Exhibit (a)(i)
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PBWT Draft
08/24/09
GRUPO TMM, S.A.B.
AND
CITIBANK, N.A.,
As Depositary
AND
ALL HOLDERS FROM TIME TO TIME
OF THE AMERICAN DEPOSITARY SHARES ISSUED
HEREUNDER AND ALL BENEFICIAL OWNERS FROM
TIME TO TIME OF AMERICAN DEPOSITARY SHARES
_______________________________
Amendment No. 1
to
Deposit Agreement for CPOs
Dated as of August __, 2009
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AMENDMENT NO. 1 TO DEPOSIT AGREEMENT for CPOs
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT for CPOs, dated as of August __, 2009
(the "Amendment"), by and among Grupo TMM, S.A.B., a corporation organized under
the laws of the United Mexican States (the "Company"), Citibank, N.A., a
national banking association organized under the laws of the United States of
America and acting as depositary, and any successor depositary hereunder (the
"Depositary"), and all Holders from time to time of the American Depositary
Shares issued hereunder and all Beneficial Owners from time to time of American
Depositary Shares issued under the Deposit Agreement.
W I T N E S S E T H T H A T
WHEREAS, the parties hereto entered into that certain Deposit Agreement
for CPOs, dated as of December 26, 2001 (the "Deposit Agreement"), for the
issuance of American Depositary Shares ("ADSs") representing CPOs (as defined in
the Deposit Agreement) which further represents financial interests in Shares
(as defined in the Deposit Agreement) so deposited and for the execution and
delivery of American Depositary Receipts ("ADRs") evidencing such ADSs;
WHEREAS, the Company has instructed the Depositary to change the ratio of
CPOs to ADSs from (i) one (1) CPO, representing a financial interest in one (1)
fully paid nominative common Share, to one (1) ADS, to (ii) five (5) CPOs,
representing financial interests in five (5) fully paid nominative common
Shares, to one (1) ADS, and desires to amend the Deposit Agreement to reflect
such change;
WHEREAS, pursuant to Section 6.01 of the Deposit Agreement, the Company
and the Depositary deem it necessary and desirable to amend the Deposit
Agreement and the form of ADR annexed thereto as Exhibit A for the purposes set
forth herein; and,
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Unless otherwise defined in this Amendment, all
capitalized terms used, but not otherwise defined, herein shall have the meaning
given to such terms in the Deposit Agreement.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01 Deposit Agreement. All references in the Deposit Agreement to
the term "Deposit Agreement" shall, as of the Effective Date (as herein
defined), refer to the Deposit Agreement, dated as of December 26, 2001, as
amended by this Amendment.
SECTION 2.02 Change of Ratio. All references made in the Deposit Agreement
to each ADS representing one (1) CPO, representing a financial interest in one
(1) fully paid nominative common Share as of the Effective Date shall refer to
each ADS representing five (5) CPOs, representing financial interests in five
(5) fully paid nominative common Shares.
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01 Change of Ratio. All references to each ADS representing one
(1) CPO, representing a financial interest in one (1) fully paid nominative
common Share, issued and outstanding as of the Effective Date shall refer to
each ADS representing five (5) CPOs, representing financial interests in five
(5) fully paid nominative common Shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties. The Company represents and
warrants to, and agrees with, the Depositary and the Holders, that:
(a) This Amendment, when executed and delivered by the Company, and
the Deposit Agreement and all other documentation executed and delivered
by the Company in connection therewith, will be and have been,
respectively, duly and validly authorized, executed and delivered by the
Company, and constitute the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Deposit Agreement as
amended hereby, and any other document furnished hereunder or thereunder
in the United Mexican States, neither of such agreements need to be filed
or recorded with any court or other authority in the United Mexican
States, nor does any stamp or similar tax need to be paid in the United
Mexican States on or in respect of such agreements; and
(c) All of the information provided to the Depositary by the Company
in connection with this Amendment is, to the best knowledge of the
Company, true, accurate and correct.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 Effective Date. This Amendment is dated as of the date set
forth above and shall be effective as of such date (the "Effective Date").
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SECTION 5.02 New ADRs. From and after the Effective Date, the Depositary
shall arrange to have new ADRs printed or amended that reflect the changes to
the form of ADR effected by this Amendment. All ADRs issued hereunder after the
Effective Date, once such new ADRs are available, whether upon the deposit of
Shares or other Deposited Securities or upon the transfer, combination or
split-up of existing ADRs, shall be substantially in the form of the specimen
ADR attached as Exhibit A hereto. The Depositary is authorized and directed to
take any and all actions deemed necessary to effect the foregoing.
SECTION 5.03 Notice of Amendment to Holders. The Depositary is hereby
directed to send notices informing the Holders of (i) the terms of this
Amendment, (ii) the Effective Date of this Amendment and (iii) that the Holders
shall be given the opportunity, but that it is unnecessary, to surrender
outstanding Receipts.
SECTION 5.04 Indemnification. The Company agrees to indemnify and hold
harmless the Depositary (and any and all of its directors, employees and
officers) for any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein, except to the
extent such liability is due to the negligence or bad faith of any of them.
SECTION 5.05 Ratification. Except as expressly amended hereby, the terms,
covenants and conditions of the Deposit Agreement, as originally executed, shall
remain in full force, and effect.
IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
GRUPO TMM, S.A.B., as Company
By:
----------------------------
Name:
Title:
CITIBANK, N.A., as Depositary
By:
----------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
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Exhibit A
THE HOLDER OF THIS AMERICAN DEPOSITARY RECEIPT IS NOT ENTITLED TO EXERCISE ANY
VOTING RIGHTS WITH RESPECT TO THE NOMINATIVE COMMON SHARES OF GRUPO TMM, S.A.B.
REPRESENTED BY THE CERTIFICADOS DE PARTICIPACION ORDINARIOS REPRESENTED BY THE
AMERICAN DEPOSITARY SHARES EVIDENCED BY THIS AMERICAN DEPOSITARY RECEIPT.
Number _______________
(CUSIP Number ___________)
American Depositary Shares (each American
Depositary Share Representing five (5)
Certificados de Participacion Ordinarios
Representing Financial Interests in five (5)
Nominative Common Shares (formerly called
Series A Shares))
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED CERTIFICADOS DE PARTICIPACION ORDINARIOS
representing financial interests in
FULLY PAID NOMINATIVE COMMON SHARES HELD IN TRUST
of
GRUPO TMM, S.A.B.
(Organized under the laws of
THE UNITED MEXICAN STATES)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as Depositary (the
"Depositary"), hereby certifies that ________________ _____________ is the
record owner of _______________ American Depositary Shares representing
deposited Certificados de Participacion Ordinarios, each representing financial
interests in one (1) fully paid nominative common share (such shares
collectively, the "Shares"), of' Grupo TMM, S.A.B., a corporation (sociedad
anonima bursatil) organized under the laws of the United Mexican States (the
"Company") or evidence of rights to receive such Certificados de Participacion
Ordinarios ("CPOs") held in trust. The CPOs are issued by the trustee of the
trust (the "Trust") created under the Trust Agreement dated November 24, 1989
between Nacional Financiera, S.N.C., as grantor, and Nacional Financiera,
S.N.C., as trustee (the "Trustee"). At the date hereof each American Depositary
Share represents five (5) CPOs deposited under the Deposit Agreement (as
hereafter defined) with the Custodian, which at the date of execution of the
Deposit Agreement is Citibank Mexico S.A., located at Reforma 000, 0XX Xxxxx,
X.X. 0000, Xxxxxx D.F., Mexico (the "Custodian"). The ADS(s)-to-CPO(s) ratio is
subject to amendment as provided in Articles IV and VI of the Deposit Agreement.
The Depositary's Principal Office is located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, 00000, X.X.X.
(1) The Deposit Agreement. This American Depositary Receipt is one of the
receipts (the "Receipts") executed and delivered pursuant to the Deposit
Agreement for CPOs dated as of December 26, 2001 (as may be amended and
supplemented from time to time, the "Deposit Agreement"), by and among the
Company, the Depositary, all holders from time to time of American Depositary
Shares ("Holders") and all Beneficial Owners from time to time of any beneficial
interest in American Depositary Shares that are not the Holders thereof (the
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"Beneficial Owners"), each of whom by accepting a Receipt agrees to become a
Party thereto and becomes bound by all terms and provisions thereof and hereof.
The Deposit Agreement sets forth the rights of Holders and Beneficial Owners and
the rights and duties of the Depositary in respect of the CPOs deposited
thereunder and any and all other securities, property and cash from time to time
received in respect of such CPOs and held thereunder (such CPOs, securities,
property and cash, collectively, the "Deposited Securities"). Copies of the
Deposit Agreement are on file at the Depositary's Principal Office, at the
principal office of the Custodian and at any other designated transfer office.
The statements made on the face and the reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement and are qualified by and subject to
the detailed provisions of the Deposit Agreement, to which reference is hereby
made. The Depositary makes no representation or warranty as to the validity or
worth of the Deposited Securities. As used in this Receipt, capitalized terms
defined in the Deposit Agreement and not otherwise defined herein have the same
defined meanings as set forth in the Deposit Agreement.
(2) Withdrawal of Deposited Securities. Upon surrender of this Receipt at
the Principal Office of the Depositary for the purpose of withdrawal of the
Deposited Securities represented by the American Depositary Shares evidenced by
this Receipt, and upon receipt of payment of the fees of the Depositary, if any,
for the surrender and cancellation of Receipts provided for in paragraph (7) of
this Receipt, and all taxes and governmental charges payable in connection with
such surrender, subject to the terms and conditions of the Deposit Agreement,
such Holder is entitled to delivery, to him or upon his order, of the Deposited
Securities at the time represented by the American Depositary Shares evidenced
by this Receipt. Such delivery of such Deposited Securities shall be made as
hereinafter provided, without unreasonable delay. A Receipt surrendered for such
purposes may be required by the Depositary to be properly endorsed or
accompanied by properly executed instruments of transfer. The person requesting
withdrawal of Deposited Securities shall deliver to the Depositary a written
order directing the Depositary to cause such Deposited Securities being
withdrawn to be delivered to or upon the written order of a person or persons
designated in such order.
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(3) Transfer, Combinations and Split-ups of Receipts. The Depositary,
subject to the terms and conditions of the Deposit Agreement and this Receipt,
shall register transfers of this Receipt on its transfer books, upon any
surrender of this Receipt by the Holder hereof in person or by duly authorized
attorney, properly endorsed or accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard industry practice)
and duly stamped as may be required by applicable law. Thereupon the Depositary
shall execute a new Receipt or Receipts and deliver the same to or upon the
order of the person entitled hereto.
The Depositary, subject to the terms and conditions of the Deposit
Agreement and this Receipt, shall upon surrender of this Receipt for the purpose
of effecting a split-up or combination of this Receipt execute and deliver a new
Receipt or Receipts for any authorized number of American Depositary Shares
requested, evidencing the same aggregate number of American Depositary Shares as
the Receipt or Receipts surrendered. The Depositary may close the register at
any time or from time to time, when deemed expedient by it in connection with
the performance of its duties hereunder or at the request of the Company,
subject in each case to the terms and conditions of Section 7.08 of the Deposit
Agreement.
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(4) Certain Limitations. As a condition precedent to the execution and
delivery, registration, registration of transfer, split-up or combination or
surrender of any Receipt or the withdrawal of any Deposited Securities, the
Depositary, the Company or the Custodian may require from the Holder, the
presenter of a Receipt or the depositor of Shares (i) payment of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to CPOs being deposited or withdrawn) and payment
of any charges of the Depositary upon delivery of Receipts against deposits of
CPOs and upon withdrawal of Deposited Securities against surrender of Receipts
as provided in paragraph (7) of this Receipt; (ii) compliance with such
reasonable regulations, if any, as the Depositary and the Company may establish
consistent with the provisions of the Deposit Agreement; and (iii) production of
proof satisfactory to it as to the identity and genuineness of any signature
appearing on any form, certificate or other document delivered to the Depositary
in connection with the Deposit Agreement, including but not limited to in the
case of Receipts, a signature guarantee in accordance with standard industry
practice.
The delivery of Receipts against deposits of CPOs generally or of
particular CPOs may be suspended or withheld, or the registration of transfer of
Receipts in particular instances may be refused, or the registration of transfer
generally may be suspended, during any period when the transfer books of the
Depositary (or the appointed agent of the Depositary for the transfer and
registration of ADSs), the Company (or the appointed agent of the Company for
transfer and registration of Shares) or the Trust are closed, or if any such
action is deemed necessary or advisable by the Company or the Depositary or the
Trustee at any time or from time to time because of any requirement of law or of
any government or governmental body or commission or for any other reason.
Notwithstanding any other provision of the Deposit Agreement, the surrender of
outstanding Receipts and withdrawal of Deposited Securities represented thereby
may be suspended, but only as required in connection with (i) temporary delays
caused by closing the transfer books of the Depositary or the issuer of any
Deposited Securities or the deposit of Shares in connection with voting at a
shareholders' meeting, or the payment of dividends, (ii) payment of fees, taxes
and similar charges or (iii) compliance with any U.S or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities.
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(5) Liability of Holders and Beneficial Owners for Taxes and Other
Charges. If any Mexican or other tax or other governmental charge shall become
payable with respect to this Receipt or any Deposited Securities represented by
the ADSs evidenced by this Receipt, such tax or other governmental charge shall
be payable by the Holder hereof, who shall pay the amount thereof to the
Depositary. The Depositary may refuse, and the Company shall be under no
obligation, to effect any registration of transfer of all or part of this
Receipt or any deposit or withdrawal of Deposited Securities represented by ADSs
evidenced hereby until such payment is made, and may withhold or deduct from any
dividends or other distributions, or may sell for the account of the Holder
hereof any part or all of the Deposited Securities represented by ADSs evidenced
hereby, and may apply such dividends or other distributions or the proceeds of
any such sale in payment of such tax or other governmental charge, the Holder
hereof remaining liable for any deficiency.
(6) Warranties by Depositor. Each person depositing CPOs under the Deposit
Agreement shall be deemed thereby to represent and warrant that (i) such CPOs
(and the Shares represented by such CPOs) and each certificate therefor are
validly issued and outstanding, fully paid and nonassessable, (ii) any
preemptive rights then in effect with respect to such CPOs (and the Shares
represented by such CPOs) have been validly waived or exercised, (iii) the
person making such deposit is duly authorized so to do and (iv) such CPOs (and
the Shares represented by the CPOs) and the ADSs issuable upon such deposit are
not and will not be "restricted securities" (as defined in the Deposit
Agreement). Such representations and warranties shall survive the deposit or
withdrawal of CPOs and issuance or cancellation of Receipts in respect thereof.
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(7) Charges of Depositary. Holders and Beneficial Owners agree to pay (i)
the fees of the Depositary for the execution and delivery of Receipts pursuant
to Section 2.02 of the Deposit Agreement and the making of withdrawals pursuant
to Section 2.05 of the Deposit Agreement, each as provided in Exhibit B to the
Deposit Agreement, (ii) taxes and other governmental charges, (iii) such
registration fees as may from time to time be in effect for the registration of
transfers of CPOs generally on the register of the Trust or its appointed agent
for the registration of transfer and accordingly applicable to transfers of CPOs
to the name of the Depositary or its Nominee or a Custodian or its nominee on
the making of deposits pursuant to Section 2.02 or withdrawals pursuant to
Section 2.05 of the Deposit Agreement, (iv) such cable, telex and facsimile
transmission and delivery expenses as are expressly provided in the Deposit
Agreement to be at the expense of persons depositing CPOs or Holders and (v)
such customary expenses as are incurred by the Depositary in the conversion of
foreign currency pursuant to Section 4.06 of the Deposit Agreement. Any other
charges and expenses of the Depositary under the Deposit Agreement will be paid
by the Company after consultation and agreement between the Depositary and the
Company concerning the nature and amount of such charges and expenses. All fees
and charges may at any time and from time to time be changed by agreement
between the Company and the Depositary. The charges and expenses of the
Custodian, Nominee or any other agent of the Depositary are for the sole account
of the Depositary.
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(8) Title to Receipts. Subject to the limitations set forth herein or in
the Deposit Agreement, it is a condition of this Receipt, and every successive
Holder hereof by accepting or holding the same consents and agrees, that when
properly endorsed or accompanied by properly executed instruments of transfer
(including signature guarantees in accordance with standard industry practice),
title to this Receipt (and to the Deposited Securities represented by the ADSs
evidenced hereby), is transferable by delivery with the same effect as in the
case of a certificated security under the law of the State of New York;
provided, however, that the Depositary and the Company, notwithstanding any
notice to the contrary, may deem and treat the Holder of this Receipt as the
absolute owner hereof for any purpose, including but not limited to the purpose
of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement and for all
other purposes, and none of the Depositary, the Trustee or the Company shall
have any obligation or be subject to any liability under the Deposit Agreement
to any holder of a Receipt unless such holder is the registered Holder hereof.
(9) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or enforceable for any purpose
unless it is (i) dated, (ii) signed by the manual or facsimile signature of a
duly authorized signatory of the Depositary, (iii) countersigned by the manual
or facsimile signature of a duly authorized signatory of the Registrar, and (iv)
registered in the books maintained by the Registrar for the registration of
issuances and transfers of Receipts. No Receipt and no ADS evidenced thereby
shall be entitled to any benefits under the Deposit Agreement or be valid or
enforceable for any purpose against the Depositary or the Company, unless such
Receipt shall have been so dated, signed, countersigned and registered. Receipts
bearing the facsimile signature of a duly authorized signatory of the Depositary
or the Registrar, who at the time of signature was a duly authorized signatory
of the Depositary or the Registrar, as the case may be, shall bind the
Depositary, notwithstanding the fact that such signatory has ceased to be so
authorized prior to the delivery of such Receipt by the Depositary.
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(10) Disclosure of Beneficial Ownership. The Company and the Depositary
may from time to time request Holders, former Holders, Beneficial Owners or
former Beneficial Owners to provide information as to the capacity in which they
hold or held this Receipt or own or owned such beneficial interest and regarding
the identity of any other persons then or previously interested in this Receipt
and the nature of such interest and various other matters. The Holder and
Beneficial Owners hereof agree to provide any such information reasonably
requested by the Company or the Depositary pursuant to this paragraph.
(11) Ownership Restrictions. The Company may restrict transfers of the
CPOs where such transfer might result in ownership of CPOs exceeding the limits
under applicable law or the Company's Estatutos Sociales. The Company may also
restrict, in such manner as it deems appropriate in its sole discretion,
transfers of the ADSs where such transfer may result in the total number of CPOs
represented by the ADSs beneficially owned by a single Holder or Beneficial
Owner to exceed the limits under any applicable law or the Company's Estatutos
Sociales. The Company may, in such manner as it deems appropriate in its sole
discretion, instruct the Depositary to take action with respect to the ownership
interest of any Holder or Beneficial Owner in excess of the limitation set forth
in the preceding sentences, including but not limited to a mandatory sale or
disposition on behalf of a Holder of the CPOs represented by the ADSs held by
such Holder in excess of such limitations, if and to the extent such disposition
is permitted by law.
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(12) Available Information. The Company files reports with the Commission
pursuant to the reporting requirements of the Securities Exchange Act of 1934.
These reports can be inspected and copied at public reference facilities
maintained by the Commission located at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000.
(13) Compliance with U.S. Securities Laws. Notwithstanding anything in the
Deposit Agreement to the contrary, the withdrawal or delivery of Deposited
Securities will not be suspended by the Company or the Depositary except as be
permitted by Instruction I.A.(1) of the General Instructions to Form F-6
Registration Statement, as amended from time to time, under the Securities Act
of 1933.
Dated: August ____, 2009
CITIBANK, N.A.,
Countersigned as Depositary
By By:
----------------------------- ------------------------------------
Authorized Signatory Vice President
The address of the Principal Office of the Depositary is 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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(FORM OF REVERSE OF RECEIPT)
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Distributions Upon Deposited Securities. Whenever the Depositary or
the Custodian receives any cash dividend or cash distribution by the Company on
any Deposited Securities, the Depositary shall, subject to the Deposit
Agreement, as soon as possible convert or cause such dividend or distribution to
be converted into dollars and shall promptly distribute such amount to the
Holders entitled thereto in proportion to the number of ADSs representing such
Deposited Securities held by them respectively; provided, however, that in the
event that the Company, the Trustee, the Custodian or the Depositary shall be
required to withhold and does withhold, subject to Section 4.11 of the Deposit
Agreement, from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes or other governmental
charges, the amount distributed to the Holder in respect of ADSs representing
Deposited Securities shall be reduced accordingly. Cash distributions and cash
proceeds from sales of non-cash distributions in foreign currency will be
converted by sale or such other manner as the Depositary may determine into
dollars (net of the Depositary's reasonable and customary expenses in effecting
such conversion) before distribution to Holders. If in the judgment of the
Depositary amounts received in foreign currency may not be converted on a
reasonable basis into dollars distributable to the Holders entitled thereto, or
if any approval or license of any governmental authority or agency thereof which
is required for such conversion is denied or in the opinion of the Depositary is
not obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary may distribute
the foreign currency (or an appropriate document evidencing the right to receive
such foreign currency) received by the Depositary to, or in its discretion may
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hold such foreign currency for the respective accounts of, the Holders entitled
to receive the same. If any such conversion of foreign currency, in whole or in
part, cannot be effected for distribution to some Holders entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
dollars to the extent permissible to the Holders for whom such conversion and
distribution is practicable and may distribute the balance of the foreign
currency received by the Depositary to, or hold such balance for the account of,
the Holders for whom such conversion and distribution is not practicable. If any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, CPOs, the Depositary may, with the Company's approval and
shall, if the Company shall so request (i) instruct the Company to deposit or
cause such CPOs to be deposited with Indeval and registered in the name of the
Custodian and (ii) subject to the Deposit Agreement, distribute to the Holders
of outstanding Receipts entitled thereto, in proportion to the number of ADSs
representing such Deposited Securities held by them respectively, additional
Receipts for an aggregate number of ADSs representing the proportionate number
of CPOs received as such dividend or free distribution, after deduction or upon
payment of the fees of the Depositary as provided in Exhibit B to the Deposit
Agreement; provided, however, that if for any reason (including any requirement
that the Company, the Trustee or the Depositary withhold an amount on account of
taxes or other governmental charges or that such Shares or CPOs must be
registered under the Securities Act of 1933 in order to be distributed to
Holders of Receipts) the Depositary deems such distribution not to be feasible,
the Depositary may adopt such method, as it may deem equitable and practicable
for the purpose of effecting such distribution, including the sale (at public or
private sale) of the CPOs thus received, or any part thereof, and the
distribution of the net proceeds of any such sale by the Depositary to the
Holders entitled thereto as in the case of a distribution received in cash. In
lieu of issuing Receipts for fractional ADSs in any such case, the Depositary
shall sell the number of Shares or CPOs represented by the aggregate of such
fractions and distribute the net proceeds in dollars as in the case of a
distribution received in cash. If additional Receipts are not so distributed
(except pursuant to the preceding sentence), each ADS shall thenceforth also
represent its proportionate interest in the additional CPOs so distributed.
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If the Company shall offer or cause to be offered to the holders of any
Deposited Securities any rights to subscribe for additional CPOs (including any
rights to subscribe for additional Shares) or any rights of any other nature,
the Depositary, after consultation with the Company, shall have discretion as to
the procedure to be followed in making such rights available to the Holders
entitled thereto, subject to the Deposit Agreement, or in disposing of such
rights on behalf of such Holders and making the net proceeds available in
dollars to such Holders or, if by the terms of such rights offering or by reason
of applicable law, the Depositary can neither make such rights available to such
Holders nor dispose of such rights and make the net proceeds available to such
Holders, then the Depositary shall allow the rights to lapse; provided, however,
that the Depositary will, if requested by the Company in writing, either (x)
after deduction or upon payment of any applicable fees of the Depositary, make
such rights available to Holders by means of warrants or otherwise, if lawful
and feasible, or (y) if making such rights available to all or certain Holders
is not lawful or not feasible, or if the rights represented by such warrants or
such other instruments are not exercised and appear to be about to lapse, use
its reasonable efforts to sell such rights or warrants or other instruments, at
public or private sale, at such place or places and upon such terms as the
Depositary may deem reasonable and proper, and allocate the net proceeds of such
sales for the accounts of the Holders otherwise entitled, to such rights,
warrants or other instruments upon an averaged or other practicable basis
without regard to any distinctions among such Holders because of exchange
restrictions.
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Whenever the Custodian or the Depositary shall receive any distribution of
securities or property other than cash, CPOs or rights to subscribe for CPOs,
the Depositary shall cause such securities or property to be distributed
promptly to the Holders entitled thereto in proportion to the number of ADSs
representing such Deposited Securities held by them respectively, in any manner
that the Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary it
cannot cause such securities or property to be distributed or such distribution
cannot be made proportionately among the Holders entitled thereto, or if for any
other reason (including any requirement that the Company, the Trustee, the
Custodian or the Depositary withhold an amount on account of taxes or other
governmental charges) the Depositary deems such distribution not to be feasible,
the Depositary may adopt such method as it may deem equitable and practicable
for the purpose of effecting such distribution, including the sale (at public or
private sale) of the securities or property thus received, or any part thereof,
and the net proceeds of any such sale shall be distributed by the Depositary to
the Holders entitled thereto as in the case of a distribution received in cash.
(15) Record Dates. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or
whenever rights shall be issued, with respect to the Deposited Securities, or
whenever, for any reason in connection with a Company action, the Depositary
causes a change in the number of CPOs that are represented by each ADS or
whenever the Depositary shall receive notice of any meeting of holders of
Deposited Securities (including notices of any meeting of holders of Shares
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underlying the CPOs), the Depositary shall fix a record date after consultation
with the Company (which shall be as near as practicable to the corresponding
record date, if any, for Deposited Securities set by the Company or the Trustee)
for the determination of the Holders who shall be entitled to receive such
dividend, distribution of rights, or the net proceeds of the sale thereof, or to
give instructions for the exercise of voting rights, if any, at any such
meeting. Subject to the terms and conditions of the Deposit Agreement, the
Holders on such record date shall be entitled to receive the amount
distributable by the Depositary with respect to such dividend or other
distribution or such rights or the net proceeds of the same thereof and to
exercise the rights of Holders with respect to the Deposited Securities
represented by the ADSs held by them respectively.
(16) Voting of Deposited Securities. Holders will not be entitled to vote
the Shares underlying CPOs deposited thereunder, and all of such Shares will be
voted by the Trustee in the same manner as the majority of Shares that are not
held in the Trust and that are voted at the relevant meeting. As soon as
practicable after the receipt of a notice of any meeting of holders of Shares or
other securities underlying Deposited Securities, the Depositary shall mail the
information contained in such notice to Holders together with a statement that,
pursuant to the provisions of the CPOs and the agreement creating the Trust,
Holders may not exercise voting rights with respect to the Shares underlying the
CPOs, and that the Trustee will vote all such Shares in the same manner as the
majority of all Shares that are not held in the Trust and that are voted at the
relevant meeting. As soon as practicable after receipt of notice of any meeting
of holders of CPOs or other Deposited Securities, the Depositary shall fix a
record date for determining the Holders entitled to give instructions for the
exercise of voting rights, if any, as provided in paragraph (15) and shall mail
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to the Holders of record a notice which shall contain: (a) such information as
is contained in such notice of meeting, (b) a statement, if provided by the
Trustee or the Common Representative or the Company, as applicable, that the
Holders at the close of business on a specified record date will be entitled,
subject to the terms of this paragraph, any applicable provisions of Mexican
law, of the Trust and of the Estatutos Sociales of the Company (which
provisions, shall be summarized in pertinent part, if such summary is provided
by the Trustee or the Common Representative), to instruct the Depositary as to
the exercise of the voting rights, if any, pertaining to the number of CPOs or
other Deposited Securities represented by the respective ADSs evidenced by their
respective Receipt or Receipts and a brief statement as to the manner in which
instructions may be given, including an express indication that instructions may
be given to the Depositary to give a discretionary proxy to a person designated
by the Trustee. Upon the written request of a Holder on such record date,
received on or before the date established by the Depositary for such purpose,
the Depositary shall endeavor insofar as is practicable to vote or cause to be
voted the number of Deposited Securities represented by the ADSs evidenced by
the Receipt or Receipts of such Holder in accordance with the instructions set
forth in such request.
The Depositary agrees not to vote or cause to be voted the CPOs or other
Deposited Securities represented by the ADSs evidenced by a Receipt unless it
receives instructions from the Holder.
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(17) Changes Affecting Deposited Securities. Upon any change in par value,
split-up, consolidation or any other reclassification of CPOs, or the securities
represented by CPOs, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or the Custodian in
exchange for, or in conversion, replacement or otherwise in respect of,
Deposited Securities shall be treated as Deposited Securities under the Deposit
Agreement, and the Receipts shall, subject to the terms of the Deposit Agreement
and applicable laws, including any applicable provisions of the Securities Act
of 1933, thenceforth evidence ADSs representing the right to receive Deposited
Securities including the securities so received in exchange or conversion to the
extent additional Receipts are not delivered pursuant to the following sentence.
In any such case the Depositary may with the approval of the Company and
Trustee, and shall at the Company's request, subject to Section 5.09 and the
other terms of the Deposit Agreement, execute and deliver additional Receipts as
in the case of a dividend of CPOs, or call for the surrender of outstanding
Receipts to be exchanged for new Receipts, specifically describing such newly
received Deposited Securities. Immediately upon the occurrence of any such event
referred to in this paragraph in respect of Deposited Securities, the Depositary
shall give written notice thereof to Holders, at the Company's expense.
(18) Reports; Inspection of Register. The Depositary shall make available
for inspection during business hours by Holders and Beneficial Owners at its
Principal Office and at the principal office of each Custodian copies of the
Deposit Agreement, and any notices, reports or communications, including any
proxy soliciting materials, received from the Company, the Common Representative
or the Trustee which are both (a) received by the Depositary or the Custodian or
the nominee of either, as the holder of the Deposited Securities, and (b) made
generally available to the holders of such Deposited Securities by the Company,
the Common Representative or the Trustee. The Depositary shall keep books at its
Principal Office for the registration and transfer of Receipts, which books
shall be open at all reasonable times for inspection by Holders or the Company,
provided that such inspection shall not be for the purpose of communicating with
Holders in the interest of a business or object other than the business of the
Company or the Trust or a matter related to the Deposit Agreement or the
Receipts.
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(19) Withholding. In connection with any distribution to Holders, the
Company, the Trustee, or the Depositary or their respective agents, as
appropriate, will remit to the appropriate governmental authority or agency all
amounts (if any) required to be withheld by the Company, the Trustee, the
Depositary or their respective agents and owing to such authority or agency. The
Depositary will forward to the Company, the Trustee or their respective agents
such information from its records as the Company, the Trustee or their agents
may reasonably request to enable the Company or the Trustee or their agents to
file necessary reports with governmental authorities or agencies. If the
Depositary determines that any distribution in property (including CPOs and
rights to subscribe therefor) is subject to any taxes or governmental charges
which the Depositary is obligated to withhold, the Depositary may dispose of all
or a portion of such property (including CPOs and rights to subscribe therefor)
in such amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes or governmental charges, by public or private
sale, and the Depositary shall distribute the net proceeds of any such sale or
the balance of any such property after deduction of such taxes or governmental
charges to the Holders entitled thereto in proportion to the number of ADSs held
by them respectively.
(20) Liability of the Company and the Depositary. None of the Depositary,
the Company or their agents, if any, shall incur any liability to any Holder or
Beneficial Owner or other person if, by reason of any present or future law, the
Estatutos Sociales of the Company, the provisions of or governing any Deposited
Securities, any act of God, war or other circumstance beyond its control, the
Depositary, the Company or their agents shall be prevented, delayed or forbidden
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from doing or performing any act or thing which by the terms of the Deposit
Agreement it is provided shall be done or performed. Each of the Company, the
Depositary and their agents assumes no obligation and shall be subject to no
liability under the Deposit Agreement or this Receipt to Holders or Beneficial
Owners or other persons, except to perform such obligations as are specifically
set forth and undertaken by it to be performed in the Deposit Agreement in good
faith and using its best judgment. The Depositary and the Company undertake to
perform such duties and only such duties as are specifically set forth in the
Deposit Agreement, and no implied covenants or obligations shall be read into
the Deposit Agreement against the Depositary or the Company or their respective
agents. None of the Depositary, the Company or their agents shall be (a) under
any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or this Receipt which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it in its sole discretion against all expense and liability be furnished as
often as may be required or (b) liable for any action or inaction by it or them
in reliance upon the advice of or information from legal counsel, accountants,
any person presenting Shares for deposit, any Holder, Beneficial Owner or any
other person believed by it or them in good faith to be competent to give such
advice or information. The Depositary, the Company and their respective agents
may rely and shall be protected in acting upon any written notice, request,
direction or other document believed by them to be genuine and to have been
signed or presented by the proper party or parties. Subject to the Deposit
Agreement, the Depositary shall not be responsible for the manner in which any
vote is cast or for the effect of any such vote provided that such action or
non-action is taken in good faith and in accordance with the Deposit Agreement.
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(21) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this paragraph (21), Citibank, N.A. and its Agents may
own and deal in any class of securities of the Company and its Affiliates and
the Trust and in Receipts. The Depositary may issue Receipts against evidence of
rights to receive CPOs from the Trustee, or any custodian, registrar, transfer
agent, clearing agency or other entity involved in ownership or transaction
records in respect of the CPOs. Such evidence of rights shall consist of written
blanket or specific guarantees of ownership of CPOs furnished on behalf of the
holder thereof. The Depositary shall not lend CPOs or Receipts; provided,
however, that the Depositary reserves the right to (i) issue Receipts prior to
the receipt of CPOs pursuant to Section 2.02 of the Deposit Agreement and (ii)
deliver CPOs prior to the receipt and cancellation of Receipts pursuant to
Section 2.05 of the Deposit Agreement, including Receipts which were issued
under (i) above but for which CPOs may not have been received. The Depositary
may receive Receipts in lieu of CPOs under (i) above and receive CPOs in lieu of
Receipts under (ii) above. Each such transaction shall be subject to the terms
and conditions provided in the Deposit Agreement.
(22) Resignation and Removal of the Depositary; the Custodian. The
Depositary may at any time resign as Depositary under the Deposit Agreement by
written notice to the Company of its election so to do or be removed by the
Company by written notice to the Depositary, such resignation or removal to take
effect upon the appointment of a successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement. The Depositary may, upon
approval of the Company, which shall not be unreasonably withheld, at any time
appoint a substitute or, if permitted by Mexican and other applicable law,
additional Custodians and the term "Custodian" refers to each Custodian or all
Custodians as the context requires.
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(23) Amendment of Deposit Agreement and Receipts. This Receipt and the
Deposit Agreement may at any time and from time to time be amended by agreement
between the Company and the Depositary in any respect which they may deem
necessary or desirable. Any amendment which shall impose or increase any fees or
charges (other than the fees of the Depositary for the issuance and delivery of
Receipts or the making of deposits, if any, and other taxes and charges listed
in paragraph (7)) or which shall otherwise prejudice any substantial existing
right of Holders or Beneficial Owners, shall not, however, become effective as
to outstanding Receipts until the expiration of 90 days after notice of such
amendment shall have been given to the Holders of outstanding Receipts. Every
Holder and Beneficial Owner hereof at the expiration of 90 days after such
notice shall be deemed by continuing to hold such Receipt or beneficial interest
therein to consent and agree to such amendment and to be bound by the Deposit
Agreement or the Receipt as amended thereby. In no event shall any amendment
impair the right of the Holder hereof to surrender this Receipt and receive
therefor the Deposited Securities represented hereby, except in order to comply
with mandatory provisions of applicable law.
(24) Termination of Deposit Agreement. The Depositary shall at any time at
the direction of the Company terminate the Deposit Agreement by mailing notice
of such termination to the Holders of all Receipts then outstanding at least 60
days prior to the date fixed in such notice for such termination. The Depositary
may likewise terminate the Deposit Agreement at any time after the expiration of
60 days after the Depositary shall have delivered to the Company a written
notice of its election to resign, provided that no successor depositary shall
have been appointed and accepted its appointment as provided in the Deposit
Agreement before the end of such 60 day period. After the date so fixed for
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termination, the Depositary shall perform no further acts under the Deposit
Agreement, except to continue to collect dividends and other distributions
pertaining to Deposited Securities, sell property and rights and convert
Deposited Securities into cash as provided in the Deposit Agreement, and
continue to deliver Deposited Securities, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property (in all such cases, without liability for
interest), in exchange for Receipts surrendered to the Depositary. At any time
after the expiration of six months from the date of termination, the Depositary
may sell the Deposited Securities then held hereunder and may thereafter hold in
an unsegregated escrow account the net proceeds of any such sale, together with
any other cash or property then held by it hereunder, without liability for
interest, for the pro rata benefit of the Holders of Receipts which have not
theretofore been surrendered. After making such sale, the Depositary shall be
discharged from all obligations under the Deposit Agreement, except to account
for such net proceeds and other cash and for its obligations under Section 5.10
of the Deposit Agreement. Notwithstanding anything to the contrary in this
paragraph, the Deposit Agreement, unless otherwise extended by the Company and
the Depositary, shall automatically terminate on the date of the termination of
the agreement creating the Trust. Upon such termination, the Depositary shall
sell any remaining Deposited Securities or Shares underlying CPOs, and after (i)
converting or causing to be converted in the same manner as if such conversion
were being effected with respect to distribution (as provided in Section 4.06 of
the Deposit Agreement) the proceeds of such sales together with all proceeds of
sales of Shares underlying the CPOs received by the Custodian from the Trustee
into dollars and (ii) withholding or upon payment of the fees of the Depositary,
distribute such net proceeds and any other cash then being held by it to the
Holders entitled thereto in proportion to their respective holdings.
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(25) The CPO Trust. The CPO Trust Agreement has been authorized by the
General Directorate of Foreign Investments (Direccion General de Inversiones
Extranjeras). The CPO Trust Agreement is registered with the National Registry
of Foreign Investment (Registro Nacional de Inversiones Extranjeras). An English
translation of the CPO Trust Agreement is attached as Exhibit C to the Deposit
Agreement. The National Banking and Securities Commission of Mexico (Comision
Nacional Bancaria y de Valores) has authorized the issuance of CPOs by the CPO
Trustee. Registration of the CPOs upon their issuance in the Securities Section
(Seccion de Valores) and in the Special Section (Seccion Especial) of the
National Registry of Securities and Intermediaries (Registro Nacional de Valores
e Intermediarios) has been approved by the National Banking and Securities
Commission (Comision Nacional Bancaria y de Valores). Nacional Financiera,
S.N.C. is the CPO Trustee of the CPO Trust. The CPO Trust operates through
Indeval, the central depository for participants trading on the Mexican
Securities Exchange, which maintains ownership records of the CPOs in book-entry
form. The principal executive office of the CPO Trustee is located as of the
date of the Deposit Agreement at: Xxxxxxxxxxx Xxx 0000, Xxx. Xxxxxxxxx Inn, X.X.
00000, Xxxxxx X.X., Xxxxxx. An English translation of the CPO Trust Agreement is
attached as Exhibit C to the Deposit Agreement. The terms of the CPO Trust (as
in effect as of the date hereof) are briefly described as follows (which
description may not be considered to be a representation or warranty by the
Company, the Depositary, or any Custodian and is qualified by and subject to the
terms of the CPO Trust Agreement): (i) each CPO represents a financial interest
in one (1) A Share held in the CPO Trust; (ii) the CPOs have limited voting
rights that are described in Section 4.08 of the Deposit Agreement; (iii)
dividends on Shares underlying the CPOs are credited to the CPO holders'
accounts by the CPO Trustee through Indeval, upon receipt thereof from the
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Company; (iv) as determined by the CPO Trustee, CPO holders may receive notices,
reports and proxy solicitation materials at the same times as direct holders of
Shares receive such materials; (v) any rights pertaining to the CPOs may be
exercised by CPO holders through Indeval by the CPO Trustee, at the same time as
direct holders of Shares receive any such rights, provided such rights can be
exercised by CPO holders; (vi) any securities resulting from dividends, splits
or plans of reorganization are distributed to CPO holders through Indeval, at
the same time as direct holders of Shares receive any such rights; (vii) the CPO
Trust is scheduled to terminate as indicated in the CPO Trust Agreement (Exhibit
C of the Deposit Agreement), at which point the Depositary will take the actions
contemplated in Section 6.02 of the Deposit Agreement, unless otherwise extended
by the Company and the Depositary; and (viii) holders of CPOs are entitled to
withdraw Shares from the CPO Trust if they are Mexican nationals or Mexican
corporations whose by-laws exclude foreign ownership of their shares. No fees or
charges are imposed directly or indirectly against CPO holders under the CPO
Trust.
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto _______________ whose taxpayer identification number is
_________ and whose address including postal zip code is _____ the within
Receipt and all rights thereunder, hereby irrevocably constituting and
appointing _______________ attorney-in-fact to transfer said Receipt on the
books of the Depositary with full power of substitution in the premises.
SIGNATURE GUARANTEED
--------------------------
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