Exhibit 2.1
- --------------------------------------------------------------------------------
EMPRESAS ICA SOCIEDAD CONTROLADORA, S.A. DE C.V.
AND
THE BANK OF NEW YORK, as Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
----------------
DEPOSIT AGREEMENT
----------------
Dated as of April 1, 1992
As Amended and Restated as of June 30, 1997
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS................................................................................ 1
SECTION 1.01. Certain Terms Defined............................................................. 1
ARTICLE 2 FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS............................................... 4
SECTION 2.01. Form and Transferability of Receipts.............................................. 4
SECTION 2.02. Deposit of CPOs................................................................... 5
SECTION 2.03. Execution and Delivery of Receipts................................................ 6
SECTION 2.04. Transfer of Receipts: Combinations and Split-ups of Receipts..................... 6
SECTION 2.05. Surrender of Receipts and Withdrawal of Deposited Securities...................... 6
SECTION 2.06. Limitations on Execution and Delivery, Transfer and Surrender of
Receipts.......................................................................... 7
SECTION 2.07. Lost Receipts, etc................................................................ 8
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.............................. 9
SECTION 2.09. Pre-Release....................................................................... 9
ARTICLE 3 CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS................................................. 9
SECTION 3.01. Filing Proofs, Certificates and Other Information................................. 9
SECTION 3.02. Liability of Holder for Taxes..................................................... 10
SECTION 3.03. Warranties on Deposit of CPOs..................................................... 10
SECTION 3.04. Disclosure of Interests........................................................... 10
ARTICLE 4 THE DEPOSITED SECURITIES................................................................... 11
SECTION 4.01. Cash Distributions................................................................ 11
SECTION 4.02. Distributions Other Than Cash or CPOs............................................. 11
SECTION 4.03. Distribution in CPOs.............................................................. 12
SECTION 4.04. Rights............................................................................ 12
SECTION 4.05. Conversion of Foreign Currency.................................................... 13
SECTION 4.06. Fixing of Record Date............................................................. 14
SECTION 4.07. Voting of Deposited Securities.................................................... 14
SECTION 4.08. Changes Affecting Deposited Securities............................................ 15
SECTION 4.09. Reports........................................................................... 15
SECTION 4.10. Lists of Receipt Holders.......................................................... 16
SECTION 4.11. Withholding....................................................................... 16
ARTICLE 5 THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY.............................................. 16
SECTION 5.01. Maintenance of Office and Transfer Books by the Depositary........................ 16
SECTION 5.02. Prevention or Delay in Performance by the Depositary or the Company............... 17
SECTION 5.03. Obligations of the Depositary and the Company..................................... 18
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of Successor
Depositary........................................................................ 18
SECTION 5.05. The Custodian..................................................................... 19
TABLE OF CONTENTS
(continued)
PAGE
SECTION 5.06. Notices and Reports............................................................... 20
SECTION 5.07. Issuance of Additional CPOs, etc.................................................. 20
SECTION 5.08. Indemnification................................................................... 21
SECTION 5.09. Charges of Depositary............................................................. 22
SECTION 5.10. Available Information to the Commission........................................... 23
SECTION 5.11. Exclusivity....................................................................... 23
ARTICLE 6 AMENDMENT AND TERMINATION.................................................................. 23
SECTION 6.01. Amendment......................................................................... 23
SECTION 6.02. Termination....................................................................... 23
ARTICLE 7 MISCELLANEOUS.............................................................................. 24
SECTION 7.01. Counterparts...................................................................... 24
SECTION 7.02. No Third Party Beneficiaries...................................................... 24
SECTION 7.03. Severability...................................................................... 24
SECTION 7.04. Holders as Parties; Binding Effect................................................ 25
SECTION 7.05. Notices........................................................................... 25
SECTION 7.06. Governing Law..................................................................... 25
SECTION 7.07. Headings.......................................................................... 25
SECTION 7.08. The CPO Trust..................................................................... 26
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of April 1, 1992, as amended and restated
as of June 30, 1997 among Empresas ICA Sociedad Controladora, S.A. de C.V., a
corporation (sociedad anonima de capital variable) organized under the laws of
the United Mexican States (herein called the "Company"), THE BANK OF NEW YORK, a
New York banking corporation (herein called the "Depositary"), and all HOLDERS
from time to time of American Depositary Receipts issued hereunder.
WITNESSETH:
WHEREAS, the Company desires to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of Ordinary Participation Certificates
(the "CPOs"), each representing a financial interest in one share of common
stock, without par value, of the Company (a "Share"), from time to time with the
Depositary or with the Custodian (as hereinafter defined) as agent of the
Depositary for the purposes set forth in this Deposit Agreement, for the
creation of American Depositary Shares representing the CPOs so deposited
(subject to the terms and conditions of this Deposit Agreement) and for the
execution and delivery of American Depositary Receipts evidencing the American
Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in
the form of Exhibit A annexed hereto as hereinafter provided in this Deposit
Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by
and among the parties hereto as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01 Certain Terms Defined.
The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the respective terms used in this Deposit Agreement.
The term "American Depositary Shares" shall mean the rights
evidenced by the Receipts issued hereunder, including the interests in the
Deposited Securities granted to the Holders pursuant to the terms and conditions
of this Deposit Agreement. Each American Depositary Share shall represent the
right to receive one CPO, until there shall occur a distribution upon Deposited
Securities covered by Section 4.03(a) or a change in Deposited Securities
covered by Section 4.08 with respect to which additional Receipts are not
executed and delivered, and thereafter each American Depositary Share shall
represent the right to receive the amount of Deposited Securities specified in
such Sections.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
The term "Common Representative" shall mean Banco Internacional,
S.N.C., or any other Mexican banking institution appointed by the holders of
CPOs from time to time in accordance with the Mexican Law of Negotiable
Instruments.
The term "Company" shall mean Empresas ICA Sociedad Controladora,
S.A. de C.V., a corporation (sociedad anonima de capital variable) organized
under the laws of the United Mexican States, having its principal offices at
Mineria No. 145, Edificio Central, 11800 Mexico, D.F., Mexico and its
successors.
The term "CPOs" shall mean the non-redeemable Ordinary Participation
Certificates issued pursuant to the CPO Trust by the CPO Trustee, holder of the
Shares underlying the CPOs, and shall include evidence of rights to receive
CPOs. Each CPO represents a financial interest in one Share of the Company.
The term "CPO Deeds" shall mean the public deeds dated April 2, 1992
and December 10, 1993, as amended on May 28, 1997, which evidence the issuance
of CPOs by the CPO Trustee pursuant to the CPO Trust Agreement and which deeds
are registered with and may be examined at the Public Registry of Commerce of
the Federal District in Mexico City.
The term "CPO Trust" shall mean the Mexican trust created by the CPO
Trust Agreement.
The term "CPO Trust Agreement" shall mean the agreement dated May
28, 1997 between the Company, as Settlor, and Banco Nacional de Mexico, S.A.,
Instucion de Banca Multiple, Grupo Financiero Banamex Accival, Division
Fiduciaria, as trustee, and acknowledged by Banco Internacional S.A.
The term "CPO Trustee" shall mean Banco Nacional de Mexico, S.A.,
Instucion de Banca Multiple, Grupo Financiero Banamex Accival, Division
Fiducieria, a national credit institution organized under the laws of the United
Mexican States, having its principal office at Paseo de la Reforma No. 404, Piso
13, Col. Juarez 06600, Mexico D.F., Mexico, or its successor, which acts as
trustee for the CPO Trust.
The term "Custodian" shall mean Bancomer S.A. and Nacional
Financiera, S.N.C. (collectively referred to as "Custodian"); as agents of the
Depositary for the purposes of this Deposit Agreement, at their principal Mexico
D.F., United Mexican States offices, and any other entity, firm or corporation
which may hereafter be appointed by the Depositary pursuant to Section 5.05 as
substitute custodian hereunder.
The term "Deposit Agreement" shall mean this Agreement, as the same
may be amended from time to time in accordance with the provisions hereof.
The term "Depositary" shall mean The Bank of New York, a New York
banking corporation, currently having its office for the administration of its
American depositary receipt business (the "Depositary's Office") at 101 Barclay
Street, New York, New York 10286, and its successors as depositary hereunder
pursuant to Section 5.04.
2
The term "Deposited Securities" as of any time shall mean all CPOs
at such time deposited under this Deposit Agreement and any and all other
securities, property and cash received at any time by the Depositary or the
Custodian in respect or in lieu of CPOs, other securities, property or cash
previously received by the Depositary or the Custodian and at such time held
hereunder.
The term "Directors" shall mean the directors of the Company.
The term "Estatutos" shall mean the estatutos sociales of the
Company, as the same may be amended from time to time.
The term "Holder" shall mean the person or persons in whose name a
Receipt is registered on the books of the Depositary maintained for such
purpose.
The term "Indeval" shall mean S.D. Indeval, S.A. de C.V., the
Mexican securities depository institution, and any successor which performs
substantially identical functions in Mexico.
The term "Pre-release" shall have the meaning set forth in Section
2.09.
The term "Receipt Registrar" shall mean the Depositary, or any other
bank or trust company having an office in the Borough of Manhattan, The City of
New York, appointed by the Company, to register transfers of Receipts and to
countersign Receipts as herein provided, and shall include any co-registrar
appointed by the Depositary upon the request or with the approval of the Company
for such purposes.
The term "Receipts" or "American Depositary Receipts" shall mean the
American Depositary Receipts issued hereunder evidencing American Depositary
Shares.
The term "Regulation S" shall mean Rules 901 through 904, inclusive,
under the Securities Act of 1933, as such Rules may from time to time be
amended.
The term "Securities Act of 1933" shall mean the United States
Securities Act of 1933, as from time to time amended.
The term "Securities Exchange Act of 1934" shall mean the United
States Securities Exchange Act of 1934, as from time to time amended.
The term "Shares" shall mean the shares of common stock, without par
value, of the Company. References to Shares shall include evidence of rights to
receive Shares, whether or not stated in the particular instance.
The term "U.S. dollars" or "$" shall mean United States dollars. The
term "Pesos" or "p" shall mean pesos of the United Mexican States.
3
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF SHARES,
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts.
Definitive receipts shall be engraved or printed or lithographed on
steel-engraved borders or in such other form as may be acceptable to the New
York Stock Exchange and shall be substantially in the form set forth in Exhibit
A hereto, with appropriate insertions, modifications and omissions as
hereinafter provided. Receipts may be issued in denominations of whole numbers
of American Depositary Shares only. Receipts shall be executed by the Depositary
by the manual signature of a duly authorized signatory of the Depositary;
provided however, that such signature may be a facsimile if a Receipt Registrar
or co-registrar shall have been appointed and such Receipts are countersigned by
the manual signature of a duly authorized signatory of the Receipt Registrar or
any co-registrar. No Receipt shall be entitled to any benefits under this
Deposit Agreement or be valid or obligatory for any purpose unless such Receipt
shall have been executed by the Depositary by the manual signature of a duly
authorized signatory or, if a Receipt Registrar shall have been appointed, by
the manual signature of a duly authorized signatory of the Receipt Registrar or
any co-registrar. If a Receipt Registrar shall have been appointed, Receipts
bearing the facsimile signature of anyone who was at any time a duly authorized
signatory of the Depositary shall bind the Depositary, notwithstanding that such
signatory has ceased to be a duly authorized signatory of the Depositary prior
to the signature of the Receipt Registrar or any co-registrar and delivery of
such Receipts or was not a duly authorized signatory of the Depositary at the
date of issuance of such Receipts. The Depositary shall maintain books on which
each Receipt so executed and delivered as hereinafter provided and the transfer
of each such Receipt shall be registered.
The Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the provisions
of this Deposit Agreement or the Estatutos as may be required by the Depositary
in respect of its obligations hereunder or required to comply with any
applicable law or regulations or with the rules and regulations of any
securities exchange upon which Receipts may be listed or to conform with any
usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject by reason of the date
of issuance of the underlying Deposited Securities or otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument; provided, however, that the Company and the
Depositary, notwithstanding any notice to the contrary, may treat the Holder
thereof as the absolute owner thereof for the purpose of determining the person
entitled to any distribution of dividends or other distributions or to any
notice provided for in this Deposit Agreement and for all other purposes.
4
SECTION 2.02. Deposit of CPOs.
Subject to the terms and conditions of this Deposit Agreement, CPOs
may be deposited by (i) electronic transfer of CPOs through Indeval to the
account of the Custodian maintained for such purposes, or (ii) delivery to the
Custodian of evidence satisfactory to the Custodian that irrevocable
instructions have been given to cause such CPOs to be transferred to such
account, in any case accompanied by delivery to the Custodian of any appropriate
instrument or instruments of transfer, or endorsement, in form satisfactory to
the Custodian, together with all such certifications, payments and evidence of
such payments as may be required by the Depositary or the Custodian in
accordance with the provisions of this Deposit Agreement, and together with a
written order directing the Depositary to execute and deliver to, or upon the
written order of, the person or persons stated in such order a Receipt or
Receipts for the number of American Depositary Shares representing such
deposited CPOs.
If required by the Depositary, CPOs presented for deposit at any
time, whether or not the transfer books of the CPO Trust (or the appointed agent
of the CPO Trust for transfer and registration of CPOs) are closed, shall also
be accompanied by (i) an agreement or assignment, or other instrument
satisfactory to the Depositary, which will provide for the prompt transfer to
the Custodian of any dividend or right to subscribe for additional Shares or
CPOs or to receive other property which any person in whose name the CPOs are or
have been registered may thereafter receive upon or in respect of such deposited
CPOs, or, in lieu thereof, such agreement of indemnity or other agreements shall
be satisfactory to the Depositary, and (ii) if the CPOs are registered in the
name of the person on whose behalf they are deposited, a proxy or proxies
entitling the Custodian to vote such deposited CPOs for any and all purposes
until the CPOs are registered in the name of the Custodian or its nominee.
At the request, risk and expense of any holder of CPOs, and for the
account of such holder, the Depositary may receive evidence that CPOs have been
electronically transferred or that irrevocable instructions have been given to
cause the transfer of such CPOs to the account of the Custodian, together with
the other documents and payments herein specified, for the purpose of forwarding
such CPOs to the Custodian for deposit hereunder.
Upon electronic transfer to the Custodian of CPOs to be deposited
hereunder, or delivery to the Custodian of irrevocable instructions therefor,
together in either case with the other documents and payments herein specified,
the Custodian shall, as soon as practicable, obtain confirmation of registration
of, or registration of transfer of, the CPOs being deposited in the name of the
Custodian or its nominee, at the cost and expense of the holder making such
deposit.
Deposited Securities (other than CPOs) shall be held by the
Depositary, or by the Custodian for the account and to the order of the
Depositary, at such place or places as the Depositary shall determine. Neither
the Depositary nor the Custodian will lend CPOs or Deposited Securities held
hereunder.
5
SECTION 2.03. Execution and Delivery of Receipts.
Upon receipt by the Custodian of any deposit pursuant to Section
2.02 (and in addition, if the transfer books of the CPO Trust (or the appointed
agent or agents of the CPO Trust for transfer and registration of the CPOs) are
open, or if the Depositary so requires, a proper acknowledgment or other
evidence from the CPO Trust (or the appointed agent or agents of the CPO Trust
for transfer and registration of the CPOs) satisfactory to the Depositary that
any deposited CPOs have been recorded upon the CPO Trust's books (or by the
appointed agent of the CPO Trust for transfer and registration of CPOs) in the
name of the Custodian or nominee), together with the other documents and
payments required as above specified, the Custodian shall notify the Depositary
of such deposit, the person or persons to whom or upon whose written order a
Receipt or Receipts is or are deliverable in respect thereof and the number of
American Depositary Shares to be evidenced thereby. Such notification shall be
made by letter or, at the request, risk and expense of the person making the
deposit, by cable, telex or facsimile transmission. Upon receiving such notice
from the Custodian, the Depositary, subject to the terms and conditions of this
Deposit Agreement, shall execute and deliver at the Depositary's Office, to or
upon the order of the person or persons named in the notice delivered to the
Depositary, a Receipt or Receipts registered in the name or names of, and
evidencing any authorized number of American Depositary Shares requested by,
such person or persons, but only upon payment to the Depositary by such person
or persons of the fee of the Depositary for the execution and delivery of such
Receipt or Receipts, and of all taxes, duties and other governmental charges and
fees payable (whether by the Depositary, the Custodian or a nominee of either of
them) in connection with such deposit, the transfer of the deposited CPOs and
the issuance of such Receipt or Receipts.
SECTION 2.04. Transfer of Receipts: Combinations and Split-ups of
Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers on its transfer books from time to time of
Receipts, upon any surrender at any of its designated transfer offices of a
Receipt by the Holder in person or by duly authorized attorney, properly
endorsed or accompanied by proper instruments of transfer, 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 thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender at any of its designated transfer offices of a
Receipt or Receipts for the purpose of effecting a split-up or combination of
such Receipt or Receipts, 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.
SECTION 2.05. Surrender of Receipts and Withdrawal of Deposited
Securities.
Upon surrender at the Depositary's Office of a Receipt for the
purpose of withdrawal of the Deposited Securities represented thereby, and upon
payment of the fee of the
6
Depositary for the surrender of Receipts against withdrawal of the Deposited
Securities, and subject to the terms and conditions of this Deposit Agreement,
the Estatutos and the Deposited Securities, the Holder of such Receipt shall be
entitled to (i) with respect to the CPOs evidenced by such Receipt, electronic
transfer, through Indeval, of such CPOs to an account in the name of the Holder
or such other name as the Holder may direct and (ii) physical delivery, to or
upon the order of such Holder, of any other Deposited Securities at the time
evidenced by such Receipt.
Delivery of such Deposited Securities (other than the CPOs) may be
made by the delivery of certificates in the name of such Holder or as ordered by
such Holder or by the delivery of certificates properly endorsed or accompanied
by proper instruments of transfer. Such delivery shall be made, as hereinafter
provided, without unreasonable delay.
A Receipt surrendered for such purpose may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and the Holder thereof shall execute and deliver to the
Depositary a written order directing the Depositary to cause (i) the electronic
transfer of the CPOs represented by such Receipt to an account in the name of
the Holder or such other name as the Holder may direct and (ii) cause the
Deposited Securities (other than CPOs) being withdrawn to be delivered to or
upon the written order of a person or persons designated in such order.
Thereupon the Depositary shall direct the Custodian to deliver at the Mexico
City office of the Custodian, subject to Sections 2.06, 3.01, 3.02 and 3.04
hereof and pursuant to the other terms and conditions of this Deposit Agreement
and the Estatutos, to or upon the written order of the person or persons
designated in the order delivered to the Depositary as above provided, the
Deposited Securities (including evidence of transfer of the CPOs) at the time
evidenced by such Receipt, except that the Depositary may, in its discretion,
make delivery to such person or persons at the Depositary's Office of any
evidence of transfer, cash, dividends, distributions or rights with respect to
the Deposited Securities evidenced by such Receipt, or of any proceeds of sale
of any such cash, dividends, distributions or rights, which may at the time be
held by the Depositary.
At the request, risk and expense of any Holder so surrendering a
Receipt, and for the account of such Holder, the Depositary shall direct the
Custodian to transfer or forward any cash, rights or other property comprising,
and to forward any certificate or certificates and other proper documents of
title for, the Deposited Securities (including evidence of transfer of the CPOs)
evidenced by such Receipts to the Depositary for delivery at the Depositary's
Office. Such direction shall be given by letter or, at the request, risk and
expense of such Holder, by cable, telex or facsimile transmission.
SECTION 2.06. Limitations on Execution and Delivery, Transfer and
Surrender of Receipts.
As a condition precedent to the execution and delivery,
registration, registration of transfer, split-up, combination or surrender of
any Receipt or transfer and withdrawal of any Deposited Securities, the
Depositary, the Company, the CPO Trustee or the Custodian may require (i)
payment from the Holder, the presenter of the Receipt or the depositor of CPOs
of a sum sufficient to reimburse it for any tax, duty or other governmental
charge payable with respect thereto (including any such tax, duty or other
governmental charge with respect to CPOs being deposited, to the Receipts being
issued or to Deposited Securities being withdrawn) and
7
any transfer or registration fees in effect for the registration or registration
of transfers of CPOs generally on the CPO register of the CPO Trust (or the
appointed agent of the CPO Trust for transfer and registration of CPOs); (ii)
payment of any applicable fees as herein provided; (iii) the production of proof
satisfactory to it as to the identity and genuineness of any signature; and (iv)
compliance with such reasonable regulations, if any, as the Depositary may
establish consistent with the provisions of this Deposit Agreement.
The delivery of Receipts against deposits of CPOs generally may be
suspended, or the delivery of Receipts against the deposit of particular CPOs
may be withheld, or the registration of transfer of Receipts in particular
instances may be refused, or the registration of transfer or surrender of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary, the Share register of the Company or the CPO
register of the CPO Trustee are closed, or if any such action is deemed
necessary or advisable by the Depositary, the Company or the CPO 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 any securities exchange on which the
Receipts or Shares are listed, or under any provision of the Receipts or of this
Deposit Agreement, or for any other reason.
Notwithstanding the foregoing sentence or any other provision of
this Deposit Agreement to the contrary, Holders shall be entitled to withdraw
Deposited Securities subject only to the conditions set forth in paragraph
I(A)(1) of the General Instructions (or any successor provisions thereto), as in
effect from time to time, to Form F-6 as prescribed by the Commission under the
Securities Act of 1933.
Without limitation of the foregoing, the Depositary shall not
knowingly accept for deposit under this Deposit Agreement any CPOs, the Shares
underlying which, if sold by the holder thereof in the United States (as defined
in Regulation S), would be subject to the registration provisions of the
Securities Act of 1933, unless a registration statement is in effect as to such
Shares or such sale would be exempt from such provisions. The Depositary shall
comply with written instructions of the Company not to accept for deposit
hereunder any CPOs identified in such instructions at such times and under such
circumstances as may be specified in such instructions in order to facilitate
the Company's compliance with the securities laws of the United States.
SECTION 2.07. Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen,
the Depositary shall execute and deliver a new Receipt evidencing the same
number of CPOs, in exchange and substitution for such mutilated Receipt upon
cancellation thereof, or in lieu of and in substitution for such destroyed, lost
or stolen Receipt, upon the Holder thereof filing with the Depositary (a) a
request for such execution and delivery before the Depositary has notice that
the Receipt has been acquired by a bona fide purchaser and (b) a sufficient
indemnity bond satisfying any other reasonable requirements imposed by the
Depositary.
8
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so canceled seven
(7) years after such cancellation.
SECTION 2.09. Pre-Release.
The Depositary may issue Receipts against rights to receive CPOs
from the CPO Trust (or the appointed agent of the CPO Trust for transfer and
registration of CPOs). No such issue of Receipts will be deemed a "Pre-release"
subject to the restrictions of the following paragraph.
Unless requested by the Company to cease doing so, the Depositary
may (but is not required to) issue from time to time Receipts prior to the
delivery to it or the Custodian for deposit, pursuant to Section 2.02, of the
CPOs in respect of which such Receipts are issued (each such issue being herein
called a "Pre-release"). The Depositary will not make a Pre-release of any
Receipts (each a "Pre-released Receipt") unless (a) such Pre-released Receipts
are at all times fully collateralized (such collateral marked to market daily)
with cash or U.S. government securities, (b) the applicant for such Pre-released
Receipts represents in writing that it, or its customer, is the beneficial owner
of the CPOs to be remitted, assigns all beneficial right, title and interest in
such CPOs to the Depositary for the benefit of the Holders and agrees in effect
to hold such CPOs for the account of the Depositary until delivery of the same
(or Receipts representing the same) upon the depositary's request and (c) such
Pre-release is terminable by the Depositary on not more than five (5) business
days notice. A Pre-release may be subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The Depositary will normally
limit the aggregate number of Pre-released Receipts outstanding at any one time
to thirty percent (30%) of the American Depositary Shares outstanding (without
giving effect to American Depositary Shares evidenced by outstanding
Pre-released Receipts); provided, however, that the Depositary reserves the
right to change or disregard such limit from time to time as it deems
appropriate. The Depositary will also set limits with respect to the number of
Pre-released Receipts involved in transactions to be done hereunder with any one
person on a case by case basis as it deems appropriate. The collateral referred
to in clause (a) above shall be held by the Depositary for the benefit of
Holders as security for the performance of the obligations to deliver CPOs set
forth in clause (b) above (and shall not, for the avoidance of doubt, constitute
Deposited Securities hereunder). The Depositary may, however, retain for its own
account any earnings on such collateral and any other compensation received by
it in connection with a Pre-release.
ARTICLE 3
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS
SECTION 3.01. Filing Proofs, Certificates and Other Information.
Any person depositing CPOs or any Holder of a Receipt may be
required from time to time to file with the Depositary or the Custodian such
proof of citizenship, residence,
9
exchange control approval, legal or beneficial ownership or other information
relating to the registration on the books of the CPO Trust (or the appointed
agent of the CPO Trust for transfer and registration of CPOs) of the CPOs
presented for deposit, to execute and deliver to the Depositary or the Custodian
such certificates, and to make such representations and warranties, as the
Depositary may deem necessary or proper or as the Company may require by written
request to the Depositary or the Custodian. The Depositary may withhold the
delivery or registration of transfer of any Receipt or the distribution or sale
of any dividend or other distribution or rights or of the proceeds thereof or
the delivery of any Deposited Securities underlying such Receipt until the
foregoing is accomplished to the Depositary's reasonable satisfaction. The
Depositary shall provide the Company and the CPO Trustee, in a timely manner,
with copies of any such proofs of citizenship or residence, or exchange control
approval that it receives.
SECTION 3.02. Liability of Holder for Taxes.
Any tax, duty or other governmental charge or expense payable by the
Custodian, the Depositary or the nominee or nominees of either as the registered
holder of any Deposited Securities underlying any Receipt shall be payable by
the Holder of such Receipt, who shall pay the amount thereof to the Depositary.
The Depositary may refuse to effect registration of transfer of such Receipt or
any transfer and withdrawal of Deposited Securities underlying such Receipt
until such payment is made, and may withhold any cash dividends or other cash
distributions constituting Deposited Securities underlying such Receipt, or may
sell for the account of the Holder thereof any part or all of the other
Deposited Securities underlying such Receipt, and may apply such cash or the
proceeds of any such sale in payment of any such tax, duty or other governmental
charge or expense (and any taxes and expenses arising or incurred as a result of
effecting any such sale), the Holder of such Receipt remaining liable for any
deficiency.
SECTION 3.03. Warranties on Deposit of CPOs.
Every person depositing CPOs under this Deposit Agreement shall be
deemed thereby to represent and warrant that such CPOs are validly issued and
outstanding, fully paid, non-assessable and free of preemptive rights, and that
the person making such deposit is duly authorized so to do. Every such person
(other than the Company) shall also be deemed to represent that the deposit of
CPOs or the sale of the Receipts issued upon such deposit is not restricted
under the securities laws of the United States. All such representations and
warranties shall survive the deposit or withdrawal of CPOs and issuance or
cancellation of Receipts therefor.
SECTION 3.04. Disclosure of Interests.
To the extent that provisions of or governing any Deposited
Securities (including, in the case of CPOs, the Shares underlying such CPOs),
the Estatutos or applicable law may require the disclosure of beneficial or
other ownership of Deposited Securities, other CPOs and other securities to the
Company or the CPO Trustee and provide for blocking of Holders' transfer and
voting or other rights to enforce such disclosure or limit such ownership, the
Depositary shall use its best efforts to comply with Company or CPO Trustee
instructions, as the
10
case may be, as to Receipts in respect of any such enforcement or limitation.
Holders shall comply with all such disclosure requirements and shall cooperate
with the Depositary's compliance with such instructions and by their holding of
Receipts are deemed to consent to any such limitation or blocking of rights.
ARTICLE 4
THE DEPOSITED SECURITIES
SECTION 4.01. Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other
cash distribution by the Company in respect of any Deposited Securities, the
Depositary shall, subject to the provisions of Section 4.05, as soon as possible
convert such dividend or distribution into U.S. dollars and shall distribute as
soon as possible the amount thus received to the Holders entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively; provided, however, that in the
event that the Company, the CPO Trustee, the Depositary or the Custodian shall
be required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of
taxes, the amount distributed to the Holder of Receipts for American Depositary
Shares representing such Deposited Securities shall be reduced accordingly. The
Depositary shall distribute only such amount, however, as can be distributed
without distributing to any Holder a fraction of one cent, and any balance not
so distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by the
Depositary for distribution to Holders of Receipts then outstanding. The
Company, the CPO Trustee or the Depositary, as appropriate, will remit to the
appropriate governmental agency in Mexico all amounts (if any) required to be
withheld and owing to such agency. The Depositary will as soon as possible
forward to the Company or the CPO Trustee such information from its records as
the Company or the CPO Trustee may reasonably request to enable the Company or
the CPO Trustee to file necessary reports with governmental agencies, and either
the Depositary, the Company or the CPO Trustee may file any such reports
necessary to obtain benefits under any applicable tax treaties for Holders.
SECTION 4.02. Distributions Other Than Cash or CPOs.
Subject to the applicable provisions of this Deposit Agreement,
whenever the Depositary shall receive any distribution other than cash or CPOs
or rights to subscribe to additional CPOs or Shares underlying CPOs upon any
Deposited Securities, the Depositary shall cause the securities or property
received by it to be distributed promptly to the Holders entitled thereto, in
proportion to the number of American Depositary Shares 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 such
distribution cannot be made proportionately among the Holders entitled thereto,
or if for any other reason (including any securities law requirement or any
requirement that the Company, the CPO Trustee or the Depositary or the Custodian
withhold an amount on account of taxes) 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
11
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.
SECTION 4.03. Distribution in CPOs.
(a) If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, CPOs (including Shares underlying the
CPOs), subject to the applicable provisions of this Deposit Agreement, the
Depositary may, with the approval of the Company and the CPO Trustee, and shall,
if the Company shall so request, distribute promptly to the Holders of
outstanding Receipts entitled thereto, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them,
respectively, additional Receipts for an aggregate number of American Depositary
Shares representing the number of CPOs received as such dividend or
distribution. In lieu of delivering Receipts for fractional American Depositary
Shares in any such case, the Depositary shall sell the amount of CPOs, or
request the CPO Trustee to sell the number of Shares underlying such CPOs,
represented by the aggregate of such fractions and distribute promptly the net
proceeds, all in the manner and subject to the conditions described in Section
4.02. If additional Receipts are not so distributed, each American Depositary
Share shall thenceforth also represent the additional CPOs distributed upon the
Deposited Securities represented thereby.
(b) In the event that the Company shall offer or cause to be offered
to the holders of any Deposited Securities an option to elect to receive
dividends in fully paid CPOs (including Shares underlying the CPOs) instead of
cash, the Depositary and the Company agree to consult to determine whether such
option will be made available to the Holders of Receipts and, if such option is
to be made available to Holders, the procedures to be followed.
SECTION 4.04. Rights.
In the event that the Company shall offer or cause to be offered to
the holders of any Deposited Securities any rights to subscribe for additional
CPOs (including rights to subscribe for additional Shares underlying the CPOs)
or any rights of any other nature, the Depositary shall, after consultation with
the Company, have discretion as to the procedure to be followed in making such
rights available to the Holders of Receipts or in disposing of such rights on
behalf of such Holders and making the net proceeds available in U.S. dollars to
such Holders; provided, however, that the Depositary will, if requested by the
Company, take action as follows:
(i) if at the time of the offering of any rights the Depositary
determines that it is lawful and feasible to make such rights available to
Holders by means of warrants or otherwise, the Depositary shall distribute
promptly warrants or other instruments therefor in such form as it may
determine to the Holders entitled thereto, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by
them, respectively, or employ such other method as it may deem feasible in
order to facilitate the exercise, sale or transfer of rights by such
Holders; or
(ii) if at the time of the offering of any rights the Depositary
determines that it is not lawful or not feasible to make such rights
available to Holders by means of
12
warrants or otherwise, or if the rights represented by such warrants or
such other instruments are not exercised and appear to be about to lapse,
the Depositary will use its best efforts to sell such rights or such
warrants or other instruments at public or private sale, at such place or
places and upon such terms as it may deem proper, and will allocate the
proceeds of such sales for account 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, the date of delivery of any Receipt or
Receipts or otherwise.
If a registration statement under the Securities Act of 1933 is
required with respect to the securities to which any rights relate in order for
the Company to offer such rights to Holders and sell the securities represented
by such rights, the Depositary will not offer such rights to Holders having an
address in the United States (as defined in Regulation S) unless and until such
a registration statement is in effect, or unless the offering and sale of such
securities and such rights to such Holders are exempt from registration under
the provisions of such Act.
SECTION 4.05. Conversion of Foreign Currency.
Whenever the Depositary shall receive foreign currency, by way of
dividends or other distributions or as the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into U.S. dollars and the resulting U.S. dollars
transferred to the United States, the Depositary shall convert or cause to be
converted, by sale or in any other manner that it may determine, such foreign
currency into U.S. dollars, and such U.S. dollars shall be distributed as soon
as possible to the Holders entitled thereto or, if the Depositary shall have
distributed any warrants or other instruments which entitle the holders thereof
to such U.S. dollars, then to the holders of such warrants and/or instruments,
as applicable, upon surrender thereof for cancellation. Such distribution may be
made upon an averaged or other practicable basis without regard to any
distinctions among Holders on account of exchange restrictions or otherwise and
shall be net of any expenses of conversion into U.S. dollars incurred by the
Depositary as provided in Section 5.09.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
promptly file such application for approval or license, if any, as it may deem
desirable.
If at any time the Depositary shall determine that in its judgment
any foreign currency received by the Depositary is not convertible on a
reasonable basis into U.S. dollars transferable to the United States, or if any
approval or license of any government 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 hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Holders entitled to receive the same.
13
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 U.S.
dollars to the extent permissible to the Holders entitled thereto and may
distribute the balance of the foreign currency received by the Depositary to, or
hold such balance for the respective accounts of, the Holders entitled to
receive the same uninvested and without liability for interest thereon.
SECTION 4.06. Fixing of Record Date.
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 the Depositary causes a change in the number of CPOs that are represented
by each American Depositary Share, or whenever the Depositary shall receive
notice of any meeting of holders of CPOs (including notices of any meeting of
holders of the Shares underlying the CPOs) or other Deposited Securities, the
Depositary shall, after consultation with the Company or the CPO Trustee, as the
case may be, fix a record date, which date shall, to the extent practicable, be
the same as the record date fixed by the Company or the CPO Trustee, as the case
may be, for the determination of the Holders who shall be entitled to receive
such dividend, distribution or rights, or the net proceeds of the sale thereof,
or to give instructions for the exercise of voting rights at any such meeting or
to receive American Depositary Shares that will represent the changed number of
CPOs. Subject to the provisions of Sections 4.01 through 4.04 and to the other
terms and conditions of this 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 sale thereof or to give voting instructions in proportion to the
number of American Depositary Shares held by them, respectively.
SECTION 4.07. Voting of Deposited Securities.
UNLESS THE DEPOSITARY RECEWES WRITTEN NOTICE FROM THE COMPANY TO THE
CONTRARY, HOLDERS OF AMERICAN DEPOSITARY SHARES WILL NOT BE ENTITLED TO INSTRUCT
THE DEPOSITARY AS TO THE EXERCISE OF VOTING RIGHTS PERTAINING TO SHARES. Upon
receipt of notice of any meeting or solicitations of consents of holders of CPOs
or other Deposited Securities, the Depositary shall, as soon as practicable
thereafter and to the extent permitted by law, mail to the Holders a notice
which shall contain (a) such information as is contained in such notice of
meeting, (b) if such notice or solicitation pertains to any Deposited Security
other than Shares, a statement that each Holder at the close of business on a
specified record date will be entitled, subject to any applicable provision of
law or the CPO Trust and of the Estatutos and the Deposited Securities, to
instruct the Depositary as to the exercise of the voting rights pertaining to
the Deposited Securities represented by the American Depositary Shares evidenced
by such Holder's Receipts and a brief statement as to the manner in which such
instructions may be given, including an express indication that instructions may
be given to the Depositary to give a discretionary proxy to a person or persons
designated by the CPO Trustee and (c) if such notice or solicitation pertains to
Shares, a statement that, pursuant to the provisions of the CPOs and the CPO
Trust, the Holders may not vote the Shares underlying the CPOs and that all of
the Shares underlying the CPOs shall be voted by the CPO Trust in the same
manner as the majority of all
14
Shares that are not held in the CPO Trust and that are voted at the relevant
meeting. Upon the written request of a Holder of a Receipt on such record date,
received on or before the date established by the Depositary for such purpose,
the Depositary shall endeavor insofar as practicable to vote or cause to be
voted the amount of Deposited Securities represented by the American Depositary
Shares evidenced by such Receipt in accordance with the instructions set forth
in such request. The Depositary agrees not to vote the Deposited Securities
represented by the American Depositary Shares evidenced by a Receipt unless it
receives instructions from the Holder of such Receipt.
SECTION 4.08. Changes Affecting Deposited Securities.
Upon any change in par value, split-up, consolidation or any other
reclassification of Deposited Securities, 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 of or in respect of
Deposited Securities shall be treated as new Deposited Securities under this
Deposit Agreement, and American Depositary Shares shall thenceforth represent
the right to receive the new Deposited Securities so received in exchange or
conversion, unless additional Receipts are delivered pursuant to the following
sentence. In any such case the Depositary may with the approval of the Company,
and shall if the Company shall so request, 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 new Deposited Securities.
SECTION 4.09. Reports.
The Depositary shall make available for inspection by Holders at the
Depositary's Office, and at any other designated transfer offices, English
language versions of any reports and communications received from the Company or
the CPO Trustee which are both (a) received by the Depositary or the Custodian
or the nominee of either of them as the holder of the Deposited Securities or by
the CPO Trustee as the holder of the Shares underlying the CPOs, and (b) made
generally available to the holders of such Deposited Securities (including the
Shares underlying the CPOs) by the Company or the CPO Trustee. The Depositary
shall also send to Holders copies of such reports when furnished by the Company
pursuant to Section 5.06.
In addition, upon notice that the Company has not furnished the
Commission or any other securities regulatory authority or stock exchange with
any public reports, documents or other information as required by the Securities
Exchange Act of 1934, foreign law or otherwise, the Depositary shall furnish
promptly to the Commission copies of all annual or other periodic reports and
other notices or communications which the Depositary, the Custodian or the
nominee of either receives from the Company as holder of the Deposited
Securities or pursuant to Section 5.06 and which are not so furnished to or
filed with the Commission pursuant to any other requirement of the Commission or
to or with such other securities regulatory authority or stock exchange.
In order to assist the Depositary in complying with its reporting
obligations as set forth in Form F-6 under the Securities Act of 1933, the
Company shall furnish the Depositary
15
semi-annually, upon request of the Depositary, the name of each dealer in
securities known to it to have deposited CPOs against the issuance of Receipts
during the relevant six-month period.
SECTION 4.10. Lists of Receipt Holders.
As soon as possible upon request by the Company or the CPO Trustee,
the Depositary shall furnish to the Company or the CPO Trustee, as the case may
be, a list, as of the date or a specified date in the future, of the names and
addresses of, and holdings of American Depositary Shares by, all persons in
whose names Receipts are registered on the books of the Depositary.
SECTION 4.11. Withholding.
Notwithstanding any other provision of this Deposit Agreement, if
the Depositary determines that any distribution in property (including CPOs and
rights to subscribe therefor) is subject to any tax 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, 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 to the Holders entitled thereto in the manner described in Section
4.01 or Section 4.02, as the case may be.
ARTICLE 5
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.01. Maintenance of Office and Transfer Books by the
Depositary.
Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall maintain as its transfer office in the Borough of
Manhattan, The City of New York, facilities for the execution and delivery,
registration, registration of transfer and surrender of Receipts in accordance
with the provisions of this Deposit Agreement.
The Depositary shall keep books at such transfer office for the
registration of Receipts and transfer of Receipts which at all reasonable times
shall be open for inspection by the Holders, CPO Trustee and 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 a matter related to this Deposit Agreement, the Receipts, the CPOs,
the Shares or the Estatutos.
The Depositary may close the transfer books (a) after consultation
with the Company, at any time or from time to time, when deemed expedient by it
in connection with the performance of its duties hereunder or (b) at the request
of the Company.
If any Receipts or the American Depositary Shares evidenced thereby
are listed on one or more stock exchanges in the United States, the Depositary
shall act as Receipt Registrar, unless any other bank or trust company having an
office in the Borough of Manhattan,
16
The City of New York, shall have been appointed by the Company. Upon the request
or with the approval of the Company, the Depositary may appoint a Receipt
Registrar or one or more co-registrars for registration of such Receipts in
accordance with any requirements of such exchange or exchanges. Such Receipt
Registrar or co-registrars may be removed and a substitute or substitutes
appointed by the Depositary upon the request or with the approval of the
Company.
The Depositary, upon the request or with the approval of the
Company, may appoint one or more co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of Receipts at designated transfer offices
on behalf of the Depositary. Such co-transfer agents may be removed by the
Depositary upon the request or with the approval of the Company and substitutes
appointed by the Depositary upon the request or with the approval of the
Company. Each Receipt Registrar, co-registrar or co-transfer agent appointed
under this Section 5.01 shall give notice in writing to the Company and the
Depositary accepting such appointment and agreeing to be bound by the applicable
terms of this Deposit Agreement. In carrying out its functions, a co-transfer
agent may require evidence of authority and compliance with applicable laws and
other requirements by Holders or persons entitled thereto but only to the extent
that the Depositary would in similar circumstances be entitled so to require.
The Company and the CPO Trustee shall have the right to inspect
transfer and registration records of the Depositary relating to Receipts, to
take copies thereof and to require the Depositary, the Receipt Registrar and any
co-transfer agents or co-registrars to supply copies of such portions of such
records as the Company or the CPO Trustee, as the case may be, may request.
SECTION 5.02. Prevention or Delay in Performance by the Depositary
or the Company.
Neither the Depositary nor the Company nor the CPO Trustee, nor any
of their respective directors, employees, agents or affiliates, shall incur any
liability to any Holder if, by reason of any provision of any present or future
law of the United States, the United Mexican States or any other country, or of
any other governmental or regulatory authority or stock exchange, or by reason
of any provision, present or future, of the Estatutos, the CPO Trust Agreement,
the CPO Deed or the Deposited Securities, or by reason of any act of God or war
or other circumstance beyond its control, the Depositary or the Company or the
CPO Trustee or any of their respective directors, employees, agents or
affiliates shall be prevented or forbidden from or be subject to any civil or
criminal penalty on account of doing or performing any act or thing which by the
terms of this Deposit Agreement it is provided or contemplated shall be done or
performed; nor shall the Depositary or the Company or the CPO Trustee or any of
their respective directors, employees, agents or affiliates incur any liability
to any Holder by reason of any non-performance or delay, caused as aforesaid, in
performance of any act or thing which by the terms of this Deposit Agreement it
is provided or contemplated shall or may be done or performed, or by reason of
any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement or the Estatutos, or the CPO Trust Agreement or the CPO Deeds.
17
SECTION 5.03. Obligations of the Depositary and the Company.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to Holders (including, without
limitation, liability with respect to the validity or worth of the Deposited
Securities), except that it agrees to use its reasonable efforts exercised in
good faith in the performance of such duties as are specifically set forth in
this Deposit Agreement.
The Company assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to Holders, except that it agrees to use
its reasonable efforts exercised in good faith in the performance of its
obligations set forth in this Deposit Agreement.
Neither the Depositary nor the Company shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the Receipts, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expense and liability be furnished as often as may be required,
and the Custodian shall not be under any obligation whatsoever with respect to
such proceedings, the responsibility of the Custodian being solely to the
Depositary.
Neither the Depositary nor the Company shall be liable for any
action or non-action by it in reliance upon the advice of or information from
legal counsel, accountants, any governmental authority, any person presenting
CPOs for deposit, any Holder, or any other person believed by it in good faith
to be competent to give such advice or information.
The Depositary shall not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities or for the manner in
which any such vote is cast or for the effect of any such vote, provided that
any such action or non-action is in good faith.
Subject to the Estatutos and this Deposit Agreement, the Depositary
may own and deal in any class of securities of the Company and its affiliates
and in Receipts.
The Depositary shall not be liable to Holders for any acts or
omissions made by a successor depositary whether in connection with a previous
act or omission of the Depositary or in connection with any matter arising
wholly after the removal or resignation of the Depositary, provided that the
Depositary exercised its best judgment in good faith while it acted as
Depositary.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
of Successor Depositary.
(a) The Depositary may at any time resign as Depositary hereunder by
written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
18
(b) The Depositary may at any time be removed as Depositary by the
Company by written notice of such removal effective upon the appointment of a
successor depositary and its acceptance of such appointment as hereinafter
provided.
(c) In case at any time the Depositary acting hereunder shall resign
or be removed, the Company shall use reasonable efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due to it and on the written
request of the Company shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, and such
predecessor shall thereupon duly assign, transfer and deliver all right, title
and interest in the Deposited Securities to such successor, and shall deliver to
such successor a list of the Holders of all outstanding Receipts, together with
copies of such records in relation to the Receipts as the Company may reasonably
request. Any such successor depositary shall mail notice of its appointment
within 30 days to the Holders.
(d) Any corporation into or with which the Depositary may be merged
or consolidated shall be the successor of the Depositary without the execution
or filing of any document or any further act.
SECTION 5.05. The Custodian.
The Depositary has appointed Bancomer S.A. and Nacional Financiera,
S.N.C. as Custodian and agent of the Depositary for the purposes of this Deposit
Agreement. The Custodian in acting hereunder shall be subject at all times and
in all respects to the directions of the Depositary and shall be responsible
solely to it and the Depositary undertakes to procure compliance by the
Custodian with the applicable provisions of this Deposit Agreement. The
Custodian may resign and be discharged from its duties hereunder by notice of
such resignation delivered to the Depositary at least thirty (30) days prior to
the date on which such resignation is to become effective. The Depositary shall,
promptly after receiving such notice, appoint a substitute custodian approved by
the Company (such approval not to be unreasonably withheld), which shall
thereafter be the Custodian hereunder. Whenever the Depositary in its discretion
determines that it is in the best interest of the Holders to do so, it may
appoint a substitute custodian approved by the Company (such approval not to be
unreasonably withheld), which shall thereafter be the Custodian hereunder, and
upon demand of the Depositary the previous Custodian shall deliver the Deposited
Securities held by it to such substitute custodian. Each such substitute
custodian shall deliver to the Depositary forthwith upon its appointment an
acceptance of such appointment satisfactory in form and substance to the
Depositary and the Company. Immediately upon any such change, the Depositary
shall give notice thereof in writing to all Holders.
Upon the appointment of any successor Depositary hereunder, the
Custodian then acting hereunder shall forthwith become, without any further act
or writing, the agent hereunder of such successor Depositary and the appointment
of such successor Depositary shall in no way
19
impair the authority of the Custodian hereunder; but the successor Depositary so
appointed shall, nevertheless, on the written request of the Custodian, execute
and deliver to the Custodian all such instruments as may be proper to give the
Custodian full and complete power and authority as agent hereunder of such
successor Depositary.
SECTION 5.06. Notices and Reports.
On or before the first date on which the Company or the Common
Representative gives notice, by publication or otherwise, of any meeting of
holders of CPOs (including notices of any meeting of holders of Shares
underlying the CPOs) or other Deposited Securities, or of any adjourned meeting
of such holders, or of the taking of any action in respect of any cash or other
distributions or the offering of any rights in respect of Deposited Securities,
the Company agrees to cause or direct the Common Representative to transmit to
the Custodian and the Depositary a copy in English of the notice thereof in the
form given or to be given to holders of CPOs (including notices of any meeting
of holders of Shares underlying the CPOs) or other Deposited Securities. The
Company also will transmit to the Depositary and the Custodian an English
language version of any report it makes generally available to holders of
Deposited Securities (including the Shares underlying the CPOs).
The Depositary will arrange for the prompt transmittal by the
Custodian to the Depositary of such notices and any other reports and
communications which are made generally available by the Company to holders of
Shares and delivered to the Depositary by the Company pursuant to this Section
5.06, and arrange for the mailing of copies thereof to all Holders or, at the
request of the Company, make such notices, reports and communications available
to all Holders on a basis similar to that for holders of Shares, or on such
other basis as the Company may advise the Depositary may be required by any
applicable law or regulation or any requirement of any stock exchange to which
the Company may be subject. Prior to the date hereof, the Company shall have
transmitted to the Custodian a copy of the Estatutos. Thereafter, promptly upon
any amendment thereto or change therein, the Company shall transmit to the
Custodian a copy of the Estatutos as so amended or changed. The Depositary may
rely upon such copies for all purposes of this Deposit Agreement. The Depositary
will make such copies, a copy of this Deposit Agreement and such notices,
reports and communications available for inspection by Holders at the
Depositary's Office, at the office of the Custodian and at any other designated
transfer offices.
SECTION 5.07. Issuance of Additional CPOs, etc.
The Company agrees that in the event of any issuance of (1)
additional CPOs (including the Shares underlying the CPOs), (2) rights to
subscribe for CPOs (including the Shares underlying the CPOs), (3) securities
convertible into or exchangeable for CPOs (including the Shares underlying the
CPOs), or (4) rights to subscribe for such securities, it will take all steps
reasonably necessary to ensure that no violation by the Company or the
Depositary of the Securities Act of 1933 will result from such issuance.
The Company agrees with the Depositary that neither the Company nor
any company controlled by the Company will at any time deposit any CPOs
(including the Shares underlying the CPOs), either upon original issuance or
upon a sale of CPOs (including the Shares
20
underlying the CPOs) previously issued and reacquired by the Company or by any
company under the control of the Company, unless a registration statement is in
effect as to such CPOs (including the Shares underlying the CPOs) under the
Securities Act of 1933 or the offer or sale of such CPOs (including the Shares
underlying the CPOs) is exempt from registration under the provisions of the
Securities Act of 1933 or the transaction is exempt under such Act.
The Depositary will comply with written instructions of the Company
not to accept for deposit hereunder any Shares identified in such instructions
at such times and under such circumstances as may be specified in such
instructions in order to facilitate the Company's compliance with the securities
laws of the United States.
SECTION 5.08. Indemnification.
(a) The Company agrees to indemnify the Depositary and the Custodian
against, and hold each of them harmless from, any liability or expense
(including reasonable fees and expenses of counsel) which may arise out of any
registration with the Commission of Receipts, American Depositary Shares or
Deposited Securities or the offer or sale thereof in the United States or out of
acts performed or omitted in accordance with the provisions of this Deposit
Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (i) by either the Depositary or the Custodian,
except for any liability or expense arising out of the negligence or bad faith
of, or breach of this Deposit Agreement or any other agreement with the Company
relating to the facility created hereby, either of them, and, except to the
extent that such liability or expense arises out of information relating to the
Depositary or the Custodian, as applicable, furnished in writing to the Company
by the Depositary or the Custodian, as applicable, expressly for use in any
registration statement, proxy statement, prospectus (or placement memorandum) or
preliminary prospectus (or preliminary placement memorandum) relating to the
CPOs represented by the American Depositary Shares or the Shares represented
thereby, or omissions from such information or (ii) by the Company or any of its
agents.
(b) The indemnities contained in subSection (a) shall not extend to
any liability or expense which may arise out of any Pre-release (it being
understood, for the avoidance of doubt, that this subSection (b) shall not apply
to any liability or expense which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration statement,
proxy statement, prospectus (or placement memorandum) or preliminary prospectus
(or preliminary placement memorandum) relating to the offer or sale of American
Depositary Shares, except to the extent arising out of breach by the Depositary
or the Custodian of Section 2.09 or to the extent any such liability or expense
arises out of information relating to the Depositary or the Custodian, as
applicable, furnished in writing to the Company by the Depositary or Custodian,
as applicable, expressly for use in any of the foregoing documents, or omissions
from such information).
(c) The Depositary agrees to indemnify the Company and to hold it
harmless from any liability or expense (including fees and expenses of counsel)
which may arise out of (i) acts performed or omitted to be performed by the
Depositary or Custodian due to their negligence or bad faith or (ii) any
Pre-release (it being understood, for the avoidance of doubt, that the indemnity
contained in this clause (ii) does not extend to any liability or expense
arising
21
out of or in connection with any misstatement or omission or alleged
misstatement or omission relating to the description of this Deposit Agreement
or the facility created hereby in any document filed with the Commission, except
to the extent that such liability or expense arises out of or is in connection
with any misstatement or omission in any information relating to the Depositary
or the Custodian, as the case may be, furnished in writing to the Company by the
Depositary or the Custodian, as the case may be, for use in such document).
(d) Any person seeking indemnification hereunder (an "Indemnified
Person") shall notify the person from whom it is seeking indemnification (the
"Indemnifying Person") of the commencement of any indemnifiable action or claim
promptly after such Indemnified Person becomes aware of such commencement and
shall consult in good faith with the Indemnifying Person as to the conduct of
the defense of such action or claim, which defense shall be reasonable under the
circumstances. No Indemnified Person shall compromise or settle any action or
claim without the consent in writing of the Indemnified Person.
(e) The obligations set forth in this Section 5.08 shall survive the
termination of this Deposit Agreement and the succession or substitution of any
person indemnified hereby.
SECTION 5.09. Charges of Depositary.
The Company agrees to pay the fees, reasonable expenses and
out-of-pocket charges of the Depositary and those of any Registrar only in
accordance with agreements in writing entered into between the Depositary and
the Company from time to time. The Depositary shall present its statement for
such charges and expenses to the Company once every three months. The charges
and expenses of the Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing CPOs or by any Holder surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03 hereof), whichever applicable: (1) taxes and other governmental
charges, (2) such registration fees as may from time to time be in effect for
the registration of transfers of CPOs generally on the CPO register of the CPO
Trust (or the appointed agent of the CPO Trust for transfer and registration of
CPOs) and applicable to transfers of CPOs to the name of the Depositary or its
nominee or the Custodian or its nominee on the making of deposits or withdrawals
hereunder, (3) such cable, telex and facsimile transmission expenses as are
expressly provided in this Deposit Agreement, (4) such expenses as are incurred
by the Depositary in the conversion of foreign currency pursuant to Section
4.05, (5) a fee not in excess of $5.00 or less per 100 American Depositary
Shares (or portion thereof) for the execution and delivery of Receipts pursuant
to Section 2.03, the execution and delivery of Receipts pursuant to Section 4.03
and the surrender of Receipts pursuant to Section 2.05 and (6) a fee for the
distribution of proceeds pursuant to Section 4.04, such fee (to be deducted from
such proceeds) being in an amount equal to the fee for the issuance of American
Depositary Shares referred to above which would have been charged as a result of
the deposit by Holders of CPOs received in exercise of rights distributed to
them pursuant to Section 4.04, but which rights are instead sold by the
Depositary, and the net proceeds distributed.
22
SECTION 5.10. Available Information to the Commission.
The Company is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934, and accordingly, is required to file certain
reports with the Commission. Such reports and other information may be inspected
and copied at the public reference facilities maintained by the Commission
located at the date hereof at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549.
SECTION 5.11. Exclusivity.
The Company agrees not to appoint any other depositary for the
issuance of Receipts so long as The Bank of New York is acting as Depositary
hereunder, subject, however, to the rights of the Company under Section 5.04.
ARTICLE 6
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment.
The form of the Receipts and any provisions of this Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary in any respect that they may deem necessary or
desirable.
Any amendment which shall impose or increase any fees or charges
(other than taxes (including, without limitation, stamp taxes) and other
governmental charges), or which shall otherwise prejudice any substantial
existing right of Holders of Receipts shall, however, not become effective as to
outstanding Receipts until the expiration of thirty (30) days after notice of
such amendment shall have been given to the Holders of outstanding Receipts,
provided that the parties hereto agree that any amendments which do not impose
or increase any fees or charges to be borne by Holders shall be deemed not to
prejudice any substantial rights of Holders. Every Holder of a Receipt at the
time any such amendment so becomes effective, shall be deemed, by continuing to
hold such Receipt, to consent and agree to such amendment and to be bound by the
Deposit Agreement or the Receipts or both of them, as applicable, as amended
thereby. In no event shall any amendment impair the right of the Holder of any
Receipt to surrender such Receipt and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law.
SECTION 6.02. Termination.
The Depositary shall at any time at the direction of the Company
(which shall be confirmed in writing) terminate this Deposit Agreement by
mailing notice of such termination to the Holders of all Receipts then
outstanding at least thirty (30) days prior to the date fixed in such notice for
such termination. The Depositary may terminate this Deposit Agreement if at any
time ninety (90) days shall have expired after the Depositary shall have
delivered to the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its appointment
as provided in Section 5.04, such termination to become effective by the
Depositary mailing notice of such termination to Holders of all Receipts then
23
outstanding at least thirty (30) days prior to the date fixed in such notice for
such termination. If any Receipts shall remain outstanding after the date of
termination of this Deposit Agreement, the Depositary thereafter shall
discontinue the registration of transfers of Receipts, shall suspend the
distribution of dividends to the Holders thereof, and shall not give any further
notices or perform any further acts under this Deposit Agreement, except that
the Depositary shall, in accordance with and subject to the provisions of this
Deposit Agreement, (a) continue to collect dividends and other distributions
pertaining to Deposited Securities, (b) sell rights as provided in this Deposit
Agreement and (c) 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 exchange for Receipts
surrendered to the Depositary. At any time after the expiration of two years
from the date of termination, the Depositary may sell the Deposited Securities
then held hereunder and may thereafter hold uninvested the net proceeds of any
such sale, together with any other cash then held by it hereunder, unsegregated
and without liability for interest, for the pro rata benefit of the Holders of
Receipts which have not theretofore been surrendered, such Holders thereupon
becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all obligations
under this Deposit Agreement, except to account for such net proceeds and other
cash, after deducting, in each case, the applicable fees and expenses of the
Depositary and applicable taxes or governmental charges and except as provided
in Section 5.08. Upon the termination of this Deposit Agreement, the Company
shall be discharged from all obligations under this Deposit Agreement except for
its obligations to the Depositary under Sections 5.08 and 5.09 hereof.
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Counterparts.
This Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
counterparts shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Custodian and shall
be open to inspection by any Holder during business hours.
SECTION 7.02. No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties
hereto and shall not be deemed to give any legal or equitable right, remedy or
claim whatsoever to any other person.
SECTION 7.03. Severability.
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
24
SECTION 7.04. Holders as Parties; Binding Effect.
The Holders of Receipts from time to time shall be parties to this
Deposit Agreement and shall be bound by all of the terms and conditions hereof
and of the Estatutos and of the Receipts by acceptance of the Receipts. Each
Holder agrees that, by accepting a Receipt, such Holder shall hold such Receipt
subject to, and with the obligations of, the provisions hereof, the Estatutos,
the CPOs and the Shares.
SECTION 7.05. Notices.
(a) To the Company. Any and all notices to be given to the Company
shall be deemed to have been duly given if personally delivered or sent by mail
or air courier or by cable, telex or facsimile transmission confirmed by letter,
addressed to the Company at Mineria No. 145, Edificio Central, 11800 Mexico,
D.F., Attention: Sergio Montano Leon or to any other person or place as shall be
specified in writing by the Company.
(b) To the Depositary. Any and all notices to be given to the
Depositary shall be deemed to have been duly given if personally delivered or
sent by mail or air courier or by cable, telex or facsimile transmission
confirmed by letter, addressed to The Bank of New York, 101 Barclay Street, New
York, New York 10286, Attention: ADR Division, 22nd Floor, or to any other place
to which the Depositary may have transferred the Depositary's Office.
(c) To any Holder. Any and all notices to be given to any Holder
shall be deemed to have been duly given if personally delivered or sent by mail
or air courier or by cable, telex or facsimile transmission confirmed by letter,
addressed to such Holder at the address of such Holder as it appears on the
transfer books of the Depositary, or, if such Holder shall have filed with the
Depositary a written request that notices intended for such Holder be mailed to
some other address, at the address designated in such request.
(d) General. Delivery of a notice sent to the Company or the
Depositary shall be deemed to be effected when received. Delivery of a notice
sent to a Holder by mail or air courier or by cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing such notice (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon any cable,
telex or facsimile transmission received by it from the other or from any
Holder, notwithstanding that such cable, telex or facsimile transmission shall
not subsequently be confirmed by letter as aforesaid.
SECTION 7.06. Governing Law.
This Deposit Agreement and the Receipts shall be interpreted in
accordance with, and all rights hereunder and thereunder and provisions hereof
and thereof shall be governed by, the laws of the State of New York.
SECTION 7.07. Headings.
Headings contained herein are included for convenience only and are
not to be used in construing or interpreting any provision hereof.
25
SECTION 7.08. The CPO Trust.
The Receipt shall contain the following description of the CPO
Trust:
Banco Nacional de Mexico, S.A., Institucion de Banca Multiple, Grupo
Financiero Banamex Accival, is CPO Trustee under the CPO Trust which was created
under the Foreign Investment Law, in order to permit non-Mexican investment in
the Company by removing voting rights otherwise appertaining to such investments
without affecting the economic consequences of such investments. The CPO Trust
operates through Indeval, the central depositary for participants trading on the
Mexican Securities Exchange, which maintains 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 Paseo de la Reforma No. 404, Piso 13, Col.
Juarez 06600, Mexico D.F., Mexico. The terms of the CPO Trust, upon which the
Shares may be deposited and CPOs issued, are briefly described as follows (which
description is qualified by and subject to the terms of the CPO Trust, copies of
which in Spanish and in an English translation are on file at the Depositary's
Office, the office of the Custodian and at any other designated transfer office
for Receipts): (i) each CPO represents financial interests in one Share; (ii)
the CPOs have no voting rights, except as discussed in (vii) below; (iii)
dividends on the Shares are credited to CPO holders' accounts by Indeval upon
receipt thereof from the Company; (iv) CPO holders will be informed and have
access to materials at the same time as direct holders of Shares; (v) except for
voting rights, any rights pertaining to the Shares are transferred to CPO
holders through Indeval at the same time as direct holders of Shares receive any
such rights; (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 such securities (but only in the form of
CPOs, to the extent available); (vii) the CPO Trust may be terminated following
instructions from the Technical Committee of the CPO Trust, after a resolution
has been adopted at a meeting by holders of a majority of CPOs and must be
terminated after 30 years (unless rolled into new trusts under similar terms);
(viii) only CPO holders who are Mexican nationals may obtain title to Shares
upon surrender of title to CPOs; (ix) Indeval participants may confirm their
position on the CPO Trust transfer books through Indeval, but may not inspect
same or obtain any list of holders of CPOs; and (x) the CPO Trust does not limit
the liability of the CPO Trustee. Fees or charges payable to the CPO Trustee are
not charged against CPO holders.
26
IN WITNESS WHEREOF, EMPRESAS ICA SOCIEDAD CONTROLADORA, S.A. DE C.V.
and THE BANK OF NEW YORK have duly executed this Deposit Agreement as of the day
and year first above set forth and all Holders of Receipts shall become parties
hereto upon acceptance by them of Receipts issued in accordance with the terms
hereof.
EMPRESAS ICA SOCIEDAD CONTROLADORA, S.A. DE C.V.
By: /s/ Sergio F. Montano Leon
--------------------------------
Title: Vice President of Administration and
Finance
Sergio F. Montano Leon
THE BANK OF NEW YORK
By: ____________________________________________
Title:
BANCO NACIONAL DE MEXICO, S.A., INSTITUCION DE
BANCA MULTIPLE, GRUPO FINANCIERO BANAMEX ACCIVAL
By: ____________________________________________
Title:
27(a)
IN WITNESS WHEREOF, EMPRESAS ICA SOCIEDAD CONTROLADORA, S.A. DE C.V.
and THE BANK OF NEW YORK have duly executed this Deposit Agreement as of the thy
and year first above set forth and all Holders of Receipts shall become parties
hereto upon acceptance by them of Receipts issued in accordance with the terms
hereof.
EMPRESAS ICA SOCIEDAD CONTROLADOPA, S.A. DE C.V.
By: ____________________________________________
Title:
THE BANK OF NEW YORK
By: /s/ Kenneth A. Lopian
--------------------------------------------
Title: Kenneth A. Lopian
Senior Vice-President
BANCO NACIONAL DE MEXICO, S.A., INSTITUCION DE
BANCA MULTIPLE, GRUPO FINANCIERO BANAMEX ACCIVAL
By: ____________________________________________
Title:
27(b)
EXHIBIT A
[FORM OF FACE OF RECEIPT]
THE HOLDER OF THIS AMERICAN DEPOSITARY RECEIPT IS NOT ENTITLED TO EXERCISE ANY
VOTING RIGHTS WITH RESPECT TO THE SHARES OF COMMON STOCK OF EMPRESAS ICA
SOCIEDAD CONTROLADORA, S.A. DE C.V. REPRESENTED BY THE ORDINARY PARTICIPATION
CERTIFICATES REPRESENTED BY THE AMERICAN DEPOSITARY SHARES EVIDENCED BY THIS
AMERICAN DEPOSITARY RECEIPT.
Number AMERICAN DEPOSITARY SHARES (EACH REPRESENTING ONE
ORDINARY PARTICIPATION CER TIFICATE (OR SUCH OTHER
RATIO OF AMERICAN DEPOSITARY SHARES TO ORDINARY
PARTICIPATION CERTIFICATES AS MAY RESULT FROM TIME TO
TIME FROM A DISTRIBUTION UPON OR A CHANGE IN DEPOSITED
SECURITIES AS PROVIDED IN PARAGRAPHS (9) AND (12) OF
THIS RECEIPT, RESPECTIVELY), EACH ORDI-NARY
PARTICIPATION CERTIFICATE REPRESENTING A FINANCIAL
INTEREST IN ONE SHARE OF COMMON STOCK)
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY PARTICIPATION CERTIFICATES
ISSUED BY
BANCO NACIONAL DE MEXICO, S.A., as trustee for a Mexican trust
representing
FINANCIAL INTERESTS IN SHARES OF COMMON STOCK OF
EMPRESAS ICA SOCIEDAD CONTROLADORA, S.A. DE C.V.
(Incorporated under the laws of Mexico)
THE BANK OF NEW YORK, a New York banking corporation, as Depositary
(the "Depositary"), hereby certifies that ____________ is the owner of _________
American Depositary Shares ("ADSs"), representing deposited Ordinary
Participation Certificates ("CPOs") (or evidence of rights to receive CPOs),
each CPO representing a financial interest in one share of common stock (a
"Share") of EMPRESAS ICA SOCIEDAD CONTROLADORA, S.A. DE C.V., incorporated under
the laws of Mexico (sociedad anonima de capital variable) (the "Company"). The
CPOs are issued by the trust (the "CPO Trust") created under the Trust Agreement
dated May 28, 1997 between the Company, as Settlor, and Banco Nacional de
Mexico, S.A., Institucion de Banca Multiple, Grupo Financiero Banamex Accival,
Division Fiduciaria, as trustee (the "CPO Trustee"), and acknowledged by Banco
Internacional, S.A., as Common Representative. At the date of the Deposit
Agreement, one ADS represents one CPO deposited under the Deposit Agreement
(hereinafter defined) with the Custodian, which at the date of execution of the
Deposit Agreement are the principal Mexico D.F., Mexico offices of Bancomer S.A.
and Nacional Financiera, S.N.C. The terms "deposit", "surrender" or "delivery",
when used with respect to CPOs, shall refer, where the context requires, to an
entry or entries or an electronic transfer or transfers in an account maintained
by institutions authorized under Mexican law to effect transfer of securities
(including, but not limited to, Indeval).
Dated: THE BANK OF NEW YORK
as Depositary
By: ________________________
Authorized Signatory
Countersigned:
By: _________________________
Authorized Signatory
THE ADDRESS OF THE DEPOSITARY'S OFFICE IS 101 BARCLAY STREET,
NEW YORK, NEW YORK 10286.
(1)The Deposit Agreement. This American Depositary Receipt is one of an
issue (the "Receipts"), all issued and to be issued upon the terms and
conditions set forth in the Deposit Agreement, dated as of April 1, 1992, as
amended and restated as of June 30, 1997 (as amended from time to time, the
"Deposit Agreement"), by and among the Company, the Depositary and all holders
from time to time of Receipts issued thereunder (the "Holders"), each of whom by
accepting a Receipt agrees to become a party thereto and becomes bound by all
the terms and provisions thereof. The Deposit Agreement sets forth the rights
and obligations of Holders and the rights and duties of the Depositary in
respect of CPOs deposited thereunder and any and all other securities, property
and cash received at any time in respect or in lieu of such CPOs and held
thereunder (such CPOs, securities, property and cash, collectively, "Deposited
Securities"). Copies of the Deposit Agreement and the Company's Estatutos (the
"Estatutos") are on file at the office of the Depositary for the administration
of
2
its American depositary receipt business (the "Depositary's Office") and with
the Securities and Exchange Commission. 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.
(2)Surrender of Receipts and Withdrawal of Deposited Securities. Upon
surrender at the Depositary's Office of a Receipt for the purpose of withdrawal
of the Deposited Securities represented thereby, and upon payment of the fee of
the Depositary for the surrender of Receipts against withdrawal of the Deposited
Securities, and subject to the terms and conditions of the Deposit Agreement,
the Estatutos and the Deposited Securities, the Holder of such Receipt shall be
entitled to (i) with respect to the CPOs evidenced by such Receipt, electronic
transfer, through Indeval, of such CPOs to an account in the name of the Holder
or such other name as the Holder may direct and (ii) physical delivery, to or
upon the order of such Holder, of any other Deposited Securities at the time
evidenced by such Receipt.
Delivery of such Deposited Securities (other than the CPOs) may be made by
the delivery of certificates in the name of such Holder or as ordered by such
Holder or by the delivery of certificates properly endorsed or accompanied by
proper instruments of transfer. Such delivery shall be made, as hereinafter
provided, without unreasonable delay.
A Receipt surrendered for such purpose may be required by the Depositary
to be properly endorsed in blank or accompanied by proper instruments of
transfer in blank, and the Holder thereof shall execute and deliver to the
Depositary a written order directing the Depositary to cause (i) the electronic
transfer of the CPOs represented by such Receipt to an account in the name of
the Holder or such other name as the Holder may direct and (ii) cause the
Deposited Securities (other than CPOs) being withdrawn to be delivered to or
upon the written order of a person or persons designated in such order.
Thereupon the Depositary shall direct the Custodian to deliver at the Mexico
City office of the Custodian, subject to Sections 2.06, 3.01, 3.02 and 3.04 of
the Deposit Agreement and pursuant to the other terms and conditions of the
Deposit Agreement and the Estatutos, to or upon the written order of the person
or persons designated in the order delivered to the Depositary as above
provided, the Deposited Securities (including evidence of transfer of the CPOs)
at the time evidenced by such Receipt, except that the Depositary may, in its
discretion, make delivery to such person or persons at the Depositary's Office
of any evidence of transfer, cash, dividends, distributions or rights with
respect to the Deposited Securities evidenced by such Receipt, or of any
proceeds of sale of any such cash, dividends, distributions or rights, which may
at the time be held by the Depositary. At the request, risk and expense of any
Holder so surrendering a Receipt, and for the account of such Holder, the
Depositary shall direct the Custodian to transfer or forward any cash, rights or
other property comprising, and to forward any certificate or certificates and
other proper documents of title for, the Deposited Securities (including
evidence of transfer of the CPOs) evidenced by such Receipts to the Depositary
for delivery at the Depositary's Office. Such direction shall be given by letter
or, at the request, risk and expense of such Holder, by cable, telex or
facsimile transmission.
(3) Transfer of Receipts, Combinations and Split-ups of Receipts;
Limitations. The Depositary, subject to the terms and conditions of the Deposit
Agreement, shall register transfers on its transfer books from time to time of
Receipts, upon any surrender at any of its designated
3
transfer offices of a Receipt by the Holder in person or by duly authorized
attorney, properly endorsed or accompanied by proper instruments of transfer,
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 thereto. The Depositary, subject to the terms and
conditions of the Deposit Agreement, shall upon surrender at any of its
designated transfer offices of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, 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. As a condition
precedent to the execution and delivery, registration, registration of transfer,
split-up, combination or surrender of any Receipt or transfer and withdrawal of
any Deposited Securities, the Depositary, the Company, the CPO Trustee or the
Custodian may require (i) payment from the Holder, the presenter of the Receipt
or the depositor of CPOs, of a sum sufficient to reimburse it for any tax, duty
or other governmental charge payable with respect thereto (including any such
tax, duty or other governmental charge with respect to CPOs being deposited, to
the Receipts being issued or to the Deposited Securities being withdrawn) and
any transfer or registration fees in effect for the registration or registration
of transfers of CPOs generally on the CPO register of the CPO Trust (or the
appointed agent of the CPO Trust for transfer and registration of CPOs); (ii)
payment of any applicable fees as provided in the Deposit Agreement; (iii) the
production of proof satisfactory to it as to the identity and genuineness of any
signature; and (iv) compliance with such reasonable regulations, if any, as the
Depositary may establish consistent with the provisions of the Deposit
Agreement.
Any person depositing CPOs or any Holder of a Receipt may be required from
time to time to file with the Depositary or the Custodian such proof of
citizenship, residence, exchange control approval, legal or beneficial ownership
or other information relating to the registration on the books of the CPO Trust
(or the appointed agent of the CPO Trust for transfer and registration of CPOs)
of the CPOs presented for deposit, to execute and deliver to the Depositary or
the Custodian such certificates, and to make such representations and
warranties, as the Depositary may deem necessary or proper or as the Company may
require by written request to the Depositary or the Custodian. The Depositary
may withhold the delivery or registration of transfer of any Receipt or the
distribution or sale of any dividend or other distribution or rights or of the
proceeds thereof or the delivery of any Deposited Securities underlying such
Receipt until the foregoing is accomplished to the Depositary's reasonable
satisfaction.
The delivery of Receipts against deposits of CPOs generally may be
suspended, or the delivery of Receipts against the deposit of particular CPOs
may be withheld, or the registration of transfer of Receipts in particular
instances may be refused, or the registration of transfer or surrender of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary, the Share register of the Company or the CPO
register of the CPO Trust are closed, or if any such action is deemed necessary
or advisable by the Depositary, the Company or the CPO 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 any securities exchange on which the
Receipts or Shares are listed, or under any provision of the Receipts or of the
Deposit Agreement, or for any other reason.
4
Notwithstanding the foregoing sentence or any provision of this Receipt or
the Deposit Agreement to the contrary, Holders shall be entitled to withdraw
Deposited Securities subject only to the conditions set forth in paragraph I(A)
(1) of the General Instructions (or any successor provision thereto), as in
effect from time to time, to Form F-6 as prescribed by the Commission under the
Securities Act of 1933.
The Depositary will not knowingly accept for deposit under the Deposit
Agreement any CPOs, the Shares underlying which, if sold by the holder thereof
in the United States (as defined in Regulation S under the Securities Act of
1933), would be subject to the registration provisions of the Securities Act of
1933 unless a registration statement is in effect as to such Shares or such sale
would be exempt from such registration provisions. The Depositary shall comply
with written instructions of the Company not to accept for deposit under the
Deposit Agreement any CPOs identified in such instructions at such times and
under such circumstances as may be specified in such instructions in order to
facilitate the Company's compliance with the securities laws of the United
States.
The Depositary may issue Receipts against rights to receive CPOs from the
CPO Trust (or the appointed agent of the CPO Trust for transfer and registration
of CPOs). No such issue of Receipts will be deemed a "Pre-release" subject to
the restrictions of the following paragraph.
Unless requested by the Company to cease doing so, the Depositary may (but
is not required to) issue from time to time Receipts prior to the delivery to it
or the Custodian for deposit, pursuant to Section 2.02 of the Deposit Agreement,
of the CPOs in respect of which such Receipts are issued (each such issue a
"Pre-release"). The Depositary will not make a Pre-release of any Receipts (each
a "Pre-release Receipt") unless (a) such Pre-released Receipts are, at all
times, fully collateralized (such collateral marked to market daily) with cash
or United States government securities, (b) the applicant for such Pre-released
Receipts represents in writing that it, or its customer, is the beneficial owner
of the CPOs to be remitted, assigns all beneficial right, title and interest in
such CPOs to the Depositary for the benefit of the Holders and agrees in effect
to hold such CPOs for the account of the Depositary until delivery of the same
(or Receipts representing the same) upon the Depositary's request and (c) such
Pre-release is terminable by the Depositary on no more than five (5) business
days' notice. A Pre-release may be subject to such further indemnities and
credit regulations as the Depositary deems appropriate. The Depositary will
normally limit the aggregate number of Pre-released Receipts outstanding at any
one time to thirty percent (30%) of the American Depositary Shares outstanding
(without giving effect to American Depositary Shares evidenced by outstanding
Pre-released Receipts); provided, however, that the Depositary reserves the
right to change or disregard such limit from time to time as it deems
appropriate. The Depositary will also set limits with respect to the number of
Pre-released Receipts involved in transactions to be done under the Deposit
Agreement with any one person on a case by case basis as it deems appropriate.
The collateral referred to in clause (a) above shall be held by the Depositary
for the benefit of Holders as security for the performance of the obligations to
deliver CPOs set forth in clause (b) above (and shall not, for the avoidance of
doubt, constitute Deposited Securities under the Deposit Agreement). The
Depositary may, however retain for its own account any earnings on such
collateral and any other compensation received by it in connection with a
Prerelease.
5
(4) Liability of Holder for Taxes. Any tax, duty or other governmental
charge or expense payable by the Custodian, the Depositary or the nominee or
nominees of either as the registered holder of any Deposited Securities
underlying this Receipt shall be payable by the Holder hereof, who shall pay the
amount thereof to the Depositary. The Depositary may refuse to effect any
registration of transfer of this Receipt or any transfer and withdrawal of
Deposited Securities underlying this Receipt until such payment is made, and may
withhold any cash dividends or other cash distributions constituting Deposited
Securities underlying this Receipt, or may sell for the account of the Holder
hereof any part or all of the other Deposited Securities underlying this
Receipt, and may apply such cash or the proceeds of any such sale in payment of
any such tax, duty or other governmental charge or expense (and any taxes and
expenses arising or incurred as a result of effecting any such sale), the Holder
hereof remaining liable for any deficiency.
(5) Warranties on Deposit of CPOs. Every person depositing CPOs under the
Deposit Agreement shall be deemed thereby to represent and warrant that such
CPOs are validly issued and outstanding, fully paid, non-assessable and free of
preemptive rights, and that the person making such deposit is duly authorized so
to do. Every such person (other than the Company) shall also be deemed to
represent that the deposit of CPOs or the sale of the Receipts issued upon such
deposit is not restricted under the securities laws of the United States. All
such representations and warranties shall survive the deposit or withdrawal of
CPOs and issuance or cancellation of Receipts therefor.
(6) Charges of Depositary. The Company agrees to pay the fees, reasonable
expenses and out-of-pocket charges of the Depositary and those of any Registrar
only in accordance with agreements in writing entered into between the
Depositary and the Company from time to time. The following charges shall be
incurred by any party depositing or withdrawing CPOs or by any Holder
surrendering Receipts or to whom Receipts are issued (including, without
limitation, issuance pursuant to a stock dividend or stock split declared by the
Company or an exchange of stock regarding the Receipts or Deposited Securities
or a distribution of Receipts pursuant to Section 4.03 of the Deposit
Agreement), whichever applicable, (1) taxes and other governmental charges, (2)
such registration fees as may from time to time be in effect for the
registration of transfers of CPOs generally on the CPO register of the CPO Trust
(or the appointed agent of the CPO Trust for transfer and registration of CPOs)
and applicable to transfers of CPOs to the name of the Depositary or its nominee
or the Custodian or its nominee on the making of deposits or withdrawals under
the Deposit Agreement, (3) such cable, telex and facsimile transmission expenses
as are expressly provided in the Deposit Agreement, (4) such expenses as are
incurred by the Depositary in the conversion of foreign currency into U.S.
dollars pursuant to Section 4.05 of the Deposit Agreement, (5) a fee not in
excess of $5.00 or less per 100 ADSs (or portion thereof) for the execution and
delivery of Receipts pursuant to Section 2.03, the execution and delivery
Receipts pursuant to Section 4.03 and the surrender of Receipts pursuant to
Section 2.05 of the Deposit Agreement and (6) a fee for the distribution of
proceeds pursuant to Section 4.04 of the Deposit Agreement, such fee (to be
deducted from such proceeds) being in an amount equal to the fee for the
issuance of ADSs referred to above which would have been charged as a result of
the deposit by Holders of CPOs received in exercise of rights distributed to
them pursuant to Section 4.04 of the Deposit Agreement but which rights are
instead sold by the Depositary, and the net proceeds distributed.
6
(7) Title to Receipts. It is a condition of this Receipt, and every
successive Holder hereof by accepting or holding this Receipt consents and
agrees, that title to this Receipt (and to the ADSs evidenced hereby), when
properly endorsed or accompanied by proper instruments of transfer, is
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that the Company, the CPO Trustee and the
Depositary, notwithstanding any notice to the contrary, may treat the Holder
thereof as the absolute owner hereof for the purpose of determining the person
entitled to any distribution of dividends or other distributions or to any
notice provided for in the Deposit Agreement, and for all other purposes.
(8) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any purpose
unless executed by the Depositary by the manual signature of a duly authorized
signatory or, if a Receipt Registrar shall have been appointed, by the manual
signature of a duly authorized signatory of such Receipt Registrar or any
co-registrar.
[FORM OF REVERSE OF RECEIPT]
(9) Dividends and Distributions. Whenever the Depositary shall receive any
cash dividend or other cash distribution by the Company in respect of any
Deposited Securities, the Depositary shall, subject to the provisions of Section
4.05 of the Deposit Agreement, as soon as possible convert such dividend or
distribution into U.S. dollars and shall distribute as soon as possible the
amount thus received to the Holders entitled thereto, in proportion to the
number of American Depositary Shares representing such Deposited Securities held
by them respectively; provided, however, that in the event that the Company, the
CPO Trustee, the Depositary or the Custodian shall be required to withhold and
does withhold from any cash dividend or other cash distribution in respect of
any Deposited Securities an amount on account of taxes, the amount distributed
to the Holder of Receipts for ADSs representing such Deposited Securities shall
be reduced accordingly. The Depositary shall distribute only such amount,
however, as can be distributed without distributing to any Holder a fraction of
one cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and become part
of the next sum received by the Depositary for distribution to Holders of
Receipts then outstanding.
Subject to the applicable provisions of the Deposit Agreement, whenever
the Depositary shall receive any distribution other than cash or CPOs or rights
to subscribe to additional CPOs or Shares underlying CPOs upon any Deposited
securities, the Depositary shall cause the securities or property received by it
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 such distribution cannot be made proportionately
among the Holders entitled thereto, or if for any other reason (including any
securities law requirement or any requirement that the Company, the CPO Trustee
or the Depositary or the Custodian withhold an amount on account of taxes) 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,
7
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.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, CPOs (including Shares underlying the CPOs),
subject to the applicable provisions of the Deposit Agreement, the Depositary
may, with the approval of the Company and the CPO Trustee, and shall, if the
Company shall so request, distribute promptly 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 number of CPOs received as such
dividend or distribution. In lieu of delivering Receipts for fractional ADSs in
any such case, the Depositary shall sell the amount of CPOs or request the CPO
Trustee to sell the number of Shares underlying such CPOs, represented by the
aggregate of such fractions and distribute promptly the net proceeds, all in the
manner and subject to the conditions described in Section 4.02 of the Deposit
Agreement. If additional Receipts are not so distributed, each ADS shall
thenceforth also represent the additional CPOs distributed upon the Deposited
Securities represented thereby.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities an option to elect to receive dividends in
fully paid CPOs (including Shares underlying the CPOs) instead of cash, the
Depositary and the Company agree to consult to determine whether such option
will be made available to the Holders of Receipts and, if such option is to be
made available to Holders, the procedures to be followed.
In the event that the Company shall offer or cause to be offered to the
Holders of any Deposited Securities any rights to subscribe for additional CPOs
(including right to subscribe for additional Shares underlying CPOs) or any
rights of any other nature, the Depositary shall, after consultation with the
Company, have discretion as to the procedure to be followed in making such
rights available to the Holders of Receipts or in disposing of such rights on
behalf of such Holders and making the net proceeds available in U.S. dollars to
such Holders; provided, however, that the Depositary will, if requested by the
Company, take action as follows (i) if at the time of the offering of any rights
the Depositary determines that it is lawful and feasible to make such rights
available to Holders by means of warrants or otherwise, the Depositary shall
distribute promptly warrants or other instruments therefor in such form as it
may determine to the Holders entitled thereto, in proportion to the number of
ADSs representing such Deposited Securities held by them, respectively, or
employ such other method as it may deem feasible in order to facilitate the
exercise, sale or transfer of rights by such Holders; or (ii) if at the time of
the offering of any rights the Depositary determines that it is not lawful or
not feasible to make such rights available to Holders by means of warrants or
otherwise, or if the rights represented by such warrants or such other
instruments are not exercised and appear to be about to lapse, the Depositary
will use its best efforts to sell such rights or such warrants or other
instruments at public or private sale, at such place or places and upon such
terms as it may deem proper, and will allocate the proceeds of such sales for
account 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, the date of
delivery of any Receipt or Receipts or otherwise.
8
If a registration statement under the Securities Act of 1933 is required
with respect to the securities to which any rights relate in order for the
Company to offer such rights to Holders and sell the securities represented by
such rights, the Depositary will not offer such rights to Holders having an
address in the United States (as defined in Regulation S) unless and until such
a registration statement is in effect, or unless the offering and sale of such
securities and such rights to such Holders are exempt from registration under
the provisions of such Act.
Whenever the Depositary shall receive foreign currency, by way of
dividends or other distributions or as the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into U.S. dollars and the resulting U.S. dollars
transferred to the United States, the Depositary shall convert or cause to be
converted, by sale or in any other manner that it may determine, such foreign
currency into U.S. dollars, and such U.S. dollars shall be distributed as soon
as possible to the Holders entitled thereto or, if the Depositary shall have
distributed any warrants or other instruments which entitle the holders thereof
to such U.S. dollars, then to the holders of such warrants and/or instruments,
as applicable, upon surrender thereof for cancellation. Such distribution may be
made upon an averaged or other practicable basis without regard to any
distinctions among Holders on account of exchange restrictions or otherwise and
shall be net of any expenses of conversion into U.S. dollars incurred by the
Depositary as provided in Section 5.09 of the Deposit Agreement.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall promptly
file such application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary is not convertible on a reasonable
basis into U.S. dollars transferable to the United States, or if any approval or
license of any government 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 hold such
foreign currency uninvested and without liability for interest thereon 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 U.S. dollars to the
extent permissible to the Holders entitled thereto and may distribute the
balance of the foreign currency received by the Depositary to, or hold such
balance for the respective accounts of, the Holders entitled to receive the same
uninvested and without liability for interest thereon.
(10) 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 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 CPOs (including notices of any
9
meeting of holders of the Shares underlying the CPOs) or other Deposited
Securities, the Depositary shall, after consultation with the Company or the CPO
Trustee, as the case may be, fix a record date, which date shall, to the extent
practicable, be the same as the record date fixed by the Company or the CPO
Trustee, as the case may be, for the determination of the Holders who shall be
entitled to receive such dividend, distribution or rights, or the net proceeds
of the sale thereof, or to give instructions for the exercise of voting rights
at any such meeting or to receive ADSs that will represent the changed number of
CPOs. Subject to the provisions of Sections 4.01 through 4.04 of the Deposit
Agreement and to the other 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 sale thereof or to give
voting instructions in proportion to the number of ADSs held by them,
respectively.
(11) Voting of Deposited Securities. UNLESS THE DEPOSITARY RECEIVES
WRITTEN NOTICE FROM THE COMPANY TO THE CONTRARY, HOLDERS OF ADSs WILL NOT BE
ENTITLED TO INSTRUCT THE DEPOSITARY AS TO THE EXERCISE OF VOTING RIGHTS
PERTAINING TO SHARES. Upon receipt of notice of any meeting or solicitations of
consents of Holders of CPOs or other Deposited Securities, the Depositary shall,
as soon as practicable thereafter and, to the extent permitted by law, mail to
the Holders a notice which shall contain (a) such information as is contained in
such notice of meeting, (b) if such notice or solicitation pertains to any
Deposited Security other than Shares, a statement that each Holder at the close
of business on a specified record date will be entitled, subject to any
applicable provisions of law or the CPO Trust and of the Estatutos and the
Deposited Securities, to instruct the Depositary as to the exercise of voting
rights pertaining to the Deposited Securities represented by the ADSs evidenced
by such Holder's Receipts and a brief statement as to the manner in which such
instructions may be given, including an express indication that instructions may
be given to the Depositary to give a discretionary proxy to a person or persons
designated by the CPO Trustee and (c) if such notice or solicitation pertains to
Shares, a statement that, pursuant to the provisions of the CPOs and the CPO
Trust., the Holders may not vote the Shares underlying the CPOs and that all of
the Shares underlying the CPOs shall be voted by the CPO Trust in the same
manner as the majority of all Shares that are not held in the CPO Trust and that
are voted at the relevant meeting. Upon the written request of a Holder of a
Receipt on such record date, received on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor insofar as
practicable to vote or cause to be voted the amount of Deposited Securities
represented by the ADSs evidenced by such Receipt in accordance with the
instructions set forth in such request. The Depositary agrees not to vote the
amount of Deposited Securities represented by the ADSs evidenced by a Receipt
unless it receives instructions from the Holder of such Receipt.
(12) Changes Affecting Deposited Securities. Upon any change in par value,
split-up, consolidation or any other reclassification of Deposited Securities,
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 of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and ADSs shall thenceforth
represent the right to receive the new Deposited Securities so received in
exchange or conversion, unless additional Receipts are delivered pursuant to the
following sentence. In any such case, the Depositary may
10
with the approval of the Company, and shall if the Company shall so request,
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 Deposited Securities.
(13) Reports; Inspection of Transfer Books. The Depositary shall make
available for inspection by Holders at the Depositary's Office or at any other
designated transfer offices, English language versions of any reports and
communications received from the Company or the CPO Trustee which are both (a)
received by the Depositary or the Custodian or the nominee of either of them as
the holder of the Deposited Securities or by the CPO Trustee as the holder of
the Shares underlying the CPOs, and (b) made generally available to the holders
of such Deposited Securities (including the Shares underlying the CPOs) by the
Company or the CPO Trustee. The Depositary shall also send to Holders English
language versions of such reports when furnished by the Company as provided in
Section 5.06 of the Deposit Agreement. The Depositary will keep books at such
transfer office for the registration of Receipts and their transfer which at all
reasonable times will be open for inspection by the Holders, the CPO Trustee and
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 a matter related to the Deposit Agreement, the
Receipts, the CPOs, the Shares or the Estatutos.
(14) Withholding. Notwithstanding any other provision of the Deposit
Agreement, if the Depositary determines that any distribution in property
(including CPOs, and rights to subscribe therefor) is subject to any tax 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, 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 to the Holders entitled thereto in the
manner described in Sections 4.01 and 4.02 of the Deposit Agreement.
(15) Liability of the Depositary v. the Company and the CPO Trustee.
Neither the Depositary nor the Company nor the CPO Trustee, nor any of their
respective directors, employees, agents or affiliates shall incur any liability
to any Holder of this Receipt if, by reason of any provision of any present or
future law of the United States, the United Mexican States or any country or of
any governmental or regulatory authority or stock exchange, or by reason of any
provision, present or future, of the Estatutos, the CPO Trust Agreement, the CPO
Deeds or the Deposited Securities or by reason of any act of God or war or other
circumstance beyond its control, the Depositary or the Company or the CPO
Trustee or any of their respective directors, employees, agents or affiliates
shall be prevented or forbidden from or be subject to any civil or criminal
penalty on account of doing or performing any act or thing which by the terms of
the Deposit Agreement it is provided shall be done or performed; nor shall the
Depositary or the Company or the CPO Trustee or any of their respective
directors, employees, agents or affiliates incur any liability to any Holder by
reason of any non-performance or delay, caused as aforesaid, in performance of
any act or thing which by the terms of the Deposit Agreement it is provided or
contemplated shall or may be done or performed, or by reason of any exercise of,
or failure to exercise, any discretion provided for in the Deposit Agreement or
the Estatutos, or the CPO Trust Agreement or the CPO Deeds.
11
The Depositary assumes no obligation nor shall it be subject to any
liability under the Deposit Agreement to Holders (including, without limitation,
liability with respect to the validity or worth of the Deposited Securities),
except that it agrees to use its reasonable efforts exercised in good faith in
the performance of such duties as are specifically set forth in the Deposit
Agreement. The Company assumes no obligation nor shall it be subject to any
liability under the Deposit Agreement to Holders, except that it agrees to use
its reasonable efforts exercised in good faith in the performance of its
obligations set forth in the Deposit Agreement.
Neither the Depositary nor the Company shall be under any obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or in respect of the Receipts, which in its opinion
may involve it in expense or liability, unless indemnity satisfactory to it
against all expense and liability be furnished as often as may be required, and
the Custodian shall not be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the Depositary.
Neither the Depositary nor the Company shall be liable for any action or
nonaction by it in reliance upon the advice of or information from legal
counsel, accountants, any governmental authority, any person presenting CPOs for
deposit, any Holder, or any other person believed by it in good faith to be
competent to give such advice or information. The Depositary shall not be
responsible for any failure to carry out any instructions to vote any of the
Deposited Securities or for the manner in which any such vote is cast or the
effect of any such vote, provided that any such action or non-action is in good
faith. Subject to the Estatutos and the Deposit Agreement, the Depositary may
own and deal in any class of securities of the Company and its affiliates and in
Receipts. The Depositary shall not be liable to Holders for any acts or
omissions made by a successor depositary whether in connection with a previous
act or omission of the Depositary or in connection with any matter arising
wholly after the removal or resignation of the Depositary, provided that the
Depositary exercised its best judgment in good faith while it acted as
Depositary.
The Company has agreed to indemnify the Depositary and the Custodian from
and against any liability or expense (including reasonable fees and expenses of
counsel) which may arise out of any registration with the Commission of
Receipts, ADSs or Deposited Securities or the offer or sale thereof in the
United States or out of acts performed or omitted in accordance with the
provisions of the Deposit Agreement and of this Receipt, as the same may be
amended, modified or supplemented from time to time, (i) by either the
Depositary or the Custodian, except for any liability or expense arising out of
the negligence or bad faith of, or breach of the Deposit Agreement or any other
agreement with the Company relating to the facility created thereby, either of
them, and, except to the extent that such liability or expense arises out of
information relating to the Depositary or the Custodian, as applicable,
furnished in writing to the Company by the Depositary or the Custodian, as
applicable, expressly for use in any registration statement, proxy statement,
prospectus (or placement memorandum) or preliminary prospectus (or preliminary
placement memorandum) relating to the CPOs represented by the ADSs or the Shares
represented thereby, or omissions from such information or (ii) by the Company
or any of its agents.
The indemnities contained in the Deposit Agreement and described in the
preceding paragraph shall not extend to any liability or expense which may arise
out of any Pre-release (it being understood, for the avoidance of doubt, that
the foregoing shall not apply to any liability or
12
expense which may arise out of any misstatement or alleged misstatement or
omission or alleged omission in any registration statement, proxy statement,
prospectus (or placement memorandum) or preliminary prospectus (or preliminary
placement memorandum) relating to the offer or sale of ADSs, except to the
extent arising out of breach by the Depositary or the Custodian of Section 2.09
of the Deposit Agreement or to the extent any such liability or expense arises
out of information relating to the Depositary or the Custodian, as applicable,
furnished in writing to the Company by the Depositary or Custodian, as
applicable, expressly for use in any of the foregoing documents, or omissions
from such information)
The Depositary has agreed to indemnify the Company and to hold it harmless
from any liability or expense (including fees and expenses of counsel) which may
arise out of (i) acts performed or omitted to be performed by the Depositary or
Custodian due to their negligence or bad faith or (ii) breach of the Deposit
Agreement or (iii) any Pre-release (it being understood, for the avoidance of
doubt, that the indemnity contained in this clause (iii) does not extend to any
liability or expense arising out of or in connection with any misstatement or
omission or alleged misstatement or omission relating to the description of the
Deposit Agreement or the facility created thereby in any document filed with the
Commission, except to the extent that such liability or expense arises out of or
is in connection with any misstatement or omission in any information relating
to the Depositary or the Custodian, as the case may be, furnished in writing to
the Company by the Depositary or the Custodian, as the case may be, for use in
such document).
(16) Resignation and Removal of Depositary. The Depositary may at any time
resign as Depositary under the Deposit Agreement by written notice of its
election so to do delivered to the Company, such resignation to take effect upon
the appointment of a successor depositary and its acceptance of such appointment
as hereinafter provided. The Depositary may at any time be removed by the
Company by written notice of such removal, effective upon the appointment of a
successor depositary and its acceptance of such appointment provided in the
Deposit Agreement.
(17) Amendment of Deposit Agreement and Receipts. The form of the Receipts
and any provisions of 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 taxes (including, without
limitation, stamp taxes) and other governmental charges), or which shall
otherwise prejudice any substantial existing right of Holders of Receipts,
shall, however, not become effective as to outstanding Receipts until the
expiration of thirty (30) days after notice of such amendment shall have been
given to the Holders of outstanding Receipts, provided that any amendments which
do not impose or increase any fees or charges to be borne by Holders shall be
deemed not to prejudice any substantial rights of Holders. Every Holder of a
Receipt at the time any such amendment so becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such amendment and to
be bound by the Deposit Agreement or the Receipts, or both of them, as
applicable, as amended thereby. In no event shall any amendment impair the right
of the Holder of any Receipt to surrender such Receipt and receive therefore the
Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law.
13
(18) Termination of the Deposit Agreement. The Depositary shall at any
time at the direction of the Company (which shall be confirmed in writing)
terminate the Deposit Agreement by mailing notice of such termination to the
Holders of all Receipts then outstanding at least thirty (30) days prior to the
date fixed in such notice for such termination. The Depositary may terminate the
Deposit Agreement if at any time ninety (90) days shall have expired after the
Depositary shall have delivered to the Company a written notice of its election
to resign and a successor depositary shall not have been appointed and accepted
its appointment as provided in Section 5.04 of the Deposit Agreement, such
termination to become effective by the Depositary mailing notice of such
termination to Holders of all Receipts then outstanding at least thirty (30)
days prior to the date fixed in such notice for such termination. If any
Receipts remain outstanding after the date of termination of the Deposit
Agreement, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any further
acts under the Deposit Agreement, except that the Depositary shall, in
accordance with and subject to the provisions of the Deposit Agreement, (a)
continue to collect dividends and other distributions pertaining to Deposited
Securities, (b) sell rights as provided in the Deposit Agreement and (c)
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 exchange for Receipts surrendered to the
Depositary. At any time after the expiration of two years from the date of
termination, the Depositary may sell the Deposited Securities then held by it
under the Deposit Agreement and may thereafter hold the uninvested net proceeds
of any such sale, together with any other cash then held by it thereunder,
unsegregated and without liability for interest, for the pro rata benefit of the
Holders of Receipts which have not theretofore been surrendered, such Holders
thereupon becoming general creditors of the Depositary with respect to such net
proceeds. 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, after deducting, in each case, the applicable fees and expenses
of the Depositary and applicable taxes or governmental charges and except as
provided in Section 5.08 of the Deposit Agreement. Upon the termination of the
Deposit Agreement, the Company shall be discharged from all obligations under
the Deposit Agreement except for its obligations to the Depositary under
Sections 5.08 and 5.09 thereof.
(19) Disclosure of Interests. To the extent that provisions of or
governing any Deposited Securities (including, in the case of CPOs, the Shares
underlying such CPOs), the Estatutos or applicable law may require the
disclosure of beneficial or other ownership of Deposited Securities, other CPOs
and other securities to the Company or the CPO Trustee and provide for blocking
of Holders' transfer and voting or other rights to enforce such disclosure or
limit such ownership, the Depositary shall use its best efforts to comply with
Company or CPO Trustee instructions, as the case may be, as to Receipts in
respect of any such enforcement or limitation. Holders shall comply with all
such disclosure requirements and shall cooperate with the Depositary's
compliance with such instructions and by their holding of Receipts are deemed to
consent to any such limitation or blocking of rights.
(20) Certain Definitions. Terms used in this Receipt which are not
otherwise defined shall have the respective meanings ascribed to them in the
Deposit Agreement.
14
(21) Headings. Headings contained herein are included for convenience only
and are not to be used in construing or interpreting any provision hereof.
(22) Governing Law. The Deposit Agreement and this Receipt shall be
interpreted with, and all rights thereunder and hereunder and provisions thereof
and hereof shall be governed by, the laws of the State of New York.
(23) Available Information to the Commission. The Company is subject to
the periodic reporting requirements of the Securities Exchange Act of 1934, and
accordingly, is required to file certain reports with the Commission. Such
reports and other information may be inspected and copied at the public
reference facilities maintained by the Commission, located as of the date of the
Deposit Agreement at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549.
(24) The CPO Trust. Banco Nacional de Mexico, S.A., Institucion de Banca
Multiple, Grupo Financiero Banamex Accival, Division Fiduciaria is CPO Trustee
under the Trust which was created under the Foreign Investment Law, in order to
permit non-Mexican investment in the Company by removing voting rights otherwise
appertaining to such investments without affecting the economic consequences of
such investments. The CPO Trust operates through Indeval, the central depositary
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 Paseo
de la Reforma No. 404, Piso 13, Col. Juarez 06600, Mexico D.F., Mexico. The
terms of the CPO Trust, upon which the Shares may be deposited and CPOs issued,
are briefly described as follows (which description is qualified by and subject
to the terms of the CPO Trust, copies of which in Spanish and in an English
translation are on file at the Depositary's Office, the office of the Custodian
and at any other designated transfer office for Receipts): (i) each CPO
represents a financial interest in one Share; (ii) the CPOs have no voting
rights, except as discussed in (vii) below; (iii) dividends on the Shares are
credited to CPO holders' accounts by Indeval upon receipt thereof from the
Company; (iv) CPO holders will be informed and have access to materials at the
same time as direct holders of Shares; (v) except for voting rights, any rights
pertaining to the Shares are transferred to CPO holders through Indeval at the
same time as direct holders of Shares receive any such rights; (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 such securities (but only in the form of CPOs, to the extent
available); (vii) the CPO Trust may be terminated following instructions from
the Technical Committee of the CPO Trust, after a resolution has been adopted at
a meeting by holders of a majority of CPOs and must be terminated after 30 years
(unless rolled into new trusts under similar terms); (viii) only CPO holders who
are Mexican nationals may obtain title to Shares upon surrender of title to
CPOs; (ix) Indeval participants may confirm their position on the CPO Trust's
transfer books through Indeval but may not inspect same or obtain any list of
holders of CPOs; and (x) the CPO Trust does not limit the liability of the CPO
Trustee. Fees or charges payable to the CPO Trustee are not charged against CPO
holders.
15