PURCHASE OPTION CONTRACT
PURCHASE OPTION CONTRACT (the "Contract"), by and between CENTRO DISTRIBUIDOR DE
CEMENTO, S.A. DE C.V., represented herein by Xxxxxxx Xxxxxxx Xxxxxxxx, in his
capacity as its General Legal Representative, party of the first part (the
"Seller") and BANCO NACIONAL DE MEXICO, BANAMEX FINANCIAL GROUP, TRUSTEE
DIVISION, TRUST No. 111174-2, represented herein by Xxxxx de los Angeles
Xxxxxxxxxx Xxxxx and Xxxx Xxxxx Xxxx Xxxxxxx, in their respective capacities as
Trust Representative and Special Attorney-in-Fact, (the "Buyer"), jointly the
"Parties," which they enter into pursuant to the following Recitals and
Conditions.
RECITALS:
I. The Seller declares through its legal representative:
(A) That it is a Trade Corporation of the type called "Sociedad Anonima de
Capital Variable" [open-end corporation] incorporated and existing
under the laws of the Mexican Republic.
(B) That its Legal Representative has sufficient authority and powers, as
evidenced by Notarial Instrument number 1,128 dated February 10, 1997,
before Xxxx Xxxx Xxxxxx Xxxxxxxxxx, Public Notary 120, practicing in
Monterrey, Nuevo Xxxx, under number 795, Volume 205-16 of Book No. 4,
Commercial Section, dated February 14, 1997, and which authority has
not been limited or restricted in any way.
(C) That its representative has the authority necessary to bind it under
the terms of this Contract, which authority has not been revoked or
restricted in any way.
II. The Buyer declares through its legal representative:
(A) That it is a Sociedad Anonima [corporation] authorized to conduct Trust
transactions, pursuant to the provisions of the Law on Credit
Institutions.
(B) That, pursuant to the provisions of Article 8, Section II, of the Law
to Regulate Financial Groups, it certifies that it is a member of the
Banamex Financial Group.
(C) That its representatives have the authority necessary to bind it under
the terms of this Contract, which authority has not been revoked or
restricted in any way.
(D) That as Trustee of Trust number 111174-2, it is prepared to enter into
this Purchase Option Contract in accordance with the Technical
Committee's instructions and the terms agreed to in the Trust
Agreement, in compliance with this Contract up to the amount of the
Trust's assets and being released from liability for amounts exceeding
the assets of the corresponding Trust.
BY VIRTUE OF THE FOREGOING, the parties have agreed to bind themselves under the
following
TERMS AND CONDITIONS:
ONE. PURCHASE OPTION AND CONSIDERATION.
The Parties hereby agree that the Buyer shall be solely and exclusively entitled
to exercise the following purchase option (hereinafter called the "Purchase
Option") under the following terms and conditions established by the Seller:
. Rights to the Option to purchase, in their entirety, up to 38,583,989
Non-Redeemable Ordinary Certificates of Investment (CPOs) of Cemex, S.A. de
C.V. (Cemex.CPOs)
. Effective for 5 years starting March 7, 2003 (Exercise Period);
. Initial exercise price of USD 3.5784 for each Cemex.CPO with gradual
increases of 5% annually (subject to adjustment for paid-up dividends); and
. Issue Premium of USD 0.25048 in consideration of the right of option
offered for each Cemex.CPO.
TWO. CONSIDERATION.
The Parties agree herein that, in consideration of the right of option offered
to the Buyer provided under this Contract, the latter shall pay to the Seller
the amount of USD 9,665,706.63 USD (Nine million six hundred and sixty-four
thousand seven hundred and six dollars and 63/100 Legal Currency of the United
States of America). Said price must be paid by the Buyer within 90 days of the
execution of this contract.
THREE. EXERCISE OF THE PURCHASE OPTION.
The Buyer must exercise the Purchase Option referred to in Article One above
under the following terms: paid-up in full upon execution of this contract,
within a maximum of 5 years from March 7, 2003.
3.1 The Buyer shall exercise the Purchase Option, at its sole and complete
discretion. Should the Buyer fail to exercise its option within the above
period, the Purchase Option shall be considered terminated.
3.2 Within the exercise period, the Buyer must notify the Seller in writing of
its intent to exercise the Purchase Option, which may be through a notary public
to the address indicated in Article Four of this Contract ("Notification of
Purchase").
3.3 The total price at which the Buyer undertakes to buy the Cemex.CPOs shall be
the price obtained by multiplying the number of Cemex.CPOs for which the option
is exercised by the exercise price, updated on the date on which it is exercised
(initial exercise price plus a gradual increment of 5% annually, subject to
adjustments for paid-up dividends).
FOUR. ESTABLISHMENT OF DOMICILE FOR THE PURPOSE OF THIS AGREEMENT.
Any notice of any kind required by reason of or as a result of this Contract
shall be made in writing at the domiciles listed below and in person (whenever
possible), or by fax, obtaining acknowledgement of receipt, or failing that, by
a recognized courier service with return receipt. Notices made in this way are
considered effective on the date they are sent, in the case of notices delivered
in person or by fax (provided acknowledgement of receipt is obtained), or on the
next working day following receipt of the same, in the case of notices sent by
courier.
(a) If the notice is to the Seller, it shall be sent to: Av.
Constitucion 444 Pte. Col. Centro, C.P. 64000, Monterrey, Nuevo
Xxxx.
(b) If the notice is to the Buyer, it shall be sent to: Xxxxxxx xxx
Xxxxx 000 Xxxxxx, 0xx Piso, Col. Del Xxxxx, X.X. 66220, San Xxxxx
Xxxxx Xxxxxx, Nuevo Xxxx.
The parties must notify one another in writing of any change in their respective
domiciles and, should they fail to do so, notices sent to the last domicile
indicated shall be valid for legal purposes.
FIVE. ABSENCE OF DEFECTS.
The contracting Parties hereby acknowledge the potential for appreciation or
depreciation of the Cemex.CPOs and the financial risk that entering into this
Contract entails, and they further acknowledge herein that there is no error,
fraud, bad faith, injury, coercion, ignorance, inexperience excessive profit, or
incapacity on the part of either party in entering into this Contract.
Therefore, they waive their right to file actions to declare the contract null
and void as mentioned in Articles seventeen (17), one thousand seven hundred and
nine (1709), one thousand seven hundred and ten (1710), one thousand seven
hundred and twelve), one thousand seven hundred and thirteen (1713) and one
thousand seven hundred and fifteen (1715) of the Civil Code for the State of
Nuevo Xxxx.
SIX. TITLES.
The titles of the various Articles of this Contract are used only for
convenience of reference and do not modify, define, or limit the terms or
provisions contained in the Articles themselves.
SEVEN. APPLICABLE LAW AND JURISDICTION.
This Contract shall be governed and interpreted in accordance with the
applicable laws of the State of Nuevo Xxxx and the Parties hereto expressly
agree to submit to the jurisdiction of the competent ordinary law courts of the
city of Monterrey, State of Nuevo
Xxxx, Mexico, waiving any other jurisdiction to which they may be subject or
that may be available to them by virtue of their present or future domiciles.
IN WITNESS THEREOF, and for all legal purposes that may apply, the contracting
Parties execute this Option Contract in the City of Monterrey, Nuevo Xxxx, on
March 1, 2003 (two thousand and three).
CENTRO DISTRIBUIDOR DE CEMENTO, S.A. DE C.V.
[signature]
Xxxxxxx Xxxxxxx Xxxxxxxx
General Legal Representative
BANCO NACIONAL DE MEXICO, BANAMEX FINANCIAL GROUP
TRUST No. 111174-2
[signature] [signature]
Xxxxx de los Angeles Xxxxxxxxxx Xxxx Xxxxx Xxxx Xxxxxxx
WITNESSES:
[signature] [signature]
Xxxxxx Xxxxxxx Bandala Xxxxxxxx Xxxxxxx Xxxxxxxxx
