June 13, 2007
Via EDGAR
Securities and Exchange Commission
100 F Street, N.E.,
Washington, D.C. 20549
Rule 424(b)(3) Filing in respect of Form F-6 Registration Statement No.
333-14196 for American Depositary Shares representing Certificado de
Participacion Ordinario ("CPOs"), each CPO representing Financial
Interests in one (1) Series A Share, without par value (such CPOs, the
"Deposited Securities"), of Grupo TMM, S.A.B. (formerly, Grupo TMM, S.A.
de C.V.), a corporation (sociedad anonima de capital variable) organized
and existing under the laws of the United Mexican States (the "Company").
Ladies & Gentlemen:
On behalf of Citibank, N.A., as Depositary (the "Depositary") and acting
on behalf of the legal entity created by the Deposit Agreement, dated as of
December 26, 2001 ( the "Deposit Agreement"), among the Company, the Depositary
and all Holders and Beneficial Owners from time to time of American Depositary
Receipts ("ADRs") evidencing American Depositary Shares ("ADSs"), each
representing one (1) CPO, each CPO representing financial interests in one (1)
Series A Share, without par value, I enclose for filing with the Securities and
Exchange Commission (the "Commission"), pursuant to Rule 424(b)(3) promulgated
by the Commission under the Securities Act of 1933, as amended (the "Act"), one
(1) copy of a form of the ADRs which are to be issued by the Depositary and
which reflect the change in corporate name of the Company from Grupo TMM, S.A.
de C.V. to Grupo TMM, S.A.B.
As required by Rule 424(e) under the Act, the cover of the enclosed ADR
has been marked to indicate the paragraph of Rule 424 under which the filing is
being made and the file number of the Form F-6 Registration Statement previously
filed and declared effective in respect of the ADRs.
In anticipation of any subsequent filings with, and/or submissions to, the
Commission that the Company and/or the Depositary may make, we respectfully
request that the Commission modify its records to reflect the change in
corporate name of the Company from Grupo TMM, S.A. de C.V. to Grupo TMM, S.A.B.
In the event any member of the Staff of the Commission has any questions
or comments concerning this filing, such person should contact the undersigned
at (212) 816-6647.
Very truly yours,
/s/ Tom Crane
Tom Crane
Enclosures
cc: Ana-Maria Carasso (Citibank, N.A. - ADR Department)
Richard Etienne (Citibank, N.A. - ADR Department)
Filed Pursuant to Rule 424(b)(3)
Registration Statement on Form F-6 (Reg. No. 333-14196)
EXHIBIT A
THE HOLDER OF THIS AMERICAN DEPOSITARY RECEIPT IS NOT ENTITLED TO EXERCISE ANY
VOTING RIGHTS WITH RESPECT TO THE SERIES A SHARES OF GRUPO TMM, S.A.B.
REPRESENTED BY THE CERTIFICADOS DE PARTICIPACION ORDINARIOS REPRESENTED BY THE
AMERICAN DEPOSITARY SHARES EVIDENCED BY THIS AMERICAN DEPOSITARY RECEIPT.
Number _____________
(CUSIP Number __________)
American Depositary Shares (each American
Depositary Share Representing one (1)
Certificado de Participacion Ordinario
Representing Financial Interests in one (1)
Series A Share)
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED CERTIFICADOS DE PARTICIPACION ORDINARIOS
representing financial interests in
FULLY PAID SERIES A SHARES HELD IN TRUST
of
Grupo TMM, S.A.B.
(Organized under the laws of
THE UNITED MEXICAN STATES)
CITIBANK, N.A., a national banking association organized and
existing under the laws of the United States of America, as Depositary (the
"Depositary"), hereby certifies that _______________________ is the record owner
of _________________ American Depositary Shares representing deposited
Certificados de Participacion Ordinarios, each representing financial interests
in one (1) fully paid Series A share (such shares collectively, the "Shares"),
without par value or Grupo TMM, S.A.B., a corporation (sociedad anonima de
capital variable) organized under the laws of the United Mexican States (the
"Company") or evidence of rights to receive such Certificados de Participacion
Ordinarios ("CPOs") held in trust. The CPOs are issued by the trustee of the
trust (the "Trust") created under the Trust Agreement dated November 24, 1989
between Nacional Financiera, S.N.C., as grantor, and Nacional Financiera,
S.N.C., as trustee (the "Trustee"). At the date hereof each American Depositary
Share represents one (1) CPO deposited under the Deposit Agreement (as hereafter
defined) with the Custodian, which at the date of execution of the Deposit
Agreement is Citibank Mexico S.A., located at Reforma 390, 6TH Floor, C.P. 6695,
Mexico D.F., Mexico (the "Custodian"). The ADS(s)-to-CPO(s) ratio is subject to
amendment as provided in Articles IV and VI of the Deposit Agreement. The
address of the Corporate Agency Office of the Depositary is 388 Greenwich
Street, 14th floor, New York, NY 10013. The Depositary's Corporate Agency Office
is different from its Principal Executive Office. Its Principal Executive Office
is at 399 Park Avenue, New York, NY 10043.
(1) The Deposit Agreement. This American Depositary Receipt is one
of the receipts (the "Receipts") executed and delivered pursuant to the Deposit
Agreement for CPOs dated as of December 26, 2001 (as may be amended and
supplemented from time to time, the "Deposit Agreement"), by and among the
Company, the Depositary, all holders from time to time of American Depositary
Shares ("Holders") and all Beneficial Owners from time to time of any beneficial
interest in American Depositary Shares that are not the Holders thereof
(the "Beneficial Owners"), each of whom by accepting a Receipt agrees to become
a Party thereto and becomes bound by all terms and provisions thereof and
hereof. The Deposit Agreement sets forth the rights of Holders and Beneficial
Owners and the rights and duties of the Depositary in respect of the CPOs
deposited thereunder and any and all other securities, property and cash from
time to time received in respect of such CPOs and held thereunder (such CPOs,
securities, property and cash, collectively, the "Deposited Securities"). Copies
of the Deposit Agreement are on file at the Depositary's Principal Office, at
the principal office of the Custodian and at any other designated transfer
office. 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. The Depositary makes no representation or warranty as
to the validity or worth of the Deposited Securities. As used in this Receipt,
capitalized terms defined in the Deposit Agreement and not otherwise defined
herein have the same defined meanings as set forth in the Deposit Agreement.
(2) Withdrawal of Deposited Securities. Upon surrender of this
Receipt at the Principal Office of the Depositary for the purpose of withdrawal
of the Deposited Securities represented by the American Depositary Shares
evidenced by this Receipt, and upon receipt of payment of the fees of the
Depositary, if any, for the surrender and cancellation of Receipts provided for
in paragraph (7) of this Receipt, and all taxes and governmental charges payable
in connection with such surrender, subject to the terms and conditions of the
Deposit Agreement, such Holder is entitled to delivery, to him or upon his
order, of the Deposited Securities at the time represented by the American
Depositary Shares evidenced by this Receipt. Such delivery of such Deposited
Securities shall be made as hereinafter provided, without unreasonable delay. A
Receipt surrendered for such purposes may be required by the Depositary to be
properly endorsed or accompanied by properly executed instruments of transfer.
The person
requesting withdrawal of Deposited Securities shall deliver to the Depositary a
written order directing the Depositary to cause such Deposited Securities being
withdrawn to be delivered to or upon the written order of a person or persons
designated in such order.
(3) Transfer, Combinations and Split-ups of Receipts. The
Depositary, subject to the terms and conditions of the Deposit Agreement and
this Receipt, shall register transfers of this Receipt on its transfer books,
upon any surrender of this Receipt by the Holder hereof in person or by duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer (including signature guarantees in accordance with standard industry
practice) 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 hereto.
The Depositary, subject to the terms and conditions of the Deposit
Agreement and this Receipt, shall upon surrender of this Receipt for the purpose
of effecting a split-up or combination of this Receipt 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. The Depositary may close the register at
any time or from time to time, when deemed expedient by it in connection with
the performance of its duties hereunder or at the request of the Company,
subject in each case to the terms and conditions of Section 7.08 of the Deposit
Agreement.
(4) Certain Limitations. As a condition precedent to the execution
and delivery, registration, registration of transfer, split-up or combination or
surrender of any Receipt or the withdrawal of any Deposited Securities, the
Depositary, the Company or the Custodian may require from the Holder, the
presenter of a Receipt or the depositor of Shares (i) payment of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to CPOs being deposited or withdrawn) and payment
of any charges of the Depositary upon delivery of Receipts against deposits of
CPOs and upon withdrawal of Deposited Securities against surrender of Receipts
as provided in paragraph (7) of this Receipt; (ii) compliance with such
reasonable regulations, if any, as the Depositary and the Company may establish
consistent with the provisions of the Deposit Agreement; and (iii) production of
proof satisfactory to it as to the identity and genuineness of any signature
appearing on any form, certificate or other document delivered to the Depositary
in connection with the Deposit Agreement, including but not limited to in the
case of Receipts, a signature guarantee in accordance with standard industry
practice.
The delivery of Receipts against deposits of CPOs generally or of
particular CPOs may be suspended or withheld, or the registration of transfer of
Receipts in particular instances may be refused, or the registration of transfer
generally may be suspended, during any period when the transfer books of the
Depositary (or the appointed agent of the Depositary for the transfer and
registration of ADSs), the Company (or the appointed agent of the Company for
transfer and registration of Shares) or the Trust are closed, or if any such
action is deemed necessary or advisable by the Company or the Depositary or the
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 for any other reason.
Notwithstanding any other provision of the Deposit Agreement, the surrender of
outstanding Receipts and withdrawal of Deposited Securities represented thereby
may be suspended, but only as required in connection with (i) temporary delays
caused by closing the transfer books of the Depositary or the issuer of any
Deposited Securities or the deposit of Shares in connection with voting at a
shareholders' meeting, or the payment of dividends, (ii) payment of fees, taxes
and similar charges or (iii) compliance with
any U.S. or foreign laws or governmental regulations relating to the Receipts or
to the withdrawal of the Deposited Securities.
(5) Liability of Holders and Beneficial Owners for Taxes and Other
Charges. If any Mexican or other tax or other governmental charge shall become
payable with respect to this Receipt or any Deposited Securities represented by
the ADSs evidenced by this Receipt, such tax or other governmental charge shall
be payable by the Holder hereof, who shall pay the amount thereof to the
Depositary. The Depositary may refuse, and the Company shall be under no
obligation, to effect any registration of transfer of all or part of this
Receipt or any deposit or withdrawal of Deposited Securities represented by ADSs
evidenced hereby until such payment is made, and may withhold or deduct from any
dividends or other distributions, or may sell for the account of the Holder
hereof any part or all of the Deposited Securities represented by ADSs evidenced
hereby, and may apply such dividends or other distributions or the proceeds of
any such sale in payment of such tax or other governmental charge, the Holder
hereof remaining liable for any deficiency.
(6) Warranties by Depositor. Each person depositing CPOs under the
Deposit Agreement shall be deemed thereby to represent and warrant that (i) such
CPOs (and the Shares represented by such CPOs) and each certificate therefor are
validly issued and outstanding, fully paid and nonassessable, (ii) any
preemptive rights then in effect with respect to such CPOs (and the Shares
represented by such CPOs) have been validly waived or exercised, (iii) the
person making such deposit is duly authorized so to do and (iv) such CPOs (and
the Shares represented by the CPOs) and the ADSs issuable upon such deposit are
not and will not be "restricted securities" (as defined in the Deposit
Agreement). Such representations and warranties shall survive the deposit or
withdrawal of CPOs and issuance or cancellation of Receipts in respect thereof.
(7) Charges of Depositary. Holders and Beneficial Owners agree to
pay (i) the fees of the Depositary for the execution and delivery of Receipts
pursuant to Section 2.02 of the Deposit Agreement and the making of withdrawals
pursuant to Section 2.05 of the Deposit Agreement, each as provided in Exhibit B
to the Deposit Agreement, (ii) taxes and other governmental charges, (iii) such
registration fees as may from time to time be in effect for the registration of
transfers of CPOs generally on the register of the Trust or its appointed agent
for the registration of transfer and accordingly applicable to transfers of CPOs
to the name of the Depositary or its Nominee or a Custodian or its nominee on
the making of deposits pursuant to Section 2.02 or withdrawals pursuant to
Section 2.05 of the Deposit Agreement, (iv) such cable, telex and facsimile
transmission and delivery expenses as are expressly provided in the Deposit
Agreement to be at the expense of persons depositing CPOs or Holders and (v)
such customary expenses as are incurred by the Depositary in the conversion of
foreign currency pursuant to Section 4.06 of the Deposit Agreement. Any other
charges and expenses of the Depositary under the Deposit Agreement will be paid
by the Company after consultation and agreement between the Depositary and the
Company concerning the nature and amount of such charges and expenses. All fees
and charges may at any time and from time to time be changed by agreement
between the Company and the Depositary. The charges and expenses of the
Custodian, Nominee or any other agent of the Depositary are for the sole account
of the Depositary.
(8) Title to Receipts. Subject to the limitations set forth herein
or in the Deposit Agreement, it is a condition of this Receipt, and every
successive Holder hereof by accepting or holding the same consents and agrees,
that when properly endorsed or accompanied by properly executed instruments of
transfer (including signature guarantees in accordance with standard industry
practice), title to this Receipt (and to the Deposited Securities represented by
the ADSs evidenced hereby), is transferable by delivery with the same effect as
in the case of a certificated security under the law of the State of New York;
provided, however, that the Depositary and the Company, notwithstanding any
notice to the contrary, may deem and treat the Holder of this Receipt as the
absolute owner hereof for any purpose, including but not limited to the purpose
of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement and for all
other purposes, and none of the Depositary, the Trustee or the Company shall
have any obligation or be subject to any liability under the Deposit Agreement
to any holder of a Receipt unless such holder is the registered Holder hereof.
(9) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or enforceable for any purpose
unless is (i) dated, (ii) signed by the manual or facsimile signature of a duly
authorized signatory of the Depositary, (iii) countersigned by the manual or
facsimile signature of a duly authorized signatory of the Registrar, and (iv)
registered in the books maintained by the Registrar for the registration of
issuances and transfers of Receipts. No Receipt and no ADS evidenced thereby
shall be entitled to any benefits under the Deposit Agreement or be valid or
enforceable for any purpose against the Depositary or the Company, unless such
Receipt shall have been so dated, signed, countersigned and registered. Receipts
bearing the facsimile signature of a duly authorized signatory of the Depositary
or the Registrar, who at the time of signature was a duly authorized signatory
of the Depositary or the Registrar, as the case may be, shall bind the
Depositary, notwithstanding the fact that such signatory has ceased to be so
authorized prior to the delivery of such Receipt by the Depositary.
(10) Disclosure of Beneficial Ownership. The Company and the
Depositary may from time to time request Holders, former Holders, Beneficial
Owners or former Beneficial Owners to provide information as to the capacity in
which they hold or held this Receipt or own or owned such beneficial interest
and regarding the identity of any other persons then or previously interested in
this Receipt and the nature of such interest and various other matters. The
Holder and Beneficial Owners hereof agree to provide any such information
reasonably requested by the Company or the Depositary pursuant to this
paragraph.
(11) Ownership Restrictions. The Company may restrict transfers of
the CPOs where such transfer might result in ownership of CPOs exceeding the
limits under applicable law or the Company's Estatutos Sociales. The Company may
also restrict, in such manner as it deems appropriate in its sole discretion,
transfers of the ADSs where such transfer may result in the total number of CPOs
represented by the ADSs beneficially owned by a single Holder or Beneficial
Owner to exceed the limits under any applicable law or the Company's Estatutos
Sociales. The Company may, in such manner as it deems appropriate in its sole
discretion, instruct the Depositary to take action with respect to the ownership
interest of any Holder or Beneficial Owner in excess of the limitation set forth
in the preceding sentences, including but not limited to a mandatory sale or
disposition on behalf of a Holder of the CPOs represented by the ADSs held by
such Holder in excess of such limitations, if and to the extent such disposition
is permitted by law.
(12) Available Information. The Company files reports with the
Commission pursuant to the reporting requirements of the Securities Exchange Act
of 1934. These reports can be inspected and copied at public reference
facilities maintained by the Commission located at 100 F Street, N.E.,
Washington, D.C. 20549.
(13) Compliance with U.S. Securities Laws. Notwithstanding anything
in the Deposit Agreement to the contrary, the withdrawal or delivery of
Deposited Securities will not be suspended by the Company or the Depositary
except as be permitted by Instruction 1.A.(1) of the General Instructions to
Form F-6 Registration Statement, as amended from time to time, under the
Securities Act of 1933.
Dated: _____________
Countersigned CITIBANK, N.A.,
as Depositary
By: By:
----------------------------- -----------------------------
Authorized Signatory Vice President
The address of the Corporate Agency Office of the Depositary is 388
Greenwich Street, 14th floor, New York, NY 10013. The Depositary's Corporate
Agency Office is different from its Principal Executive Office. Its Principal
Executive Office is at 399 Park Avenue, New York, NY 10043.
(FORM OF REVERSE OF RECEIPT)
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Distributions Upon Deposited Securities. Whenever the
Depositary or the Custodian receives any cash dividend or cash distribution by
the Company on any Deposited Securities, the Depositary shall, subject to the
Deposit Agreement, as soon as possible convert or cause such dividend or
distribution to be converted into dollars and shall promptly distribute such
amount to the Holders entitled thereto in proportion to the number of ADSs
representing such Deposited Securities held by them respectively; provided,
however, that in the event that the Company, the Trustee, the Custodian or the
Depositary shall be required to withhold and does withhold, subject to Section
4.11 of the Deposit Agreement, from any cash dividend or other cash distribution
in respect of any Deposited Securities an amount on account of taxes or other
governmental charges, the amount distributed to the Holder in respect of ADSs
representing Deposited Securities shall be reduced accordingly. Cash
distributions and cash proceeds from sales of non-cash distributions in foreign
currency will be converted by sale or such other manner as the Depositary may
determine into dollars (net of the Depositary's reasonable and customary
expenses in effecting such conversion) before distribution to Holders. If in the
judgment of the Depositary amounts received in foreign currency may pot be
converted on a reasonable basis into dollars distributable to the Holders
entitled thereto, or if any approval or license of any governmental authority 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 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 dollars to the extent permissible to the Holders
for whom such conversion and distribution is practicable and may distribute the
balance of the foreign currency received by the Depositary to, or hold such
balance for the account of, the Holders for whom such conversion and
distribution is not practicable. If any distribution upon any Deposited
Securities consists of a dividend in, or free distribution of, CPOs, the
Depositary may, with the Company's approval and shall, if the Company shall so
request (i) instruct the Company to deposit or cause such CPOs to be deposited
with Indeval and registered in the name of the Custodian and (ii) subject to the
Deposit Agreement, distribute 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 proportionate number of CPOs received as such
dividend or free distribution, after deduction or upon payment of the fees of
the Depositary as provided in Exhibit B to the Deposit Agreement; provided,
however, that if for any reason (including any requirement that the Company, the
Trustee or the Depositary withhold an amount on account of taxes or other
governmental charges or that such Shares or CPOs must be registered under the
Securities Act of 1933 in order to be distributed to Holders of Receipts) 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 CPOs thus received, or any part thereof, and the distribution of the net
proceeds of
any such sale by the Depositary to the Holders entitled thereto as in the case
of a distribution received in cash. In lieu of issuing Receipts for fractional
ADSs in any such case, the Depositary shall sell the number of Shares or CPOs
represented by the aggregate of such fractions and distribute the net proceeds
in dollars as in the case of a distribution received in cash. If additional
Receipts are not so distributed (except pursuant to the preceding sentence),
each ADS shall thenceforth also represent its proportionate interest in the
additional CPOs so distributed.
If the Company shall offer or cause to be offered to the holders of
any Deposited Securities any rights to subscribe for additional CPOs (including
any rights to subscribe for additional Shares) or any rights of any other
nature, the Depositary, after consultation with the Company, shall have
discretion as to the procedure to be followed in making such rights available to
the Holders entitled thereto, subject to the Deposit Agreement, or in disposing
of such rights on behalf of such Holders and making the net proceeds available
in dollars to such Holders or, if by the terms of such rights offering or by
reason of applicable law, the Depositary can neither make such rights available
to such Holders nor dispose of such rights and make the net proceeds available
to such Holders, then the Depositary shall allow the rights to lapse; provided,
however, that the Depositary will, if requested by the Company in writing,
either (x) after deduction or upon payment of any applicable fees of the
Depositary, make such rights available to Holders by means of warrants or
otherwise, if lawful and feasible, or (y) if making such rights available to all
or certain Holders is not lawful or not feasible, or if the rights represented
by such warrants or such other instruments are not exercised and appear to be
about to lapse, use its reasonable efforts to sell such rights or warrants or
other instruments, at public or private sale, at such place or places and upon
such terms as the Depositary may deem reasonable and proper, and allocate the
net proceeds of such sales for the accounts 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.
Whenever the Custodian or the Depositary shall receive any
distribution of securities or property other than cash, CPOs or rights to
subscribe for CPOs, the Depositary shall cause such securities or property 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
it cannot cause such securities or property to be distributed or such
distribution cannot be made proportionately among the Holders entitled thereto,
or if for any other reason (including any requirement that the Company, the
Trustee, the Custodian or the Depositary withhold an amount on account of taxes
or other governmental charges) 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, 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.
(15) 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 Deposited Securities (including
notices of any meeting of holders of Shares underlying the CPOs), the Depositary
shall fix a record date after consultation with the Company (which shall be as
near as practicable to the corresponding record date, if any, for Deposited
Securities set by the Company or the Trustee) for the determination of the
Holders who shall be entitled to receive such dividend, distribution of rights,
or the net proceeds of the sale thereof, or to give instructions for the
exercise of voting rights, if any, at any such meeting. Subject to the 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 same
thereof and to exercise the rights of Holders with respect to the Deposited
Securities represented by the ADSs held by the them respectively.
(16) Voting of Deposited Securities. Holders will not be entitled to
vote the Shares underlying CPOs deposited thereunder, and all of such Shares
will be voted by the Trustee in the same manner as the majority of Shares that
are not held in the Trust and that are voted at the relevant meeting. As soon as
practicable after the receipt of a notice of any meeting of holders of Shares or
other securities underlying Deposited Securities, the Depositary shall mail the
information contained in such notice to Holders together with a statement that,
pursuant to the provisions of the CPOs and the agreement creating the Trust,
Holders may not exercise voting rights with respect to the Shares underlying the
CPOs, and that the Trustee will vote all such Shares in the same manner as the
majority of all Shares that are not held in the Trust and that are voted at the
relevant meeting. As soon as practicable after receipt of notice of any meeting
of holders of CPOs or other Deposited Securities, the Depositary shall fix a
record date for determining the Holders entitled to give instructions for the
exercise of voting rights, if any, as provided in paragraph (15) and shall mail
to the Holders of record a notice which shall contain: (a) such information as
is contained in such notice of
meeting, (b) a statement, if provided by the Trustee or the Common
Representative or the Company, as applicable, that the Holders at the close of
business on a specified record date will be entitled, subject to the terms of
this paragraph, any applicable provisions of Mexican law, of the Trust and of
the Estatutos Sociales of the Company (which provisions, shall be summarized in
pertinent part, if such summary is provided by the Trustee or the Connnon
Representative), to instruct the Depositary as to the exercise of the voting
rights, if any, pertaining to the number of CPOs or other Deposited Securities
represented by the respective ADSs evidenced by their respective Receipt or
Receipts and a brief statement as to the manner in which instructions may be
given, including an express indication that instructions may be given to the
Depositary to give a discretionary proxy to a person designated by the Trustee.
Upon the written request of a Holder on such record date, received on or before
the date established by the Depositary for such purpose, the Depositary shall
endeavor insofar as is practicable to vote or cause to be voted the number of
Deposited Securities represented by the ADSs evidenced by the Receipt or
Receipts of such Holder in accordance with the instructions set forth in such
request.
The Depositary agrees not to vote or cause to be voted the CPOs or
other Deposited Securities represented by the ADSs evidenced by a Receipt unless
it receives instructions from the Holder.
(17) Changes Affecting Deposited Securities. Upon any change in par
value, split-up, consolidation or any other reclassification of CPOs, or the
securities represented by CPOs, 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, replacement or otherwise in respect
of, Deposited Securities shall be treated as Deposited Securities under the
Deposit Agreement, and the Receipts shall, subject to the terms of the Deposit
Agreement and applicable laws, including any applicable provisions of the
Securities Act of 1933, thenceforth evidence ADSs representing the right to
receive Deposited Securities including the securities so received in exchange or
conversion to the extent additional Receipts are not delivered pursuant to the
following sentence. In any such case the Depositary may with the approval of the
Company and Trustee, and shall at the Company's request, subject to Section 5.09
and the other terms of the Deposit Agreement, 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 newly received Deposited Securities. Immediately upon the occurrence of any
such event referred to in this paragraph in respect of Deposited Securities, the
Depositary shall give written notice thereof to Holders, at the Company's
expense.
(18) Reports; Inspection of Register. The Depositary shall make
available for inspection during business hours by Holders and Beneficial Owners
at its Principal Office and at the principal office of each Custodian copies of
the Deposit Agreement, and any notices, reports or communications, including any
proxy soliciting materials, received from the Company, the Common Representative
or the Trustee which are both (a) received by the Depositary or the Custodian or
the nominee of either, as the holder of the Deposited Securities, and (b) made
generally available to the holders of such Deposited Securities by the Company,
the Common Representative or the Trustee. The Depositary shall keep books at its
Principal Office for the registration and transfer of Receipts, which books
shall be open at all reasonable times for inspection by Holders or the Company,
provided shat 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 the Trust or a matter related to the Deposit
Agreement or the Receipts.
(19) Withholding. In connection with any distribution to Holders,
the Company, the Trustee, or the Depositary or their respective agents, as
appropriate, will remit to the appropriate governmental authority or agency all
amounts (if any) required to be withheld by the Company, the Trustee, the
Depositary or their respective agents and owing to such authority or agency. The
Depositary will forward to the Company, the Trustee or their respective agents
such information from its records as the Company, the Trustee or their agents
may reasonably request to enable the Company or the Trustee or their agents to
file necessary reports with governmental authorities or agencies. If the
Depositary determines that any distribution in property (including CPOs and
rights to subscribe therefor) is subject to any taxes or governmental charges
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 or governmental charges, 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 or governmental
charges to the Holders entitled thereto in proportion to the number of ADSs held
by them respectively.
(20) Liability of the Company and the Depositary. None of the
Depositary, the Company or their agents, if any, shall incur any liability to
any Holder or Beneficial Owner or other person if, by reason of any present or
future law, the Estatutos Sociales of the Company, the provisions of or
governing any Deposited Securities, any act of God, war or other circumstance
beyond its control, the Depositary, the Company or their agents shall be
prevented,
delayed or forbidden from doing or performing any act or thing which by the
terms of the Deposit Agreement it is provided shall be done or performed. Each
of the Company, the Depositary and their agents assumes no obligation and shall
be subject to no liability under the Deposit Agreement or this Receipt to
Holders or Beneficial Owners or other persons, except to perform such
obligations as are specifically set forth and undertaken by it to be performed
in the Deposit Agreement in good faith and using its best judgment. The
Depositary and the Company undertake to perform such duties and only such duties
as are specifically set forth in the Deposit Agreement, and no implied covenants
or obligations shall be read into the Deposit Agreement against the Depositary
or the Company or their respective agents. None of the Depositary, the Company
or their agents shall be (a) under any obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited
Securities or this Receipt which in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it in its sole discretion against
all expense and liability be furnished as often as may be required or (b) liable
for any action or inaction by it or them in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, Beneficial Owner or any other person believed by it or them
in good faith to be competent to give such advice or information. The
Depositary, the Company and their respective agents may rely and shall be
protected in acting upon any written notice, request, direction or other
document believed by them to be genuine and to have been signed or presented by
the proper party or parties. Subject to the Deposit Agreement, the Depositary
shall not be responsible for the manner in which any vote is cast or for the
effect of any such vote provided that such action or non-action is taken in good
faith and in accordance with the Deposit Agreement.
(21) Certain Rights of the Depositary; Limitations. Subject to the
further terms and provisions of this paragraph (21), Citibank, N.A. and its
Agents may own and deal in any class of securities of the Company and its
Affiliates and the Trust and in Receipts. The Depositary may issue Receipts
against evidence of rights to receive CPOs from the Trustee, or any custodian,
registrar, transfer agent, clearing agency or other entity involved in ownership
or transaction records in respect of the CPOs. Such evidence of rights shall
consist of written blanket or specific guarantees of ownership of CPOs furnished
on behalf of the holder thereof. The Depositary shall not lend CPOs or Receipts;
provided, however, that the Depositary reserves the right to (i) issue Receipts
prior to the receipt of CPOs pursuant to Section 2.02 of the Deposit Agreement
and (ii) deliver CPOs prior to the receipt and cancellation of Receipts pursuant
to Section 2.05 of the Deposit Agreement, including Receipts which were issued
under (i) above but for which CPOs may not have been received. The Depositary
may receive Receipts in lieu of CPOs under (i) above and receive CPOs in lieu of
Receipts under (ii) above. Each such transaction shall be subject to the terms
and conditions provided in the Deposit Agreement.
(22) Resignation and Removal of the Depositary; the Custodian. The
Depositary may at any time resign as Depositary under the Deposit Agreement by
written notice to the Company of its election so to do or be removed by the
Company by written notice to the Depositary, such resignation or removal to take
effect upon the appointment of a successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement. The Depositary may, upon
approval of the Company, which shall not be unreasonably withheld, at any time
appoint substitute or, if permitted by Mexican and other applicable law,
additional Custodians and the term "Custodian" refers to each Custodian or all
Custodians as the context requires.
(23) Amendment of Deposit Agreement and Receipts. This Receipt and
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 the fees of the Depositary for the issuance and
delivery of Receipts or the making of deposits, if any, and other taxes and
charges listed in paragraph (7) or which shall otherwise prejudices any
substantial existing right of Holders or Beneficial Owners, shall not, however,
become effective as to outstanding Receipts until the expiration of 90 days
after notice of such amendment shall have been given to the Holders of
outstanding Receipts. Every Holder and Beneficial Owner hereof at the expiration
of 90 days after such notice shall be deemed by continuing to hold such Receipt
or beneficial interest therein to consent and agree to such amendment and to be
bound by the Deposit Agreement or the Receipt as amended thereby. In no event
shall any amendment impair the right of the Holder hereof to surrender this
Receipt and receive therefor the Deposited Securities represented hereby, except
in order to comply with mandatory provisions of applicable law.
(24) Termination of Deposit Agreement. The Depositary shall at any
time at the direction of the Company terminate the Deposit Agreement by mailing
notice of such termination to the Holders of all Receipts then outstanding at
least 60 days prior to the date fixed in such notice for such termination. The
Depositary may likewise terminate the Deposit Agreement at any time after the
expiration of 60 days after the Depositary shall have delivered to the Company a
written notice of its election to resign, provided that no successor depositary
shall have been appointed and accepted its appointment as provided in the
Deposit Agreement before the end of such 60 day period. After the date so fixed
for termination, the Depositary
shall perform no further acts under the Deposit Agreement, except to continue to
collect dividends and other distributions pertaining to Deposited Securities,
sell property and rights and convert Deposited Securities into cash as provided
in the Deposit Agreement, and 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 all such cases,
without liability for interest), in exchange for Receipts surrendered to the
Depositary. At any time after the expiration of six months from the date of
termination, the Depositary may sell the Deposited Securities then held
hereunder and may thereafter hold in an unsegregated escrow account the net
proceeds of any such sale, together with any other cash or property then held by
it hereunder, without liability for interest, for the pro rata benefit of the
Holders of Receipts which have not theretofore been surrendered. 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 and
for its obligations under Section 5.10 of the Deposit Agreement. Notwithstanding
anything to the contrary in this paragraph, the Deposit Agreement, unless
otherwise extended by the Company and the Depositary, shall automatically
terminate on the date of the termination of the agreement creating the Trust.
Upon such termination, the Depositary shall sell any remaining Deposited
Securities or Shares underlying CPOs, and after (i) converting or causing to be
converted in the same manner as if such conversion were being effected with
respect to distribution (as provided in Section 4.06 of the Deposit Agreement)
the proceeds of such saleso o together with all proceeds of sales of Shares
underlying the CPOs received by the Custodian from the Trustee into dollars and
(ii) withholding or upon payment of the fees of the Depositary, distribute such
net proceeds and any other cash then being held by it to the Holders entitled
thereto in proportion to their respective holdings.
(25) The CPO Trust. The CPO Trust Agreement has been authorized by
the General Directorate of Foreign Investments (Direccion General de Inversiones
Extranjeras). The CPO Trust Agreement is registered with the National Registry
of Foreign Investment (Registro Nacional de lnversiones Extranjeras). The
National Banking and Securities Commission of Mexico (Comision Nacional Bancaria
y de Valores) has authorized the issuance of CPOs by the CPO Trustee.
Registration of the CPOs upon their issuance in the Securities Section (Seccion
de Valores) and in the Special Section (Seccion Especial) of the National
Registry of Securities and Intermediaries (Registro Nacional de Valores e
lntermediarios) has been approved by the National Banking and Securities
Commission (Comision Nacional Bancaria y de Valores). Nacional Financiera,
S.N.C. is the CPO Trustee of the CPO Trust. The CPO Trust operates through
Indeval, the central depository 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: Insurgentes Sur 1971, Col. Guadalupe Inn, C.P.
01020, Mexico D.F., Mexico. An English translation of the CPO Trust Agreement is
attached hereto as Exhibit C. The terms of the CPO Trust (as in effect as of the
date hereof) are briefly described as follows (which description may not be
considered to be a representation or warranty by the Company, the Depositary, or
any Custodian and is qualified by and subject to the terms of the CPO Trust
Agreement): (i) each CPO represents financial interests in one (1) A Share held
in the CPO Trust; (ii) the CPOs have limited voting rights that are described in
Section 4.08 of the Deposit Agreement; (iii) dividends on the A Shares
underlying the CPOs are credited to the CPO holders' accounts by the CPO Trustee
through Indeval, upon receipt thereof from the Company; (iv) as determined by
the CPO Trustee, CPO holders may receive notices, reports
and proxy solicitation materials at the same times as direct holders of Shares
receive such materials; (v) any rights pertaining to the CPOs may be exercised
by CPO holders through Indeval by the CPO Trustee, at the same time as direct
holders of Shares receive any such rights, provided such rights can be exercised
by CPO holders; (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 any such rights; (vii) the CPO Trust is
scheduled to terminate as indicated in the CPO Trust Agreement (Exhibit C of the
Deposit Agreement), at which point the Depositary will take the actions
contemplated in Section 6.02 of the Deposit Agreement, unless otherwise extended
by the Company and the Depositary; and (viii) holders of CPOs are entitled to
withdraw Shares from the CPO Trust if they are Mexican nationals or Mexican
corporations whose by-laws exclude foreign ownership of their shares. No fees or
charges are imposed directly or indirectly against CPO holders under the CPO
Trust.
FOR VALUE RECENED, the undersigned Holder hereby sell(s), assign(s)
and transfer(s) unto ______________________________ whose taxpayer
identification number is _____________________ and whose address including
postal zip code is ________________ the within Receipt and all rights
thereunder, hereby irrevocably constituting and appointing
_____________________________________ attorney-in-fact to transfer said Receipt
on the books of the Depositary with full power of substitution in the premises.
SIGNATURE GUARANTEED
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