FORM OF RIGHTS AGENCY AGREEMENT
Exhibit 4.7
FORM OF RIGHTS AGENCY AGREEMENT
RIGHTS AGENCY AGREEMENT (this “Agreement”), dated as of September ___, 2006,
between VITRO, S.A DE C.V. (the “Company”), a corporation with variable capital (sociedad
anónima de capital variable) organized under the laws of Mexico, and THE BANK OF NEW YORK, a New
York banking corporation (the “Rights Agent”).
WHEREAS, the Company will grant to existing holders of American Depositary Shares
(“ADSs”) issued under the Amended and Restated Deposit Agreement dated as of June 24, 2005
(the “Deposit Agreement”), among the Company, The Bank of New York, as Depositary (the
“Depositary”) and all holders and beneficial owners from time to time of American
Depositary Receipts (“ADRs”) issued thereunder that are registered on the books of the
Depositary (the “ADS Holders”) as of September 29, 2006 (the “Record Date”) the
right to purchase new ADSs for dollar equivalent, at the time the Rights Agent converts the funds,
of Ps.___ per ADS (the “Rights Offer”). Each ADS holder will receive one (1) ADS
right (an “ADS Right”) for each ADS held on the Record Date, and each ADS Right will
entitle the holder to purchase 0.212584365 of a new ADS in the Rights Offer. Each ADS represents
three CPOs (as defined in the Deposit Agreement) of the Company. Each CPO represents financial
interests in one ordinary share (each, a “Share”) of the Company.
WHEREAS, the Rights Offer is expected to commence on or about ___, 2006. The Rights
Offer will be made to each ADS Holder by means of the prospectus dated September ___, 2006 (the
“Prospectus”), which will be accompanied by an ADS Rights Certificate (“ADS Rights
Certificate”), instructions with respect to the number of ADSs that may be purchased, the
method for subscribing and the delivery of payment (the “Instructions”) and certain other
documents. The ADS Rights Certificates are to be used by the ADS Holders to subscribe for new ADSs
in the Rights Offer.
WHEREAS, the ADS Rights will be listed for trading on the New York Stock Exchange, evidenced
by certificates in registered form and transferable by their holders.
NOW, THEREFORE, in consideration of the premises and mutual agreements herein, the Company and
the Rights Agent hereby agree as follows:
ARTICLE I. - APPOINTMENT OF THE RIGHTS AGENT
The Company hereby appoints The Bank of New York as the Rights Agent of the Company in
connection with the Rights Offer in accordance with the terms
and conditions of this Agreement, and The Bank of New York hereby accepts such appointment and
agrees to be bound by the terms and conditions of this Agreement upon execution and delivery of
this Agreement.
ARTICLE II. - TERMS OF RIGHTS OFFER
1. The subscription period will commence on or about ___, 2006 (the “Commencement
Date”) and will end on ___, 2006 (the “Expiration Date”). The Commencement Date
through 5:00 p.m. (New York City time) on the Expiration Date will constitute the subscription
period (the “Subscription Period”). The Company will notify the Rights Agent of the
Commencement Date if different from the date set forth above (and in the absence of such notice the
Rights Agent may assume that the Commencement Date is such date) and of any extension of the
Expiration Date.
2. ADS Holders on the Record Date will be entitled to purchase ADSs pursuant to the Rights
Offer at the U.S. dollar equivalent, on the date the Rights Agent converts the subscription funds,
of Ps.___ per new ADS. Subscribing ADS Holders must deposit $2.6214 per new ADS (the “Deposit
Amount”), which is based on an estimated subscription price
of $ ____ per ADS, using an
exchange rate of Ps.___ = $1.00 on September 27, 2006, plus ten percent of that amount to cover
potential fluctuations in the exchange rate between the Peso and the U.S. dollar, the ADS issuance
fee of $.05 per new ADS, currency conversion expenses and any Mexican taxes or transactional
expenses.
ARTICLE III. - DELIVERY OF RIGHTS OFFER MATERIAL; EXECUTION,
VALIDITY AND TRANSFER OF ADS RIGHTS CERTIFICATES
VALIDITY AND TRANSFER OF ADS RIGHTS CERTIFICATES
1. On or before ___, 2006, the Company shall deliver to the Rights Agent sufficient copies
of the Prospectus, the ADS Rights Certificates, the Instructions and a notice of guaranteed
delivery (“Notice of Guaranteed Delivery”).
2. Unless otherwise instructed in writing by the Company, as soon as practicable after the
date of this Agreement, the Rights Agent shall send to each ADS Holder as of the Record Date (i) a
Prospectus, (ii) an ADS Rights Certificate, (iii) a copy of the Instructions, (iv) the Notice of
Guaranteed Delivery and (v) a return envelope addressed to the Rights Agent for use by such ADS
Holder (such material, collectively, the “Rights Offer Material”).
3. In the event that the Rights Offer Material is returned to the Rights Agent for any reason
and a proper delivery thereof cannot be effected to an ADS Holder, the Rights Agent shall hold such
Rights Offer Material, and the related ADS Holder’s right to purchase ADSs under the Rights Offer
will be treated as unexercised. The Rights Agent shall supply the Company with such information as
the Company may request with respect to any Rights Offer Material that cannot be delivered to an
ADS Holder.
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4. In the event that, prior to the Expiration Date, any ADS Holder notifies the Rights Agent
that the Rights Offer Material to which such ADS Holder is entitled has not been delivered, or has
been lost, stolen or destroyed, the Rights Agent will furnish to such ADS Holder a copy of the
Rights Offer Material (subject, in the case of any ADS Rights Certificate, to compliance by the ADS
Holder with the provisions of paragraph 7 of this Article). The Company agrees to supply the
Rights Agent with sufficient copies of the Rights Offer Material for such purposes.
5. The ADS Rights Certificates shall be substantially in form of Exhibit A to this Agreement.
The ADS Rights Certificates shall be executed on behalf of the Company by any authorized officer of
the Company (an “Authorized Officer”), which need not be the same authorized signatory for
all of the ADS Rights Certificates, either manually or by facsimile signature. The ADS Rights
Certificates shall be manually countersigned by an authorized signatory of the Rights Agent, which
need not be the same signatory for all of the ADS Rights Certificates, and no ADS Rights
Certificate shall be valid for any purpose unless so countersigned.
The Rights Agent shall, upon written instructions of an Authorized Officer, initially
countersign and deliver ADS Rights Certificates for all ADS Rights issuable in the Rights Offer as
of the Record Date, and thereafter shall countersign and deliver ADS Rights Certificates as
otherwise provided in this Agreement.
In case any Authorized Officer of the Company that signed any of the ADS Rights Certificates
ceases to be an Authorized Officer of the Company before countersignature by the ADS Rights Agent
and issuance and delivery by the Company, such ADS Rights Certificates, nevertheless, may be
countersigned by the Rights Agent, issued and delivered with the same force and effect as though
the person who signed such ADS Rights Certificates had not ceased to be such officer of the
Company; and any ADS Rights Certificate may be signed on behalf of the Company by any person who,
at the actual date of the execution of such ADS Rights Certificate, shall be an Authorized Officer
of the Company authorized to sign such ADS Rights Certificate, although at the date of the
execution of this Agreement any such person was not such an Authorized Officer.
The Rights Agent will keep or cause to be kept, at one of its offices in New York City, books
for registration and transfer of the ADS Rights issued hereunder. Such books shall show the names
and addresses of the respective registered holders of the ADS Rights (each, a “Holder”),
the number of ADS Rights evidenced by each of the ADS Rights Certificates and the date of each of
the ADS Rights Certificates.
6. At any time after the close of business on the date hereof and at or prior to the close of
business on the Expiration Date, a transfer of any ADS Rights may be registered and any ADS Rights
Certificate or ADS Rights Certificates may be split up, combined or exchanged for another ADS
Rights Certificate or ADS Rights Certificates evidencing the same number of ADS Rights as the ADS
Rights Certificate or ADS Rights
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Certificates surrendered. Any Holder desiring to register the transfer of ADS Rights or to
split up, combine or exchange any ADS Rights Certificate shall make such request in writing
delivered to the Rights Agent, and shall surrender to the Rights Agent the ADS Rights Certificate
or ADS Rights Certificates evidencing the ADS Rights the transfer of which is to be registered or
that is or are to be split up, combined or exchanged and, in the case of registration of transfer,
shall provide a signature guarantee. Thereupon, the Rights Agent shall countersign and deliver to
the person entitled thereto an ADS Rights Certificate or ADS Rights Certificates, as the case may
be, as so requested. The Company and the Rights Agent may require payment, by the Holder
requesting a registration of transfer of ADS Rights or a split-up, combination or exchange of an
ADS Rights Certificate, of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with such registration of transfer, split-up, combination or exchange,
together with reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto.
7. Upon receipt by the Company and the Rights Agent of evidence reasonably satisfactory to
them of the loss, theft, destruction or mutilation of an ADS Rights Certificate, and, in case of
loss, theft or destruction, of indemnity or security in customary form and amount, and
reimbursement to the Company and the Rights Agent of all reasonable expenses incidental thereto,
and upon surrender to the Rights Agent and cancellation of the ADS Rights Certificate if mutilated,
the Rights Agent shall, on behalf of the Company, countersign and deliver a new ADS Rights
Certificate of like tenor to the Holder in lieu of the ADS Rights Certificate so lost, stolen,
destroyed or mutilated.
ARTICLE IV. - ACCEPTANCE OF SUBSCRIPTIONS
1. The Rights Agent is hereby authorized and directed to receive subscriptions for ADSs on
behalf of the Company throughout the Subscription Period. If the Rights Agent has received a duly
executed Notice of Guaranteed Delivery and payment of the related Deposit Amount during the
Subscription Period, the Rights Agent is also authorized and directed to receive the ADS Rights
Certificate to which that Notice of Guaranteed Delivery relates until 5:00 p.m. (New York City
time) on October ___, 2006 (the “Guaranteed Delivery Date”) in accordance with the guaranteed
delivery procedures agreed with the Company. Any funds that the Rights Agent receives during the
Subscription Period from ADS Holders in respect of payments for ADSs shall be deposited in a
non-interest bearing account at the Rights Agent that the Rights Agent designates solely for such
purpose (the “Deposit Account”). Such funds shall remain in the Deposit Account until they
are distributed to the Company in accordance with Article VI hereof.
2. As promptly as practicable after the Rights Agent receives each ADS Rights Certificate, the
Rights Agent shall determine whether the Holder sending such ADS Rights Certificate has properly
completed and executed such ADS Rights Certificate and has submitted the correct Deposit Amount for
the ADSs. If such ADS
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Rights Certificate is not properly completed, is unexecuted or if such Holder did not send the
correct Deposit Amount, then the Rights Agent will send a notice to such Holder instructing such
Holder to amend its ADS Rights Certificate or submit the proper Deposit Amount, as the case may be.
Except as set forth below in this Article IV, if such Holder does not amend its ADS Rights
Certificate or submit the proper Deposit Amount, as the case may be, by the Expiration Date or, if
applicable, the Guaranteed Delivery Date, such Holder’s right to purchase ADSs in the Rights Offer
shall be deemed to be unexercised.
3. Notwithstanding the foregoing, without further authorization from the Company, except where
otherwise specified or as otherwise notified in writing by the Company prior to the Expiration
Date, an ADS Rights Certificate shall be deemed to be properly completed in any of the following
circumstances:
• any subscription with respect to which a Holder has failed to execute an ADS
Rights Certificate in the manner provided by the terms thereof, provided that (1) the
Holder has indicated on such ADS Rights Certificate or by written communication the manner
in which the Holder wishes to subscribe and (2) proper payment has been made by such
Holder;
• any subscription by an individual (and not by a corporation, partnership or
fiduciary) which is accompanied by a check drawn by an individual (and not by a
corporation, partnership or fiduciary) other than the Holder, provided that (1) the ADS
Rights Certificate submitted therewith has been duly executed by the Holder, (2) the check
tendered in payment of such subscription is drawn for the proper amount and to the order of
The Bank of New York and is otherwise in order, and (3) there is no evidence actually known
to the Rights Agent indicating that such check was delivered to the Holder by the drawer
thereof for any purpose other than the payment of the accompanying subscription;
• any subscription by a custodian on behalf of a minor which is accompanied by a
check drawn by an individual (and not by a corporation, partnership or fiduciary) other
than the Holder, if the provisos set forth in clause (b) above are satisfied; or
• any subscription by an individual (and not by a corporation, partnership or
fiduciary) which is accompanied by a check drawn by a corporation, partnership or fiduciary
other than the Holder, if the provisos set forth in clause (b) above are satisfied.
4. The Rights Agent is authorized to waive proof of authority to sign (including the right to
waive signatures of co-fiduciaries and proof of appointment or authority of any fiduciary or other
person acting in a representative capacity) in connection with any subscription with respect to
which:
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(a) the ADSs to which the ADS Rights Certificate relates are registered in the name of
an executor, administrator, trustee, custodian for a minor or other fiduciary and the ADS
Rights Certificate has been executed by such Holder, provided that the ADSs purchased are
to be issued in the name of such Holder in that same capacity;
(b) the ADSs to which the ADS Rights Certificate relates are registered in the name of
a corporation and the ADS Rights Certificate has been executed by an officer of such
corporation, provided that the ADSs purchased are to be issued in the name of such
corporation;
(c) the ADS Rights Certificate has been executed by a bank, trust company or broker as
agent for the Holder, provided that the ADSs purchased are to be issued in the name of such
Holder; or
(d) the ADS Rights to which such ADS Rights Certificate relates are registered in the
name of a decedent and the ADS Rights Certificate has been executed by a person who
purports to act as the executor or administrator of such decedent’s estate, provided that
(1) the ADSs are to be issued in the name of such person as executor or administrator of
such decedent’s estate, (2) the check tendered in payment of such subscription is drawn for
the proper amount and to the order of The Bank of New York and is otherwise in order, and
(3) there is no evidence actually known to the Rights Agent indicating that such person is
not the duly authorized representative which such person purports to be.
5. ADS Holders will only be entitled to subscribe for an integral number of new ADSs. ADS
Rights may not be exercised to purchase any fraction of a new ADS.
ARTICLE V. - REPORTS BY THE RIGHTS AGENT
1. The Rights Agent will advise the Company by facsimile transmission (i) on the Record Date
as to the total number of ADS Holders and the total number of ADSs outstanding; and (ii) on the
Commencement Date and on a daily basis during the Subscription Period as to (1) the total number of
subscriptions for ADSs and the total number of Shares represented thereby pursuant to the Rights
Offer that the Rights Agent has received (which have been properly completed and executed and for
which the correct payment amount was received) and (2) the aggregate amount of funds received by
the Rights Agent in payment of such subscriptions.
2. Not later than 7:00 p.m. (New York City time) on the Guaranteed Delivery Date, the Rights
Agent will advise the Company by facsimile transmission as to (i) the total number of ADSs
subscribed for in the Rights Offer and the total number of
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Shares represented thereby and (ii) the aggregate amount of funds received by the Rights Agent
in payment of such subscriptions.
ARTICLE VI. - PAYMENTS; REFUNDS; DEDUCTIONS; INTEREST ON SUBSCRIPTION PAYMENTS
1. Promptly after the Guaranteed Delivery Date and prior to the expiration of the subscription
period in connection with the Company’s rights offer of Shares, the Rights Agent shall instruct the
Depositary to (i) exercise the Share rights underlying the ADS Rights in respect of which the
Rights Agent has received a properly completed and executed ADS Rights Certificate and correct
payment (except as otherwise set forth in Article IV) and (ii) upon receipt by BBVA Bancomer S.A.,
as custodian under the Deposit Agreement (the “Custodian”) of the CPOs delivered upon
exercise of those Share rights, deliver the ADSs issuable in respect of those CPOs to the Rights
Agent. The Rights Agent shall deliver those ADSs to the Holders entitled to them as promptly as
practical. The Rights Agent shall purchase, at any commercially reasonable rate on or about
___, 2006, pesos sufficient to exercise the amount of Share rights specified in clause (i)
above and to pay the Mexican transaction taxes and expenses, if any, applicable to that exercise
and pay that amount of pesos to the Company through the Custodian on or about ___, 2006.
2. In connection with each exchange rate conversion and payment of the subscription price for
any new ADS to the Company, the Rights Agent shall deduct from the applicable Holder’s subscription
payment the ADR issuance fees payable to the Depositary pursuant to the Deposit Agreement, currency
conversion expenses and any transaction taxes and expenses payable in respect of such subscription.
The Rights Agent shall instruct the Custodian to pay those transaction taxes and expenses.
3. If a Holder’s subscription payment is insufficient to pay the amount of the subscription
price in pesos plus ADS issuance fees, currency conversion expenses and transaction taxes and
expenses, if any, in respect of new ADSs subscribed for and allocated, the Rights Agent shall
advance the deficiency on behalf of such Holder to the extent the deficiency does not exceed 20% of
such Holder’s payment. The Rights Agent shall not be required to deliver new ADSs to any Holder
until it has received from such Holder payment of any deficiency advanced by the Rights Agent. If
the Holder does not pay the amount of the deficiency financed by the Rights Agent by ___, 2006,
the Rights Agent may sell enough of the Holder’s new ADSs to cover the amount of the deficiency.
In such event, the Rights Agent shall send the Holder promptly a new ADR representing the remaining
new ADSs and a check in the amount of any excess proceeds, net of ADS issuance fees, conversion
expenses, transaction taxes and expenses and the commissions on the sale. If, however, the amount
of excess proceeds from the sale of the Holder’s new ADSs, after deductions for ADS issuance fees,
currency conversion expenses, financial transaction taxes and the commissions on the sale is less
than U.S.$5.00, the Rights Agent shall aggregate it and pay it to the Company.
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4. If, and to the extent that, the amount of any deficiency exceeds 20% of the amount of a
Holders’ payment, the Rights Agent (i) shall not be required to advance the amount of that
deficiency and (ii) may reduce the amount of each Holder’s subscription for new ADSs pro rata,
unless the Holder delivers to the Rights Agent sufficient funds to cover the deficiency prior to
the relevant deadlines for subscription in the Share Rights Offering.
5. As soon as practicable following the expiration of the Share Rights Offering and the
closing date following the last reoffering of remaining unsubscribed Shares, if applicable, the
Company shall deposit the CPOs representing the Shares underlying the ADSs with the Custodian.
6. In connection with the guaranteed delivery procedures, if a Holder fails to deliver a
properly completed and signed ADS Rights Certificate before the Guaranteed Delivery Date, the
Rights Agent shall refund to the Holder the total Deposit Amounts the Holder paid to the Rights
Agent (without interest), after deducting any loss and expenses it incurred from the failed
guaranteed delivery.
7. If for any reason the Company instructs the Rights Agent in writing that the Share Rights
Offering will not proceed, the Rights Agent shall refund the Deposit Amounts paid in U.S. dollars,
without interest and net of financial transaction taxes and currency conversion expenses, to the
subscribing Holders entitled thereto.
ARTICLE VII. - ISSUANCE OF ADRs
1. The Rights Agent shall instruct the Depositary to execute and deliver ADRs evidencing new
ADSs purchased pursuant to the Rights Offer as soon as practicable after receipt of the underlying
CPOs by the Custodian. Following receipt from the Depositary of the ADSs properly purchased
pursuant to the Rights Offer, the Rights Agent will mail or deliver, including by book-entry
transfer, to each Holder that subscribed for new ADSs in the Rights Offer, the number of ADSs for
which such Holder has subscribed and purchased as instructed by that Holder.
2. For those ADS Holders for which ADRs will be mailed, as instructed by such ADS Holders, the
Rights Agent will mail the ADRs by first class mail under a blanket surety bond protecting the
Rights Agent and the Company from any loss or liability arising out of the nonreceipt or
nondelivery of any such ADR or the replacement thereof. If the market value of ADRs to be mailed
in any one shipment will exceed U.S.$1,000,000, such shipment will be sent by registered mail and
will be insured separately for the replacement value of its contents.
ARTICLE VIII. - LIMITATIONS OF DUTIES
1. The Rights Agent shall have no duties or obligations other than those specifically set
forth herein, including any duties or obligations under any other
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agreement, and no implied duties or obligations shall be read into this Agreement against the
Rights Agent.
2. The Rights Agent makes no, and will not be deemed to have made, representations with
respect to, and shall have no duties, responsibilities or obligations with respect to determining,
the validity, sufficiency, value or genuineness of any Shares, CPOs, ADS Rights Certificates or
other documents deposited with or delivered to it or any signature or endorsement set forth on or
in connection with such documents (except to the limited extent expressly set forth in Article IV).
3. The Rights Agent shall not be obligated to commence or voluntarily participate in any suit,
action or proceeding arising out of or related to this Agreement.
4. The Rights Agent shall not be liable or responsible for any of the statements of fact or
recitals contained in this Agreement, any other Rights Offer Materials, or any other document or
security delivered to it in connection with this Agreement, and shall not be required to, and shall
not, verify or determine the correctness, validity or accurateness of any such statements or
recitals contained therein.
5. The Rights Agent may rely upon and comply with, and shall incur no liability for relying
upon and complying with the Rights Offer Material, or other certificate, instrument, opinion of
counsel, notice, letter, telegram, records, or other document or security delivered to it in
connection with this Agreement and believed by it in good faith to be genuine and to have been
signed or presented by the proper party or parties.
6. The Rights Agent may consult with legal counsel for the Company or its own counsel (which
may be in-house counsel) and rely upon any opinion of such counsel, and shall have no liability in
respect of any action taken, omitted or suffered by the Rights Agent hereunder in reliance upon,
and in accordance with, any such opinion.
7. The Rights Agent is hereby authorized and directed to accept instructions with respect to
the performance of its duties hereunder from the Company, and to apply to the Company for advice or
instructions in connection with its duties, and it shall not be liable for any action taken or
suffered to be taken by it in good faith in accordance with instructions of any such officer or for
any delay in acting while waiting for those instructions. Any application by the Rights Agent for
written instructions from the Company may, at the option of the Rights Agent, set forth in writing
any action proposed to be taken or omitted by the Rights Agent under this Agreement and the date on
or after which such action shall be taken or such omission shall be effective. The Rights Agent
shall not be liable for any action taken by, or omission of, the Rights Agent in accordance with a
proposal included in such application on or after the date specified in such application (which
date shall not be less than three business days after the date the Company actually receives such
application, unless the Company shall have consented in
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writing to any earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Rights Agent shall have received written instructions in response to
such application specifying the action to be taken or omitted.
8. The Rights Agent may perform any duties hereunder either directly or by or through its
nominees, correspondents, designees, agents, subagents or subcustodians and shall not be
responsible for any misconduct or negligence on the part of any nominee, correspondent, designee,
agent, subagent or subcustodian appointed with due care by it hereunder.
ARTICLE IX. - COMPENSATION; PAYMENT OF EXPENSES
1. In consideration for the services rendered herein, the Company shall compensate the Rights
Agent in accordance with and pursuant to the written fee schedule separately agreed to by the
Rights Agent and the Company, and shall reimburse the Rights Agent for its out-of-pocket expenses,
including, without limitation, reasonable fees and disbursements of the Rights Agent’s counsel,
incurred in connection with the preparation and execution of this Agreement and the services
rendered by the Rights Agent hereunder. [The Rights Agent shall send the Company an invoice for
its fees and expenses that details the expenses for which it is entitled to reimbursement.]
2. Except to the limited extent expressly set forth in Article IV, paragraph 3, no provision
of this Agreement shall require the Rights Agent to expend or risk the Rights Agent’s own funds or
otherwise incur any financial liability in the performance of any of the Rights Agent’s duties
hereunder or in the exercise of the Rights Agent’s rights.
ARTICLE X. - TERMINATION OF AGENCY
1. Unless terminated earlier by the parties hereto, this Agreement shall terminate 90 days
after the Expiration Date (the “Termination Date”). On the business day following the
Termination Date, the Rights Agent shall deliver to the Company any Rights Offer entitlements, if
any, held by the Rights Agent under this Agreement. The Rights Agent’s right to be reimbursed for
fees, charges and out-of-pocket expenses as provided in Article IX paragraph 1 above and the
indemnification provisions of Article XI below shall survive the termination of this Agreement.
ARTICLE XI. - LIMITATION OF LIABILITY; INDEMNIFICATION
1. The Rights Agent shall not be liable for any Losses (as defined below) or action taken or
omitted or for any loss or injury resulting from its actions or performance or lack of performance
of its duties hereunder, except for any Losses caused by gross negligence or willful misconduct on
its part. In no event shall the Rights Agent be liable for (i) acting in accordance with the
instructions from the Company or its counsel or any agent appointed by the Company to act on behalf
of the Company, (ii)
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special, consequential or punitive damages, for lost profits or for loss of business or (iii)
any Losses due to forces beyond the control of the Rights Agent, including without limitation,
strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services.
2. The Company shall be liable for and shall indemnify and hold harmless the Rights Agent from
and against any and all claims, losses, liabilities, damages, expenses or judgments (including
reasonable attorney’s fees and expenses) (collectively referred to herein as “Losses”)
howsoever arising from or in connection with this Agreement or the performance of the Rights
Agent’s duties hereunder, the enforcement of this Agreement and disputes between the parties
hereto; provided, however, that nothing contained herein shall require that the Rights Agent be
indemnified for Losses caused by its gross negligence, bad faith or willful misconduct.
ARTICLE XII. - MISCELLANEOUS
1. Notices. All reports, notices and other communications required or permitted to be
given hereunder shall be addressed to the following on behalf of the respective parties hereto and
delivered by hand, by courier or by first-class mail, postage prepaid, or by telecopy promptly
confirmed in writing, as follows or to such other address as may be specified in writing from time
to time:
To the Company:
Vitro, S.A. de C.V.
Ave. Xxxxxxx Xxxxxxx Xxxxxx 400
San Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxx, 00000 Xxxxxx
Attn: Claudio del Xxxxx / Xxxxxx Xxxxxxxxx Xxxxxxx
Tel: x00 (00) 0000-0000
Fax: x00 (00) 0000 0000
Ave. Xxxxxxx Xxxxxxx Xxxxxx 400
San Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxx, 00000 Xxxxxx
Attn: Claudio del Xxxxx / Xxxxxx Xxxxxxxxx Xxxxxxx
Tel: x00 (00) 0000-0000
Fax: x00 (00) 0000 0000
To the Rights Agent:
The Bank of New York
Reorganization Administration
000 Xxxxxxx Xxxxxx, 00-X
Xxx Xxxx, Xxx Xxxx 00000
Attn: _________
Tel: 212-815-_____
Fax: 000-000-0000
Reorganization Administration
000 Xxxxxxx Xxxxxx, 00-X
Xxx Xxxx, Xxx Xxxx 00000
Attn: _________
Tel: 212-815-_____
Fax: 000-000-0000
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2. Assignment. Neither the Rights Agent nor the Company shall assign this Agreement
without first obtaining the written consent of the other party hereto.
3 Headings. The Article and Paragraph headings contained herein are for convenience
and reference only and are not intended to define or limit the scope of any provision of this
Agreement.
4. Entire Agreement; Amendment. This Agreement shall constitute the entire agreement
of the parties with respect to the subject matter and supersedes all prior oral or written
agreements in regard thereto. References to any other document or agreement shall not incorporate
by reference such other document or agreement into this Agreement and shall not impose any duties
or responsibilities, obligations or liabilities on the Rights Agent under such other document or
agreement. Except as otherwise specifically provided herein, this Agreement may be amended only by
an instrument in writing duly executed by both parties hereto.
5. Governing Law; Jurisdiction; Certain Waivers. (a) This Agreement shall be
interpreted and construed in accordance with the laws of the State of New York. All actions and
proceedings brought by the Rights Agent relating to or arising from, directly or indirectly, this
Agreement may be litigated in courts located within the State of New York. The Company hereby
submits to the personal jurisdiction of such courts and consents that any service of process may be
made by certified or registered mail, return receipt requested, directed to the Company at its
address last specified for notices hereunder. Each of the parties hereto hereby waives the right
to a trial by jury in any action or proceeding arising out of or relating to this Agreement.
(b) The invalidity, illegality or unenforceability of any provision of this Agreement shall
in no way affect the validity, legality or enforceability of any other provision; and if any
provision is held to be unenforceable as a matter of law, the other provisions shall not be
affected thereby and shall remain in full force and effect.
6. Rights and Remedies. The rights and remedies conferred upon the parties hereto
shall be cumulative, and the exercise or waiver of any such right or remedy shall not preclude or
inhibit the exercise of any additional rights or remedies. The waiver of any right or remedy
hereunder shall not preclude or inhibit the subsequent exercise of such right or remedy.
7. Representations and Warranties. The Company hereby represents, warrants and
covenants that:
(a) The Company is a corporation with variable capital (sociedad anónima de capital
variable) duly organized and validly existing under the laws of the United Mexican States.
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(b) This Agreement has been duly authorized, executed and delivered on its behalf and
constitutes the legal, valid and binding obligation of the Company. The execution,
delivery and performance of this Agreement by the Company does not and will not violate any
applicable law or regulation and does not require the consent of any governmental or other
regulatory body except for such consents and approvals as have been obtained and are in
full force and effect. For the avoidance of doubt, all Shares and ADSs to be issued and
delivered hereunder have been registered with the Securities and Exchange Commission, and
the sale by the Company of the Shares and ADSs in the Rights Offer is in compliance with,
and not in violation of, the Securities Act of 1933, as amended, and the Securities
Exchange Act of 1934, as amended.
8. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
9. No Third Party Beneficiaries. This Agreement is for the exclusive benefit of the
parties hereto and shall not be deemed to give any legal or equitable right, remedy or claim
whatsoever to any other person.
- 13 -
IN WITNESS WHEREOF, VITRO, S.A. DE C.V. and THE BANK OF NEW YORK have duly executed this
agreement as of the day and year first set forth above.
| VITRO, S.A. DE C.V. | ||
| By: | ||
| Name: | ||
| Title: | ||
| THE BANK OF NEW YORK, | ||
| as Rights Agent | ||
| By: | ||
| Name: | ||
| Title: |
- 14 -
Exhibit A
VITRO, S.A. DE C.V.
Form of ADS Rights Certificate
Form of ADS Rights Certificate
NOT EXERCISABLE AFTER ___, 2006
This certifies that the person whose name and address appears below, or registered
assigns, is the registered owner of the number of ADS Rights set forth below. Each ADS Right
entitles its registered holder to purchase from Vitro, S.A. de C.V. (the “Company”) at
any time prior to 5:00 P.M. (New York City time) on [ ], 2006, at the designated office of The
Bank of New York, as rights agent (the “Rights Agent”) set
forth below, 0.___ of an American
Depositary Share of the Company (each, an “ADS”), each ADS representing three ordinary
participation certificate (each, a “CPO”), each CPO representing one ordinary share of the Company
(each, a “Share”), at the U.S. dollar equivalent, on the day The Bank of New York, as rights agent
(the “Rights Agent”) converts the subscription funds, of Ps.___. The subscribing holder of ADS
Rights Subscribing ADS Holders must deposit $ ____ per new ADS (the “Deposit Amount”), which
is based on an estimated subscription price of $___,
using an exchange rate of Ps.___ = $1.00
on ___, 2006, plus ten percent of that amount to cover potential fluctuations in the exchange
rate between the Peso and the U.S. dollar, the ADS issuance fee of $.05 per new ADS, currency
conversion expenses and any Mexican taxes or transactional expenses. ADS Rights may be exercised
by presenting this ADS Rights certificate to the Rights Agent with the Form of Election to Purchase
duly executed, and in the case of a transfer, a signature guarantee, and such other and further
documentation as the Rights Agent may reasonably request. Payment may be made by certified bank
check or money order payable to the order of the Rights Agent.
This ADS Rights Certificate is subject to all of the terms, provisions and conditions of the
Company rights offer, as described in the Company’s Prospectus dated [ ], 2006.
This ADS Rights Certificate, with or without other ADS Rights Certificates, upon surrender at
the designated office of the Rights Agent, may be exchanged for another ADS Rights Certificate or
ADS Rights Certificates evidencing the same number of ADS Rights as the ADS Rights Certificate or
ADS Rights Certificates surrendered. A transfer of the ADSs Rights evidenced hereby may be
registered under surrender of this ADSs Rights Certificate at the designated office of the Rights
Agent by the registered holder in person or by a duly authorized attorney, properly endorsed or
accompanied by proper instruments of transfer, and duly stamped as may be required by the laws of
the State of New York and of the United States of America.
This Rights Certificate shall not be valid or obligatory for any purpose until it shall have
been countersigned by an authorized signatory of the Rights Agent.
WITNESS the facsimile signature of a proper officer of the Company.
| VITRO, S.A. de C.V. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Dated: ___, 2006
Countersigned:
THE BANK OF NEW YORK,
as Rights Agent
Countersigned:
THE BANK OF NEW YORK,
as Rights Agent
By:
Authorized Signatory
Authorized Signatory
Exhibit A
Please detach here
| Certificate No.:___ | Number of ADS Rights:___ |
ADS RIGHTS CUSIP: ________
VITRO. S.A. DE C.V.
This ADS Rights Certificate [(or Notice of Guaranteed Delivery)] must be received by the
Rights Agent, together with payment in full of the Deposit Amount, by 5:00 p.m., New York City
time, on ___, 2006. Failure to submit this ADS Rights Certificate to the Rights Agent by
that time or to comply with the guaranteed delivery procedures described in the Prospectus will
result in a forfeiture of your ADS Rights. Any subscription for ADSs in this rights offering is
irrevocable.
Complete the Election to Purchase Form or the Assignment Form on the reverse of this card, as
applicable. Any improperly completed or unexecuted rights certificate for new ADSs may cause the
Rights Agent in its sole discretion to reject such rights certificate. If you have any questions,
contact the Rights Agent at 000-000-0000.
| [Name & Address of Holder] | THE BANK OF NEW YORK | |||
| Rights Agent | ||||
| By mail: | ||||
| Tender and Exchange Department | ||||
| P.O. Box 11248 | ||||
| Church Street Station | ||||
| New York, New York 10286-1248 | ||||
| By hand or overnight courier: | ||||
| Tender and Exchange Department | ||||
| 000 Xxxxxxx Xxxxxx, x-X | ||||
| Xxx Xxxx, Xxx Xxxx 00000 |
FORM OF ELECTION TO PURCHASE
The registered holder of this ADS Rights Certificate is entitled to exercise the number of ADS
Rights shown in the upper right hand corner of the other side of this card and may subscribe for
additional ADSs upon the terms and conditions specified in the Prospectus, except that only whole
ADS may be subscribed for. ADS Rights may not be exercised to purchase any fraction of a new ADS.
The undersigned hereby notifies the Rights Agent of its irrevocable election to subscribe for
___ new ADSs to be purchased pursuant to exercise of ADS Rights.
This subscription is subject to the terms and conditions specified in the Prospectus. I hereby
acknowledge receipt of the Prospectus.
Signature of subscriber:
Dated: , 2006
(Joint owners should each sign. If signing as executor, administrator, attorney, trustee or
guardian, give your title as such. If a corporation, sign in the full corporate name by an
authorized officer. If a partnership, sign in the name of an authorized person.)
TO BE EXECUTED ONLY BY NON-UNITED STATES RESIDENTS:
I hereby certify that the foregoing subscription for new ADSs has been effected in accordance with the applicable laws of the jurisdiction in which I reside.
I hereby certify that the foregoing subscription for new ADSs has been effected in accordance with the applicable laws of the jurisdiction in which I reside.
Signature of subscriber:
ASSIGNMENT FORM
(To be executed by the registered holder if such holder
desires to register a transfer of ADS Rights)
(To be executed by the registered holder if such holder
desires to register a transfer of ADS Rights)
FOR VALUE RECEIVED, hereby sells, assigns and transfers unto
Name:
Address:
the ADS Rights evidenced hereby, and does hereby irrevocably constitute and appoint
the ADS Rights evidenced hereby, and does hereby irrevocably constitute and appoint
attorney to transfer those ADS Rights on the books of the
Company, with full power of substitution in the premises.
Please Insert Social Security or Other
Identifying Number of Assignee
Identifying Number of Assignee
Dated: , 2006
Signature:
Signature Guaranteed:
Notice
The signature to the foregoing assignment must correspond to the name as written upon the
face of this Rights Certificate in every particular, without alteration or enlargement or
any change whatsoever.
Signatures must be guaranteed by a financial institution that is a participant in the
Security Transfer Agents Medallion Program, the Stock Exchange Medallion Program or the New
York Stock Exchange Inc. Medallion Signature Program.
