Exhibit 4.4
MERGER AGREEMENT, ENTERED INTO BY AND BETWEEN CORPORACION DURANGO, S.A. de C.V.
(HEREINAFTER REFERRED TO AS "CODUSA"), REPRESENTED BY XXX. XXXXXX DE LA XXX
XXXXXX XXXXXXXXX XX XXXXXXX, AND GRUPO INDUSTRIAL DURANGO, S.A. DE C.V.
(HEREINAFTER REFERRED TO AS "GIDUSA") REPRESENTED BY XXXX XXXXXXX XXXXXX
XXXXXXXXX PURSUANT TO THE FOLLOWING REPRESENTATIONS AND CLAUSES.
REPRESENTATIONS
I. GIDUSA is a corporation duly organized and existing under the laws of
the United Mexican States in accordance with the Public Deed No. 251 by
Notary Public No. 18 of Durango, Durango and recorded under number 5767
in the Public Registry of Commerce of Durango, Durango.
II. CODUSA is a corporation duly organized and existing under the laws of
the United Mexican States in accordance with to the Public Deed No.
5383 by Notary Public No. 18 of Durango, Durango and registered with
number 154414 in the Public Registry of Commerce of Mexico City.
III. On June 29, 1998, the name of the corporation was changed from
Industrias de Celulosa S.A. de C.V. to Corporacion Durango, S.A. de
C.V. pursuant to the Public Deed number 10,599 by Notary Public No. 18
of Durango, Durango and registered under number 154414 in the Public
Registry of Commerce of Mexico City.
IV. The powers of attorneys and authorizations to enter into this agreement
were granted in the Shareholder's Meeting which resolve the merger and
which it's attached to this agreement, and the persons representing
both parties has sufficient authority to enter into this agreement and
such authority has not been revoked nor modified what so ever.
CLAUSES
FIRST: The parties agree to merge by the system known as takeover ("fusion por
absorcion"), and consequently CODUSA will cease to exist and GIDUSA will be the
surviving entity.
SECOND: Once the merger has legal effect, the asset and liabilities of CODUSA,
will become part of GIDUSA'S capital, without reserve or liability limitation,
and without the necessity of any specific or additional legal action, on the
terms set forth in Article 224 of the Mexican General Corporations Law, with the
exception of those cases indicated below.
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THIRD: The financial statements as of June 30, 2001, which have been approved by
the shareholders of the two merged companies, will serve as the basis for
purposes of the agreed merger, provided that, in order to determine the increase
in the equity of the surviving company and to distribute the shares of stock to
be issued, among the shareholders of the non-surviving company, a valuation
based on a multiple of estimated earning before financing gains and losses,
interest, taxes depreciation and amortization ("EBITDA") of the participating
companies shall be taken into account, in accordance with the attached
calculations, and so it is resolved that:
(i) the equity of GIDUSA, shall be increased to Ps. 604,071,696.47
(Six Hundred Four Million, Seventy One Thousand, Six Hundred
Ninety Six Pesos 47/100) represented by 40,239,255 Series "A"
common stock without par value, in consideration to the
theoretical value of GIDUSA'S shares of Ps. 15.012 (Fifteen
Pesos 012/100) per share; and
(ii) considering the existence of 48,380,580 shares in CODUSA, the
shares referred to in section (i) above, will be distributed
among the CODUSA'S shareholders, as soon as appropriate, at
the rate of 0.831723286499 shares of GIDUSA per each former
share of CODUSA.
FOURTH: The merger is subject to the subsequent condition consistent on the lack
of objection or limitations to the merger by the Mexican Federal Antitrust
Commission ("Comision Federal de Competencia").
FIFTH: The merger will have retroactive effect to October 8, 2001, subject to
the condition described in the preceding resolution, without consideration to:
(i) the actual date of the required publication of the financial statements in
the official gazette of the corporate domiciles of the merging companies or in
the Federal Gazette ("Diario Oficial de la Federacion"), and (ii) the
registration of such financial statements in the Public Registry of Commerce of
their respective corporate domiciles, together with these resolutions. The legal
effectiveness of the merger will be retroactive to the mentioned date, once the
mentioned registration above is completed, without opposition from any of the
creditors of the merging companies.
SIXTH: In this act it's resolved to deliver a written notice of the execution of
this agreement to the Secretary of GIDUSA, in order to comply with the bylaws
and register this transaction in such company's book of stock.
SEVENTH: Any matters related with the interpretation and enforcement of this
agreement, will be resolved in the jurisdiction and competence of the common
courts of the city of Durango, Durango and the parties expressly waive the
jurisdiction of any other courts to which they may be subject by virtue of their
present or future domiciles or otherwise.
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This agreement is executed in Durango, Durango being the 8th day of October,
2001.
CORPORACION DURANGO GRUPO INDUSTRIAL DURANGO
S.A. DE C.V. S.A. DE C.V.
C.P. Xxxxxx de la Xxx Xxxxxx Xxxxxxxxx Xx. Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx
xx Xxxxxxx
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