Exhibit(d)(16)(B)
AMENDMENT NO. 2, dated as of April 3, 2003 ("Amendment No. 2"), to Stock
Purchase Agreement dated as of July 12, 2002 (as amended by the Letter Agreement
and Waiver referred to below, the "SPA" and, as further amended by this
Amendment No. 2, sometimes herein referred to as the "Agreement"), by and
between CEMEX, S.A. de C.V., a corporation organized under the laws of the
United Mexican States ("CEMEX"), and PAN ASIAN CEMENT INVESTORS, L.P., a limited
partnership organized under the laws of the State of Delaware (the "Seller").
The Seller and CEMEX are herein sometimes referred to individually as a "Party"
and collectively as the "Parties."
WITNESSETH:
WHEREAS, the SPA contemplates a transaction in which CEMEX will purchase
from the Seller, and the Seller will sell to CEMEX, the Seller's Shares;
WHEREAS, in accordance with their letter agreement and waiver dated March
18, 2003 (the "Letter Agreement and Waiver"), the Parties amended the SPA to
defer the Original Subsequent Closing Date (as herein defined) scheduled for
March 31,2003 to April 4, 2003;
WHEREAS, in connection with this Amendment No. 2, CEMEX, the Seller and
JPMorgan Chase Bank, as escrow agent (the "Escrow Agent"), are contemporaneously
executing and delivering Escrow Amendment No. 1, dated as of the date hereof
(the "Escrow Amendment"), to the Escrow Agreement dated as of July 12, 2002 (the
"EA" and, as amended by the Escrow Amendment, sometimes herein referred to as
the "Escrow Agreement") (this Amendment No. 2 and the Escrow Amendment are
sometimes herein collectively referred to as the "Amendments"), in accordance
with which Seller delivered to the Escrow Agent the Deposit (as defined in the
EA), which Escrow Agent continues to hold in escrow; and
WHEREAS, subject to the terms and conditions herein, the Parties desire to
extend each Original Subsequent Closing Date for one year to its corresponding
Subsequent Closing Date (as herein defined) on which, in accordance with this
Agreement and the Escrow Agreement (together sometimes herein referred to as the
"Agreements"), the Seller will sell and CEMEX will purchase the Seller's Shares.
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties and covenants herein contained, the receipt and adequacy of which are
hereby acknowledged, and intending legally to be bound hereby, the Parties agree
as follows:
Section 1. Definitions and Interpretation.
(a) In General. All terms used (including in the recitals hereto)
with initial capital letters and not defined herein shall have the meanings
provided or referred to in the Agreement. All references in this Amendment No. 2
to "Sections" are to Sections hereof.
(b) New Definitions. The following terms, when used herein with
initial capital letters, shall have the following meanings:
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"Accelerated Amount" means, at any date of determination after an
Event of Default has occurred and is continuing, the sum of (a) the
Outstanding Base Amount, plus (b) as to the other Tranches before their
corresponding Original Subsequent Closing Dates, an amount in Dollars equal
to the sum of the product of (i) the Number of CPOs that would have been
required to have been delivered by CEMEX to the Seller in accordance with
the SPA and the EA on the Original Subsequent Closing Date for each such
Tranche but for this Amendment Xx. 0, xxxxxxxxxx xx (xx) xxx xxxxxxx xx (X)
the Average CPO Closing Price for the ten (10) Trading Days immediately
preceding the date of the subject Event of Default and (B) the arithmetic
mean of the Average CPO Closing Prices previously applied to determine the
Base Amount of each Tranche for which the corresponding Original Subsequent
Closing Date has occurred. Once the Accelerated Amount for a Tranche has
been determined, such Accelerated Amount shall be fixed until (x) CEMEX
shall have made indefeasible payment thereof in full to the Seller, or (y)
the Parties have otherwise agreed in writing.
"Accelerated Number of CPOs" means the number of CPOs equal to the
quotient obtained by dividing (a) all or such remaining portion of the
Accelerated Amount determined in accordance with Section 9(a)(ii), by (b)
the lesser of (i) the Average CPO Closing Price for the ten (10) Trading
Days immediately preceding the date of the subject Event of Default and
(ii) the arithmetic mean of the Average CPO Closing Prices previously
applied to determine the Base Amount of each Tranche for which the
corresponding Original Subsequent Closing Date has occurred.
"Agreement" has the meaning set forth in the preamble hereto.
"Agreements" has the meaning set forth in the fourth recital hereto.
"Amendment No. 2" has the meaning set forth in the preamble hereto.
"Amendments" has the meaning set forth in the third recital hereto.
"Average CPO Closing Price" means, when used with respect to any
Tranche, the average Closing Price for the CPOs, converted to Dollars at
the middle rate of interbank bid and asked quotes expressed in Pesos per
one Dollar, as such conversion rate is published in the Wall Street
Journal, in the case of both the Closing Price and the conversion to
Dollars, over the ten (10) consecutive Trading Days (a) immediately
preceding the Original Subsequent Closing Date for such Tranche, or (b) if
there has occurred and is continuing an Event of Default, immediately
preceding the date of such Event of Default.
"Base Amount" means, when used with respect to (a) Tranche A,
$2,152,787.18, and (b) Tranches B, C and/or D, at any date of determination
on or after the Original Subsequent Closing Date for such Tranche and
through the Subsequent Closing Date for such Tranche, an amount in Dollars
equal to the product of (i) the Number of CPOs that would have been
required to have been delivered by CEMEX to the Seller in accordance with
the SPA and the EA on the Original Subsequent Closing Date but for this
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Amendment No. 2, multiplied by (ii) the Average CPO Closing Price. Once the
Base Amount for a Tranche has been determined, such Base Amount shall be
fixed until CEMEX has, in accordance with the Agreements, consummated the
purchase of the Number of Shares on the corresponding Subsequent Closing
Date.
"Base Amount Certificate" has the meaning set forth in Section 3(h).
"Base Deferral Fee" means, as of the date of determination, the amount
due and payable by CEMEX to the Seller in accordance with this Amendment
No. 2, (a) with respect to all Tranches, on the Outstanding Base Amount,
and (b) with respect to any Tranche on its Early Subsequent Closing Date,
on the Base Amount of such Tranche.
"Base Deferral Fee Rate" has the meaning set forth in Section 3(a).
"Capital Lease" means a lease that would be capitalized on a balance
sheet of the lessee prepared in accordance with generally accepted
accounting principles in Mexico.
"Day Count Fraction" means for any period, a fraction, (a) the
numerator of which is the actual number of days elapsed during such period
(including the first day but excluding the last day of such period), and
(b) the denominator of which is three hundred and sixty (360).
"Debt" of any Person means, without duplication, (i) all obligations
of such Person for borrowed money, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee under
Capital Leases, (v) all Debt of others secured by a Lien on any asset of
such Person, up to the value of such asset, as recorded in such Person's
most recent balance sheet, (vi) all obligations of such Person with respect
to product invoices incurred in connection with export financing, (vii) all
obligations of such Person under repurchase agreements for the stock issued
by such Person or another Person and (viii) all Debt of others guaranteed
by such Person.
"Default Fee" has the meaning set forth in Section 3(c).
"Dollars" or "$" means United States dollars.
"EA" has the meaning set forth in the third recital hereto.
"Escrow Agent" has the meaning set forth in the third recital hereto.
"Escrow Agreement" has the meaning set forth in the third recital
hereto.
"Escrow Amendment" has the meaning set forth in the third recital
hereto.
"Event of Default" has the meaning set forth in Section 11.
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"Excluded Dispute" means any dispute by or between the Parties (a)
relating exclusively to the Third Amended and Restated Shareholders
Agreement, dated as of July 12, 2002, or (b) to which the Escrow Agent is a
party.
"Fees" means the Base Deferral Fee and the Default Fee.
"Financial Statements" has the meaning set forth in Section 5(d)(i).
"Insolvency Proceeding" means, when used with respect to a specified
Person, any voluntary or involuntary proceeding instituted in any court of
competent jurisdiction or by or before any government or governmental
agency of competent jurisdiction, seeking, as to such Person, adjudication
in bankruptcy, insolvency, concurso mercantil, suspension of payments,
reorganization, dissolution, winding up, liquidation, a composition or
arrangement with creditors, a readjustment of Debt, the appointment of or
taking possession by a trustee, receiver, sindico, liquidator, conciliator,
assignee, sequestrator or other similar official of it or of all or any
substantial part of its property or assets, or other like relief in respect
of it under any bankruptcy, reorganization, insolvency, concurso mercantil,
suspension of payments or other similar law.
"Letter Agreement and Waiver" has the meaning set forth in the second
recital hereto.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
asset. CEMEX or any Subsidiary of CEMEX shall be deemed to own, subject to
a Lien, any asset that it has acquired or holds subject to the interest of
a vendor or lessor under any conditional sale agreement, Capital Lease or
other title retention agreement relating to such asset, or any account
receivable transferred by it with recourse (including any such transfer
subject to a holdback or similar arrangement that effectively imposes the
risk of collectability on the transferor).
"Material Subsidiary" means, at any date, each Subsidiary of CEMEX (if
any) (a) the assets of which, together with those of its Subsidiaries, on a
consolidated basis, without duplication, constitute five percent (5%) or
more of the consolidated assets of CEMEX and its Subsidiaries as of the end
of the then most recently ended fiscal quarter or (b) the operating profit
of which, together with that of its Subsidiaries, on a consolidated basis,
without duplication, constitutes five percent (5%) or more of the
consolidated operating profit of CEMEX and its Subsidiaries for the then
most recently ended fiscal quarter, provided, however, that the term
"Material Subsidiary" shall exclude any Subsidiary of CEMEX acquired on or
after the date hereof if such Subsidiary (or a substantial part of its
property or assets) is, immediately prior to such acquisition, the subject
of an Insolvency Proceeding not instituted in contemplation of such
acquisition.
"MSE" has the meaning set forth in Section 5(d)(i).
sjdc-1278759.4
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"Original Subsequent Closing Date" means, when used with respect to
(a) Tranche A, March 31, 2003, (b) Tranche B, June 30, 2003, (c) Tranche C,
September 30, 2003, and (d) Tranche D, December 31, 2003.
"Outstanding Base Amount" means, when used with respect to the
Tranches as of any date of determination on or after their corresponding
Original Subsequent Closing Dates, an amount in Dollars equal to the
difference between (a) the aggregate Base Amounts determined with respect
to all Tranches, and (b) the aggregate Base Amounts determined with respect
to the Tranches as to which CEMEX has, in accordance with the Agreements,
consummated the purchase of the Number of Shares on the corresponding
Subsequent Closing Date.
"Payment Date" means, when used with respect to any Tranche, (a) the
last day of each fiscal quarter, commencing June 30, 2003 and terminating
December 31, 2004, and (b) if sooner, the Early Subsequent Closing Date for
such Tranche.
"Person" means and includes (a) an individual, (b) a legal entity,
including a partnership, a joint venture, a corporation, a trust, a limited
liability company, or a limited liability partnership, and (c) a government
or any department, agency or instrumentality thereof.
"Pesos" means Mexican Pesos.
"SPA" has the meaning set forth in the preamble hereto.
"Subsequent Closing Date" has the meaning set forth in Article
I(l)(a), as amended hereby.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, joint venture, limited liability company, trust, estate or
other entity of which (or in which) more than fifty percent (50%) of (a) in
the case of a corporation, the issued and outstanding capital stock having
ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon
the occurrence of any contingency not in the control of such Person), (b)
in the case of a limited liability company, partnership or joint venture,
the interest in the capital or profits of such limited liability company,
partnership or joint venture, or (c) in the case of a trust or estate, the
beneficial interest in such trust or estate, is at the time directly or
indirectly owned or controlled by (x) such Person, (y) such Person and one
or more of its other Subsidiaries or (z) one or more of such Person's other
Subsidiaries.
"Taxes" has the meaning set forth in Section 3(d).
"Tranche" means any of Tranche A, B, C and D, and "Tranches" means two
or more of such Tranches.
sjdc-1278759.4
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"Tranche A" means, as the context requires, (a) the Number of CPOs
required to have been delivered by CEMEX to the Seller but for this
Amendment No. 2, or (b) the Number of Shares required to have been
purchased by CEMEX but for this Amendment No. 2, in either case in
accordance with the SPA and the EA on April 4,2003.
"Tranche B" means, as the context requires, (a) the Number of CPOs
required to have been delivered by CEMEX to the Seller but for this
Amendment No. 2, or (b) the Number of Shares required to have been
purchased by CEMEX but for this Amendment No. 2, in either case in
accordance with the SPA and the EA on June 30,2003.
"Tranche C" means, as the context requires, (a) the Number of CPOs
required to have been delivered by CEMEX to the Seller but for this
Amendment No. 2, or (b) the Number of Shares required to have been
purchased by CEMEX but for this Amendment No. 2, in either case in
accordance with the SPA and the EA on September 30, 2003.
"Tranche D" means, as the context requires, (a) the Number of CPOs
required to have been delivered by CEMEX to the Seller but for this
Amendment No. 2, or (b) the Number of Shares required to have been
purchased by CEMEX but for this Amendment No. 2, in either case in
accordance with the SPA and the EA on December 31, 2003.
"Transaction Documents" means, in addition to the Transaction
Documents as defined in the SPA, the Amendments.
Section 2. Purchase and Sale of Seller's Shares. To provide for the
extension of each of the Original Subsequent Closing Dates, Article I(1) of the
SPA is hereby amended to read in its entirety as follows:
"ARTICLE I
PURCHASE AND SALE OF SELLER'S SHARES
1. Basic Transaction, (a) On and subject to the terms and conditions
of this Agreement and the Escrow Agreement, on March 31, 2004, June 30,
2004, September 30, 2004 and December 31, 2004 (or if any such day is not a
business day in each of New York, Mexico and Singapore (a "Business Day"),
then the first day thereafter that is a Business Day) (each a "Subsequent
Closing Date"). CEMEX agrees to purchase from the Seller, and the Seller
agrees to sell to CEMEX, the number of Seller's Shares set forth in the
column corresponding to such Subsequent Closing Date opposite the Seller's
name on Schedule A to the Escrow Agreement (such number of Seller's Shares
to be sold on a Subsequent Closing Date being referred to herein as the
"Number of Shares").
(b) Notwithstanding anything to the contrary contained in the
foregoing Article I(1)(a), as to the Number of Shares required to be
purchased by CEMEX on June 30, 2004, September 30, 2004 or December 31,
2004, at any time until:
sjdc-1278759.4
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(i) June 15, 2003 (or if such day is not a Business Day,
then on the next succeeding Business Day), in respect to the Number of
Shares required to be purchased by CEMEX on June 30, 2004;
(ii) September 15, 2003 (or if such day is not a Business
Day, then on the next succeeding Business Day), in respect to the Number of
Shares required to be purchased by CEMEX on September 30, 2004; and
(iii) December 15, 2003 (or if such day is not a Business
Day, then on the next succeeding Business Day), in respect to the Number of
Shares required to be purchased by CEMEX on December 31, 2004;
CEMEX may designate any Business Day prior to the applicable Subsequent
Closing Date as the "Early Subsequent Closing Date" for such Number of
Shares to be purchased. Following any such designation, such Early
Subsequent Closing Date shall when used with respect to the corresponding
Number of CPOs, be deemed to be the Subsequent Closing Date for all
purposes under the Transaction Documents, and references to such Subsequent
Closing Date shall be deemed to be references to such Early Subsequent
Closing Date.
(c) If at any time or from time to time after the date hereof
and prior to the final Subsequent Closing Date, CEMEX designates an Early
Subsequent Closing Date in respect to the Seller's Shares in accordance
with the foregoing, or in respect to the shares of CAH to be acquired by
CEMEX in accordance with those separate Stock Purchase Agreements referred
to in the first sentence of Section 6 of this Amendment No. 2, CEMEX shall
contemporaneously designate the same Early Subsequent Closing Date for such
other holders of CAH shares and the Seller, as applicable."
Section 3. Consideration for Extension. In addition to the Number of CPOs
and/or the Acquisition Amount to be delivered by CEMEX in consideration for the
Seller's Shares from time to time, CEMEX agrees to pay to the Seller in arrears
on each Payment Date an amount equal to the Base Deferral Fee, and any other
amount due hereunder, in accordance with the following:
(a) Base Deferral Fee Rate. The Base Deferral Fee on the
Outstanding Base Amount shall accrue at a rate (the "Base Deferral Fee Rate")
equal to twelve percent (12%) per annum, commencing as of March 31, 2003.
(b) Payment of Base Deferral Fee. CEMEX promises to pay to the
Seller, in arrears, the Base Deferral Fee and other amounts due hereunder on
each Payment Date.
(c) Default Fee. If CEMEX fails to pay any amount when due hereunder,
whether of the Base Deferral Fee or otherwise, and whether due to acceleration
or otherwise, CEMEX shall pay to the Seller a fee (the "Default Fee") on such
amount for each day such past due amount remains unpaid, payable on demand, at
the rate equal to the sum of (i) the Base Deferral Fee Rate, plus (ii) two
percent (2%) per annum.
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(d) Taxes.
(i) All sums payable to the Seller under this Amendment No. 2,
whether of Fees or otherwise, shall be paid in full, free and clear of any
and all offsets, deductions or withholdings for any and all present or
future taxes, levies, imposts, stamp or other duties, fees, assessments,
deductions, withholdings, other governmental charges, and liabilities
(including penalties and interest) with respect thereto imposed by any
governmental authority (collectively, "Taxes"). If CEMEX is prohibited by
law from making any such payments to the Seller hereunder free and clear of
any such offsets, deductions, withholdings and payments, then (A) CEMEX
shall pay the full amount required to be offset, deducted, withheld or paid
to the relevant governmental authority in accordance with all applicable
laws and (B) the amount which CEMEX is required to pay to the Seller shall
be increased by such additional amount as may be necessary in order that
the actual amount received by the Seller after such offset, deduction,
withholding or payment of Taxes (including offsets, deductions,
withholdings and payments applicable to additional sums payable to the
Seller under this Section 3(d)) shall equal the full amount intended to be
payable to the Seller hereunder.
(ii) The Seller shall notify CEMEX in writing of any payment of
Taxes required or requested of the Seller, and CEMEX shall pay such Taxes
to the relevant governmental authority in accordance with all applicable
laws; provided, however, that if the Seller provides written notice to
CEMEX that such Taxes have been paid by the Seller, CEMEX shall pay or
reimburse and indemnify the Seller therefor within thirty (30) days of
receipt of such notice. CEMEX shall furnish the Seller with the original or
a certified copy of the receipt evidencing payment of any Taxes by CEMEX
pursuant to this Section 3(d) together with any other information that the
Seller may reasonably request to establish to its satisfaction that full
and timely payment of such Taxes has been made.
(e) Currency and Place of Payment. All payments hereunder shall be
made in Dollars in immediately available and freely transferable funds without
any offset, withholding, or deduction for Taxes or currency conversion costs,
and shall be received by the Seller no later than 2:00 p.m. (Washington, D.C.
time) on the date when due. All such payments shall be made by wire transfer to:
Correspondent Bank:
Citibank N.A.
1ll Wall Street
New York, New York U.S.A.
Fed ABA: 000000000
CHIPS ABA: 0008
S.W.I.F.T. Code: XXXXXX00
sjdc-1278759.4
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Beneficiary Bank:
The Bank of Bermuda Limited
Xxxxxxxx Bermuda
CHIPS UID: 005584
S.W.I.F.T. Code: BBDA BMHM
BENEFICIARY:
Account name: Pan Asian Cement Investors, L.P.
Account Number: #805706
Reference:
If any Payment Date is not a Business Day, any amount that would have
been due on such Payment Date shall instead be due on the next succeeding
Business Day and payment shall be made on such next succeeding Business Day with
such extension of time to be taken into account in the computation of all fees
thereon, if any.
(f) Computation of Base Deferral Fee and Default Fee. All fees
(including the Base Deferral Fee and the Default Fee) shall accrue on a daily
basis and shall be computed on the basis of the Day Count Fraction.
(g) No Offsets by CEMEX. All sums payable by CEMEX hereunder shall be
absolute and unconditional under any and all circumstances and irrespective of
any set-off, counterclaim or other defense.
(h) Notice of Average CPO Closing Price, Number of CPOs. Base Amount.
Outstanding Base Amount and Base Deferral Fee. Within five (5) Business Days
after each Original Subsequent Closing Date, an authorized officer of CEMEX
shall execute and deliver to the Seller and the Escrow Agent a certificate (each
a "Base Amount Certificate") setting forth in reasonable detail as of such
Original Subsequent Closing Date the calculation of (i) the Number of CPOs
required to have been delivered by CEMEX to the Seller in accordance with the
SPA and the EA but for this Amendment No. 2, (ii) the Average CPO Closing Price,
(iii) the Base Amount applicable to such Tranche, (iv) the Outstanding Base
Amount, and (v) the amount of the Base Deferral Fee due and payable to the
Seller on the Outstanding Base Amount on the immediately succeeding Payment
Date.
Section 4. Representations and Warranties of Seller. The Seller hereby
represents and warrants to CEMEX as follows:
(a) Corporate Organization. Seller is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all necessary power and authority to carry on its business as
it is now being conducted and to own the properties and assets it now owns and
is qualified or licensed to do business as a foreign limited partnership in
every jurisdiction in which it is required to so qualify and in which the
sjdc-1278759.4
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failure to so qualify would have a Material Adverse Effect on the business,
results of operations or financial condition of Seller and its subsidiaries
taken as a whole.
(b) Authorization. The Seller has all necessary power and authority
to enter into the Amendments and to carry out the transactions on its part
contemplated thereby. The Seller has taken all actions required by law, its
charter documents or otherwise to be taken by it to authorize the execution and
delivery of the Amendments and the consummation of the transactions on its part
contemplated thereby. Each of the Amendments and any other instrument to be
executed and delivered by the Seller on the date hereof and at any Subsequent
Closing Date is, or will be when executed and delivered, the valid and binding
agreement of the Seller enforceable against it in accordance with its terms,
except to the extent that (i) such validity, binding effect or enforceability
may be subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally,
and (ii) the remedy of specific performance and injunctive and other forms of
equitable relief sought may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
(c) No Violation. Neither the execution and delivery of the
Amendments by the Seller nor the consummation by the Seller of the transactions
contemplated thereby, will (i) violate any provision of the organizational
documents of the Seller, or (ii) violate, conflict with, or constitute a default
(or an event which, with notice or lapse of time or both, would constitute a
default) under, or result in the termination of, or permit a third party to
terminate the rights of the Seller under, or accelerate the performance required
by, or create or accelerate any rights to repurchase, rights of first offer or
rights of first refusal under, or cause the acceleration of the maturity of any
debt or obligation pursuant to, or result in the creation or imposition of any
security interest, lien or other encumbrance upon any property of the Seller
under any agreement or commitment to which it is a party, or (iii) violate any
statute or law or any judgment, decree, order, regulation or rule of any court
or governmental authority, except in the case of each of clauses (i), (ii) and
(iii) where such violations, conflicts, defaults, terminations or accelerations
individually or in the aggregate would not (x) have a Material Adverse Effect on
the Seller and its subsidiaries taken as a whole or (y) adversely affect the
Seller's ability to perform its obligations hereunder.
Section 5. Representations and Warranties of CEMEX. CEMEX hereby
represents and warrants to the Seller as follows:
(a) Corporate Organization. CEMEX is a corporation duly organized,
validly existing and in good standing under the laws of Mexico and has all
necessary power and authority to carry on its business as it is now being
conducted and to own the properties and assets it now owns and is qualified or
licensed to do business as a foreign corporation in every jurisdiction in which
it is required to so qualify and in which the failure to so qualify would have a
Material Adverse Effect on the business, results of operations or financial
condition of CEMEX and its subsidiaries taken as a whole.
(b) Authorization. CEMEX has all necessary power and authority to
enter into the Amendments and to carry out the transactions on its part
contemplated thereby.
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CEMEX has taken all actions required by law, its charter documents or otherwise
to be taken by it to authorize the execution and delivery of the Amendments and
the consummation of the transactions on its part contemplated thereby. Each of
the Amendments and any other instrument to be executed and delivered by CEMEX on
the date hereof and at any Subsequent Closing Date is, or will be when executed
and delivered, the valid and binding agreement of CEMEX enforceable against it
in accordance with its terms, except to the extent that (i) such validity,
binding effect or enforceability may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief sought may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought. CEMEX's obligations hereunder will rank
not less than pari passu with all of CEMEX's other unsecured Debt and
obligations.
(c) No Violation. Neither the execution and delivery of the
Amendments by CEMEX nor the consummation by CEMEX of the transactions
contemplated hereby, including, should CEMEX so elect, the delivery to the
Escrow Agent of the Acquisition Amount and the acquisition and deposit to the
Seller's Depositary Account of the Number of CPOs, will (i) violate any
provision of its charter documents, or (ii) violate, conflict with, or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under, or result in the termination of, or permit a
third party to terminate its rights under, or accelerate the performance
required by, or create or accelerate any rights to repurchase, rights of first
offer or rights of first refusal under, or cause the acceleration of the
maturity of any debt or obligation pursuant to, or result in the creation or
imposition of any security interest, lien or other encumbrance upon any property
of CEMEX under, any agreement or commitment to which CEMEX is a party, or (iii)
violate any statute or law or any judgment, decree, order, regulation or rule of
any court or governmental authority, except in the case of each of clauses (i),
(ii) and (iii) where such violations, conflicts, defaults, terminations or
accelerations individually or in the aggregate would not (x) have a Material
Adverse Effect on CEMEX and its subsidiaries taken as a whole or (y) adversely
affect CEMEX's ability to perform its obligations hereunder.
(d) Financial Statements and Disclosures.
(i) The consolidated historical financial statements of CEMEX
and its consolidated subsidiaries, and the related notes thereto, filed by
CEMEX with the Mexican Stock Exchange (the "MSE") for the year ended
December 31, 2002 (the "Financial Statements") present fairly in all
material respects the consolidated financial position of CEMEX and its
consolidated subsidiaries taken together as a whole as of the dates
indicated and the results of their operations and the changes in their
consolidated cash flows for the periods specified; and said Financial
Statements have been prepared in conformity with generally accepted
accounting principles in Mexico applied on a consistent basis throughout
the periods involved (except as otherwise noted therein).
(ii) As of the date of this Amendment No. 2, (A) there has been
no change in the consolidated assets, liabilities or financial condition of
CEMEX from that reflected in the Financial Statements, except for changes
in the ordinary course of business none of which have, singly or in the
aggregate, had a Material Adverse Effect on
sjdc-1278759.4
11
CEMEX and its subsidiaries taken as a whole, (B) other than general
economic or political conditions, since the filing of the Financial
Statements, there has been no event causing a Material Adverse Effect as to
CEMEX and its subsidiaries taken as a whole, nor any development that
could, singly or in the aggregate, reasonably be expected to result in a
Material Adverse Effect as to CEMEX and its subsidiaries taken as a whole,
and (C) the aggregate number of shares of CEMEX Common Stock issued or
issuable pursuant to the exercise of all warrants, options, subscriptions,
purchase rights or conversion or exchange rights in any convertible
securities does not materially exceed the aggregate number of such shares
issued or so issuable as reflected in the Financial Statements except, in
the case of clauses (A), (B) and (C), as disclosed to the Seller in writing
or otherwise publicly disclosed by CEMEX.
(iii) The Financial Statements did not, at the time of their
filing with the MSE, contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made when they were
so filed, not misleading.
(e) No Insolvency Proceedings. As of the date hereof,
(i) there is not pending any Insolvency Proceeding with regard
to CEMEX or any Material Subsidiary of CEMEX,
(ii) no decree or order for relief in respect of CEMEX or any
Material Subsidiary of CEMEX has been entered in any Insolvency Proceeding,
and
(iii) neither CEMEX or any Material Subsidiary of CEMEX has:
(A) consented to the entry of a decree or order for relief
in respect of CEMEX or any Material Subsidiary of CEMEX in any
Insolvency Proceeding,
(B) filed a petition or answer or consent in any
Insolvency Proceeding seeking reorganization, concurso mercantil, or relief
under any applicable law of Mexico, the United States of America or other
applicable jurisdiction or any political subdivision thereof or other
applicable law,
(C) consented to the filing of any such petition or to the
appointment of or taking possession by a custodian, receiver, sindico,
liquidator, conciliator, assignee, trustee, sequestrator or similar
official of CEMEX or any Material Subsidiary of CEMEX or of any
substantial part of the property of CEMEX or any Material Subsidiary
of CEMEX, or the making by CEMEX or any Material Subsidiary of CEMEX
of an assignment for the benefit of creditors,
(D) admitted in writing its inability to pay its debts
generally as they become due, or
sjdc-1278759.4
12
(E) taken any corporate action in furtherance of any such
action.
Section 6. Contemporaneous Amendments. Contemporaneously with entering
into this Amendment No. 2, CEMEX is entering into separate amendments,
substantively identical to this Amendment No. 2 (other than in respect to the
absolute dollar value of the Base Amount for Tranche A as defined herein and in
each other such amendment), to the Stock Purchase Agreements with each of AIG
Asian Infrastructure Fund II LP and IONA Investment Pte. Ltd. CEMEX is not
amending and has not amended its Stock Purchase Agreement dated as of July
12, 2002 with GIMV N.V.
Section 7. No Liquidation of CAH. Until the later of January 2, 2005 and
the date that no further Seller's Shares remain subject to this Agreement, CEMEX
shall not effect or permit any liquidation, merger, consolidation or other
organic change in the organization of CAH.
Section 8. Mutual Covenants. The Parties agree as follows, subject to the
terms and condition set forth herein:
(a) General. Each of the Parties will use its reasonable efforts to
take all actions and to do all things necessary to consummate and make effective
the transactions contemplated by the Amendments.
(b) Notices and Consents. Each Party will give any notices to, make
any filings with, and use its reasonable efforts to obtain any authorizations,
consents, and approvals of governments and governmental agencies that are
required for the consummation of the transactions contemplated hereby.
(c) Notice of Developments. Each Party will give prompt written
notice to the other of any material adverse development causing a breach of any
of its own representations, warranties, covenants or agreements contained herein
or in the Escrow Amendment.
Section 9. Remedies upon Event of Default. If any Event of Default has
occurred and is continuing, the Seller may at any time do any one or more of the
following:
(a) declare, by written demand to CEMEX,
(i) any portion or all of the Accelerated Amount to be due and
payable, whereupon such portion or all of the Accelerated Amount, together
with all Fees accrued thereon and all other amounts due thereon and
hereunder, shall immediately mature and become due and payable, but only to
the extent such Accelerated Amount has not been and is not demanded
pursuant to clause (ii) below, and
(ii) all or any remaining portion of the Accelerated Amount (as
the case may be) to be payable by delivery of the Accelerated Number of
CPOs, but only to
sjdc-1278759.4
13
the extent such Accelerated Amount has not been and is not demanded
pursuant to clause (i) above,
in each case contemplated by clauses (i) and (ii) above, without any other
presentment, demand, diligence, protest, notice of acceleration, or other notice
of any kind, all of which CEMEX hereby expressly waives; and
(b) without notice of default or demand, proceed to protect and
enforce its rights and remedies by appropriate proceedings or actions, whether
for damages or the specific performance of any provision hereof, or in aid of
the exercise of any power granted herein or in any Transaction Document, or by
law, or proceed to enforce payment hereunder.
Section 10. Jurisdiction and Consent to Suit; Waivers.
(a) Each of CEMEX and Seller hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding (other than any Excluded Dispute) relating to the Transaction
Documents, or for recognition and enforcement of any judgment in respect
thereof (other than in respect to any Excluded Dispute), to the
non-exclusive general jurisdiction of the Courts of the State of New York,
the courts of the United States of America for the Southern District of New
York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees
not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Party at its address set forth in the Agreement or at such
other address of which the other Party shall have been notified pursuant
thereto;
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(v) agrees that judgment against it in any such action or
proceeding shall be conclusive and may be enforced in any other
jurisdiction within or without the United States of America by suit on the
judgment or otherwise as provided by law, a certified or exemplified copy
of which judgment shall be conclusive evidence of the fact and amount of
such Party's obligation.
sjdc-1278759.4
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(b) Arbitration Provision in SPA. Article VI(14) of the SPA is hereby
deleted in its entirety and amended to read as follows:
"14. OMITTED."
Section 11. Events of Default. Each of the following events or
circumstances shall constitute an "Event of Default":
(a) Payment Default. CEMEX fails to pay when due any amount payable
to the Seller pursuant to this Agreement and such failure is not remedied within
a period of three (3) Business Days thereafter;
(b) Cross-Acceleration. The occurrence of a default or event of
default under any indenture, agreement or instrument relating to any Debt of
CEMEX (other than this Amendment No. 2) or any of its Subsidiaries having a
principal amount in excess of $50,000,000 (or the equivalent thereof in other
currencies or currency units) in the aggregate outstanding, and (unless any
principal amount of such Debt is otherwise due and payable) such default or
event of default results in the acceleration of the maturity of any principal
amount of such Debt prior to the date on which it would otherwise become due and
payable;
(c) Representation Default. Any representation or warranty by CEMEX
hereunder proves to have been incorrect in any material respect when made or
deemed made;
(d) Covenant Default. CEMEX fails to comply with or perform any
agreement or covenant contained herein other than those referred to in Section
11 (a), (b) or (c) above and such failure continues for thirty (30) days after
the occurrence thereof;
(e) Voluntary Bankruptcy Default. The commencement by CEMEX or any
Material Subsidiary of CEMEX of a voluntary case or proceeding under any
applicable bankruptcy, insolvency, concurso mercantil, suspension of payments,
reorganization or other similar law of Mexico, the United States of America or
other applicable jurisdiction or any political subdivision thereof or other
applicable bankruptcy, insolvency, concurso mercantil, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by CEMEX or any such Material Subsidiary to the entry
of a decree or order for relief in respect of CEMEX or any Material Subsidiary
of CEMEX in an involuntary case or proceeding under any applicable bankruptcy,
insolvency, concurso mercantil, suspension of payments, reorganization or other
similar law of Mexico, the United States of America or other applicable
jurisdiction or any political subdivision thereof or other applicable
bankruptcy, insolvency, concurso mercantil, reorganization or other similar law
or to the commencement of any bankruptcy or insolvency case or proceeding
against CEMEX or any Material Subsidiary of CEMEX, or the filing by CEMEX or any
such Material Subsidiary of a petition or answer or consent seeking
reorganization concurso mercantil, or relief under any applicable law of Mexico,
the United States of America or other applicable jurisdiction or any political
subdivision thereof or other applicable law, or the consent by CEMEX or any such
Material Subsidiary to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, sindico, liquidator, conciliator,
assignee, trustee, sequestrator or similar
sjdc-1278759.4
15
official of CEMEX or any Material Subsidiary of CEMEX or of any substantial part
of the property of CEMEX or any Material Subsidiary of CEMEX, or the making by
CEMEX or any Material Subsidiary of CEMEX of an assignment for the benefit of
creditors, or the admission by CEMEX or any such Material Subsidiary in writing
of its inability to pay its debts generally as they become due, or the taking of
corporate action by CEMEX or any such Material Subsidiary in furtherance of any
such action; or
(f) Involuntary Bankruptcy Default. The entry by a court having
jurisdiction in the premises of (i) a decree or order for relief in respect of
CEMEX or any Material Subsidiary of CEMEX in an involuntary case or proceeding
under any applicable bankruptcy, insolvency, concurso mercantil, suspension of
payments, reorganization or other similar law of Mexico, the United States of
America or other applicable jurisdiction or any political subdivision thereof or
other applicable bankruptcy, insolvency, concurso mercantil, reorganization or
other similar law, or (ii) a decree or order adjudging CEMEX or any such
Material Subsidiary a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment, concurso mercantil,
suspension of payments, or composition of or in respect of, CEMEX or any such
Material Subsidiary under any applicable law of Mexico, or the United States of
America or other applicable jurisdiction or any political subdivision thereof or
other applicable law, or appointing a custodian, receiver, sindico, liquidator,
conciliator, assignee, trustee, sequestrator or other similar official of CEMEX
or any such Material Subsidiary or of any substantial part of the property of
CEMEX or any such Material Subsidiary, or ordering the winding up or liquidation
of the affairs of CEMEX or any such Material Subsidiary, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of sixty (60) consecutive days, other than, in any
such case, any decree or order issued pursuant to proceedings that have been
commenced prior to the date of this Amendment No. 2.
Section 12. Termination. Article VI(15) of the SPA is hereby amended to
read in its entirety as follows:
"15. Termination of Agreement.
(a) This Agreement may be terminated as provided below:
(i) Both Parties may terminate this Agreement by mutual
written consent;
(ii) Either Party may terminate this Agreement by giving
written notice to each other Party in the event that a court of
competent jurisdiction determines that one of the Parties has
materially breached this Agreement and that such breach is not subject
to cure within a reasonable period of time;
(iii) Either Party may terminate this Agreement by giving
written notice to each other Party if the Closing has not occurred by
the close of business on (A) October 15, 2002, unless both Parties
elect in writing to extend
sjdc-1278759.4
16
the date for Closing in accordance with this Article VI(15)(a)(iii),
or (B) if said extension occurs, the date as to which Closing has been
extended in accordance herewith (provided, however, that the right to
terminate this Agreement under this Article VI(15)(a)(iii) shall not
be available to any Party whose failure to fulfill any obligation of
such Party under this Agreement has been the cause of or resulted in
the failure of the transactions contemplated herein to be completed on
or before such date);
(iv) Either Party may terminate this Agreement by giving
written notice to each other Party if the first Subsequent Closing
Date has not occurred by the close of business on (A) March 31, 2004,
unless both Parties elect in writing to extend the date for such
Subsequent Closing Date in accordance with this Article VI(15)(a)(iv),
or (B) if said extension occurs, the date as to which such Subsequent
Closing Date has been extended in accordance herewith (provided,
however, that the right to terminate this Agreement under this Article
VI(15)(a)(iv) shall not be available to any Party whose failure to
fulfill any obligation of such Party under this Agreement has been the
cause of or resulted in the failure of the transactions contemplated
herein to be completed on or before such date); and
(v) Either Party may terminate this Agreement by giving
written notice to the other Party if a court of competent jurisdiction
or other governmental authority has issued a final order, decree or
ruling, or taken any other action, having the effect of permanently
restraining, enjoining or otherwise prohibiting any of the
transactions contemplated herein, and all appeals with respect to such
order, decree, ruling or action have been exhausted or the time for
appeal of such order, decree, ruling or action shall have expired.
(b) In the event of the termination of this Agreement pursuant
to Article VI(15)(a), written notice thereof shall promptly be given to the
other Party, whereupon this Agreement shall terminate, all further
obligations of the Parties hereunder and under the Escrow Agreement to
satisfy the conditions precedent to the Closing or any Subsequent Closing
Date that has not yet occurred shall terminate, and the transactions
contemplated hereby and thereby shall be abandoned without further action
by either of the Parties. Any termination pursuant to this Article VI(15)
shall be without liability to the Parties, except to the extent that there
shall have occurred any breach of this Agreement or the Escrow Agreement,
as to each of which all legal and other remedies under this Agreement or
the Escrow Agreement of the Party(ies) adversely affected shall survive and
be enforceable for a period of two years from the date of termination.
(c) Notwithstanding anything to the contrary herein, the
obligations of CEMEX to pay the Base Deferral Fee and other amounts due
hereunder shall survive any termination of this Agreement."
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Section 13. Miscellaneous Provisions.
(a) Expenses. All reasonable expenses, including legal fees, incurred
by either Party in connection with the Amendments shall be borne by CEMEX, which
shall promptly upon request reimburse the Seller for such amounts.
(b) Counterparts. This Amendment No. 2 may be executed simultaneously
in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
(c) Headings. The headings of the Sections of this Amendment No. 2
are inserted for convenience only and shall not constitute a part thereof or
affect in any way the meaning or interpretation of this Amendment No. 2.
(d) Severability. Each of the representations and undertakings in
this Amendment No. 2 shall be construed separately and severably; if, in any
judicial proceeding, a court shall refuse to enforce any of the provisions
included in any paragraph or subparagraph of this Amendment No. 2, then the
remaining provisions shall be deemed separate and shall continue in full force
and effect.
(e) CPO Certificate. The Parties agree that this Amendment No. 2
supersedes the CPO Certificate dated March 17, 2003 delivered by CEMEX to the
Seller pursuant to the SPA and that such CPO Certificate shall therefore be of
no force and effect between the Parties.
(f) International Transaction. This is an international transaction
in which the specification of Dollars is of the essence, and such currency shall
be the currency of account in all events. The payment obligations of CEMEX
hereunder shall not be discharged by payment in another currency, whether
pursuant to a judgment or otherwise, to the extent that the amount so paid on
prompt conversion to Dollars in the United States of America under normal
banking procedures does not yield the amount of Dollars then due. In the event
that any payment by CEMEX, whether pursuant to a judgment or otherwise, upon
conversion and transfer, does not result in the full payment of such amount of
Dollars at the place such amount is due, the Seller shall be entitled to demand
immediate payment of, and shall have a separate cause of action against CEMEX
for, the additional amount necessary to yield the full amount of Dollars then
due. In the event the Seller, upon the conversion of such judgment into Dollars,
shall receive, as a result of currency exchange rate fluctuations, an amount
greater than that to which it was entitled, CEMEX shall be entitled to immediate
reimbursement of the excess amount.
Section 14. No Other Changes. Except as expressly amended hereby, all other
provisions of the SPA shall remain in full force and effect.
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IN WITNESS WHEREOF, each of the Parties has caused this Amendment No. 2 to
Stock Purchase Agreement to be duly executed, all as of the day and year first
above written.
CEMEX, S.A. de C.V.
By: /s/ Xxxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Attorney-in-Fact
PAN ASIAN CEMENT INVESTORS, L.P.,
as Seller
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Attorney-in-Fact
