Exhibit 2
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THIS IRREVOCABLE TRUST AGREEMENT (THIS "AGREEMENT") IS ENTERED INTO BY AND AMONG
BANCO INTERNACIONAL, S.A., DEPARTAMENTO FIDUCIARIO (TRUSTEE DEPARTMENT), AS
TRUSTOR AND REPRESENTED BY ITS DELEGATED TRUSTEES XX. XXXXXXX XXXXXXXX XXXXXXX,
ESQ. AND XX. XXXXXX XXXXX XXXXXXX, ESQ., ATTORNEY IN FACT (THE "TRUSTOR"); BANCO
INBURSA, S.A., INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO INBURSA, DIVISION
FIDUCIARIA, AS TRUSTEE AND REPRESENTED BY ITS DELEGATED TRUSTEE, XXXXXXXX XXXXXX
XXXX, ESQ. (THE "TRUSTEE"); SBC INTERNATIONAL, INC., REPRESENTED BY XX.
XXXXXXX X. XXXXX AND XX. XXXX X. XXXXX (THE "BENEFICIARY"); AND CARSO GLOBAL
TELECOM, S.A. DE C.V., A SOCIEDAD ANONIMA DE CAPITAL VARIABLE AND REPRESENTED BY
XXXXXXX XXXXXX ACRA, ESQ. ("CGT"), PURSUANT TO THE FOLLOWING ANTECEDENTS,
DECLARATIONS AND CLAUSES:
A N T E C E D E N T S
I. On December 20, 1990, the Federal Government of the United Mexican States,
Grupo Carso, S.A. de C.V., Southwestern Xxxx International Holdings
Corporation ("SBC International, Inc.") and France Cables et Radio, as the
underwriters entered into a Trust Agreement with respect to all the issued
and outstanding Series "AA" shares of Telefonos de Mexico, S.A. de C.V.
("Telmex").
II. As a result of the spin-off of America Movil, S.A. de C.V. from Telmex, one
billion and fifty-nine million eight hundred and nine thousand seventy-six
(1,059,809,076) shares of Series "AA" shares of Telmex described in Exhibit
A attached hereto and owned by SBC International, Inc. (the "SBC Shares")
shall be included in this trust.
III. Pursuant to Declarations 1-g and 1-h, and other applicable declarations of
the Trust Agreement dated November 20, 1990, and on the basis of article 15
under the Regulations of the Law for the Promotion of Mexican Investment
and Regulation of Foreign Investment, and Rule 1, subsection "A" of General
Resolution No. 3 published on August 9, 1990 in the Official Journal of the
Federation, the Secretary of Commerce and Industrial Development approved
the execution of this Trust Agreement, in accordance with the favorable
opinion of the National Commission of Foreign Investment as set forth in
letter no. 7982 dated December 19, 1990, and letter no. 7983 dated December
19, 1990.
I. The Trustor declares:
(A) That the Trustor is a credit institution duly organized under the laws of
Mexico with powers to perform the duties of trustor under this trust.
(B) That in fulfilling the purposes of this trust, the Trustor wishes to
transfer and deliver to the Trustee, pursuant to the express instructions
of the Beneficiary, the SBC Shares.
II. The Trustee declares:
(A) That it is a credit institution duly organized under the laws of Mexico
with powers to perform the duties of trustee under this trust.
III. The Beneficiary declares:
(A) That it is a corporation duly organized under the laws of the State of
Delaware, United States of America, with legal capacity to execute this
Agreement, and that its representatives have full legal power to execute
this Agreement.
(B) That it agrees to have the Trustor transfer and deliver to the Trustee the
SBC Shares.
On the basis of the aforementioned Antecedents and Declarations, the parties
hereto hereby enter into this Agreement according to the following:
C L A U S E S
FIRST. The Trustor hereby irrevocably delivers and transfers to the Trustee, and
the Trustee hereby receives and accepts delivery of the the share certificate
representing the SBC Shares, in the trust and for the purposes set forth in this
Agreement.
The Trustee shall then grant to the Trustor the receipt that corresponds to the
assets held in this trust.
At any time, the Beneficiary may transfer to this Trust additional Series "AA"
shares of Telmex in order to fulfill the purposes of this trust, and such shares
shall become assets of this trust; provided, that the Beneficiary shall not
transfer to this trust a higher percentage of Series "AA" shares than that
allowed by Telmex's bylaws.
SECOND. The following entities are parties to this trust:
Trustee: Banco Inbursa, S.A., Division Fiduciaria
Trustor: Banco Internacional, S.A., Division Fiduciaria.
Beneficiary: SBC International, Inc.
THIRD. Pursuant to this Agreement, the purposes of this trust are as follows:
1. That the Trustee shall receive and maintain ownership of and shall hold
Series "AA" shares of Telmex and maintain the Series "AA" shares of Telmex
in this trust, pursuant to the terms and conditions set forth in this
Agreement.
2. That the Trustee shall exercise all corporate and proprietary or pecuniary
rights corresponding to or resulting from Series "AA" shares of Telmex that
are a part of the assets of this trust. If, in the exercise of these
rights, the Trustee receives new Series "AA" shares of Telmex, such new
shares shall (i) become assets of this trust, (ii) be allocated to the
purposes of this trust, (iii) be considered part of Series "AA" shares of
Telmex for all the purposes set forth in this Agreement, and (iv) be voted
in the same manner and form as CGT votes its Series "AA" shares of Telmex,
except in the case of electing members to Telmex's Board of Directors and
Executive Committee.
3. That when the Beneficiary so expressly instructs in writing, the Trustee
shall proceed to convert Series "AA" shares of Telmex into other series of
shares of Telmex, or the Trustee shall transfer, deliver or sell, in whole
or in part, the beneficiary rights or the share certificates representing
the Series "AA" shares of Telmex that are part of the assets of this Trust,
within or outside the Bolsa Mexicana de Valores, S.A. de C.V., to the
persons duly qualified to acquire them in accordance with the legal and
statutory terms and provisions effective on the date the conversion and/or
transfer is conducted, and in accordance with the terms and provisions that
the Beneficiary may indicate.
4. That the Trustee shall receive, when applicable, the sales price of any
Series "AA" shares of Telmex sold hereunder as well as any yield or product
resulting from the assets of this trust, which the Trustee shall transfer
or deliver to the Beneficiary, upon receipt of written instructions from
the Beneficiary. Prior to such transfer or delivery, the Trustee shall
administer the corresponding resources by investing the resources in
securities as authorized and instructed in writing by the Beneificiary.
5. That the Trustee shall receive, based upon written instructions from the
Beneficiary, and deliver to the Beneficiary any dividends (payable in cash
or shares), amortization of shares, refund for decreases of share capital
or other amounts corresponding to the Series "AA" shares of Telmex that are
part of this trust.
6. That, if the shareholders of Telmex approve an an increase in the capital
of Telmex by means of new contributions from its shareholders and in the
form of series "AA" shares, the Trustee shall exercise any right of
preference to underwrite and pay for such new shares; provided, that the
Trustee has received from the Beneficiary both written instructions to
underwrite such new shares and the amount necessary to pay Telmex the price
or value of subscription for such new shares, at least five (5) business
days prior to the final date given to exercise the right of preference and
underwrite and pay for such new shares.
Capital increases shall be suscribed for by the Trustee in proportion to
its share of ownership except for written instructions to the contrary on
the part of the Beneficiary to the Trustee.
7. That pursuant to instructions received from the Beneficiary, the Trustee
shall conduct all other actions necessary in order to fulfill the purposes
of this trust, including, as the case may be, actions to defend the assets
of this trust.
FOURTH. To exercise the corporate rights of the Series "AA" shares of Telmex, in
particular to represent and vote the Series "AA" shares of Telmex at Ordinary,
Extraordinary or Special Telmex Meetings. The Trustee shall represent these
shares through the officer or representative of the Trustee that the Trustee
appoints, and the shares shall be voted in the same manner and form as the
shareholder, Carso Global Telecom, S.A. de C.V., a Mexican corporation with a
clause of exclusion of foreigners, votes its shares, except in the case of
Telmex's Shareholder Meetings that must resolve appointment of members of
Telmex's Board of Directors and Executive Committee, in which case, the
Beneficiary shall give direct instructions to the Trustee concerning the
appointment of members of Telmex's Board of Directors and Executive Committee.
The Trustee shall receive the corresponding voting instructions in writing from
the Beneficiary two (2) business days prior to the Shareholders' Meeting.
FIFTH. The Trustee shall not be liable to the Beneficiary for any events or
actions of third parties that impede or make the execution of its obligations
hereunder difficult, nor for acting in compliance with instructions received by
it from the Beneficiary.
In the event of defense of the assets of this trust, the Trustee shall only be
required to xxxxx xxxxxx to the person indicated by the Beneficiary to take over
such defense. The Trustee shall in no way be responsible for the result of the
aforementioned defense, nor shall it be responsible for any expenses or fees
resulting from this defense.
SIXTH. This trust shall be in effect for a maximum period of thirty (30) years
beginning from the date this Agreement is executed. At the end of this period,
the Beneficiary can instruct the Trustee to transfer the assets of this trust to
another trust within a determined trustee institution, with purposes similar to
those provided for herein. If at the end of the 30-year period, the Trustee has
not received instructions with respect to the terms and conditions of the
transfer of the assets of this trust, or with respect to the sale, transfer or
conversion of the Series "AA" shares of Telmex that remain a part of this trust,
the Trustee shall proceed to sell all of Series "AA" shares of Telmex still part
of this trust on the Bolsa Mexicana de Valores, S.A. de C.V., and shall give the
net amount of the proceeds of the sale to the Beneficiary.
The Trust is terminable in advance if at any time, and upon the written request
of the Beneficiary, the Trustee transfers ownership of the assets of the Trust,
in any one of the forms established below, in an enunciative but not limitative
form:
a) Delivering all the Series "AA" shares of Telmex to the Beneficiary
when the Beneficiary so requests; provided, that the Beneficiary has
at that time the necessary legal and statutory capacity to be the
holder of such shares pursuant to Telmex's applicable laws and by-laws
in effect at that time.
b) Transferring all the Series "AA" shares of Telmex to any other person
appointed by the Beneficiary; provided, that such person has the
necessary legal and statutory capacity to be the holder of such shares
under Telmex's applicable laws, provisions and by-laws in effect at
that time.
c) Selling, assigning or alienating all of the Series "AA" shares
of Telmex in the form determined by the Beneficiary, in which
case, the proceeds derived therefrom shall be transferred to
the Beneficiary.
d) Converting all of the Series "AA" shares of Telmex in the form
determined by the Beneficiary into another series of shares
established under Telmex's by-laws.
SEVENTH. Banco Inbursa, S.A., Departamento Fiduciario, accepts the duty of
Trustee and affirms its loyal and faithful performance.
EIGHTH. For the performance of its duties, the Trustee shall receive the fees
established on Exhibit B attached hereto and signed by the parties.
NINTH. At the request of the Beneficiary, the Trustee shall provide a detailed
and satisfactory statement of the assets of this trust, as of the date of such
request, and any other information reasonably requested by the Beneficiary.
TENTH. If the Trustee is required to convert Mexican pesos into any other
currency available in the Mexican financial market in order to send any amount
to the Beneficiary, including dividends, distributions or any other payment from
the assets of this trust, the Trustee, pursuant to applicable laws, shall
convert Mexican pesos into the currency the Beneficiary selects.
ELEVENTH. Any modification to this Agreement shall only be valid if it is made
with the written consent of the Beneficiary, the Trustee and CGT.
TWELFTH. All taxes, rights, or expenses caused by the assets of this trust or as
a consequence of this Agreement shall be at the expense of the Beneficiary. The
Beneficiary shall accredit its payment to the Trustee upon request.
THIRTEENTH. Only another trustee appointed by the Beneficiary in writing may
replace the Trustee. When the duty of the Trustee ends because of resignation or
replacement, the Trustee shall make a report of the assets of the trust from the
time of the last report it has made to the date the resignation or replacement
becomes effective. The Beneficiary shall have 30 working days to examine the
report and make the inquiries considered pertinent. If no inquiries have been
made during the 30-working day period, the report shall be deemed approved. The
new trustee shall be vested with all the power, rights, authorizations and
obligations it agrees upon with the Beneficiary, taking possession of the goods
making up the assets of this trust. The replacement of the Trustee shall not be
effective until the new trustee assumes all the obligations of the Trustee under
this Agreement.
FOURTEENTH. That in fulfillment of Article 106, item (b), paragraph XIX of the
Law of Credit Institutions, its contents are transcribed.
"Article 106. Credit institutions shall be prohibited: ...- XIX. In
the performance of operations referred to by Article 46, Paragraph XV
of this Law:..- b) Respond to trustors, constituents or principals for
non-fulfillment of debtors, credits granted or issuers, for values
acquired, except if they are at fault in accordance with what is
provided in the final part of article 356 of the General Law of Credit
Certificates and Operations or ensure perception of yields for funds
whose investment is entrusted to them.
If at the end of the trust, mandate or commission established to grant
credits, these were not settled by debtors, the institution shall
transfer them to the trustor or beneficiary, as appropriate, or to the
constituent or principal abstaining from covering their amount.
Any agreement contrary to what is provided in the two paragraphs above
shall not have any legal effect.
In trust, mandate or commission agreements this item shall be visibly
inserted with a statement from the trustee to the effect that its
contents were unequivocally made known to persons from whom they have
received goods for their investment."
The Trustee in fulfillment of the above statute makes its contents
known to the parties in the terms of this Article.
FIFTEENTH. For everything concerning this Agreement, the parties hereto
designate the following as their conventional addresses:
The Trustor: Banco Internacional, S.A.
Division Fiduciaria
Xxxxx xx xx Xxxxxxx Xx. 000, Xxxx 00
Colonia Xxxxxxxxxx
00000 Xxxxxx, D.F.
The Trustee: Banco Inbursa, S.A.
Division Xxxxxxxxxx
Xxxxxxxxxxx Xxx Xx. 0000, Xxxx 0
Col. Xxxx Xxxxx
00000 Xxxxxx, D.F.
The Beneficiary: SBC International, Inc.
000 X. Xxxxxxx,
Xxx Xxxxxxx, Xxxxx 00000,
Xxxxxx Xxxxxx of America
Telefax: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxx
With a copy to: Xxxxxxx y Xxxxxxxx, X.X.
Sierra Mojada Xx. 000
Xxxxx Xxxxxxxxx
00000 Xxxxxx, D.F.
Telefax: 52 84 33 00
Attention: Xx. Xxxxxx Xxxxxx Xxxxx, Esq.
All notifications, instructions, and communications of any type shall be in
writing and considered valid when sent to the addresses mentioned above unless
the relevant party has previously notified the other party in writing of a
change of address. For purposes of this Agreement, "in writing" shall signify
any form of written communications or communication sent by telefax.
SIXTEENTH. Applicable laws of the Mexican United States shall govern everything
not foreseen in this Agreement and the trust established hereby. For everything
concerning the interpretation, execution or fulfillment of this Agreement, the
parties shall submit to the jurisdiction of the competent Courts of Mexico City,
Federal District, expressly waiving any other jurisdiction that might correspond
to them by reason of their present or future addresses.
SEVENTEENTH. Each of the parties hereto hereby acknowledges the legal status and
capacity of the other parties, as well as the power of their representatives to
execute this Agreement.
This Agreement and its attachments undersigned in three counterparts
in Mexico City on this 28th day of March 2001.
TRUSTEE
Banco Inbursa, S.A.
Institucion de Banca Multiple,
Grupo Financiero Inbursa,
Division Fiduciaria
/s/ Xxxxxxxx Xxxxxx Xxxx
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By: Lic. Xxxxxxxx Xxxxxx Xxxx,
Representative Trustee
TRUSTOR
Banco Internacional, S.A.
Division Fiduciaria
/s/ Xxxxxxx Xxxxxxxx Moraila /s/ Xxxxxx Xxxxx Xxxxxxx
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By: Lic. Xxxxxxx Xxxxxxxx Moraila By: Lic. Xxxxxx Xxxxx Xxxxxxx
Trustee Representative Trustee Representative
BENEFICIARY
SBC International, Inc.
/s/ Xxxxxxx X. Xxxxx /s/ Xxxx X. Xxxxx
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By: Xxxxxxx X. Xxxxx By: Xxxx X. Xxxxx
Vicepresident-Treasurer President of SBCI-Mexico
CARSO GLOBAL TELECOM, X.X.xx C.V.
/s/ Xxxxxxx Xxxxxx Acra
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By: Xxxxxxx Xxxxxx Acra
Exhibit A
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Share Certificate No. 0000002, emision 2000, dated January 20, 2000, of
1,059,890,076 fully paid and registered series AA shares of the 16,171,080,182
shares in which the fix portion of the corporate capital of Telefonos de Mexico,
S.A. de C.V. is divided.
Exhibit B
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The Beneficiary hereby agrees to pay to the Trustee for the study, acceptance,
custody and administration of the trust and its assets the annual amount of
U.S.$19,000.00 (nineteen thousand dollars lawful currency of the United States
of America) plus the value added tax thereon. The Beneficiary shall pay it, the
first year, upon signature of this Agreement and the second or consecutive years
and proportionally if the trust is terminated in less than a full year.
