Exhibit (d)(17)(c)
AMENDMENT NO. 3
TO STOCK PURCHASE AGREEMENT
This AMENDMENT NO. 3, dated as of July 15, 2003 ("Amendment No. 3"),
between CEMEX, S.A. de C.V., a corporation organized under the laws of the
United Mexican States ("CEMEX"), and IONA INVESTMENT PTE. LTD., a corporation
organized under the laws of the Singapore (the "Seller"), to the Stock Purchase
Agreement, dated as of July 12, 2002 (the "Original Agreement"), between CEMEX
and the Seller, as amended by (i) the Letter Agreement and Waiver, dated as of
Xxxxx 00, 0000 ("Xxxxxxxxx Xx. 0"), xxx (xx) Amendment No. 2 to Stock Purchase
Agreement, dated as of April 3, 2003 ("Amendment No. 2; and the Original
Agreement, as amended by Amendment No. 1 and Amendment No. 2, the "Agreement"),
each between CEMEX and the Seller, amends the Agreement as set forth herein.
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in the Agreement.
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, CEMEX and the
Seller agree as follows:
1. The first sentence of Article I(5) of the Agreement is hereby
amended in its entirety to read as follows:
"5. Adjustments to the Number of CPOs. The Number of
CPOs to be delivered on any Subsequent Closing Date shall be
adjusted from time to time as set forth in this Article I(5);
provided, however, that with respect to any Tranche (i) no
adjustment shall be made for any dividend or other
distribution paid or made on the CEMEX Common Stock on or
after the Original Subsequent Closing Date for such Tranche if
the aggregate value (as determined in good faith by the board
of directors of CEMEX) of all dividends or other distributions
paid or made on the CEMEX Common Stock from the Original
Subsequent Closing Date for such Tranche until and including
the Subsequent Closing Date for such Tranche (and including
the value of such dividend or distribution) does not exceed 5%
of the current market capitalization (determined as provided
in paragraph (g) of this Article I(5)) of the CEMEX Common
Stock on the date fixed for the determination of stockholders
entitled to receive such dividend or distribution, and (ii) if
a dividend or other distribution is paid or made on the CEMEX
Common Stock on or after the Original Subsequent Closing Date
for such Tranche and the aggregate value (as determined in
good faith by the board of directors of CEMEX) of all
dividends or other distributions paid or made on the CEMEX
Common Stock from the Original Subsequent Closing Date for
such Tranche until and including the Subsequent Closing Date
for such Tranche
(and including the value of such dividend or distribution)
(such aggregate value, being referred to as the "Aggregate
Value") exceeds 5% of the current market capitalization
(determined as provided in paragraph (g) of this Article I(5))
of the CEMEX Common Stock on the date fixed for the
determination of stockholders entitled to receive such
dividend or distribution (such 5% of the current market
capitalization, being referred to as the "Dividend Cap"), then
the Number of CPOs to be delivered on the Subsequent Closing
Date for such Tranche shall be adjusted as set forth in this
Article I(5) as if such dividend or other distribution
consisted of a dividend or distribution of only such portion
of such dividend or distribution as has a value (determined in
the same manner as the Aggregate Value referred to above is
determined) equal to the amount by which the Aggregate Value
exceeds the Dividend Cap."
2. Article IV(5) of the Agreement is hereby deleted in its
entirety and amended to read as follows:
"5. OMITTED."
3. Attached hereto as Exhibit A is a detailed calculation showing
(i) the increased Number of CPOs which have been adjusted for
the cash and stock portion of the dividend paid by CEMEX on
June 5, 2003, and (ii) the Base Deferral Fee payment schedule
as of the date hereof.
4. This Amendment No. 3 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.
5. Except as expressly amended hereby, all other provisions of
the Agreement shall remain in full force and effect.
6. THIS AMENDMENT NO. 3 AND ALL RIGHTS AND REMEDIES AMONG CEMEX
AND THE SELLER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO ITS CONFLICTS OF LAW DOCTRINE OTHER THAN NEW YORK
GENERAL OBLIGATIONS LAW (S) 5-1401 AND (S) 5-1402.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
CEMEX, S.A. de C.V.
By: /s/ Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx Xxxxxxx
Title: Attorney-in-Fact
IONA INVESTMENT PTE. LTD., as Seller
By: /s/ Xxxxxxx Xxxxx Xxxx Xxxx
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Name: Xxxxxxx Xxxxx Xxxx Xxxx
Title: Director
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