Exhibit (d)(16)(c)
AMENDMENT NO. 3
TO STOCK PURCHASE AGREEMENT
This AMENDMENT NO. 3, dated as of July 15, 2003 ("Amendment No. 3"),
between CEMEX, S.A. de C.V., a corporation organized under the laws of the
United Mexican States ("CEMEX"), and PAN ASIAN CEMENT INVESTORS, L.P., a limited
partnership organized under the laws of the State of Delaware (the "Seller"), to
the Stock Purchase Agreement, dated as of July 12, 2002 (the "Original
Agreement"), between CEMEX and the Seller, as amended by (i) the Letter
Agreement and Waiver, dated as of Xxxxx 00, 0000 ("Xxxxxxxxx Xx. 0"), xxx (xx)
Amendment No. 2 to Stock Purchase Agreement, dated as of April 3, 2003
("Amendment No. 2; and the Original Agreement, as amended by Amendment No. 1 and
Amendment No. 2, the "Agreement"), each between CEMEX and the Seller, amends the
Agreement as set forth herein. Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in the Agreement.
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties and covenants herein contained, the receipt and adequacy of which are
hereby acknowledged, and intending legally to be bound hereby, CEMEX and the
Seller agree as follows:
1. The first sentence of Article I(5) of the Agreement is hereby amended
in its entirety to read as follows:
"5. Adjustments to the Number of CPOs. The Number of CPOs to be
delivered on any Subsequent Closing Date shall be adjusted from time
to time as set forth in this Article I(5); provided, however, that
with respect to any Tranche (i) no adjustment shall be made for any
dividend or other distribution paid or made on the CEMEX Common Stock
on or after the Original Subsequent Closing Date for such Tranche if
the aggregate value (as determined in good faith by the board of
directors of CEMEX) of all dividends or other distributions paid or
made on the CEMEX Common Stock from the Original Subsequent Closing
Date for such Tranche until and including the Subsequent Closing Date
for such Tranche (and including the value of such dividend or
distribution) does not exceed 5% of the current market capitalization
(determined as provided in paragraph (g) of this Article I(5)) of the
CEMEX Common Stock on the date fixed for the determination of
stockholders entitled to receive such dividend or distribution, and
(ii) if a dividend or other distribution is paid or made on the CEMEX
Common Stock on or after the Original Subsequent Closing Date for such
Tranche and the aggregate value (as determined in good faith by the
board of directors of CEMEX) of all dividends or other distributions
paid or made on the CEMEX Common Stock from the Original Subsequent
Closing Date for such Tranche until and including the Subsequent
Closing Date for such Tranche
(and including the value of such dividend or distribution) (such
aggregate value, being referred to as the "Aggregate Value") exceeds
5% of the current market capitalization (determined as provided in
paragraph (g) of this Article I(5)) of the CEMEX Common Stock on the
date fixed for the determination of stockholders entitled to receive
such dividend or distribution (such 5% of the current market
capitalization, being referred to as the "Dividend Cap"), then the
Number of CPOs to be delivered on the Subsequent Closing Date for such
Tranche shall be adjusted as set forth in this Article I(5) as if such
dividend or other distribution consisted of a dividend or distribution
of only such portion of such dividend or distribution as has a value
(determined in the same manner as the Aggregate Value referred to
above is determined) equal to the amount by which the Aggregate Value
exceeds the Dividend Cap."
2. Article IV(5) of the Agreement is hereby deleted in its entirety and
amended to read as follows:
"5. OMITTED."
3. Attached hereto as Exhibit A is a detailed calculation showing (i) the
increased Number of CPOs which have been adjusted for the cash and
stock portion of the dividend paid by CEMEX on June 5, 2003, and (ii)
the Base Deferral Fee payment schedule as of the date hereof.
4. This Amendment No. 3 may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
5. Except as expressly amended hereby, all other provisions of the
Agreement shall remain in full force and effect.
6. THIS AMENDMENT NO. 3 AND ALL RIGHTS AND REMEDIES AMONG CEMEX AND THE
SELLER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAW
DOCTRINE OTHER THAN NEW YORK GENERAL OBLIGATIONS LAW (S) 5-1401 AND
(S) 5-1402.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3 to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
CEMEX, S.A. de C.V.
By: /s/ Xxxxxxxx Xxxxxxx
-------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Attorney-in-Fact
PAN ASIAN CEMENT
INVESTORS L.P., as Seller
By: /s/ Xxxxxx X. Xxxxx
-------------------------
Name: Xxxxxx X. Xxxxx
Title: Attorney-in-Fact
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