Exhibit (d)(8)(J)
[LOGO OF JPMorgan]
JPMorgan Chase Bank
000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Xxxxxxx
November 14, 2003
Centro Distribuidor de Cemento S.A. de C.V.
Xxxxxxx Xxxxxxxxxxxx 000 Xxx.
Monterrey, Nuevo Xxxx
X.X. 64000
Mexico
Attention: Mr Xxxxx Xxxxxxxx and Xx Xxxxxxxxx Xxxxxxxxx
Tel: 00-00-0000-0000
Fax: 00-00-0000-0000
Re: Share Transaction
Deal Ref: 2342682
Dear Sir:
The purpose of this letter agreement (this "Confirmation") is to confirm
the terms and conditions of the Share Transaction entered into between JPMorgan
Chase Bank ("JPMorgan") and Centro Distribuidor de Cemento S.A. de C.V.
("Counterparty" and together with JPMorgan, the "Parties") on the 'Trade Date
specified below (the "Transaction"). This Confirmation constitutes a
"Confirmation" as referred to in the Agreement specified below.
The definitions and provisions contained in the 2000 ISDA Definitions (the
"Swap Definitions") and in the: 1996 ISDA Equity Derivatives Definitions (the
"Equity Definitions", and together with the Swap Definitions, the
"Definitions"), each as published by the International Swaps and Derivatives
Association, Inc. ("ISDA") are incorporated into this Confirmation. In the event
of any inconsistency between the Swap Definitions and the Equity Definitions,
the Equity Definitions will prevail. In the event, of any inconsistency between
the Definitions and this Confirmation, this Confirmation will govern. References
herein to a "Swap Transaction" shall be deemed to be references to a
"Transaction" for the purposes of the Equity Definitions.
1. This Confirmation supplements, forms part of, and is subject to, the
ISDA Master Agreement dated as of June 12, 1998, as amended and supplemented
from time to time, (the "Agreement"), between us. All provisions contained in
the Agreement govern this Confirmation except as expressly modified below.
2. The terms of the particular Transaction to which this Confirmation
relates are as follows:
General Terms:
Trade Date: November 5, 2003
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Deal Ref: 270WC02342682 Page 1 of 6
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A subsidiary of X.X. Xxxxxx Xxxxx & Co.
Incorporated with Limited liability as a New York State chartered
Commercial bank.
Registered in England branch number DR000746. Authorised by the FSA.
Registered branch address 000 Xxxxxx Xxxx, Xxxxxx,XX0X 0XX. Head office 000 Xxxx
Xxxxxx, Xxx Xxxx, XXX.
[LOGO OF JPMorgan]
Shares: The American Depository Receipts representing 5
"CPO" shares of Cemex S.A. de C.V, (the "Issuer")
(Exchange identifier: "CX")
Number of Shares: 422,540
Strike Price: USD 25.3515
Exchange: The New York Stock Exchange
Related Exchange(s): The principal exchange with respect to options
contracts or futures contracts, if any, on the
Shares.
Valuation:
----------
Valuation Date: September 22, 2004, Any reference in Section 4.2
of the Equity Definitions to an Exercise Date
shall be deemed to be a reference to September 22,
2004 for the purpose of this Transaction.
Settlement Terms:
-----------------
Cash Settlement: Applicable. Subject, to the Physical Settlement
provision in Section 7(a) herein. On the Cash
Settlement Payment Date, the Cash Settlement
Amount shall be payable in immediately available
funds by JPMorgan to the Counterparty if the
Strike Price Differential is a positive number or
by the Counterparty to JPMorgan if the Strike
Price Differential is a negative number as
follows:
Cash Settlement Amount: An amount in USD as determined by the Calculation
Agent in accordance with the following formula
provided that if the Strike Price Differential is
a negative number, then the Cash Settlement.
Amount shall be equal to the absolute, value of
that amount:
Cash Number Strike Price
Settlement = of Shares x Differential
Amount
Strike Price A number (which may be negative) equal to the
Differential: Settlement Price minus the Strike Price.
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Deal Ref: 270WC02342682 Page 2 of 6
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A subsidiary of X.X. Xxxxxx Xxxxx & Co.
Incorporated with Limited liability as a New York State chartered
Commercial bank.
Registered in England branch number DR000746. Authorised by the FSA.
Registered branch addrcss 000 Xxxxxx Xxxx, Xxxxxx,XX0X 0XX. Head office 000 Xxxx
Xxxxxx, Xxx Xxxx, XXX.
[LOGO OF JPMorgan]
Settlement Price: The official closing price per each "CPO" share of
the Issuer ("CEMEXCP MM") quoted by the Mexican
Stock Exchange (Bolsa Mexicana de Valores) on the
Valuation Xxxx multiplied by 5, divided by the
Spot Exchange Rate.
Spot Exchange Rate: The freely available commercial, exchange rate of
Mexican Pesos ("MXN") into 1 U.S. Dollar ("USD")
on the Valuation Date for spot delivery expressed
to 5 decimal places as determined by the
Calculation Agent based on the prevailing rates in
the foreign exchange markets.
Valuation Time: At the close of trading on the Exchange.
Cash Settlement Two (2) Currency Business Days following the
Payment Date: Valuation Date.
Adjustments:
Method of Adjustment: Calculation Agent Adjustment
Extraordinary Events:
Consequences of Merger
Events:
(a) Share-for-Share: Alternative Obligation
(b) Share-for-Other: Cancellation and Payment
(c) Share-for-Combined: Cancellation and Payment
Nationalization or
Insolvency: Cancellation and Payment
3. Credit Support In accordance with the Credit Support Annex
Documents: executed between JPMorgan and the Counterparty.
4. Calculation Agent: JPMorgan
5. Account Details:
(a) Account for payments to JPMorgan:
JPMorgan Chase Bank
SWIFT: XXXXXX00
Account No. 00 00000000
Favor: JPMorgan Chase Bank, London
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Deal Ref: 270WC02342682 Page 3 of 6
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A subsidiary of X.X. Xxxxxx Xxxxx & Co.
Incorporated with Limited liability as a New York State chartered
Commercial bank.
Registered in England branch number DR000746. Authorised by the FSA.
Registered branch address 000 Xxxxxx Xxxx, Xxxxxx,XX0X 0XX. Head office 000 Xxxx
Xxxxxx, Xxx Xxxx, XXX.
[LOGO OF JPMorgan]
(b) Account for payments to Counterparty:
Please advise
6. Offices:
(a) The Office of MPMorgan for the Transaction is:
JPMorgan Chase Bank
000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Xxxxxxx
For Notices with respect to this Transaction:
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Equity Derivatives Group
Documentation contact: Xxxxxxxxx Xxxxx
Equity Derivatives Group
Tel: (000) 000-0000
Fax: (000) 000-0000
(b) The Office of Counterparty for the Transaction is: Inapplicable,
Counterparty is not a Multibranch Party.
7. Other Provisions.
(a) Physical Settlement. Counterparty shall have the right but not the
obligation to physically settle the Transaction in the manner and procedure
prescribed in Article 6 of the Equity Definitions relating to the Physical
Settlement of Options. If Counterparty elects such right, irrevocable oral
telephonic notice specifying that Physical Settlement applies to the Transaction
must be given to JPMorgan (see Section 6 for contact details) between the hours
of 9:00 a.m. and 4:00 p.m. (local time in New York) on any Exchange Business Day
prior, to the Expiration Date ("Notice of Exercise"), Upon Notice of Exercise,
the Counterparty will execute and deliver a written confirmation confirming the
substance of that Notice, of Exercise within one Exchange Business Day of that
Notice of Exercise. Failure to provide such written confirmation will not affect
the validity of that oral notice. If Notice of Exercise is given after 4:00 p.m.
(local lime in New York) on any Exchange Business Day, then that Notice of
Exercise: will be deemed delivered on the nest following Exchange Business Day,
if any. Upon Notice of Exercise, the Settlement Terms and Valuation terms and
provisions set forth in Section2 of this Confirmation shall be superseded and
replaced by the following:
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Deal Ref: 270WC02342682 Page 4 of 6
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A subsidiary of X.X. Xxxxxx Xxxxx & Co.
Incorporated with Limited liability as a New York State chartered
Commercial bank.
Registered in England branch number DR000746. Authorised by the FSA.
Registered branch address 000 Xxxxxx Xxxx, Xxxxxx,XX0X 0XX. Head office 000 Xxxx
Xxxxxx, Xxx Xxxx, XXX.
[LOGO OF JPMorgan]
Settlement Terms:
Physical
Settlement: Applicable. On the relevant. Settlement Date the
Counterparty shall pay to JPMorgan the Settlement.
Price and JPMorgan shall deliver to the
Counterparty the Number of Shares to be Delivered.
Such payment and such delivery will be made on
the relevant Settlement Date through the relevant
Clearance System and, if possible through the
relevant Clearance System, will be made on a
delivery versus payment basis.
Settlement
Currency: USD
Number of
Shares to be
Delivered: 422,540
Failure to
Deliver: Applicable
Account for
Delivery of
Shares: Please advise
(b) Additional Agreement, for Discharge of Delivery Obligations.
JPMorgan (the "Designator") may designate any of its Affiliates (the
"Designator") to deliver or take delivery, as the case may be, and otherwise
perform it's obligations to deliver or take delivery, as the ease may be, in
respect of this Transaction and the Designee may assume such obligations. Such
designation shall not relieve the Designator of any of its obligations
hereunder.
If the Designee shall have performed the obligations of the Designator
hereunder, then the Designator shall be discharged of its obligations to the
other party to the extent of such performance.
(c) Dividends: If the Shares shall have gone ex-dividend with respect to a
cash dividend on any date (such date the "Ex-Dividend Date") from, but
excluding, the Trade Date to, and including, the Valuation Date, JPMorgan shall
pay to Counterparty, on the date such dividend is paid or, in the event that
such dividend is paid after the Valuation Date, the Cash Settlement. Payment
Date, the net U.S. Dollar amount, (after giving effect to any withholding or any
other tax applicable at the time at which such cash dividend is paid or if not
paid to be paid (as of the Ex-Dividend Date)) of such cash dividend paid or to
be paid with respect: to one Share where the "Valuation Date" is the
Ex-Dividend Date, multiplied by the Number of Shares, excluding, however,
special cash dividends to the extent that such special cash dividends have an
effect on the price of the Shares on the Exchange, all as calculated and
announced by the Issuer.
(d) The Counterparty represents and warrants that it nor any of its
affiliates is in possession of any material non-public information with respect,
to the Shares at the time of entering into this Transaction.
(e) Counterparty agrees that, if Physical Settlement is elected, as
specified in Section 7(a) herein, all conversion costs will, be borne by the
Counterparty.
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Deal Ref: 270WC02342682 Page 5 of 6
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A subsidiary of X.X. Xxxxxx Xxxxx & Co.
Incorporated with Limited liability as a New York State chartered
Commercial bank.
Registered in England branch number DR000746. Authorised by the FSA.
Registered branch address 000 Xxxxxx Xxxx, Xxxxxx,XX0X 0XX. Head office 000 Xxxx
Xxxxxx, Xxx Xxxx, XXX.
[LOGO OF JPMorgan]
(f) No Reliance. Each party represents that (i) it is entering into the
Transaction evidenced hereby as principal (and not as agent or in any other
capacity); (ii) the other party is not acting as a fiduciary for it; (iii) it
is not relying upon any representations except those expressly set forth in the
Agreement or this Confirmation; (iv) it has consulted with its own legal,
regulatory, tax, business, investment, financial, and accounting advisers to
the extent it has deemed necessary, and it has made its own investment,
hedging, and trading decisions based upon its own judgment and upon any advice
from such advisers as it has deemed necessary and not upon any view expressed by
the other party; and (v) it is entering into this Transaction with a full
understanding of the terms, conditions and risks thereof and it is capable of
and willing to assume those risks.
(g) Each party agrees and acknowledges that (i) X.X. Xxxxxx Securities
Inc., an affiliate of JPMorgan ("JPMSI"), has acted solely as agent and not as
principal with respect to this Transaction and (ii) JPMSI has no obligation or
liability, by way of guaranty, endorsement or otherwise in any manner in
respect of this Transaction (including, if applicable, in respect of the
settlement thereof). Each party agrees it will look solely to the other party
(or any guarantor in respect thereof) for performance of such other party's
obligations under this Transaction.
(h) Share De-listing Event: If at any time during the period from and
including the Trade Date, to and including the Valuation Date, the Shares cease
to be listed on the Exchange for any reason (other than a Merger Event) and are
not immediately re-listed as of the date of such de-listing on another
exchange in the same jurisdiction as the Exchange (the "Successor Exchange"),
then Cancellation and Payment shall apply, and the date of the de-listing shall
be deemed the date of termination for purposes of calculating any payment due
from one party to the other in connection with the cancellation of this
Transaction. If the Shares are immediately re-listed on a Successor Exchange
upon their de-listing from the Exchange, this Transaction shall continue in full
force and effect, provided that, the Suceessor Exchange shall be deemed to be
the Exchange for all purposes hereunder. In addition, the Calculation Agent
shall make any adjustments it deems necessary to the terms of the Transaction
in accordance with Calculation Agent Adjustment method as defined under Section
9.l(c) of the 1996 ISDA Equity Definitions.
Role of Agent: Each party agrees and acknowledges that (i) X.X. Xxxxxx
Securities Inc., an affiliate of JPMorgan ("JPMSI"), has acted solely as agent
and not as principal with respect to this Transaction and (ii) JPMSI has no
obligation or liability, by way of guaranty, endorsement or otherwise, in any
manner in respect, of this Transaction (including, if applicable, in respect, of
the settlement thereof). Each party agrees it will Look solely to the other
party (or any guarantor in respect thereof) for performance of such other
party's obligations under this Transaction.
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Deal Ref: 270WC02342682 Page 6 of 6
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A subsidiary of X.X. Xxxxxx Xxxxx & Co.
Incorporated with Limited liability as a New York State chartered
Commercial bank.
Registered in England branch number DR000746. Authorised by the FSA.
Registered branch address 000 Xxxxxx Xxxx, Xxxxxx,XX0X 0XX. Head office 000 Xxxx
Xxxxxx, Xxx Xxxx, XXX.
[LOGO OF JPMorgan]
Please, confirm that the foregoing correctly sets forth the terms of our
agreement by executing this Confirmation and returning it to EDG
Confirmation Group, X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, 00xx xxxxx,
Xxx Xxxx, XX 00000-0000, or by Fax on 000 000 0000.
For questions regarding this Confirmation, please call 000 000 0000,
Very truly yours,
X.X. Xxxxxx Securities Inc., as agent for
JPMorgan Chase Bank
[GRAPHICS APPEARS HERE]
By: /s/ Xxxxxxxx Xxxxx Xxxx
---------------------------
Name: Xxxxxxxx Xxxxx Xxxx
-----------------------
Title: Vice President
-----------------------
Accepted and confirmed as of
the date first above written
CENTRO D1STRIBUI1DOR DE CEMENTO SA DE CV
By: /s/ Illegible
---------------------------
Name:
-------------------------
Title:
------------------------
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Deal Ref: 270WC02342682 Page 7 of 6
njl
A subsidiary of X.X. Xxxxxx Xxxxx & Co.
Incorporated with Limited liability as a New York State chartered
Commercial bank.
Registered in England branch number DR000746. Authorised by the FSA.
Registered branch address 000 Xxxxxx Xxxx, Xxxxxx,XX0X 0XX. Head office 000 Xxxx
Xxxxxx, Xxx Xxxx, XXX.
