CALL OPTION AGREEMENT
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CALL OPTION AGREEMENT ("AGREEMENT") ENTERED INTO BY AND BETWEEN COMUNICACIONES
AVANZADAS, S.A. DE CV. ("CASA"), REPRESENTED BY ITS ATTORNEY IN FACT ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ("RBS") REPRESENTED BY HIS
ATTORNEYS IN FACT ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ LONGORIA AND ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ AND GRUPO
ELEKTRA, S.A.. DE C.V. ("GRUPO ELEKTRA"), REPRESENTED BY ITS ATTORNEY-IN FACT,
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, PURSUANT TO THE FOLLOWING REPRESENTATIONS
AND CLAUSES:
REPRESENTATIONS
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I. GRUPO ELEKTRA represents that:
I.1. It is a company duly incorporated and existing under the laws of
the United Mexican States.
I.2. Its legal representative is vested with the necessary and
sufficient corporate authority to enter into this Agreement, which authority has
not been revoked, limited or restricted in any manner whatsoever at the
execution hereof.
I.3. It is the owner of 371,853 Series "N" Shares, fully paid, with
no-par value, issued by Comunicaciones Avanzadas, S.A. de C.V. ("CASA"), that
represent 35.84% of the outstanding capital stock of the aforementioned company
(the "Shares").
I.4. It wishes to grant to CASA or its assignee including RBS, a call
option, to acquire the Shares pursuant to the terms and conditions set forth
herein.
I.5. It acknowledges that there are no statutory restrictions in CASA's
by-laws to grant a call option to RBS to acquire the Shares, in the event that
this person is the assignee.
I.6. In order to grant CASA or its assignee including RBS, the call
option described in the present document, its Board of Directors on its July
27th, 2000 meeting ("Date of Formal Approval") has approved unanimously the
aforesaid transaction, and that same resolution has been ratified by its Related
Party Transaction Committee during its session held on August 31st, 2000.
I.7. It acknowledges that a renowned investment banker (Bear ▇▇▇▇▇▇▇)
is studying the aforesaid operation in order to determine whether it is fair or
not to all shareholders and agrees that it will be effective only with such
approval. In the event of a positive opinion by that Investment Banker, the date
of issuance of such opinion shall be considered the effective date ("Date of
Formal Approval").
II. CASA represents that:
II.1. It is a company duly incorporated and existing under the laws of
the United Mexican States, with sufficient capacity to enter into this
Agreement.
II.2. In the event that CASA is not able to exercise the Call Option
described in the present agreement because of law or statutory prohibitions,
CASA expressly establishes that it has entered into an Agreement to the effect
of appointing RBS as the individual to whom the Shares shall be offered, in
accordance with the terms and conditions set forth herein; only in this specific
scenario, it would be understood that the Call Option is granted to RBS and
there won't be any reason to determine the invalidity of the Agreement.
II.3. Its legal representative is vested with the necessary and
sufficient corporate authority to enter into this Agreement.
III. RBS represents that:
III.1. In the event that CASA were not able to exercise the Call Option
described in the present agreement because of law or statutory prohibitions, he
wishes to obtain from Grupo Elektra the same call option to acquire the Shares
pursuant to the terms and conditions set forth herein.
III.2. He is fully aware of the terms and conditions set forth in
CASA's by-laws, applicable to the Shares, including but not limited to the
voting restrictions to Series "N" shares.
III.3. He acknowledges that the Board of Directors of Grupo Elektra,
during the meeting held on July 27th, 2000 has approved in an unanimous way, the
execution of the referred transaction ("Date of Formal Approval') and that the
Related Party Transaction Committee has also ratified the resolution during its
session held on August 3lst, 2000.
III.4. It acknowledges that a renowned investment banker (Bear ▇▇▇▇▇▇▇)
is studying the aforesaid operation in order to determine whether it is fair or
not to all shareholders and agrees that it will be effective only with such
approval. In the event of a positive opinion by that Investment Banker, the date
of issuance of such opinion shall be considered the effective date ("Date of
Formal Approval").
NOW, THEREFORE, in consideration of the foregoing representations, the
parties hereby agree as follows:
CLAUSES
FIRST. CALL OPTION
Grupo Elektra hereby grants to CASA or its assignee including RBS and
CASA or its assignee including RBS receives from Grupo Elektra a call option to
acquire the Shares (the "Call Option"). Therefore, Grupo Elektra hereby
irrevocably promises to sell to CASA or its assignee including RBS the Shares,
or a portion thereof not less than 50% of the purchase price, upon exercise of
the Call Option by CASA or its assignee including RBS or its assignee and,
consequently, both parties will enter into a stock purchase agreement to
transfer title of the Shares, in accordance with the terms and conditions set
forth in Clause Second.
SECOND. CALL OPTION EXERCISE
2.1 Both parties expressly agree that CASA or its assignee including
RBS, may exercise the Call Option to acquire the Shares on any date within a
period of 12 months, starting on the "Date of Formal Approval" of this
agreement. It being understood, that CASA or its assignee including RBS are
entitled to initially exercise the Call Option partially not less than 50% of
the purchase price, that is to acquire all or a portion not less than 50% of the
Shares at any given time within the aforementioned option period ("The Option
Period").
In any case, in the event that the initial purchase and transfer of
shares were exercised for an amount in excess than a 50%, but less than all,
CASA or its assignee including RBS, shall thereafter be entitled to exercise the
call option for the balance of the shares, but not less than the entire balance
of the shares as set forth in this agreement.
2.2 CASA or its assignee including BBS, shall exercise the Call Option,
by delivery of a written notice to Grupo Elektra ("Call Option Exercise Notice")
substantially in the terms contained in the letter attached hereto as Exhibit
"A". In the event that CASA or its assignee including RBS wishes to partially
exercise the Call Option, it shall deliver to Grupo Elektra a Call Option
Exercise Notice as required.
2.3 Within a period of 30 days after the date on which Grupo Elektra
receives a Call Option Exercise Notice, the parties shall enter into a stock
purchase agreement, to transfer title of the Shares to CASA or its assignee
including RBS, at the price agreed on Clause Third of this agreement. It being
understood, however, that Grupo Elektra and CASA or its assignee including RBS
shall enter into a stock purchase agreements as required, in the event that the
Call Option is exercised partially not less than 50% of the purchase price in
the case of the initial exercise and for the balance of the shares in the case
of an exercise of the call option after the initial exercise.
2.4 CASA may freely assign the Call Option entirely or just a portion
thereof to any person it may designate.
THIRD. SHARES' PRICE
The parties agree that the Shares' purchase price shall be
US$316,374,815.00 Dollars (Three hundred and sixteen millions, three hundred and
seventy four thousand, eight hundred and fifteen Dollars, United States of
America legal currency 00/100) for the entire 371,853 Series "N" Shares.
The terms and conditions of payment of the Shares' purchase price shall
be agreed by the parties in the stock purchase agreements, which they will sign
to implement the sale of the Shares. However, it is agreed that payment of the
purchase price shall occur no later than two months of the corresponding Call
Option Exercise Notice.
FOURTH. PENALTY
In the event that CASA or its assignee including RBS fail to exercise
the Call Option and/or to enter into the stock purchase agreement to acquire the
Shares, within the option period, CASA or its assignee including RBS shall pay
to Grupo Elektra a total penalty of US$15,818,740.00 (Fifteen Million, eight
hundred and eighteen thousand, seven hundred and forty Dollars, United States of
America legal currency 00/100).
In the event that CASA or its assignee including RBS partially
exercises not less than 50% of the purchase price the Call Option and acquires
title of a specific Shares' percentage, the penalty described in the preceding
paragraph shall be deemed payable in full.
FIFTH. TAXES
Grupo Elektra and CASA or its assignee including RBS agree that,
pursuant to applicable law, each of them will pay the corresponding taxes for
the sale and purchase of the Shares.
SIXTH. NOTICES
Notices and any communications between CASA or its assignee including
RBS and Grupo Elektra arising from this agreement shall be in writing and shall
be considered received when delivered personally, by telecopy or e-mail,
confirmed by sending a copy of the telecopy by prepaid certified postage, return
receipt requested or by prepaid courier service, to the addresses, telecopy
numbers and e-mails set forth below or any other address, telecopy number or
e-mail address designated by any of them by means of a written notice to the
other, as follows:
If to CASA
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇
▇▇▇▇▇ ▇, ▇▇▇▇ ▇(▇▇▇▇▇▇), ▇.▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇, D.F.
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇-▇-▇▇-▇▇-▇▇
If to RBS
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇, ▇▇▇▇▇▇, D.F.
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇-▇-▇▇-▇▇-▇▇
If to Grupo Elektra
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇,
▇▇▇▇▇ ▇, ▇▇▇▇ 8, C.P. 14000
Colonia Tlalpan La Joya
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: ▇-▇-▇▇-▇▇-▇▇
SEVENTH. ARBITRATION AND GOVERNING LAW
7.1 In the event that any controversy, dispute, difference or claim
arises among CASA or its assignee including RBS and Grupo Elektra, relating to
or in connection with this agreement, CASA or its assignee including RBS and
Grupo Elektra agree to submit such controversy, dispute or claim, to be resolved
in a definitive manner, to arbitration in accordance with the Rules of
Arbitration of the International Chamber of Commerce. The arbitration shall be
held in English and shall take place in Mexico, Federal District, Mexico.
7.2 This agreement shall be governed by the applicable laws of Mexico,
Federal District, Mexico.
IN WITNESS WHEREOF, the parties proceed to execute this agreement in
Mexico, Federal District, Mexico, on September 1st, 2000.
By: By:
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Grupo Elektra CASA
Name: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact Title: Attorney-in-Fact
By: RBS
Name: Name:
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▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Rello
EXHIBIT "A"
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September 2nd, 2000
Grupo Elektra, S.A. de C.V.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇,
▇▇▇▇▇ ▇, ▇▇▇▇, ▇, ▇.▇. 14000
Colonia Tlalpan La Joya
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Dear sirs:
I refer to the Call Option Agreement (the "Agreement") dated September
1st, 2000, entered by and between Grupo Elektra, S.A. de C.V. ("Grupo Elektra")
and the company I represent, CASA, pursuant to which Grupo Elektra granted to
CASA or its assignee including RBS a call option to purchase 371,853 Series "N"
Shares, fully paid, with no-par value, issued by Comunicaciones Avanzadas, S.A.
de CV.
In connection with the foregoing, I hereby confirm to you my decision
to assignee RBS as the person who exercises the call option to acquire Series
"N" Shares, fully paid, with no-par value, issued by Comunicaciones Avanzadas,
S.A. de C.V. Therefore, I confirm to you, the availability of RBS to review and
discuss the stock purchase agreement or agreements (in the event of partial
exercises as described in the Agreement) to be signed, in order to formalize
this transaction.
Notwithstanding the foregoing, RBS reserves his right in
accordance with the Agreement, to exercise the Call Option to acquire shares in
addition to such referred in the preceding paragraph.
Sincerely,
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By: CASA
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
By: RBS
Name: Name:
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▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Rello
