Exhibit 1.1 English Translation of Registrant's bylaws
as amended on April 26, 2001
DESC, S.A. DE C.V.
CORPORATE BYLAWS
NAME
FIRST. The name of the corporation is "DESC." This name shall be followed
by the words SOCIEDAD ANONIMA DE CAPITAL VARIABLE (variable capital stock
company), or the abbreviation thereof, "S.A. de C.V."
DOMICILE
SECOND. The domicile of the Corporation is Mexico City, Federal District.
However it may establish offices, branches or agencies in any place in the
Mexican Republic or abroad.
PURPOSES
THIRD. The purposes of the Corporation are the following:
a. The promotion and encouragement of industrial and tourist development
and the acquisition, alienation, stewardship and any other legal acts
that have as object shares, certificates of participation, bonds,
debentures, corporate interests and all kinds of securities issued by
Mexican companies.
b. Promotion and stimulation of industrial and tourist development
through acquisition, alienation, and any other legal acts which have
as object real estate, factories, laboratories, plants, warehouses,
machinery, equipment, personal property, credits and rights.
c. To grant all kinds of credit to the companies in which it is the
direct or indirect owner of shares or corporate interests, as well as
to guarantee or secure in any form the obligations it owes and the
obligations of the companies in which it is the direct or indirect
owner of shares or corporate interests.
d. To provide all kinds of services and undertake studies for promotion,
expansion or restructuring intended solely or for those in which it
may have the intention of having any corporate participation.
e. The acquisition and alienation by any legal means of all kinds of real
estate which may be necessary or convenient to achieve the corporate
purposes.
f. Lease of all kinds of real estate and execution of all kinds of legal
acts by which use or use and enjoyment of real estate is obtained or
conceded.
g. Acquisition of personal property, machinery, equipment and tools as
may be necessary or convenient to achieve the corporate purposes.
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h. Act as agent, representative or commission agent for persons or
companies, whether Mexican or foreign.
i. Give or take monies, under loan, provided that it be permitted by the
laws, obtaining as applicable the prior permits which are required.
j. Execute the acts and enter into the contracts related to the corporate
purposes.
DURATION
FOURTH-. The duration of the Corporation shall be ninety-nine years,
counted from the date of this instrument(1).
NATIONALITY
FIFTH. No foreign person, individual or corporate, nor Mexican corporations
that do not contain an exclusion of foreigners clause, may have any corporate
participation whatsoever of own shares in the Corporation.(2)
If for any reason any of the persons referred to above due to any event
should acquire a corporate participation or become owner of one or more shares,
thereby contravening the provisions of this clause, it is agreed from this time
forward that said acquisition shall be null and therefor canceled and the
corporate participation at issue without any value and the certificates that
represent it, the capital stock being reduced in an amount equal to the value of
the canceled participation.
CAPITAL
SIXTH. The capital of the Corporation is variable. The minimum fixed
capital is the amount of EIGHT MILLION TWO HUNDRED SEVENTY-ONE THOUSAND FOUR
HUNDRED FORTY-THREE PESOS, MEXICAN CURRENCY, represented by 636,264,900
registered Series A shares without expression of par value and shall represent
at minimum FIFTY-ONE PERCENT of the voting shares, without counting those with
limited voting rights.
The variable capital will always be represented by registered Series B
shares or their subseries, numerically progressive, which shall have the
characteristics determined by the Extraordinary Shareholders Meeting that
resolves their issue but which in all cases shall be without expression of par
value and will represent at maximum FORTY-NINE PERCENT of the shares with voting
rights, without counting those with limited vote.
The Corporation may issue Series B shares that will be retained in the
corporate Treasury to be delivered as they are subscribed.
Further, there will be a Series C, Limited Voting Shares with right to
retirement, which will represent up to a maximum of TWENTY-FIVE PERCENT of the
Corporation's capital stock. Said series of shares shall have only pecuniary
rights and not corporate rights, and may be freely
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(1) TN: This refers to the charter of incorporation, dated August 28, 1973
(2) TN: This refers to A and B Shares.
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acquired by Mexican individuals or Mexican companies with an exclusion of
foreigners clause, by foreign individuals or companies, as well as by Mexican
companies with an admission of foreigners clause.
SEVENTH. All shares within their respective series shall confer equal
rights and obligations on their holders, except for the Limited Vote Series C of
shares, which shall have only pecuniary rights and a right to vote regarding the
following matters:
- Extension of the Corporation's duration
- Advance dissolution of the Corporation
- Transformation from one type of Corporation to another
- Change of the Corporation's nationality
- Change of the purpose of the Corporation
- Merger of the Corporation if it is not the survivor
- Cancellation of the registration of the Corporation's shares on
the Bolsa Mexicana de Valores, Sociedad Anonima de Capital Variable.
Each series A and B share shall give the right to one vote at the General
Shareholders Meetings.
Certificates representing the shares shall carry the signatures of any two
members of the Board of Directors, regular or alternate, in accordance with the
resolutions adopted for such purpose by said Board.
Facsimile signatures may be used if so resolved by the Board of Directors;
in this case the original signatures must be deposited in the corresponding
section of the Public Registry of Property and Commerce in the corporate
domicile.
Stock certificates shall be progressively numbered and may represent one or
several shares, and shall have coupons attached for dividend payment or for
exercise of the right that the Shareholders Meeting may from time to time
resolve. The stock certificates or provisional certificates for each issue must
meet the requirements of Article One hundred twenty five of the General Law of
Commercial Companies, and must also contain the whole text of Clause Fifth
herein.
EIGHTH. The Corporation shall keep a Stock Register and shall consider as
owner of the shares the person who appears as such in said Register.
On request of any interested person, after appropriate proof, the
Corporation must record in said Register transfers which occur.
NINTH. The variable capital of the Corporation may be increased or reduced
without need of amending the corporate bylaws, with the sole formality that
increases or reductions be resolved by the General Extraordinary Shareholders
Meeting, duly protocolling the corresponding Minutes. The fixed minimum capital
of the Corporation may not be increased or reduced if not resolved by
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a General Extraordinary Shareholders Meeting and the corporate bylaws are
consequently amended.
Any increase or reduction of the capital must be recorded in the Changes of
Capital Book kept for such purpose.
A capital increase may not be declared if all shares previously issued by
the Corporation are not wholly subscribed and fully paid.
CAPITAL INCREASES
When the capital is increased, the following shall be observed:
a. When capital increases are with distributable profits or due to
capitalization of the legal reserve fund, due to capitalization of
premiums on shares or from other prior contributions by the
shareholders or due to capitalization of retained profits or reserves
from appraisal or reappraisal, all shareholders of the different
shareholding series shall have the right to subscribe the capital
increase in proportion to the number of shares that they hold.
b. When capital increases are by cash contributions from the
shareholders, they must be declared with assurance that the
shareholding proportion established in Clause Sixth herein is
retained.
c. In the case of an increase in Series B, in order to reach the
percentage established in Clause Sixth hereof, (holders of shares in)
Series A and B currently in circulation shall have a preferential
right to subscribe the increase in proportion to the number of shares
which they hold. If any of the shareholders of such Series does not
exercise the right conferred in this section at the proper time, it
shall be exercised by the other shareholders of said Series pursuant
to the bases established at the Shareholders Meeting that declares the
increase.
d. In the event that once a capital increase has been declared, it has
not been fully subscribed by the shareholders, the Board of directors
shall determine the form and terms on which the unsubscribed portion
must be subscribed.
The right conferred in the preceding sections must be exercised within
the fifteen business days following the date on which the
corresponding resolutions are published in the federal Diario Oficial.
In cases of capital increase, the increase in question and the issue
of the shares that represent it shall not have effect until written
notice of the capital increase and issue of the corresponding shares
has been given to the National Securities commission and to the stock
exchanges where the Corporation's shares are listed, and until notice
of the capital increase and the issue that represents it is published
in the federal Diario Oficial, which notice must indicate the total
number of shares issued to represent the capital after the increase in
question, the Series into which it is divided, and the number of
shares that constitute each series.
e. If the capital increase is declared in order to issue unsubscribed
shares for public offer, it shall be in accordance with Article Eighty
one of the Securities Market
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Law, through express waiver by the shareholders of their preferential
right at the Extraordinary Shareholders Meeting that declares issue of
these shares.
CAPITAL REDUCTIONS
Any capital reduction shall affect all shares representing the capital,
respecting the shareholding proportions established in clause Sixth hereof.
Reimbursement for complete shares will be made to shareholders at their
book value. Designation of the shares to be reimbursed will be done as resolved
in the corresponding Shareholders Meeting, through drawing before a public
broker or through reimbursement to all shareholders such that they represent,
after the corresponding capital reduction, the same shareholding percentages and
if this be not possible, the percentage of shares that is most similar to that
which they previously hold. Upon designation of the shares which must be
reimbursed, a notice will be published in the federal Diario Oficial stating the
system followed for retirement of the shares, the number of shares that will be
retired, and the number of the share certificates which as a consequence must be
canceled, or, as applicable, exchanged, and the credit institution where the
amount for reimbursement is deposited, which shall remain available to the
respective shareholders from the date of publication but shall not earn
interest.
On prior approval of the General Extraordinary Shareholders Meeting, the
Corporation may amortize shares with accumulated profits pursuant to Article One
hundred thirty six of the General Law of Commercial Companies.
TENTH. The Shareholders shall be entitled to partial or total retirement of
their contributions represented by Series B shares or their numerically
progressive subseries and Series C Limited Vote shares, provided they give
effective notice to the Corporation meeting the requirements of Articles Two
Hundred Twenty and Two Hundred Twenty One of the General Law of Commercial
Companies. The Corporation shall reimburse the respective participation to the
shareholder at the value which is the lesser of the two following options:
Ninety five percent of the value quoted on the market, obtained from the
average of transactions effected during the thirty days that the shares have
been quoted prior to the date when the retirement should take effect, or the
book value of the shares in accordance with the financial position statement for
the fiscal year when the separation should become effective, previously approved
by the General Ordinary Shareholders Meeting.
Payment of the reimbursement may be requested of the Corporation from the
day following the General Ordinary Shareholders Meeting which has approved the
financial position statement corresponding to the fiscal year when the
retirement will become effective.
The reimbursement will be done against the delivery and cancellation of the
respective shares.
TENTH BIS. In the event of a delisting of the shares of the Corporation in
the Securities Section of the National Registry of Securities and Dealers,
whether upon request of the Corporation or by a resolution adopted by the
National Banking and Securities Commission in accordance with applicable law,
the shareholders who hold control of the Corporation shall have the obligation
to make a public tender offer prior to the delisting and at the price that is
not less than the higher of the average for the close of trades that have been
done during the thirty days during which the shares were quoted prior to the
date of the tender, or the book value of the shares according to the
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last quarterly report filed with the National Banking and Securities Commission
and the Mexican Securities Exchange prior to the tender. The controlling
shareholders shall not be required to make a public tender pursuant to this
Clause Tenth Bis if it is proven that all of the shareholders of the Corporation
have approved the delisting of the shares.
If, pursuant to a public tender offer under this Clause Tenth Bis and prior
to the delisting of the shares of the Corporation from the National Registry of
Securities and Dealers, the controlling shareholders of the Corporation are
unable to acquire one hundred percent of the issued and outstanding capital
stock of the Corporation, then the controlling shareholders shall be required to
place in trust, for a minimum period of two years, the necessary funds to
purchase, at a price equal to the public tender offer price, the shares of those
investors who did not participate in such public tender. The terms and
conditions of such a trust will be disclosed in the corresponding tender offer
disclosure document.
The amendment of the provisions of this Clause Tenth Bis will require a
minimum voting quorum of ninety-five percent of the capital stock of the
Corporation and the prior approval of the National Banking and Securities
Commission.
GENERAL SHAREHOLDERS MEETINGS
ELEVENTH. The General Shareholders Meeting is the highest authority of the
Corporation all other being subordinate thereto.
TWELFTH. Shareholders Meetings shall be Ordinary, Extraordinary, or
Special, and will be held at the corporate domicile.
a. Extraordinary Shareholders Meetings shall be those wherein any of the
issues listed in Article One Hundred Eighty Two or the General Law of
commercial Companies are addressed;
b. Ordinary Shareholders Meetings are those listed in Article One Hundred
Eighty One of the General Law of Commercial Companies;
c. Special Shareholders Meetings are those which address issues relating
to the shareholders rights of Series A, B, or C shares, and will be
governed by Article One Hundred Ninety Five of the General Law of
commercial Companies.
THIRTEENTH. The Ordinary Shareholders Meeting will meet at least once
each year within the four months following the close of the corresponding fiscal
year, on the date set by the Board of Directors, and it shall address in
addition to the matters included on the Agenda, those matters enumerated in
Article One Hundred Eighty One of the General Law of commercial Companies,
especially the presentation, pursuant to Article One Hundred Seventy Two of said
law, of the report for the immediately preceding fiscal year of the
Corporation(s) in which the Corporation owns the majority of shares when the
value of the investment in each exceeds twenty percent of the shareholders
equity according to the financial position statement of the Corporation at the
close of the corresponding fiscal year.
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The Extraordinary Shareholders Meeting shall meet whenever any of the
matters which are incumbent upon it under Article One Hundred eighty Two of the
General Law of commercial companies must be addressed.
FOURTEENTH. The call for the Shareholders Meetings must be done by the
Board of Directors, by the Statutory Auditors, or by judicial authority when
applicable, and will be signed by whomsoever resolves to issue the call.
FIFTEENTH. The call for Shareholders Meetings shall be done by
publication of a notice in the federal Diario Oficial or another periodical of
major circulation in Mexico city, never less than fifteen days prior to the date
for the meeting when balance sheets are to be approved. This period may be
reduced to five days with respect to other Ordinary or Extraordinary
Shareholders Meetings if the Board deems then urgent.
SIXTEENTH. The call for Shareholders Meetings must contain the place, date
and time when the Shareholders Meeting is to be held, the Agenda, and the
signature of the person making it.
SEVENTEENTH. A shareholders Meeting may be held without prior call provided
that all of the shares into which the capital stock is divided are represented.
EIGHTEENTH. Ordinary Shareholders Meetings met on a first call will be
deemed legally met when at least half of the capital stock is represented and
its resolutions shall be valid if adopted by a majority of votes present.
NINETEENTH. If the Ordinary Shareholders Meeting could not be held on the
date set for it, a second call will be made with statement of this circumstance,
and at the meeting the matters set forth on the Agenda will be resolved by a
majority of votes regardless of the number of shares represented.
TWENTIETH. Extraordinary Shareholders Meetings met on a first call will be
deemed legally met if at least three quarters of the capital stock is
represented and its resolutions shall be valid if adopted by vote of the shares
representing the same proportion of the capital stock.
On a second or later call, the Extraordinary Shareholders Meeting will be
deemed legally met when at least half of the capital stock is represented, and
its resolutions will be valid if adopted by favorable vote of the numbers of
shares that represent, at least, fifty percent of the capital stock.
TWENTY-FIRST. In order for shareholders to have the right to attend
Shareholders Meetings and to vote therein, they must deposit their share
certificates with the Secretary of the Corporation at least one day prior to the
Shareholders Meeting, receiving the corresponding admission card. They may also
deposit the stock in a Mexican credit institution, and in this case, to obtain
the admission card, they must file with the Secretary of the Corporation a
certificate from the (credit) institution that evidences the deposit of the
stock certificates and the obligation of the corresponding credit institution to
retain the certificates deposited until the Secretary of the Board of Directors
notifies if that the Shareholders Meeting has concluded.
The Secretary of the Corporation shall deliver to the corresponding
shareholders an admission card which records the name of the shareholder, the
number of shares deposited and the number of votes to which the shareholders is
entitled by virtue of said shares.
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TWENTY-SECOND. The shareholders may be represented in Shareholders Meetings
by proxies named through a simply proxy letter on the understanding that members
of the Board of Directors and Statutory Auditors may not act as proxies.
TWENTY-THIRD. Shareholders meetings shall be presided over by the Chairman
of the Board, and in his/her absence, by one of the Directors following the
order of their appointments, and in the absence of all of these, by the person
named by those present at the Shareholders Meeting. The Secretary or Assistant
Secretary of the Board shall act as Secretary and in the absence of either of
these, the person designated by the acting Chairman.
TWENTY-FOURTH. At the beginning of the Shareholders Meeting, the person
presiding shall name two inspectors of Election to count shares represented
therein, who must prepare an attendance list whereon they note the names of the
shareholders present or represented, and number of shares which each of them has
deposited in order to appear at the corresponding Shareholders Meeting.
TWENTY-FIFTH. If once a Shareholders Meeting is legally met, there be not
time to decide on all of the matters for which it was called, it may adjourn and
be continued on the following days without need of a new call.
ADMINISTRATION
TWENTY-SIXTH. The Administration of the Corporation shall be vested in a
Board of Directors that shall be composed of a number of regular members between
5 and 15, as decided by the corresponding Shareholders Meeting, without there
being alternates.
One half plus one of the directors shall be elected by the vote of the
majority of the Series "A" shares, represented and voted in the Shareholders
Meeting, and but for minority rights, the rest shall be elected by majority vote
of the Series "B" or its progressive subseries shares represented and voted at
the Shareholders Meeting.
Any shareholder or group of shareholders holding shares in the same Series
of stock who represents at least ten percent of the capital stock, shall have
the right to elect one Director for the corresponding Series, pursuant to the
provisions of Article One Hundred Forty-Four of the General Law of Commercial
Companies.
The members of the Board of Directors need not be shareholders of the
Corporation and may not be over 75 years old at the time of their designation or
reelection, as applicable, unless the shareholders meeting expressly waives this
limitation for each exercise, on the understanding that in no event, any such
person is older than 78 years.
The Directors shall be elected for one year and shall remain in office,
even if the period for which they were elected has concluded, until the persons
elected to replace them take office.
TWENTY-SEVENTH. When the Shareholders Meeting so resolves, each of the
Directors and the Chief Executive Officer must secure the liabilities to which
they may become subject in performance of their duties, through deposit in cash
or creation of a bond in favor of the Corporation in such amount as may be
established by the Shareholders Meeting. If the Chief Executive Officer is named
by the Board, it shall pertain to the Board to determine whether said person
must provide security and the amount thereof.
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The security, if any, shall remain in force until the accounts for the
relevant period have been approved by the General Shareholders Meeting.
TWENTY-EIGHTH. The Board of Directors shall meet in Mexico City or in any
other place in the Mexican Republic or abroad that may be indicated for such
purpose at least 4 times a year, provide that it be convened by the Chairman,
the Secretary, at least 25% of the Directors, or by the Statutory Auditor(s).
The Statutory Auditors must be convened to all Board meetings, which they
may attend with the right to speak, but without vote.
The Board shall validly function with the presence of a majority of its
members and its resolutions shall be valid if adopted by majority vote of those
present. In the case of deadlock, the person who presides at the meeting shall
have the decision-making vote.
Pursuant to Article One Hundred Forty-Three of the General Law of
Commercial Companies, the Directors may adopt resolutions outside a Board
Meeting by unanimous vote. Said resolutions shall have, for all legal effects,
the same validity as if they were adopted in a Board Meeting, provided they be
confirmed in writing. Said confirmation may be recorded in a single document or
in separate documents. The text of the resolutions shall be transcribed in the
book referred to in Clause Twenty-Ninth hereafter, with notation of the date
from which they will be effective.
TWENTY-NINTH. For each Board Meeting, minutes shall be prepared wherein are
noted the resolutions approved. They must be recorded in the corresponding
Minute Book and will be signed by whoever presides at the meeting by the person
who acted as Secretary and by the other attendees who wish to do so.
THIRTIETH. The Board of Directors, in its first meeting held after the
shareholders meeting appointing the Board, will name a Chairman from among its
members. The Board will also designate a Secretary and an Assistant Secretary,
who may or not be members of the Board, as well as the Presidents of the
Compensation and Evaluation, Auditing, and Finance and Planning Committees.
Furthermore, the Board at any time may designate one or more
Vicepresidents, who will perform the offices and will have the faculties and
obligations that the Board vests on them at their designation or afterwards and,
if the Board deems it necessary, one or more Delegate Directors with all
necessary faculties to carry out the Board's resolutions.
The temporary or permanent absences of the Chairman will be covered by one
of the Vicepresidents in the order of their designation or in the absence of
Vicepresidents by one of the Directors in the order of their designation; the
absences of the Secretary shall be covered by the Assistant Secretary, or in the
latter's absence by the person the Board designates. The Board of Directors may
also name a Chief Executive Officer or a Management Committee, as well as any
other types of committees, which will have the faculties and obligations
determined by the Board.
POWERS OF THE BOARD AND OF THE DIRECTORS
THIRTY-FIRST. The Board of Directors shall have the broadest faculties for
the unrestrained and proper management of the Corporation business, with the
broadest general power of attorney for lawsuits and collections, to administer
property, and to exercise acts of dominion,
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without any limitation whatsoever, that is, with all general faculties and the
specific faculties which require a specific clause pursuant to the Law, in the
terms of the first three paragraphs of Article Two Thousand Five Hundred
Fifty-Four of the Federal District Civil Code, including the faculties
enumerated in Article Two Thousand Five Hundred Eighty-Seven of said Code.
Expressly, the Board will have the following faculties:
I. To represent the Corporation before all kinds of authorities, be they
Federal, State or Municipal; represent the Corporation before all kinds of
natural or legal persons, national or foreign; to represent the Corporation
before Labor Conciliation Boards and Labor Conciliation and Arbitration Boards,
be they federal or local; present constitutional relief [amparo] petitions and,
as applicable, withdraw same; file criminal complaints and, as applicable, grant
pardon; file criminal accusations and assist the Public Prosecutor; withdraw,
settle, assume commitments in arbitration, administer and respond to
depositions, and receive payments.
II. Grant, subscribe, endorse, and guarantee all kinds of credit
instruments, pursuant to Article Ninth of the General Law of Credit Operations
and Instruments.
III. Designate the members of the Management Committee, as well as the
Chief Executive Officer, vice-presidents, officers, employees, managers and
attorneys-in-fact of the Corporation, to whom the Board must indicate their
duties, obligations, and remuneration. It shall also designate the Presidents of
the Compensation and Evaluation, Auditing, and Finance and Planning Committees.
IV. Establish or close offices, branches, or agencies.
V. Acquire shares and securities issued by third parties.
VI. Exclusively determine how to exercise voting rights on shares or
corporate interests of the Corporation in other companies at General Ordinary or
Extraordinary Shareholders meetings of said other companies.
VII. Enter into, amend, and rescind all kinds of contracts and legal acts.
VIII. Accept in the Corporation's name mandates from natural or legal
persons, Mexican or foreign.
IX. Establish bank accounts and withdraw deposits from same, and designate
the persons authorized to use the corporate signature and to deposit into said
bank accounts and withdraw deposits from same with the limitations that the
Board may decide to establish.
X. Confer, replace, delegate and revoke general and specific powers of
attorney.
XI. Call Shareholders Meetings and execute the resolutions adopted by same.
XII. Establish the strategic vision for the Corporation.
XIII. Assure that the Shareholders and the market have access to the
Corporation's public information.
XIV. Establish mechanisms for internal control.
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XV. Assure that the Corporation has the instruments it deems necessary
which permit the Corporation to verify that it complies with the different legal
provisions applicable to it.
XVI. Regularly evaluate the performance of the Chief Executive Officer and
the high level officers of the Corporation.
In the case of acquisition of alienation of shares in another company,
or exercise of the right of retirement, the Board shall require prior approval
from the General Ordinary Shareholders Meeting, for which shareholders must be
convened as set forth in the bylaws, in the following cases:
a. When the value of the acquisition of shares in another company through
one acquisition or several acquisitions, simultaneous or successive,
exceeds twenty percent of shareholders equity, according to the last
financial position statement of the Corporation.
b. When the value of alienation of shares in another company, through one
or several alienations, simultaneous or successive, exceeds twenty
percent of the shareholders equity of the Corporation, according to
the last financial position statement of the Corporation.
c. When the Corporation exercises its right of retirement in the
Commercial Companies in which it is shareholder, if these have a
variable capital structure, when such retirement represents, through
one or several simultaneous or successive operations, the redemption
of shares with a value exceeding twenty percent of the shareholders
equity, according to the Corporation's last financial position
statement, or implies loss of administrative control of the relevant
entity.
CHAIRMAN
THIRTY-SECOND. The Chairman shall preside at the Shareholders Meetings and
at the Board Meetings, shall be the representative of the Board, shall execute
the resolutions of the Shareholders Meeting and of the Board of Directors,
unless either shall designate a Delegate for execution thereof, shall oversee
generally corporate operations, assuring exact compliance herewith, with the
regulations and with the resolutions and provisions of the Shareholders
Meetings, of the Board of Directors and of the Law; he shall sign with the
Secretary Minutes of Shareholders Meetings and Board Meetings.
In the temporary or permanent absence of the Chairman, his functions shall
be performed with the same authorities by one of the Directors according to the
order of appointment.
THIRTY-THIRD. The Board of Directors shall have three mid-level
administrative bodies to support the Board in performance of its tasks: a
Compensation and Evaluation, Committee; an Auditing Committee; and a Finance and
Planning Committee. Said mid-level bodies shall be composed of a minimum of
three and a maximum of seven Directors, as determined by the Shareholders
Meeting.
The members of the Committees must be Directors of the Corporation and
elected in a General Ordinary Shareholders Meeting that resolves the election of
the members of the Board of Directors.
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These Committees shall act without exception as collegial bodies, and their
faculties may not be delegated to individuals such as Directors, Managers,
Delegate Directors or Attorneys-in-Fact.
The Committees for Compensation and Evaluation, Auditing, and Finance and
Planning Committees shall present at least twice year a report on their actions
to the Board of Directors, or whenever facts or acts of importance for the
Corporation arise that so merits in their judgment.
The Statutory Auditor must be convened to all committee meetings, who shall
attend them with the right to speak but without vote.
The Committees for Compensation and Evaluation, Auditing, and Finance and
Planning shall have the following faculties:
I. The Compensation and Evaluation Committee shall have the following
duties:
a. Suggest to the Board procedures for proposing the Chief Executive
Officer and high level officers.
b. Propose to the Board criteria for evaluation of the Chief Executive
Officer and the high level officers according to the general
guidelines established by the Board of Directors.
c. Analyze and taking to the Board of Directors the proposal made by the
Chief Executive Officer on structure and amount of remuneration for
principal Corporation executives.
II. The Auditing Committee shall have the following duties:
a. Recommend to the Board of Directors the candidates for external
auditors of the Corporation.
b. Recommend to the Board the conditions for contracting and the scope of
the professional mandate for the external auditors.
c. Support the Board of Directors in supervising performance of auditing
contracts.
d. Serve as a communication channel between the Board of Directors and
the external auditors, as well as assuring the independence and
objectivity of these latter.
e. Review the work program, comment letters and auditing reports and
reporting to the Board of Directors on the results.
f. Recommend to the Board the bases for preparation of the financial
information.
g. Assist the Board through review of the financial information and its
issue process.
h. Contribute to the definition of the general guidelines for the
internal control system and evaluating its effectiveness.
i. Assist the Board in coordination and evaluation of annual internal
auditing programs.
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j. Coordinate the work of the external auditor, internal auditor, and
Statutory Auditor.
k. Verify that the mechanisms are in place which are deemed necessary
such that the Corporation can prove that it complies with the
different provisions to which it is subject.
III. The Finance and Planning Committee shall have the following functions:
a. Evaluate and, as applicable, suggest investment policies for the
Corporation proposed by the Office of the Chief Executive Officer, to
thereafter submit them to the approval of the Board.
b. Evaluate and, as applicable, suggest financing policy (capital or
debt) for the Corporation proposed by the Office of the Chief
Executive Officer, to later be submitted to approval of the Board.
c. Evaluate and, as applicable, suggest general guidelines for
determination of strategic planning for the Corporation.
d. Give opinion on the premises of the annual budget and propose them to
the Board for its approval.
e. Do follow-up on application of the budget and the strategic plan.
f. Identify the risk factors to which the Corporation is subject and
evaluate the policies for their management.
SECRETARY
THIRTY-FOURTH. The Secretary shall have the powers that the Board assigns
to him and shall keep the Minute Books, in one of which he shall note and sign
with the Chairman all minutes of Shareholders Meetings and in the other all
minutes of the Board of Directors.
In the absence of the Secretary these functions shall be assumed by the
Assistance Secretary, if any, and in the absence of the latter, the person who
the acting, Chairman designates shall perform said functions.
THIRTY-FIFTH. The Chief Executive Officer, and as applicable, the
Management Committee shall have the faculties, if any, conferred thereon by the
Board of Directors, and the remuneration that the latter may establish.
THIRTY-SIXTH. The oversight of the corporation shall be the function of a
Statutory Auditor and an Alternate, who need not be shareholders and who will be
named by the General shareholders Meeting by majority vote, with the exception
for the right of any shareholder or group of shareholders who represent ten
percent of the shares to name an additional Statutory Auditor and an Alternate
in accordance with Articles One Hundred Forty Four and One Hundred Seventy One
of the General Law of Commercial Companies, except the Limited Vote Series C
shares, which shall not have the right to name any Statutory Auditor.
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The Statutory Auditors shall have the powers and obligations determined by
the law and shall remain in their positions for one year, on the understanding,
that they shall continue to act until those appointed to replace them assume
their duties.
THIRTY-SEVENTH. To assume the position of Statutory auditor, those elected
must guarantee their performance in the same manner as the Directors pursuant to
Clause Twenty Seventh herein.
THIRTY-EIGHT. Fiscal years shall be twelve months and shall be closed on
the dates determined by the General Shareholders Meeting or the Board of
Directors.
As exception, the first fiscal year may be irregular and will begin the day
when this instrument is protocolled and will end on the date which the General
Shareholders Meeting or the Board of Directors determines.(3)
THIRTY-NINTH. At the end of each fiscal year, a financial position
statement shall be prepared which must be audited by an independent public
accountant and which be completed within the four months following close of the
corresponding fiscal year.
The Board of Directors shall deliver the financial position statement to
the Statutory Auditors at least fifteen days prior to the date of the General
Shareholders Meeting, which is to discuss it, together with the profit and loss
statement, the statement of changes in the financial position, the statement of
changes in the entries that constitute the corporate property and the notes
needed to clarify or complete the information on the foregoing statements. The
Statutory Auditors within the fifteen days that follow shall render the report
referred to in Article One Hundred Sixty Six (IV) of the General Law of
Commercial Companies.
RESERVE FUND AND MANNER OF DISTRIBUTION PROFITS AND LOSSES
FORTIETH. The liquid profits shown on the statement of financial position
after being approved by the Annual Ordinary Shareholders Meeting shall be
distributed as follows:
a. First, five percent shall be separated for creation or replenishment
of the legal reserve fund until it represents an amount equal to one
-fifth of the capital.
b. Then, the amount, if any, that the General Shareholders Meeting
resolves to constitute additional reserve, special or extraordinary
funds shall be separated.
c. The remainder of the liquid profits may be distributed as a dividend
among the shareholders in proportion to their respective contributions
to the capital; the dividend payments shall be made against the
respective coupons, unless the Shareholders Meeting resolves another
form of proof.
Dividends not collected in five years counted from and after the date
fixed for their payment shall prescribe in favor of the corporation.
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(3) TN: Mexican law currently requires that fiscal years run from January 1
through December 31.
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Commercial Companies, pursuant to the resolutions that the
Extraordinary Shareholders Meeting adopts for such purpose.
The Annual Ordinary Shareholders Meeting shall establish the
remuneration for the Directors and Statutory Auditors, which shall be
charged to general expenses.
If there are losses, these shall be reported by the shareholders in
proportion to the respective number of their shares, but at all times
the obligations of the shareholders shall be limited to payment of the
amount of their shares, and no additional payment may be demanded of
them.
FORTIETH BIS. The Corporation may acquire the shares representing its
capital stock on prior resolution of the Board of Directors, through the Mexican
Securities Market at the price current in the market, without the prohibition
being applicable that is established in the first paragraph of Article 134 of
the General Law of Commercial Companies, provided the purchase be made with
charge to the capital and, as applicable, to a reserve from the net profits
titled reserve for acquisition of shares.
The General Ordinary Shareholders Meeting shall determine the amount of the
capital that can be allocated to purchase of the Corporation's shares and the
amount of the corresponding reserve which will be created by the Shareholders
Meeting with the sole limitation that the sum of the resources that can be
allocated to this purpose may not exceed the total balance of the net profits of
the Corporation.
Purchase of its own shares by the Corporation shall be done by affecting
the capital account for an amount equal to the par value of the shares
purchased, determined through division of the amount of the paid capital by the
number of the Corporation's outstanding shares. The surplus shall be charged to
the reserve for acquisition of shares. If the purchase price for the shares is
less than the par value determined as indicated above, only the capital account
shall be affected for the amount equal to the par value of the shares purchased.
As a consequence of the purchase of its shares, the Corporation shall
proceed to reduce its capital on the same date as the acquisition, and as
applicable, at the same time shall affect the reserve for acquisition of shares.
The Corporation may issue treasury shares for their later placement for
investment by the public. The shares acquired by the Corporation shall become
treasury shares and may be placed for public investment and, in this case, the
capital shall be increased by the amount equal to the par value of the shares,
multiplied by the total number of treasury shares placed for public investment,
and the surplus of the proceeds of the placement, if any, shall be used to
replenish the reserve for acquisition of shares. The gain generated by the
difference between the proceeds from the placement and the purchase price, if
any, shall be recorded in the account titled premium for subscription of shares.
The capital reductions and increases derived from purchase and placement of
shares as referred to in this clause shall not require any resolution by the
Shareholders Meeting or any resolution by the Board of Directors.
The Board of Directors, or the persons it may designate to perform stock
repurchase operations or placement of treasury shares with the investing public
shall assure that in no case
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said operations result in exceeding the maximum authorized percentage of limited
voting shares of the Corporation.
The operations for purchase and placement of shares provided for in this
clause, the reports on same to be submitted to the General Ordinary Shareholders
Meeting, the rules for disclosure through financial information, and the form
and terms on which these operations will be notified to the National Securities
Commission, to the Mexican Securities Market, and to the investing public, shall
be subject to the general provisions issued by the National Securities
Commission.
FORTY-FIRST. The incorporating shareholders do not reserve any
participation in the profits.
FORTY-FIRST.BIS. The company or companies in which the Corporation is a
majority shareholder may not directly or indirectly invest in the shares of the
Corporation, nor in shares of companies that are majority shareholders in the
Corporation, or without being so, have knowledge that it is a shareholder
therein.
FORTY-SECOND. The Corporation shall dissolve:
I. Due to expiration of the period established herein(4).
II. Due to impossibility of continuing realization of the primary purpose
of the corporation.
III. By agreement of the shareholders taken in accordance with the
corporate bylaws and the law.
IV. Because the number of shareholders becomes less than five, the minimum
required by the law(5).
V. Due to losses of two thirds of the capital.
BASES FOR LIQUIDATION
FORTY-THIRD. Should a case of liquidation arise, the General Shareholders
Meeting will appoint by majority vote one or more liquidators, who shall be the
representatives of the corporation and shall have the powers and obligations set
forth in Article Two Hundred Forty Two of the General law of Commercial
Companies, and who must in due course proceed to distribution of the remainder
among the shareholders pursuant to Article Two Hundred Forty Seven and Two
Hundred Forty Eight of the law.
FORTY-FOURTH. The provisions of the General Law of Commercial Companies
shall govern in all matters on which these bylaws do not provide an express
clause.
FORTY-FIFTH. Any dispute that may arise from the execution, interpretation
and performance of this contract shall be submitted to the competent courts of
the First Judicial District of those into which the Federal District is divided.
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(4) TN: See footnote No. 1
(5) TN: The current minimum is two.
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