its agents shall not be liable for any failure
to carry out any instructions to vote any of the Deposited Securities, or for
the manner in which any vote is cast or the effect of any vote, provided that
any such action or omission is in good faith and in accordance with the terms of
the Deposit Agreement. The Depositary shall not incur any liability for any
failure to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Eligible
Securities or Deposited Securities, for allowing any rights to lapse upon the
terms of the Deposit Agreement or for the failure or timeliness of any notice
from the Company.
41
(22) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) 180 days after delivery
thereof to the Company (whereupon the Depositary shall be entitled to take the
actions contemplated in Paragraph (24) hereof), or (ii) upon the appointment by
the Company of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. The Depositary may at any time be removed by
the Company by written notice of such removal, which removal shall be effective
on the earlier of (i) 180 days after the delivery thereof to the Depositary
(whereupon the Depositary shall be entitled to take the actions contemplated in
Paragraph (24) hereof), or (ii) upon the appointment by the Company of a
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement. In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
the Borough of Manhattan, the City of New York. Every successor depositary shall
be required by the Company to execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor. The predecessor depositary,
upon payment of all sums due it and on the written request of the Company, shall
(i) execute and deliver an instrument transferring to such successor all rights
and powers of such predecessor hereunder (other than as contemplated in the
42
Deposit Agreement), (ii) duly assign, transfer and deliver all right, title and
interest to the Deposited Securities to such successor, and (iii) deliver to
such successor a list of the Holders of all outstanding Receipts and such other
information relating to Receipts and Holders thereof as the successor may
reasonably request. Any such successor depositary shall promptly mail notice of
its appointment to such Holders. Any corporation into or with which the
Depositary may be merged or consolidated, or to which the Depositary shall
transfer all its receipts business, shall be the successor of the Depositary
without the execution or filing of any document or any further act,
(23) Amendment/Supplement. This Receipt and any provisions of the Deposit
Agreement (including the form of Receipt attached thereto) may at any time and
from time to time be amended or supplemented by written agreement between the
Company and the Depositary in any respect which they may deem necessary or
desirable without the prior written consent of the Holders or Beneficial Owners.
Any amendment or supplement which shall impose or increase any fees or charges
(other than the charges of the Depositary in connection with foreign exchange
control regulations, and taxes and other governmental charges, delivery and
other such expenses), or which shall otherwise materially prejudice any
substantial existing right of Holders or Beneficial Owners, shall not, however,
become effective as to outstanding Receipts until the expiration of thirty (30)
days after notice of such amendment or supplement shall have been given to the
Holders of outstanding Receipts. The parties hereto agree that the rights of
Holders and Beneficial Owners shall not be deemed materially prejudiced by any
amendments or supplements which (i) are reasonably necessary (as agreed by the
Company and the Depositary) in order for (a) the ADSs to be registered on Form
F-6 under the Securities Act or (b) the ADSs, Eligible Securities or Deposited
Securities to be settled in electronic book-entry form and (ii) do not in either
such case impose or increase any fees or charges to be borne by Holders. Every
Holder and Beneficial Owner at the time any amendment or supplement so becomes
effective shall be deemed, by continuing to hold such ADS, to consent and agree
43
to such amendment or supplement and to be bound by the-Deposit Agreement as
amended or supplemented thereby. In no event shall any amendment or supplement
impair the right of the Holder to surrender such Receipt and receive therefor
the Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law. Notwithstanding the foregoing, if any
governmental body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement to ensure compliance
therewith, the Company and the Depositary may amend or supplement the Deposit
Agreement and this Receipt at any time in accordance with such changed laws,
rules or regulations. Such amendment or supplement to the Deposit Agreement in
such circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance with such laws, or rules or regulations.
(24) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 180 days
shall have expired after the Depositary shall have delivered to the Company a
written notice of its election to resign, or if 180 days shall have expired
after the Company shall have delivered to the Depositary a written notice of the
removal of the Depositary, and in either case a successor depositary shall not
have been appointed and accepted its appointment as provided herein and in the
Deposit Agreement, the Depositary may terminate the Deposit Agreement by mailing
notice of such termination to the Holders of all Receipts then outstanding at
least 30 days prior to the date fixed for such termination. On and after the
date of termination of the Deposit Agreement, the Holder will, upon surrender of
such Holders' Receipt at the Principal Office of the Depositary, upon the
payment of the charges of the Depositary for the surrender of Receipts and
subject to the conditions and restrictions therein set forth, and upon payment
44
of any applicable taxes or governmental charges, be entitled to delivery, to him
or upon his order, of the amount of Deposited Securities represented by such
Receipt, If any Receipts shall remain outstanding after the date of termination
of the Deposit Agreement, the Registrar thereafter shall discontinue the
registration of transfers of Receipts, and the Depositary shall suspend the
distribution of dividends to the Holders thereof, and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights as provided in the Deposit
Agreement, and shall continue to deliver Deposited Securities, subject to the
conditions and restrictions set forth in the Deposit Agreement, together with
any dividends or other distributions received with respect thereto and the net
proceeds of the sale of any rights or other property, in exchange for Receipts
surrendered to the Depositary (after deducting, or charging, as the case may be,
in each case, the charges of the Depositary for the surrender of a Receipt, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). At any time after the expiration of three (3) months
from the date of termination of the Deposit Agreement, the Depositary may sell
the Deposited Securities then held hereunder and may thereafter hold uninvested
the net proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders whose Receipts have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from all
obligations under the Deposit Agreement with respect to the Receipts and the
Deposited Securities and ADSs, except to account for such net proceeds and other
cash (after deducting, or charging, as the case may be, in each case the charges
of the Depositary for the surrender of a Receipt, any expenses for the account
of the Holder in accordance with the terms and conditions of the Deposit
Agreement and any applicable taxes or governmental charges or assessments). Upon
the termination of the Deposit Agreement, the Company shall be discharged from
all obligations under the Deposit Agreement except as set forth in the Deposit
Agreement.
45
Notwithstanding anything to the contrary in this Receipt or the Deposit
Agreement, the Deposit Agreement, unless otherwise extended by the Company and
the Depositary, shall automatically terminate on the date of the termination of
the Successor Trust. At the time of such termination, the Successor Trustee will
sell the Shares held in the Successor Trust and will distribute the net proceeds
of the sale of the Shares underlying the Successor Trust CPOs which are
represented by the ADSs issued under the Deposit Agreement to the Custodian on a
pro rata basis in accordance with the number of Successor Trust CPOs held by the
Custodian. The Depositary shall sell and thereafter hold the net proceeds of any
such sales, together with any other cash then held by it hereunder, in an
unsegregated account, without liability for interest for the pro rata benefit of
the Holders whose Receipts have not theretofore been surrendered and shall be
discharged from all obligations under the Deposit Agreement with respect to the
Receipts and the Deposited Securities, except to account for such net proceeds
and other cash (after deducting, or charging, as the case may be, in each case,
the charges of the Depositary for the surrender of a Receipt, any expenses for
the account of the Holder in accordance with the terms and conditions of this
Deposit Agreement and any applicable taxes or governmental charges or
assessments). Upon the termination of the Deposit Agreement, the Company shall
be discharged from all obligations under the Deposit Agreement except as
specifically contemplated therein.
(25) Compliance with U.S. Securities Laws. Notwithstanding any provisions
in this Receipt or the Deposit Agreement to the contrary, the withdrawal or
delivery of Deposited Securities will not be suspended by the Company or the
Depositary except as would be permitted by Section I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act of 1933.
46
(26) Certain Rights of the Depositary; Limitation. Subject to the further
terms and provisions of the Deposit Agreement, the Depositary, its Affiliates
and their respective agents, on their own behalf, may own and deal in any class
of securities of the Company and its Affiliates, in Eligible Securities and in
ADSs. In its capacity as Depositary, the Depositary shall not lend Deposited
Securities or ADSs; provided, however, that the Depositary may (i) issue ADSs
prior to the receipt of Eligible Securities and (ii) deliver Deposited
Securities prior to the receipt and cancellation of ADSs, including ADSs which
were issued under (i) above but for which Eligible Securities may not have been
received (each such transaction a "Pre-Release Transaction"). The Depositary may
receive ADSs in lieu of Eligible Securities under (i) above and receive Eligible
Securities in lieu of ADSs under (ii) above. Each such Pre-Release Transaction
will be (a) subject to a written agreement whereby the person or entity (the
"Applicant") to whom ADSs or Deposited Securities are to be delivered (aa)
represents that at the time of the Pre-Release Transaction the Applicant or its
customer owns the Eligible Securities or ADSs that are to be delivered by the
Applicant under such Pre-Release Transaction, (bb) agrees to indicate the
Depositary as owner of such Eligible Securities or ADSs in its records and to
hold such Eligible Securities or ADSs in trust for the Depositary until such
Eligible Securities or ADSs are delivered to the Depositary or the Custodian,
(cc) unconditionally guarantees to deliver to the Depositary or the Custodian,
as applicable, such Eligible Securities or ADSs, (dd) assigns all beneficial
rights, title and interest in such Eligible Securities or ADSs to the
Depositary, and (ee) agrees to any additional restrictions or requirements that
the Depositary deems appropriate, (b) at all times fully collateralized with
cash, United States government securities or such other collateral as the
Depositary deems appropriate, (c) terminable by the Depositary on not more than
five (5) business days notice and (d) subject to such further indemnities and
credit regulations as the Depositary deems appropriate. The Depositary will
normally limit the number of ADSs and Deposited Securities involved in such
Pre-Release Transactions at any one time to thirty percent (30%) of the ADSs
outstanding (without giving effect to ADSs outstanding under (i) above),
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate. The Depositary may also
set limits with respect to the number of ADSs and Deposited Securities involved
in Pre-Release Transactions with any one person on a case by case basis as it
deems appropriate.
47
The Depositary may retain for its own account any compensation received by
it in conjunction with the foregoing. Collateral provided pursuant to (b) above,
but not the earnings thereon, shall be held for the benefit of the Holders
(other than the Applicant).
Legend to be affixed to Partial Entitlement American Depositary Receipts:
[The Receipts issued in respect of Partial Entitlement American
Depositary Shares shall bear the following legend on the face of the
Receipt: "This Receipt evidences ADSs representing "partial
entitlement" Deposited Securities and as such do not entitle the
holders thereof to the same distributions and entitlements as other
Deposited Securities (which are "full entitlement" Deposited
Securities) issued and outstanding at such time. The American
Depositary Shares represented by this Receipt shall entitle holders
to distributions and entitlements identical to other American
Depositary Shares when the "partial entitlement" Deposited
Securities become "full entitlement" Deposited Securities, as the
case may be.]
48
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ____________________ whose taxpayer identification number is
_________________________ and whose address including postal zip code is
_________________________, the within Receipt and all rights thereunder, hereby
irrevocably constituting and appointing _______________________ attorney-in-fact
to transfer said Receipt on the books of the Depositary with full power of
substitution in the premises.
Dated: Name: __________________________________
By: Title:
NOTICE: The signature of the Holder to this assignment must correspond with the
name as written upon the face of the within instrument in every particular,
without alteration or enlargement or any change whatsoever.
If the endorsement be executed by an attorney, executor, administrator, trustee
or guardian, the person executing the endorsement must give his/her full title
in such capacity and proper evidence of authority to act in such capacity, if
not on file with the Depositary, must be forwarded with this Receipt.
All endorsements or assignments of Receipts must be guaranteed by a member of a
Medallion Signature Program approved by the Securities Transfer Association,
Inc.
SIGNATURE GUARANTEED
49
Exhibit (b)
388 Greenwich Street
14th Floor
New York, NY 10013
October 12, 2007
Cemex S.A.B. de C.V. - Direct Registration System for ADSs
Ladies and Gentlemen:
Reference is made to Amendment No. 1 to the Second Amended and Restated
Deposit Agreement, dated as of July 1, 2005 (the "Deposit Agreement"), by and
among Cemex S.A.B. de C.V. (the "Company"), Citibank, N.A., as Depositary (the
"Depositary"), and all Holders and Beneficial Owners from time to time of
American Depositary Receipts ("ADRs") evidencing American Depositary Shares
("ADSs") issued thereunder, each ADS representing ten (10) Shares (the "Shares")
of the Company. Capitalized terms used herein without definition shall have the
meaning assigned thereto in the Deposit Agreement.
The purpose of this letter agreement is to supplement the Deposit
Agreement to enable the establishment by the Depositary of a "direct
registration system" (the "DR System") for ADSs and the issuance by the
Depositary of "uncertificated ADSs" as part of the DR System. Therefore, the
Company and the Depositary agree as follows:
1. Notwithstanding any provision of the Deposit Agreement, the Depositary
may, at any time and from time to time, issue ADSs that are not evidenced by
ADRs (such ADSs, the "Uncertificated ADSs", and the ADSs evidenced by ADRs, the
("Certificated ADSs").
2. Uncertificated ADSs shall not be represented by any instrument(s) but
shall be evidenced only by the registration of "uncertificated securities" on
the books and records of the Depositary maintained for such purpose. Any
reference to Holders of ADR(s) or ADS(s) in the Deposit Agreement shall, in the
context of the Uncertificated ADSs, refer to the person(s) in whose name the
Uncertificated ADSs are registered on the books of the Depositary maintained for
such purpose.
3. Holders of Uncertificated ADSs that are not subject to any registered
pledges, liens, restrictions or adverse claims, of which the Depositary has
written notice at such time, shall at all times have the right to exchange the
Uncertificated ADSs (or any portion thereof) for Certificated ADSs of the same
type and class, subject in each case to applicable laws and any rules the
Depositary may establish from time to time in respect of the Uncertificated
ADSs.
4. Holders of Certificated ADSs shall, so long as the Depositary maintains
the DR System for the ADSs, have the right to exchange the Certificated ADSs (or
any portion thereof) for Uncertificated ADSs upon (i) the due surrender of the
Certificated ADSs to the Depositary for such purpose, and (ii) the presentation
of a written request to such effect to the Depositary, subject in each case to
(a) all liens and restrictions noted on the ADR evidencing the Certificated
ADS(s) and all adverse claims of which the Depositary then has written notice,
(b) the terms of the Deposit Agreement (as supplemented by this letter
agreement) and the rules that the Depositary may establish from time to time for
such purposes thereunder, and (c) applicable law.
5. Uncertificated ADSs shall in all material respects be identical to
Certificated ADSs of the same type and class, except that (i) no ADR(s) shall
be, nor shall need to be, issued to evidence Uncertificated ADSs, (ii)
Uncertificated ADSs shall, subject to the terms of the Deposit Agreement (as
supplemented by this letter agreement), be transferable upon the same terms and
conditions as uncertificated securities under New York law, (iii) each Holder's
ownership of Uncertificated ADSs shall be recorded on the books and records of
the Depositary maintained for such purpose and evidence of such Holder's
ownership shall be reflected in periodic statements provided by the Depositary
to each such Holder in accordance with applicable law, (iv) the Depositary may
from time to time, upon notice to the Holders of Uncertificated ADSs affected
thereby, establish rules and amend or supplement existing rules, as may be
deemed reasonably necessary to maintain the DR System and for the issuance of
Uncertificated ADSs on behalf of Holders, provided that such rules do not
conflict with the terms of the Deposit Agreement (as supplemented by this letter
agreement) and applicable law, (v) the Holder of Uncertificated ADSs shall not
be entitled to any benefits under the Deposit Agreement (as supplemented by this
letter agreement) and such Holder's Uncertificated ADSs shall not be valid or
enforceable for any purpose against the Depositary or the Company unless such
Holder is registered on the books and records of the Depositary maintained for
such purpose, (vi) the Depositary may, in connection with any deposit of Shares
resulting in the issuance of Uncertificated ADSs and with any transfer, pledge,
release and cancellation of Uncertificated ADSs, require the prior receipt of
such documentation as the Depositary may reasonably request, and (vii) upon
termination of the Deposit Agreement (as supplemented by this letter agreement),
the Depositary shall not require Holders of Uncertificated ADSs to affirmatively
instruct the Depositary or to take other action before remitting proceeds from
the sale of the Deposited Securities represented by such Holders' Uncertificated
ADSs under the terms of Section 6.2 of the Deposit Agreement.
6. When issuing ADSs under the terms of the Deposit Agreement, including,
without limitation, issuances pursuant to Sections 4.3, 4.4 and 4.5 thereof, the
Depositary may in its discretion determine to issue Uncertificated ADSs rather
than Certificated ADSs, unless otherwise specifically instructed in writing by
the applicable Holder to issue Certificated ADSs.
7. Holders of Uncertificated ADSs may request the sale of ADSs through the
Depositary, subject to the terms and conditions generally applicable to the sale
of ADSs through the Depositary from time to time (which may be changed by the
Depositary).
8. All provisions and conditions of the Deposit Agreement shall apply to
Uncertificated ADSs to the same extent as to Certificated ADSs, except as
contemplated herein. The Depositary is authorized and directed to take any and
all actions, and establish any and all procedures, deemed reasonably necessary
to give effect to the terms hereof. Any references in the Deposit Agreement or
any ADR(s) to the terms "American Depositary Share(s)" or "ADS(s)" shall, unless
the context otherwise requires, include Certificated ADS(s) and Uncertificated
ADS(s), individually or collectively, as the context may require.
9. Except as set forth herein and except as required by applicable law,
the Uncertificated ADSs shall be treated as ADSs issued and outstanding under
the terms of the Deposit Agreement (as supplemented by this letter agreement).
In the event that, in determining the rights and obligations of parties to the
Deposit Agreement (as supplemented by this letter agreement) with respect to any
Uncertificated ADSs, any conflict arises between (a) the terms of the Deposit
Agreement and (b) the terms hereof, the terms and conditions set forth herein
shall be controlling and shall govern the rights and obligations of the parties
to the Deposit Agreement pertaining to the Uncertificated ADSs.
10. This letter agreement shall be interpreted under, and all the rights
and obligations hereunder shall be governed by, the laws of the State of New
York without regard to the principles of choice of law thereof.
11. The terms of this letter agreement supplement the Deposit Agreement,
and are not intended to material prejudice any substantial existing rights of
Holders of ADSs and, as a result, notice may, but is not required, to be given
of the terms hereof to Holders of ADSs under the Deposit Agreement.
12. The Company and the Depositary shall make reference to the terms of
this letter agreement, or attach an executed copy hereof to, the next
Registration Statement on Form F-6 filing made with the Securities and Exchange
Commission in respect of the ADSs.
CITIBANK, NA.,
as Depositary
By: /s/ Ana-Maria Carasso
----------------------------
Name: Ana-Maria Carasso
Title: Vice President
Date: Oct. 12, 2007
Acknowledged and Agreed:
Cemex S.A.B. de C.V.
By: /s/ Rodrigo Trevino
------------------------------
Name: Rodrigo Trevino
Title: Chief Financial Officer
Date:
Exhibit (d)
[LETTERHEAD OF PBWT]
September 8, 2009
Citibank, N.A. - ADR Department
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
We refer to the Registration Statement on Form F-6 (the "Registration
Statement") to be filed with the Securities and Exchange Commission (the "SEC")
by the legal entity to be created by the Deposit Agreement (as hereinafter
defined) for the purpose of registering under the United States Securities Act
of 1933, as amended (the "Securities Act"), 400,000,000 American Depositary
Shares (the "ADSs") to be issued under the Second Amended and Restated Deposit
Agreement, dated as of August 10, 1999 (the "Original Deposit Agreement"), by
and among Citibank, N.A., as Depositary (the "Depositary"), CEMEX, S.A.B. de
C.V. a company incorporated and existing under the laws of the United Mexican
States (the "Company"), and all Holders and Beneficial Owners from time to time
of ADSs evidenced by American Depositary Receipts ("ADRs") issued thereunder, as
amended by Amendment No.1 to Second Amended and Restated Deposit Agreement,
dated as of July 1, 2005 ("Amendment No.1"), by and among the Depositary, the
Company and all Holders and Beneficial Owners from time to time of ADSs
evidenced by ADRs, and as supplemented by the Letter Agreement, dated October
12, 2007 (the "Letter Agreement," and the Original Deposit Agreement as amended
by the Amendment No. 1 and as supplemented by the Letter Agreement, the "Deposit
Agreement"). A copy of each of the Amendment No. 1 and the Letter Agreement are
being filed as Exhibits (a)(i) and (b), respectively, to the Registration
Statement. Each ADS represents the right to receive, subject to the terms of the
Deposit Agreement, ten (10) CPOs, each CPO representing economic interests in
two (2) Series A Shares and one (1) Series B Share, in each case held in the CPO
Trust of the Company.
Nothing contained herein or in any document referred to herein is intended
by this firm to be used, and the addressees hereof cannot use anything contained
herein or in any document referred to herein, as "tax advice" (within the
meaning given to such term by the United States Internal Revenue Service ("IRS")
in IRS Circular 230 and any related interpretative advice issued by the IRS in
respect of IRS Circular 230 prior to the date hereof, and hereinafter used
within such meaning and interpretative advice). Without admitting that anything
contained herein or in any document referred to herein constitutes "tax advice"
for any purpose, notice is hereby given that, to the extent anything contained
herein or in any document referred to herein constitutes, or is or may be
interpreted by any court, by the IRS or by any other administrative body to
constitute, "tax advice," such "tax advice" is not intended or written to be
used, and cannot be used, for the purpose of (i) avoiding penalties under the
United States Internal Revenue Code of 1986, as amended, or (ii) promoting,
marketing or recommending to any party any transaction or matter addressed
herein.
Assuming that, at the time of their issuance, the Registration Statement
will have been declared effective by the SEC, the Deposit Agreement has been
duly executed and delivered by the Company, and the Shares and the CPOs have
been legally issued, we are of the opinion that the ADSs, when issued in
accordance with the terms of the Deposit Agreement and the Registration
Statement, will be legally issued and will entitle the Holders to the rights
specified in the Deposit Agreement and, if applicable, the ADR(s) evidencing the
ADS(s).
This opinion is limited to the laws of the State of New York and the
Federal laws of the United States. Without admitting that we are within the
category of persons whose consent is required under Section 7 of the Securities
Act, we hereby consent to the use of this opinion as Exhibit (d) to the
Registration Statement.
Very truly yours,
PATTERSON BELKNAP WEBB & TYLER LLP
By: /s/ Herman H. Raspe
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A Member of the Firm
Exhibit (e)
Rule 466 Certification
The depositary, Citibank, N.A., represents and certifies the following:
1. That it previously had filed a registration statement on Form F-6
(Registration No. 333-135725), which the U.S. Securities and
Exchange Commission declared effective, with terms of deposit
identical to the terms of deposit of this Form F-6 Registration
Statement; and
2. That its ability to designate the date and time of effectiveness
under Rule 466 has not been suspended.
CITIBANK, N.A., as Depositary
By: /s/ Thomas Crane
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Name: Thomas Crane
Title: Vice President