[logo] Banamex
A NEW BANKING ATTITUDE
Agreement No. 111132-7
Trust Agreement entered into by the party of the first part, the trading
companies Cemex SA de CV and Centro Distribuidor de Centro, S.A. de C.V.,
hereinafter and for the purposes hereof referred to collectively as the
"TRUSTORS," both represented by their legal representative with unlimited power,
Engineer Xxxxxxx X. Xxxxxxxx; and the party of the second part, Banco Nacional
de Mexico S.A. Institucion de Banca Multiple, Grupo Financiero Banamex, Trust
Division, hereinafter and for the purposes of this contract referred to as the
"TRUSTEE," represented by their trust representative Xxxxx de los Angeles
Xxxxxxxxxx Xxxxx and their special representative, Xxxx Xxxxx Xxxx Xxxxxxx;
pursuant to the following definitions, statements and clauses:
DEFINITIONS
"SHARES": Treasury shares, underwritten shares that not paid in or not
fully paid in, representing the Capital stock Cemex, S.A. de
C.V.
"PURCHASED SHARES": Any "SHARES" or "CEMEX.CPO" that the "ELIGIBLE PARTIES"
underwrite ("underwritten" should hereinafter be interpreted
as meaning underwritten and paid in) or purchase as a result
of exercising the "OPTION RIGHTS."
"CEDICE": Centro Distribuidor de Cemento, S.A. DE C.V.
"CEMEX": Cemex, S.A. de C.V.
"CEMEX.CPO": Non-redeemable ordinary shareholder certificates issued by
Banco Nacional de Mexico S.A. on shares that are
representative of Cemex S.A. de C.V.'s series "A" and "B"
capital stock of or if applicable, American Depositary
Shares issued on CEMEX.CPO.
[logo] Banamex
A NEW BANKING ATTITUDE
"CONTROLLED ENTITY": (i) Any legal entity whose common shares are
representative of its capital stock, voting rights, of
which Cemex S.A. de C.V owns more than fifty percent
(50%), directly or through one or more controlled
entities; (ii) in the case of the TRUST, any of which
Cemex, S.A. de C.V. or any other controlled entity
pursuant to sub-paragraph (i) above is the
Trustor-Beneficiary, or, if it is not acting as such, no
Beneficiary has been appointed having controlled entity
status and that enables Cemex S.A. de C.V. or any other
controlled entity to buy back the Trust Corpus ; and
(iii) any other entity or person in which Cemex S.A. de
C.V. or any other of its controlled entities pursuant to
sub-paragraph (i) above should have the authority or
power to direct the administration and to designate a
majority of directors.
"OPTION RIGHTS": Any granted by the TRUSTEE in exchange for the
consideration indicated by the Technical Committee
("issuance premium") and pursuant to any other terms and
conditions that the aforementioned Committee specifies,
as set forth herein, granting the option to underwrite or
purchase "SHARES" or "CEMEX.CPO," at any "EXERCISE PRICE"
specified by the Technical Committee.
"TRUSTEE": Banco Nacional de Mexico, S.A.
"OPTIONS": The option certificates or transactions arising
thereunder or any instrument or certificate that confirms
the right to purchase "SHARES" or "CEMEX.CPO" on a
pre-determined date at a pre-determined price.
"ELIGIBLE PERSONS": The members of the Board of Directors and Officers
(owners and substitutes) of "CEMEX" and Employees and
Officers of any "CONTROLLED ENTITY," in the latter case,
provided they are designated by the Trust's Technical
Committee.
[three signatures]
[logo] Banamex
A NEW BANKING ATTITUDE
"EXERCISE PRICE": The price established in the "OPTIONS" or "OPTION RIGHTS"
in order to underwrite or purchase "SHARES" or
"CEMEX.CPO" covered by the "OPTIONS" or the "OPTION
RIGHTS."
RECITALS:
I. "CEMEX" states that:
A. It is a trading company duly organized pursuant to the laws of the Mexican
Republic, incorporated pursuant to Public Document number 94 dated on May
28, 1920 issued before Xxxxxx Xxxxxx, Esq., Notary Public number 10 of the
city of Monterrey, registered under number 21, at pages 157 through the
back of 186 Volume 16, Book number 3, at the Second Auxiliary Office of
Corporate Documents, Business Section, dated June 11, 1920 in the Public
Registry of Property and Business in Monterrey, NL.
B. That in his capacity as the Legal Representative with Unlimited Powers of
the above company, he has the power and sufficient capacity to enter into
this Agreement for it and on its behalf, which he is evidencing by means of
the powers conferred and granted to him as set forth in public instrument
number 61,772 dated May 25, 1998, before Xxxx Xxxxxx Xxxxxx Xxxxxx, Esq.,
Public Notary number 129, with a practice in San Xxxxx Xxxxx Xxxxxx Nuevo
Xxxx, filed under number 3247, Volume 207-65, Book number 4, Documents and
Miscellaneous Contracts, Business Section, dated May 27, 1998 in the Public
Registry of Property and Business in Monterrey, NL., which powers have not
been revoked.
II. "CEDICE" declares that:
A. It is a trading company duly organized under the laws of the Mexican
Republic, incorporated pursuant to Public Document 899 dated May 17, 1996
granted before Xxxx Xxxx Xxxxxx Xxxxxxxxxx, Esq., Public Notary 120 with a
practice in Monterrey, Nuevo Xxxx, which is filed in the Public Registry of
Property and Business in Monterrey Nuevo Xxxx, under number 1166, Volume
428, Book number 3, Second Auxiliary Office of Corporate Documents,
Business Section, dated on June 11, 1996.
[logo] Banamex
A NEW BANKING ATTITUDE
B. That in his capacity as the legal representative with unlimited powers of
the aforementioned company, he has the power and sufficient capacity to
enter into this Agreement for it and on its behalf,, which is evidenced by
the powers conferred and granted to him that are set forth in the public
document which formalized the incorporation of the company, in transitory
clauses and in which is described in the preceding paragraph, all of which
[powers] have not been revoked.
III. The TRUSTEE hereby states that:
A. It is a multiple banking loan institution lawfully organized and existing
under, the laws of the United States of Mexico and that it has the
necessary powers to act as Trustee under this Trust Agreement, pursuant to
the provisions set forth in the Law on Credit Institutions.
B. That its Trust Representative and its Special Representative are duly
authorized and empowered to enter into this Trust Agreement and that they
have the necessary powers to enforce it, according to the terms hereof.
C. That this Trust Agreement has been duly authorized by the TRUSTEE.
D. That this Trust Agreement is a valid, legal, and enforceable obligation
upon the TRUSTEE, and enforceable against the TRUSTEE, pursuant to Mexican
law.
Pursuant to the aforementioned recitals, the signatories hereto are creating
this Trust, pursuant to the following:
CLAUSES
CLAUSE ONE: CREATION
The TRUSTORS are creating this Trust, each one contributing to the TRUSTEE the
amount of Pesos 1,000 (One Thousand Pesos 00/ 100 National Currency), which
amount of money the TRUSTEE states it has received to its entire satisfaction,
and this document hereby serves as a receipt therefor in the broadest sense
permitted by law and it may increase the trust corpus as set forth in this
Agreement.
[three signatures]
[logo] Banamex
A NEW BANKING ATTITUDE
For its part, The TRUSTEE hereby states that it accepts its commission and
promises to fully and faithfully perform thereunder.
CLAUSE TWO: PARTIES TO THE TRUST
The following are the parties TRUST to this Trust as identified in Agreement
number 111132-7:
TRUSTORS: CEMEX S.A. de C.V.; Centro Distribuidor de Cemento S.A de
C.V. and any CONTROLLED ENTITY that is incorporated into
this agreement by contributing shares, securities, or funds.
TRUSTEE: Banco Nacional de Mexico S.A.
PRIMARY BENEFICIARIES: CEMEX S.A. de C.V., Centro Distibuidor de Cemento S.A.
de C.V. and any CONTROLLED ENTITY that joins the Trust,
insofar as the amounts produced by the sale of the OPTION
RIGHTS and the underwriting or sale, if any, of SHARES or
CEMEX.CPO are concerned, in respect of any OPTION RIGHTS on
which the TRUSTEE should provided the necessary coverage or
so that the TRUSTEE is in a position to fulfill its
obligations under the OPTION RIGHTS.
SECONDARY BENEFICIARIES: ELIGIBLE PARTIES and anyone who purchases the OPTION
RIGHTS, subject to the terms and conditions of this trust
agreement, with regard to the OPTION RIGHTS, the exercise
thereof, the PURCHASED SHARES, and the rights inherent
therein.
[logo] Banamex
A NEW BANKING ATTITUDE
CLAUSE THREE: TRUST CORPUS
The TRUST CORPUS in the Trust (the "TRUST CORPUS") consists of the following:(i)
Any SHARES or CEMEX.CPO contributed to the Trust or purchased by the TRUSTEE in
fulfillment of the purposes of this agreement; (ii) The OPTIONS granted to the
TRUSTEE to cover the OPTION RIGHTS or any that the TRUSTEE purchases; (iii) the
contribution hereby made by the TRUSTORS in the amount of Pesos 2,000 (Two
Thousand Pesos 00/100 National Currency); (iv) The price to be paid for the
OPTION RIGHTS and the EXERCISE PRICE, and also any yields thereon earned by
investing the funds that comprise the TRUST CORPUS; (v) the funds that are
received for financing the aforementioned, which if applicable, were granted;
(vi) SHARES or CEMEX.CPO that are subscribed or purchased and charged to the
funds in the TRUST CORPUS; (vii) SHARES or CEMEX.CPO that the ELIGIBLE PARTIES
would have subscribed or purchased for the exercise of the OPTION RIGHTS; and
(viii) the cash contributions made by CEMEX, CEDICE or any other CONTROLLED
ENTITY that are necessary in order to achieve the purposes of this TRUST.
CLAUSE FOUR: PURPOSES OF THE TRUST.
The purposes of this TRUST Agreement are as follows:
A. That the TRUSTEE shall preserve the property, title, and
administration of the TRUST CORPUS, in accordance and pursuant to
the purposes of this Contract.
B. That the TRUSTEE is granting the ELIGIBLE PARTIES the OPTION
RIGHTS, so that pursuant to the agreements established in this
instrument and the terms and conditions specified by the Technical
Committee to be formed pursuant to the provisions of this
agreement, would allow the exercise of the aforementioned, as well
as the rights inherent in the PURCHASED SHARES.
C. That in agreement with the instructions provided by the Technical
Committee, the TRUSTEE shall proceed to obtain the necessary
authorizations and registrations that would allow for the
mediation of the OPTION RIGHTS in the stock market, pursuant to
the applicable legal provisions.
D. That the TRUSTEE shall apply the funds received for any concept
pursuant to the purposes of the TRUST Agreement Contract as
specified by the Technical Committee.
E. That pursuant to the instructions provided by the Technical
Committee or, if applicable, any TRUSTOR, charged to the funds
that the aforementioned would have contributed, any SHARES,
CEMEX.CPO, or OPTIONS underwritten or purchased.
F. That the TRUSTEE according to the instructions received from the
Technical Committee, should allow the TRUSTORS to contract and to
grant financing, which shall be charged to the TRUST CORPUS, and
pursuant to the instructions provided by the Technical Committee,
shall allocate the financing funds granted to specific ends and
shall proceed to the recovery, negotiation, or restructuring of
the aforementioned.
[logo] Banamex
A NEW BANKING ATTITUDE
G. That the TRUSTEE shall subscribe Treasury Shares (but charged to
the ELIGIBLE PARTIES) issued by CEMEX, which shall be produced by
the ELIGIBLE PARTIES, in exercise of the OPTION RIGHTS, and the
TRUSTEE shall be able to deposit such Shares for the deposit of
securities, pursuant to and as indicated by the Technical
Committee.
H. That the TRUSTEE shall contract or purchase OPTIONS and if
applicable, by paying the PRICE OF EXERCISE, shall subscribe or
purchase SHARES OR CEMEX.CPO, as necessary coverage for the OPTION
RIGHTS, that the TRUSTEE should confer on any ELIGIBLE PARTIES.
I. In the event that, pursuant to the agreements reached in this
instrument and with the terms and conditions that have been
convened in the instrument in which these are formalized, the
ELIGIBLE PARTIES exercise the OPTION RIGHTS, the TRUSTEE shall
proceed to subscribe or purchase the SHARES or CEMEX.CPO, which
shall remain within the TRUST CORPUS, and in conformance with the
purposes that are indicated with regards to these PURCHASED
SHARES.
[logo] Banamex
A NEW BANKING ATTITUDE
J. In conformance with the instructions received by the Technical
Committee, to authorize any transfers of the OPTION RIGHTS already
granted to any ELIGIBLE PARTIES.
K. In conformance with the instructions received by the ELIGIBLE
PARTIES, to proceed with the sale of the PURCHASED SHARES,
applying the amount that may result from the payment of loans that
are granted to such persons and once these have been paid in full,
give any remaining portions to such persons, after having covered
all the expenses and commissions.
L. That pursuant to the instructions received by the Technical
Committee, the TRUSTEE shall exercise the estate, corporate and
consecution rights which are inherent to the PURCHASE SHARES,
OPTION RIGHTS, and OPTIONS that are parts of the TRUST CORPUS.
With regards to the PURCHASED SHARES, the Technical Committee
shall only give instructions regarding the exercise of the right
to vote and in relation to the other rights; the TRUSTEE shall
follow the orders of the ELIGIBLE PERSONS.
M. That with the exception of the PURCHASED SHARES, pursuant to the
instructions given by the Technical Committee, the Trustee shall
sell, transfer, dispose of, distribute, or shall issue in TRUST
guarantee, or shall perform any act or commercial or civil
contract, in Mexico or in a foreign county, in relation with the
SHARES, CEMEX.CPO or OPTIONS.
N. That the TRUSTEE shall perform all the activities or acts, execute
the contracts or agreements and if applicable, issue the documents
that are required or that are convenient, with regards to the
pursuant to the purposes of this contract or that are necessary or
related with the above, and shall have all the powers required for
the formalization of the aforementioned.
Any transfer of the property of goods or rights that are contributed to
this TRUST shall be subject to the formalities established in the
ordinary legislation for the transfer of such goods or rights. The
goods or rights that constitute the object or estate of this TRUST are
considered to be subject to the purposes of such TRUST, and as a result
only the rights and acts that correspond in accordance to this contract
shall be exercised.
[logo] Banamex
A NEW BANKING ATTITUDE
CLAUSE FIVE: TECHNICAL COMMITTEE
A Technical Committee is created pursuant to the terms and for the purposes
foreseen in Article 80 of the Law of Credit Institutions, which is formed in
conformance with the following rules:
A) Integration: The Technical Committee shall be integrated by three
persons designated by CEMEX for this effect, which shall be
comprised by the following:
ING: XXXXXXX X. XXXXXXXX ____________________________
ING. XXXXXX XXXXXX XXXXXX ___________________________
ING. XXXXXXX X. XXXXXX XXXXXXX ______________________
Ing. Xxxxxxx X. Xxxxxxxx shall be the President. The persons that
integrate the Technical Committee and which are hereby assigned,
can only be removed or substituted from office pursuant to the
provisions set forth in this clause, except in the event of
decease, a total incapacity that were judicially declared or if
they expressly resigned in writing. The President cannot be
removed from office. If applicable, the respective documentation
shall be submitted before the TRUSTEE, which shall communicate to
CEMEX, in order for CEMEX to proceed to designate the new members.
The President of the Technical Committee shall freely substitute
or remove from office the other two members, and shall communicate
to the TRUSTEE any such changes. Once the TRUSTEE receives this
information, the newly designate person shall take office and the
substituted person shall be removed from office.
B) Operation: the Technical Committee shall meet as many times as it
were deemed necessary and a formal meeting shall not be required,
a written and signed transmittal by at least two of its members
shall suffice, one of which shall be the President, clearly
stating the agreements and decisions that were taken. In order
that these may be considered valid, the President shall forward
such transmittal to the TRUSTEE, and once such transmittal was
received by the aforementioned, he shall act accordingly, and
shall be held harmless from any liability, as set forth in Article
80 of the General Law of Credit Institutions.
The TRUSTEE shall be able to attend the meeting, in the event that the
Technical Committee should agree to meet at a time and place that were
determined, with the right to participate but no to vote.
The decisions of the Technical Committee shall only be valid if they
are approved by the President and by one of its members.
C) Powers: The Technical Committee shall decide upon those subjects
that pursuant to the aforementioned provisions shall be submitted
for their consideration and any other ones that the TRUSTEE should
submit before their consideration.
[logo] Banamex
A NEW BANKING ATTITUDE
In addition to the provisions expressly agreed to hereunder, the
Technical Committee shall have the following powers and obligations:
1. Provide the TRUSTEE with instructions as to how the TRUST CORPUS
shall be invested, subject to the purposes of this TRUST.
2. Instruct the TRUSTEE regarding the necessary, applicable or
convenient to contribute in the administration and operation of
the programs through which the OPTION PROGRAMS are to be granted.
3. Designate Special Technical Committee Delegates, which shall have
the power to instruct on a daily basis regarding the exercise of
the OPTION RIGHTS, the payment of the PURCHASED SHARES, the sales
of the aforementioned in the market and any necessary or
convenient transmittal or communication to facilitate the
administrative process of the exercise of the OPTION RIGHTSS by
the Second Class of Trustees.
4. Review and if applicable approve the accounts of the TRUSTEE, for
which it shall have a term of thirty calendar days, counted from
the date on which it received the information, to examine it and
to make the comments that it deems pertinent. The information
shall be tacitly approved if the Technical Committee does not make
any written comments addressed to the TRUSTEE, within the
aforementioned term.
5. Contribute with the TRUSTEE to resolve any situation or problem
that may arise with regards to the interpretation of the
provisions set forth in the TRUST.
6. In general, it shall have all the necessary powers to contribute
toward compliance of the purposes of the TRUST.
[logo] Banamex
A NEW BANKING ATTITUDE
CLAUSE SIX: OPTION RIGHTS
The Technical Committee will be authorized to determine who the
ELIGIBLE PARTIES will be in addition to the members of Cemex, S.A. de C.V.'s
Board of Directors, Officers, Owners and Substitutes who shall be deemed
ELIGIBLE for the purposes of this contract. The TRUSTEE, by authorization of the
Technical Committee, shall grant and formalize ELIGIBLE PARTIES the concession
of the OPTION RIGHTS in conjunction with the ELIGIBLE PARTIES, and shall proceed
pursuant to the following guidelines.
A) The OPTION RIGHTS will be granted when determined by the Technical
Committee.
B) Each OPTION RIGHT will specify the number of SHARES or CEMEX.CPO that
an ELIGIBLE PARTY may purchase; this number will be determined by the
Technical Committee depending on the performance conditions of the
ELIGIBLE PARTIES.
C) Any OPTION RIGHTS assigned may be exercised within no more than 15
(fifteen) years ("Exercise Period"), this period of time will commence
on the date the granting of the option rights is formalized.
The exercise of the OPTION RIGHTS and, as a consequence, the underwriting or
purchase of the SHARES or CEMEX.CPO may take place according to instructions
from the Technical Committee defining the parameters, terms and conditions as it
sees fit and as it advises the TRUSTEE in a timely manner.
Any SHARES or CEMEX.CPO that are not purchased by the pre-established may be
purchased every month, as of the pre-established date, on the last work day of
each month until the end of the"Exercise Period."
The Technical Committee may instruct the TRUSTEE to make any adjustments that
prove necessary with regard to the exercise price and the number of SHARES or
CEMEX.CPO to be underwritten or purchased under the OPTION RIGHTS granted in
each plan.
CLAUSE SEVEN: TRUSTEE OBLIGATIONS
The obligations of the TRUSTEES are as follows:
A) Maintain a sufficient number of SHARES or CEMEX.CPO in the Trust
Corpus, to cover the exercise of the OPTION RIGHTS.
[three sets of signatures to right]
[logo] Banamex
A NEW BANKING ATTITUDE
They may purchase OPTIONS for this purpose, or contribute the funds concerned
or obtain the necessary financing, pursuant to the terms hereof, in order to
underwrite or purchase the required SHARES or CEMEX.CPO.
B) If the issuer of the SHARES agrees to the consolidation, restructure,
division or partition of his Capital Stock or the replacement of the
certificates that cover them,, the OPTION RIGHTS already granted will
be exercisable with regard to the amount of resulting SHARES or
CEMEX.CPO, taking into account any new ones that are issued to replace
or in addition of each of the previous ones. To this end, the TRUSTEES
agree, in the event the SHARES or CEMEX.CPO have not been contributed
or purchased by the TRUSTEE, to contribute the SHARES, CEMEX.CPO or the
funds needed for the purchase thereof, to a value equal to any assigned
OPTION RIGHTS that are exercisable.
C) In the event of a Capital Increase by capitalizing the Reserves, the
OPTION RIGHTS already granted will be exercisable insofar as to
resulting number of SHARES or CEMEX.CPO is concerned due to the
inclusion of the ones given out for every one that is already in
circulation.
In the event the SHARES or CEMEX.CPO have not been contributed to the Trust, the
TRUSTORS agree to contribute the amounts needed to back the exercise of the
OPTION RIGHTS as specified.
CLAUSE EIGHT: SALE AND FULL PAYMENT OF PURCHASED SHARES.
The PURCHASED SHARES may only be delivered to the ELIGIBLE PARTIES upon
authorization from the Technical Committee, ELIGIBLE PARTIES provided they owe
no amounts for charges arising from the exercise of the OPTION RIGHTS.
For purposes of the Sale of the PURCHASED SHARES, if there is any debt due and
owing from ELIGIBLE PARTIES arising from the purchase of the said securities,
the Technical Committee may sell the PURCHASED SHARES within 15 days thereafter
on the Mexican Stock Exchange or in a recognized market and the proceeds thereof
will be applied to the payment of the debt and the remainder will go the
ELIGIBLE PARTIES concerned.
[logo] Banamex
A NEW BANKING ATTITUDE
In any other case, instructions to sell the PURCHASED SHARES may only be given
at 30 (thirty) calendar day intervals from the date of the purchase thereof, and
the first instructions may be given within 5 (five) working days following the
purchase thereof.
CLAUSE NINE: POWERS OF THE TRUSTEE
Upon accepting the trust created pursuant hereto, the obligations assumed by the
TRUSTEE with regard to the assets should be interpreted as its being in charge
of the assets that form the Trust Corpus. The TRUSTEE is not assuming any
personal obligation with regard to the assets hereunder, neither shall it be
held responsible in any way for indemnification with its own assets, except in
those cases where, pursuant to Mexican law applicable to trusts, it is
responsible for any damages it incurred due to impropriety
The TRUSTEE shall have all of the necessary powers to achieve the purposes of
this Trust as set forth in clause Four, including, but not limited to the powers
and duties referred to in Article 391 of the General Law of Negotiable
Instruments and Credit Operations. The TRUSTEE shall have the power to xxxxx
xxxxxx of attorney to the people selected by the Technical Committee, enabling
these people to exercise the corporate rights inherent in the SHARES, the CEMEX
CPO or the PURCHASED SHARES at CEMEX's general Shareholders' meetings or at
general meetings of the holders of CEMEX.CPO. .
The TRUSTEE is authorized to collect interest, dividends and other proceeds of
the Trust Corpus and deduct any amounts needed to pay any taxes and expenses
that the investments incur, the handling and administration of the Trust, as
well as the amount of its fees, and it should apply any net yields as set forth
in the clauses in this Trust Agreement.
CLAUSE TEN: UNDERWRITING OF NEW SHARES AND THE EXERCISE OF THE OPTION RIGHTS AND
THE OPTIONS.
In the event CEMEX increases its Capital Stock by new contributions, CEMEX will
notify the Technical Committee on the day immediately following the day on which
its Board of Directors approves the proposal concerned for submittal to the
Ordinary General Shareholders' Meeting. The Technical Committee will notify any
Trustors who contributed SHARES, CEMEX.CPO or PURCHASED SHARES in order to let
them know that they have the right
[three sets of signatures to right]
[logo] Banamex
A NEW BANKING ATTITUDE
to underwrite the shares that are issued, if any, when the capital increase is
approved, in the proportion in which the SHARES, CEMEX.CPO STOCKS or PURCHASED
SHARES represent CEMEX's Capital Stock and, if such is the case, as stipulated
in CEMEX's Bylaws and any agreements reached by the Meeting.
Any TRUSTORS who wish to underwrite the capital increase should provide the
TRUSTEE with the necessary funds 2 (two) work days prior to the date on which
the deadline for exercising the preemptive right expires.
In the case of the OPTIONS and OPTION RIGHTS,,, the following procedure will be
adopted for the exercise thereof: a) OPTIONS: Once they have been purchased, the
TRUSTEE will inform the Technical Committee of the terms and conditions thereof;
it should notify the TRUSTEE 2 calendar (two) days prior to the deadline set for
the exercise so that the inherent rights are exercised, and the Technical
Committee should arrange for the contribution thereof to the Trust or, if such
is the case, authorize the placement [in] the Trust Corpus of any funds required
for this purpose. b) OPTION RIGHTS: In this case, the ELIGIBLE PARTIES who own
these rights should deliver the necessary amounts to the TRUSTEE to cover the
EXERCISE PRICE by no later than the date set as the exercise date; the TRUSTEE
may, pursuant to instructions from the Technical Committee, grant loans to the
holders of the OPTION RIGHTS so that they can cover the EXERCISE PRICE.
..
CLAUSE ELEVEN: OPTION RIGHT DOCUMENTATION.
As and how the Trust's Technical Committee decides and pursuant to applicable
law. OPTION RIGHTS with an entitlement to underwrite or purchase SHARES or
CEMEX.CPO shall be issued.
The Trust shall, by means of a written document, make an offer to the ELIGIBLE
PARTIES offering them the OPTION RIGHTS. The ELIGIBLE PARTIES to whom the offer
is made should have their acceptance plainly stated right on any document
submitted to them by the TRUSTEE, thereby becoming a Secondary Beneficiary under
the terms and conditions of this agreement. Anyone who purchases OPTION RIGHTS
by any means shall similarly become members of this Trust as Secondary
Beneficiaries.
[three signatures to right]
[logo] Banamex
A NEW BANKING ATTITUDE
The offer shall contain the number of SHARES or CEMEX.CPO, the underwriting or
purchase price, the deadlines, and the terms and conditions for making the
underwriting or purchase. The ELIGIBLE PARTIES will pay the TRUSTEE a premium,
to be determined by the Technical Committee, once the offer is accepted.
In the offer, the TRUSTEE, will state the manner and the terms in which the
premium must be paid and the EXERCISE PRICE and that the sale or underwriting
shall be subject to there being sufficient SHARES, CEMEX.CPO or OPTIONS in the
Trust Corpus.
To this end, the provisions contained in Articles 1804, 1805, 1806, 1807, 1808
and 1810 of the General Civil Code shall be applicable.
CLAUSE TWELVE: EFFECT
This document has a maximum duration of 30 (thirty) years, pursuant to the
provisions of Article 394 of the General Law of Negotiable Instruments and
Credit Operations. The foregoing notwithstanding, this document can be
terminated by agreement of the TRUSTORS, who reserve this right for any the
legal effects that may arise.
This Trust cannot be terminated while there are still valid OPTION RIGHTS in
existence or loans granted to the Trust or by the Trust that have not been paid
in full.
Upon the termination of the Trust, the TRUSTEE will turn over ownership of the
Trust Corpus to any Trustor entitled thereto, according to the records and
controls that should be kept by the TRUSTEE.
CLAUSE THIRTEEN: CONTROL
The TRUSTEE must maintain the following ledgers and/or controls:
A) One that clearly states the number of SHARES or CEMEX.CPO and in the
case of the former, whether they are merely underwritten or whether
they are fully paid up. This ledger shall be gradually updated and
certificates will be replaced as required, if such is the case, as
SHARES or CEMEX.CPO are purchased upon the exercise of the OPTION
RIGHTS. It should be clearly indicated whether the PURCHASED SHARES are
those that the TRUSTEE kept underwritten and that covered treasury
shares representing increases in CEMEX's corporate capital intended for
the Option Plan or, is such is the case, whether this involves shares
that were already fully paid up or certified as an ordinary holding
purchased by the TRUSTEE.
[three signatures to right]
[logo] Banamex
A NEW BANKING ATTITUDE
B) Another ledger showing the PURCHASED SHARES for due each ELIGIBLE
PARTY because they exercised their OPTION RIGHTS, and of these, those
that were sold and the balance remaining
C) Any other ledgers that are necessary or appropriate or any ordered by
the Technical Committee.
In the case of loans granted, the Trust Corpus, with the exception of the
PURCHASED SHARES and the proceeds and yield therefrom, shall be held liable
therefor in proportion to the amounts held by each Trustor. The same will go for
the granting of loans insofar as the encumbrance of the Trust Corpus is
concerned.
All operations involving the handling and custodianship of the SHARES, CEMEX.CPO
and PURCHASED SHARES will go through an institution authorized for the deposit
of securities.
The PURCHASED SHARES or OPTION RIGHTS may not be assigned, posted as collateral
and the rights inherent therein or arising therefrom may not be disposed of or
encumbered in any way, without the Technical Committee's express consent.
CLAUSE FOURTEEN: PROHIBITIONS
Pursuant to provisions of sub-paragraph b) of Paragraph XIX of Article 106 of
the Law on Credit Institutions, the TRUSTEE declares that it unequivocally
explained to the trustees the value and legal consequences of said Paragraph
which states:
"Article 106, - Credit Institutions are prohibited from: ... Paragraph XIX. -
When performing the operations listed in Paragraph XV of Article 46 of this Law:
....b) Be held liable to the trustors, agents or principals for the debtors'
default on any loans that were granted or that of the issuers, for any
securities purchased, unless it is their fault, as provided in the last part of
Article 356 of the General Law of Negotiable Instruments and Credit Operations,
or they guaranteed a yield on any funds they were asked to invest. .
If at the end of the trust, mandate or commission created by the granting of
loans, the loans have not been paid by the debtors, the institution
[three signatures to right]
[logo] Banamex
A NEW BANKING ATTITUDE
must transfer them to the trustor or beneficiary, as the case may be, or to the
agent or principal, and refrain from covering the amount thereof.
Any agreement other than those specified in the two preceding paragraphs shall
have no legal effect whatsoever.
With regard to trust, mandate or commission agreements, this sub-paragraph shall
be inserted prominently and a declaration by the trust company stating that it
unequivocally advised anyone from whom it received assets for investment of the
contents thereof..
By presidential decree dated April 29th, 2000, published in the Official Federal
Newspaper on May 23rd of the same year, the General Law of Negotiable
Instruments and Credit Operations was modified. Pursuant to this modification,
Article 356 (three hundred and fifty-six) which is referred to in Article 106
(One hundred and six) of the Law on Credit Institutions transcribed above should
be understood to be Article 391 (three hundred and ninety-one) of the General
Law of Negotiable Instruments and Credit Operations.
CLAUSE FIFTEEN: ADMINISTRATION.
The TRUSTEE shall administer the Trust Corpus pursuant to the provisions of
articles 278 (two hundred and seventy-eight) and 391 (three hundred and
ninety-one) of the General Law of Negotiable Instruments and Credit Operations,
without exception following any instructions given to it in writing in each
instance, as set forth in the clauses of this agreement.
CLAUSE SIXTEEN: TRUSTEE LIABILITY
It is expressively agreed that the TRUSTEE will be held liable for any
obligations arising from the performance under the Trust solely to the extent of
the Trust Corpus. The TRUSTEE should incorporate this stipulation in any
documents and agreements it sign in fulfillment of the Trust
The TRUSTEE shall be held free of any liability arising from any acts it
performs in fulfillment of instructions it receives from the Technical Committee
and it shall not be obligated to fulfill those instructions if these contravene
the law or the purposes of this Trust. Moreover, it is agreed that the TRUSTEE
shall not be held liable in any way whatsoever if it fails to underwrite SHARES
or CEMEX.CPO under the exercise of the corporate or monetary rights therein
because it was not furnished with the necessary funds for this purpose in a
timely manner, or it fails to fulfill the rights inherent in the OPTIONS, as
specified in the instructions.
[three signatures to right]
[logo] Banamex
A NEW BANKING ATTITUDE
If it proves necessary to do something on an urgent basis in order to fulfill
the purpose of the Trust and the failure to do so could patently damage the
Trust Corpus, if it is not possible to convene the Technical Committee, the
TRUSTEE may, as an exception, act in its discretion, always acting pursuant to
good banking practices.
The TRUSTORS have no rights whatsoever with regard to the Trust Corpus and as
far as the Trust Corpus is concerned, the Secondary Beneficiaries will only have
the rights that are expressly vested in them pursuant to the terms hereof and no
rights exist or are created for anyone at all other than the Secondary
Beneficiaries, as set forth in Articles 386 and 390 of the General Law on
Negotiable Instruments and Credit Operations.
CLAUSE SEVENTEEN: THIRD PARTY ACTS
The TRUSTEE shall not be held liable to the Trustors or Beneficiaries in any way
for the deeds or acts of third parties or the authorities, that prevent or
hinder the purposes of this Trust from being achieved, nor for acting pursuant
to any instructions it receives from the Technical Committee.
CLAUSE EIGHTEEN: DEFENSE OF TRUST CORPUS
With regard to the defense of the Trust Corpus, the TRUSTEE shall only be
obliged to grant a mandate to the person or persons indicated by the Technical
Committee, so that the representative the latter appoints assumes the defense of
the Trust Corpus, without the TRUSTEE being held liable in any way for the
outcome of any arrangements said representative makes, nor for the payment of
his fees and expenses, since these will be charged to the Trust Corpus, it being
understood that the mandate conferred on the appointee may under no
circumstances be for acts of ownership or the signing of negotiable instruments.
CLAUSE NINETEEN: REVOCATION AND MODIFICATION OF TRUST.
The TRUSTORS reserve the right to modify the terms of this instrument and revoke
it, always abiding by the provisions of Clause Twelve, with the previous
authorization of the Technical Committee.
[three signatures to right]
[logo] Banamex
A NEW BANKING ATTITUDE
CLAUSE TWENTY: TAXES
Any Income Tax incurred on the OPTION RIGHTS and the sale of SHARES and
CEMEX.CPO will be charged to the party concerned, according to applicable tax
law and in this case, the TRUSTEE will proceed pursuant to the tax law in effect
at the time.
CLAUSE TWENTY-ONE: DISSOLUTION OF ISSUER
In the event of the dissolution or liquidation of company issuing the SHARES and
PURCHASED SHARES, the TRUSTEE shall, without any liability whatsoever, deliver
the SHARES or the liquidation allocations that it has at that time, to the
person or persons who legally provide evidence that they are entitled to receive
them.
CLAUSE TWENTY-TWO: TRUSTEE'S FEES
The TRUSTEE will charge a fee for the performance of its duties, pursuant to
this Agreement, and the amount thereof shall be agreed to by and between the
TRUSTEE and CEMEX in a separate instrument.
The TRUSTEE's fees, and also any other costs necessary to fulfill this
Agreement, shall be charged to CEMEX.
Similarly, all charges incurred by the TRUSTEE (including reasonable and
documented legal fees and costs) in the defense of the Trust Corpus, as well as
the fees and costs agreed upon by the TRUSTEE and CEMEX to perform any
transactions specified to the TRUSTEE by the Technical Committee to fulfill the
purposes set forth herein, shall be for CEMEX's account..
CLAUSE TWENTY-THREE: NOTICES AND ADDRESSES
Any communication to be sent out by the parties under the terms of this
Agreement should be in writing and sent to the other party by certified mail,
return receipt requested, telex, fax or by any other means that ensures the
receipt thereof, to the following addresses:
TRUSTORS: Xx. Xxxxxxxxxxxx Xx. 000 Xxx.
00000 Xxxxxxxxx, Nuevi Xxxx
Attn: Ing. Xxxxxxx X. Xxxxxxxx
[three signatures to right]
[logo] Banamex
A NEW BANKING ATTITUDE
TRUSTEE: Xxxx. Xxx Xxxxx Xx. 000 Xxx., Xxx. Xxx Xxxxx
00000 San Xxxxx Xxxxx Xxxxxx, Nuevo Xxxx
Attn: Lic. Xxxxx de los Angeles Xxxxxxxxxx Xxxxx
Any change of address must be forwarded in writing to the parties to this
Agreement, it being understood that any correspondence that is directed to the
last address stated by the parties will have full legal effect.
CLAUSE TWENTY-FOUR: INTERPRETATION AND JURISDICTION
Insofar as its interpretation and performance of this agreement is concerned, it
is subject to the laws of the United Mexican States; in order to settle any
dispute that may arise as a result hereof, the parties expressly submit to the
jurisdiction of the jurisdictional courts in the city of San Xxxxx Xxxxx Xxxxxx,
State of Nuevo Xxxx, Mexico, and they forthwith waive any other jurisdiction to
which they may be entitled because of their present or future addresses or
because of the location of their assets.
This contract is signed in the city of Monterrey, Nuevo, Xxxx, on December 13,
2001.
TRUSTORS
[signature] [signature]
Cemex, S.A de C.V. Centro Distribuidor de Cemento,
Engineer. Xxxxxxx X. Xxxxxxxx S.A. de C.V.
Legal Representative with Unlimited Engineer Xxxxxxx X. Xxxxxxxx
Authority Legal Representative with Unlimited
Authority
[signature]
TRUSTEE
Banco Nacional de Mexico, S.A.
Fiduciary Division
Ma. De los Angeles Xxxxxxxxxx Xxxxx, Esq. Xxxx Xxxxx Xxxx Xxxxxxx, Esq.
Trust Representative Special Representative
