EXHIBIT 1.2
(TRANSLATION)
Amendment to the corporate by-laws of Grupo Radio Centro, S.A. de C.V. adopted
on April 22, 2005, in order to comply with the regulations promulgated under the
Sarbanes-Oxley Act that are applicable to Grupo Radio Centro, S.A. de C.V. as a
consequence of its quotation on the New York Stock Exchange, in particular those
regulations related to the structure and authority of the Audit Committee
GRUPO RADIO CENTRO, S.A. DE C.V.
CLAUSES
TITLE ONE
INCORPORATION
ONE. This is a stock company with variable capital ("Sociedad Anonima de
Capital Variable") to be governed by these By-laws and in everything not
provided for hereby, by the General Law of Commercial Companies and the
applicable provisions of the Securities Market Law.
TITLE TWO
CORPORATE NAME; CORPORATE DOMICILE, CORPORATE EXISTENCE
AND CORPORATE PURPOSE
TWO. The Company is called "Grupo Radio Centro", name which shall always
be followed by the words "Sociedad Anonima de Capital Variable" or the initials
"S.A. de C.V."
THREE. The corporate domicile of the Company shall be Mexico City,
Federal District. The Company may establish offices, agencies, establishments or
branch offices anywhere in the United Mexican States or abroad, or submit to
contractual domiciles, this not being understood as a change of domicile.
FOUR. The corporate existence of the Company shall be ninety-nine (99)
years as from the date of its incorporation.
FIVE. The corporate purpose of the Company shall be:
(a) To acquire, possess, subscribe, exhibit, dispose of or in any
other way to carry out acts of commerce related to shares, corporate
participations and participations in commercial companies and civil corporations
and partnerships, incorporated according to Mexican or foreign laws, either at
the time of their incorporation or thereafter;
(b) To render advisory, consulting and technical assistance services
in the accounting, mercantile, financial, fiscal, legal or administrative areas
to those companies of which it is a shareholder or to third parties, the
commercialization of advertising services through
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communications media, as well as to represent and act as agent of all kinds of
associations, civil or commercial companies, service, industrial or commercial
companies and, in general, any individuals and corporations whether Mexican or
foreign;
(c) To register trademarks, trade names, copyrights, patents,
invention certificates, to acquire or sell invention certificates, to acquire or
sell any kind of industrial property rights or copyrights, as well as to receive
or grant licenses or authorizations for the use and exploitation of all kinds of
industrial property rights or copyrights;
(d) To contract direct or contingent liabilities; to borrow or lend
money, granting and receiving specific guarantees; to issue debentures,
commercial paper or other kind of securities; including those named
"certificados bursatiles" referred to in article fourteen Bis six (14 Bis 6) of
the Securities Market Law; to accept, draw, endorse, guarantee ("avalar"),
subscribe and issue any kind of negotiable instruments for the purposes of this
item; to grant and contract bonds and to guarantee or guarantee ("avalar") its
own or third parties obligations;
(e) To draw, endorse, issue, subscribe, guarantee ("avalar"),
accept or in any other manner to negotiate with negotiable instruments and to
carry out credit operations;
(f) To place its own shares in Mexican or foreign securities
markets, prior authorization from the competent authorities, including in
foreign stock exchanges or quotation systems;
(g) To acquire shares representing its capital stock in accordance
with the provisions of section first (i) of article fourteen Bis three (14Bis 3)
of the Securities Market Law;
(h) To acquire in property, give or take in lease or carry out any
acts of commerce under any other legal title, with all kinds of real estate and
personal property, as well as real rights thereon, which may be necessary or
convenient to attain its corporate purpose or the corporate purpose of those
companies on which this company has a shareholding; and
(i) In general, to perform and carry out all acts, agreements and
operations related or connected thereto, that may be necessary or convenient to
attain its corporate purpose.
TITLE THREE
NATIONALITY OF THE COMPANY AND FOREIGN INVESTORS
SIX. (a) The Company is Mexican. The Company shall not admit, either
directly or indirectly, foreign investors or companies without
foreigners-exclusion clause as partners or shareholders, nor shall it
acknowledge any rights as partners or shareholders to the same investors and
companies. This limitation shall not be applied in the case that the Company
obtains express authorization of the competent authorities to receive investment
deemed neutral according to the legal provisions or rulings that may be
applicable or according to the provisions of sections (c), (d) and (e) of this
clause.
(b) The acts, agreements or social and by-laws commitments declared
void by the Ministry of Economy that, contravene the provisions of the Foreign
Investment Law and its Regulations, shall not have legal effects among the
parties nor they may be effective vis-a-vis third parties.
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(c) In the event that any foreign shareholder acquires to paragraphs
(d) and (e) of this clause, he formally binds himself before the Ministry of
Foreign Affairs to be considered as Mexican regarding the shares he may acquire
or which he may hold, as well as regarding the assets, rights, concessions,
participations or interest held by the Company or else the rights and
obligations derived from the agreements where the Company is a party with
Mexican authorities and to do not invoke the protection of their governments,
under the penalty, in case of not honoring his commitment, to forfeit the shares
he had acquired to the benefit of the Mexican Nation.
(d) According to the provisions of articles twenty two (22) of the
Foreign Investment Law and articles twenty four (24) and twenty five (25) of the
Regulations of the Foreign Investment Law and of the National Registry of
Foreign Investment, international development financial companies may acquire
Series "A" shares.
(e) Shares of limited vote and other limited corporate rights
acquired pursuant to the provisions of articles eighteen (18), nineteen (19) and
twenty (20) of the Foreign Investment Law and articles twenty two (22) and
twenty three (23) of the Regulations of the Foreign Investment Law and of the
National Registry of Foreign Investment, as well as Series "A" shares acquired
by those companies referred to in section (d) above, shall be considered
"neutral investment", which shall not be computed for the purpose of determining
the amount and proportion of the participation of foreign investors in the
capital stock of the Company.
TITLE FOUR
CAPITAL STOCK, SHARES AND SHAREHOLDERS
SEVEN. (a) The capital stock of the Company is variable. The fixed
capital stock without withdrawal right amounts to $847,477,511.00 (EIGHT HUNDRED
FOURTY SEVEN MILLION FOUR HUNDRED SEVENTY SEVEN THOUSAND FIVE HUNDRED ELEVEN
PESOS 00/100, LAWFUL CURRENCY OF THE UNITED MEXICAN STATES).
(b) The capital stock shall be represented by Series "A" shares and
shares of other special Series that may be issued by the Company with the prior
authorization from the competent authorities, in particular by the Ministry of
Economy and the National Banking and Securities Commission.
(c) The shares of the minimum fixed capital may be identified as
Class I and those of the variable capital may be identified as Class II .
(d) In the event that the shares of the Company are listed in a stock
exchange, either directly or through any other securities representing them, the
exercise of the withdrawal right shall be subject to the provisions of section
(m) of clause Eight hereof.
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(e) Series "A" shareholders are registered, common or ordinary,
without expression of any par value and may only be held by: (i) Mexican
individuals, (ii) Mexican corporations which corporate by-laws contain the
foreigners-exclusion clause, of which companies only Mexican individuals and
corporations which corporate by-laws contain the foreigners-exclusion clause may
be shareholders and so on; (iii) Mexican credit and bonding institutions,
financial factoring companies and Mexican investment companies with
foreigners-exclusion clause; (iv) credit institutions as trustees in trusts set
up to establish purchase option plans for employees of this company and its
subsidiaries; (v) credit institutions in their capacity as trustees under the
terms of the Foreign Investment Law and its Regulations; and (vi) international
development financial companies according to the provisions of the Foreign
Investment Law and its Regulations.
(f) Companies on which this Company holds the majority of shares or
corporate participations or that shall be considered as subsidiaries of this
Company, must not, directly or indirectly, invest in shares of this Company nor
of any other company which is a majority shareholder of this Company that is
considered as its subsidiary, or without being it they know it is a shareholder
of this Company.
(g) The Company may request to the National Banking and Securities
Commission the corresponding authorization to issue shares without voting
rights, as well as with limited corporate rights, as well as restricted vote
shares other than those referred to in article one hundred and thirteen (113) of
the General Law of Commercial Companies in the terms of section two (II) of
article fourteen Bis three (14 Bis 3) of the Securities Market Law.
EIGHT. Shares shall be subject to the following provisions:
(a) Within their respective series and class, each share shall grant
the same rights and obligations to its holders.
(b) The shares without voting rights as well as limited vote shares
that the Company issues in the terms of section two (II) of article fourteen Bis
three (14 Bis 3) of the Securities Market Law will have the rights stipulated in
the corresponding issuance.
(c) Each share may only be represented by one person and grants the
right to one vote at the meetings its holders are entitled to attend.
(d) Shares paid in kind shall remain deposited with the Company for
a two (2) year period, in accordance with the provisions of article one hundred
and forty one (141) of the General Law of Commercial Companies.
(e) Shares representing the fixed minimum capital stock may only be
issued or withdrawn by resolution of a general extraordinary shareholders
meeting and the respective amendment to these corporate By-laws, except for
share cancellations and issuances derived from the Company's rebuy of its own
shares, in which case the provisions of clause Seventeen, paragraph (n) of these
By-laws shall apply.
(f) Shares representing the variable capital stock, within the
authorized maximum, issued and paid by contributions in cash or in kind or
issued and paid by capitalization of profits or surplus by revaluation of
assets, shall be issued or withdrawn by resolution of the general ordinary
shareholders meeting, except when the shareholders exercise their withdrawal
rights.
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The respective minutes must be formalized before a notary public without it
being required that it is registered or filed to be valid, except when the
shareholders exercise their withdrawal right, or when there is an increase or
decrease referred to in item I of article fourteen Bis three. (14 Bis 3) of the
Securities Market Law.
(g) When taking the resolutions to increase the capital stock, the
general extraordinary or ordinary shareholders meeting, as the case may be,
resolving thereon, shall determine the terms and conditions according to which
such increase in the capital stock must be carried out.
(h) Any increase or decrease in the capital stock must be
registered in the variable capital book be carried for such purpose by the
regular or alternate secretary of the Board of Directors of the Company.
(i) The withdrawal of shares of the variable capital stock shall
always be made without affecting the minimum capital stock.
(j) New shares may not be issued if the shares previously issued are
not paid in full yet.
(k) The exercise of the withdrawal right, in addition of being
subject to the provisions of articles two hundred and twenty (220) and two
hundred and twenty one (221) of the General Law of Commercial Companies, shall
be subject to the following:
(i) The respective reimbursement shall be paid according to
the lowest of the two following values:
(A) Ninety-five percent (95%) of the quotation value in
the stock exchange, obtained from the price average
taking into account the trading volume during the last
thirty (30) days on which the shares of the issuing
company had been negotiated prior to the date on which
the withdrawal must become effective during a period
that must not exceed six (6) months, or else,
(B) The book value of the shares in accordance with the
financial statements corresponding to the end of the
fiscal year immediately preceding that on which the
separation must become effective, previously approved by
the general ordinary shareholders meeting,
In the event that the period in which the shares were
traded is less than thirty (30) days, the actual number
of days in which the shares were traded will be taken
into account. If the shares are not traded within such
period, the book value of the shares will be used.
(ii) The payment of the reimbursement shall be due to the
Company as from the date following the holding of the
general ordinary shareholders meeting which had approved
the financial statement corresponding to the fiscal year
on which the withdrawal must become effective.
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Shareholders of the Company may only exercise the withdrawal right up to
the amount of the variable capital stock and in no event such right may be
exercised when it implies a decrease in the capital stock to an amount lower
than the minimum established. In the event that the Company receives
notification from the shareholders in connection with the exercise of the
withdrawal right which in the aggregate would reduce the minimum capital stock
to an amount lower than the one provided for in these corporate by-laws, the
Company shall accept the request of withdrawal right in the order that the
notifications of the exercise of the withdrawal right would have been submitted
to the Company.
In the event that the Company receives notifications of shareholders who
wish to exercise their withdrawal rights simultaneously and the exercise of such
right, in the aggregated, amounts to more than the variable capital stock, the
Company shall accept and take care of the notifications proportionally to the
number of shares each shareholder exercising the mentioned right holds.
(l) For the redemption of shares with distributable profits, the
provisions of article one hundred and thirty-six (136) of the General Law of
Commercial Companies. Redemption may be carried out, at the election of the
general extraordinary meeting: (i) by means of the purchase of the corresponding
shares in a public purchase offer made through a stock exchange, at the price
and according to the method determined by the meeting itself, or (ii)
proportionally among all shareholders, so that, after the redemption is made,
the shareholders maintain the same percentages they had in the capital stock
before such redemption. Redeemed shares shall be annulled and the provisional
share certificates representing them must be canceled.
(m) If the value of the redeemed shares is not collected by their
holders within the year following the date they have been informed thereof, the
respective amounts shall be forfeited to the benefit of the Company.
(n) The capital stock may be reduced: (i) to absorb losses, (ii) by
reimbursement to shareholders, (iii) by release granted to the shareholders of
payments not made, (iv) by the exercise of the withdrawal right of
contributions, and (v) by the Company's rebuy of its own shares pursuant to
clause seventeen, paragraph (n) of these by-laws.(n) Decreases in the capital to
absorb losses or to reimburse shareholders shall be firstly made from the
variable capital stock and just in the case it is not enough, from the fixed
minimum capital stock.
In any event, the decrease shall be made proportionally among all series
of shares, without the need to cancel the respective shares, as they have no par
value.
TITLE FIVE
PREFERENTIAL RIGHTS OF THE SHAREHOLDERS
NINE. (a) (i) Except for the issuance of shares made according to
article eighty one (81) of the Securities Market Law, and those issuances
performed by virtue of the Company's resell of shares acquired pursuant to
clause seventeen, paragraph (n) of these by-laws, each shareholder shall have
the preferential right to subscribe and acquire shares of the Company issued
regarding any increase in its capital stock, in the proportion of the number of
shares held by such shareholders of a series regarding the total number of
shares issued and subscribed of such series
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prior to the increase. This right may be exercised for a term not shorter than
fifteen (15) calendar days; and (ii) in the event that there are any
unsubscribed shares, these shall be offered for sale by the Board of Directors
of the Company to third parties if the meeting which resolved on their issuance
did not resolve otherwise, and if such shares are not subscribed by third
parties within the ninety (90) calendar days thereafter, then they shall be
canceled and the capital stock shall be decreased in an amount equal to the
amount represented by the shares so canceled, unless the Board of Directors of
the Company or the respective meeting determines that such shares shall remain
at the treasury of the Company.
(b) For the purpose of having the fifteen (15) calendar day term
referred to in the above paragraph, the day following the date on which the
resolution of the capital increase is published in the Official Gazette of the
Federation or in one of the newspapers having the widest circulation at the
corporate domicile of the Company shall be taken into consideration.
(c) According to the provisions of the second paragraph of article
two hundred and sixteen (216) of the General Law of Commercial Companies, the
general ordinary shareholders meeting may decree the issue of unsubscribed
shares to be kept at the treasury of the Company and in such event, the shares
kept at the treasury of the Company shall be made outstanding and withdrawn
according to the instructions of the Board of Directors of the Company, if not
made by the meeting resolving on their issue, honoring the preferential right of
the shareholders and the other terms and conditions provided for in this clause
Nine, exception made of those issues made according to the following paragraph,
where the provisions of such paragraph shall prevail.
(d) The general extraordinary shareholders meeting may resolve the
issue of shares of the fixed capital stock or of the variable capital stock to
be kept at the treasury of the Company to be placed among public investors at
large, according to the provisions of article eighty-one (81) of the Securities
Market Law, prior express authorization from the National Banking and Securities
Commission and in accordance with the following provisions:
(i) At the extraordinary shareholders meeting resolving the
issue of unsubscribed shares, express waiver to the
preferential right referred to in article one hundred
and thirty two (132) of the General Law of Commercial
Companies must be made;
(ii) If there is quorum, under the terms of paragraph (o) of
clause Twenty-Two of these by-laws, the resolution taken
shall become fully effective, even for those
shareholders who had not attended the meeting, for which
reason the Company shall be free to place the shares
among the public, without making the publication
referred to in article one hundred and thirty-two (132)
of the General Law of Commercial Companies;
(iii) When a minority representing at least twenty five
percent (25%) of the paid-up capital stock votes against
the issue of unsubscribed shares according to the
provisions hereof, such issue may not be carried out;
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(iv) In the call summoning to the extraordinary meeting, it
must be expressly noted that it meets for the purposes
mentioned in this paragraph (d), specially mentioning
the provisions of subsections (ii) and (iii) above;
(v) Any shareholder voting against the resolutions of the
meeting shall be entitled to demand the Company to place
his shares at the same price the shares subject matter
of the issue are offered to the public. The Company
shall have the obligation to first place the shares
belonging to the disagreeing shareholders; and
(vi) The National Banking and Securities Commission shall be
authorized to attend these meetings in order to watch
the compliance with the requirements for the issue of
shares.
TITLE SIX
DEFINITIVE SHARE CERTIFICATES, PROVISIONAL SHARE
CERTIFICATES AND REGISTRY OF SHARES
TEN. Shares shall be covered by definitive share certificates but
provisional share certificates may be issued while the definitive share
certificates are being issued. Provisional share certificates must be exchanged
by definitive share certificates during the period of time provided for in
section six (VI) of article fourteen Bis two (14 Bis 2) of the Securities Market
Law. Provisional share certificates and definitive share certificates shall be
progressively numbered and shall contain the information required by articles
one hundred and eleven (111), one hundred and twenty-five (125), one hundred and
twenty-seven (127) and all other relative articles of the General Law of
Commercial Companies, as well as the full text of clause Six of these By-laws.
Multiple share certificates may also be issued according to the provisions of
article seventy-four (74) of the Securities Market Law, in which event they
shall not need to express the name of the holder nor his domicile and
nationality.
ELEVEN. Provisional share certificates or definitive share certificates
may cover one or several shares and shall be signed by two members of the Board
of Directors, whose signatures may be printed in facsimile, under the terms of
the provisions of section eight (viii) of article one hundred and twenty-five
(125) of the General Law of Commercial Companies, in which event, the original
of the signatures of those directors must be deposited at the Public Registry
Bureau corresponding to the corporate domicile of the Company.
TWELVE. The Company shall carry a registry of shares evidencing all
issues of shares and the name, domicile, and nationality of the holders thereof
and whether such shares have been fully or partially paid, payments made, all
transfers thereof and any liens existing on such shares. In the event of shares
deposited with any institution for the deposit of securities, the transfer and
registry thereof shall be made in accordance with the provisions of the
Securities Market Law. This registry shall be carried by the regular or
alternate secretary of the Board of Directors, unless the Board of Directors
appoints a different person to carry it. Any transfer of shares or liens thereon
shall be effective regarding the Company, as from the date on which such
transfer or lien, as the case may be, had been registered in the registry of
shares of the Company, save for the assumptions referred to in article ninety
nine (99) of the Securities Market Law.
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The registry of shares shall be formed with the evidences referred to in
article seventy eight (78) of the Securities Market Law, complemented with the
lists referred to in such article.
TITLE SEVEN
BOARD OF ADMINISTRATION, EXECUTIVE COMMITTEE, AUDIT COMMITTEE AND
SURVEILLANCE OF THE COMPANY
THIRTEEN. (a) The management and representation of the Company shall be
vested in the Board of Directors formed by a minimum of seven (7) and a maximum
of twenty (20) regular directors and their respective alternates, of which at
least twenty five percent (25%) must be independent directors.
(b) An alternate shall be appointed for each regular director; this
alternate director shall act on behalf of the respective regular director for
whom he was appointed in his temporary or definitive absences, in the
understanding that the alternate director of the independent directors must also
be independent directors.
(c) Independent directors are those persons that (i) are not
employees or officers of the Company, including those personas that had occupied
those positions during the preceding; (ii) shareholders that are not employees
or officers of the Company but have directive power over officers of the
Company; (iii) partners or employees of companies or associations that render
consultant services to the issuer or to the companies that belong to the same
economic group to which the Company is part, whose income represents ten percent
or more of their income; (iv) clients, suppliers, debtors, creditors, partners,
directors or employees of a company that is an important client, supplier,
debtor or creditor of the Company; (v) employees of a fund, association or civil
company that receive important donations from the Company, (vi) general
directors or high level officers of a company in which a general director or a
high level officer of the Company participates in its bound of directors, and
(vii) wife, husband or concubine as well as family relatives and other relatives
by law up to the first degree with respect to any of the persons mentioned in
items (iii) to (vi) above, or up to the third degree, with respect to the
persons mentioned in items (i) and (ii) of these section. In order to determine
the importance regarding the clients, suppliers, debtors, creditors and
donations the provisions of article fourteen Bis (14 Bis) of the Securities
Market Law, shall be taken into account.
(d) The appointment or election of members of the Board of Directors
corresponding to Series "A" shareholders shall be made by the general ordinary
shareholders meeting, by majority vote, provided, however, that the minority
shareholder or shareholders representing at least ten percent (10%) of the
paid-up capital stock of the Company, exclusively represented by Series "A"
shares, shall be entitled to appoint a regular director and his respective
alternate in the respective general ordinary shareholders meeting. To calculate
the majority of votes referred to in this paragraph, the votes of minority
shareholders who have made use of the mentioned right shall not be computed.
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(e) All minority shareholders of limited voting shares different to
those established in article one hundred thirteen (113) of the General Law of
Commercial Companies, or of limited vote referred to in such article that
represent at least the ten percent (10%) of the capital stock in one or more
series of shares, shall have the right to appoint at least one regular member of
the Board of Directors and its respective alternate; in absence of this
appointment of minorities, the holders of said class of shares shall have the
right to appoint at leas two (2) regular members of the Board of Directors and
their respective alternates. In the second case, the appointments, as well as
the substitutions and revocations of the members of the Board, shall be made in
a special meeting. The members of the Board of Directors appointed by the
shareholders referred to herein shall only be revoked when all other members of
the Board are revoked.
FOURTEEN. (a) Members of the Board of Directors, either regular or
alternate, may be shareholders or persons alien to the Company.
(b) Regular and alternate directors may be Mexican or foreign, but
the majority of directors must be Mexican.
(c) The directors shall hold office for one (1) year, they may be
reelected and shall continue holding office even though the period for their
office is finished until the persons appointed to substitute them take office
and guarantee them according to the provisions of these corporate by-laws.
(d) The general ordinary shareholders meeting shall determine the
remunerations to be received by the directors.
(e) Just in the event that it is so required by the general ordinary
shareholders meeting as a guarantee of their management, when taking office,
regular and alternate members of the Board of Directors, members of the
Executive Committee and of the Auditors Committee, the general director of the
Company, the area directors, the managers and those other officers of the
Company, shall deposit at the treasury of the Company the amount in Mexican
currency that determine such meeting, or shall obtain a bond in such amount
issued in favor of the Company by an authorized bonding institution once they
take possession of their positions. The deposit or bond may not be withdrawn
until the position of the respective director or directors had been approved by
the general ordinary shareholders meeting of the Company. Regarding the officers
of the Company, the deposit or bond shall continue until they are released from
their positions and their management has been approved.
FIFTEEN. (a) The Board of Directors, in its first meeting immediately
following the meeting which had appointed it, shall appoint a person to hold the
position of Chairman of the Board of Directors in the event the respective
meeting had failed to do so. Likewise, at such meeting the Board of Directors
shall appoint the persons holding the positions of regular and alternate
secretary and those other positions determined by the Board itself, provided
that the position of regular and alternate secretary may be vested in persons
who are directors of the Company or not.
(b) The Chairman of the Board of Directors shall preside over the
general shareholders meetings and the Board of Directors meeting, performing the
resolutions thereof, without the need of any special resolution; this does not
mean that the general shareholders meeting or the Board of Directors are limited
to appoint other persons to perform the respective resolutions in specific
cases.
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SIXTEEN. (a) For a meeting of the Board of Directors to be considered
validly convened due to first or ulterior call, the attendance of the majority
of its regular directors or their respective alternates shall be required and
the resolutions of the Board of Directors shall be valid when taken by majority
vote of the attendance except in the cases mentioned in item (s) of the
Seventeen clause of these by-laws. In the event of a tie, the Chairman of the
Board of Directors shall have deciding vote.
(b) The Board of Directors of the Company must meet at least once
each three (3) months or as many times as deemed necessary or convenient by its
chairman, secretary, regular or alternate, at least twenty five percent (25%) of
the members of the Board of Directors or any of the examiners of the Company,
who for such purposes shall be entitled to call for a Board of Directors
meeting.
(c) Calls for the Board of Directors meetings must be send to the
regular members of the Board of Directors and their respective alternates, as
well as to the examiner or examiners by telefax confirmed by express receipt
mail, postage prepaid, or any other means evidencing reception thereof by the
persons who must receive them to the last address registered with the Company at
least five (5) business days prior to the date of the meeting. The respective
call must contain the date, place, time and agenda for the respective meeting.
Resolutions taken out of the Board of Directors meeting by unanimous vote of the
members shall have, for all legal effects, the same validity as if adopted in a
Board of Directors meeting, provided they are confirmed in writing or if quorum
exists, without prior call when each of the absent members of the Board of
Directors or absent examiners have signed a waive of its right to receive call,
being applicable the provisions of the third paragraph of article one hundred
and forty three (143) of the General Law of Commercial Companies.
(d) The meetings of the Board of Directors shall be held at the
corporate domicile of the Company or anywhere else in the United Mexican States
or abroad as determined by the Board of Directors itself.
(e) The Board of Directors must present to the shareholders meeting
the reports issued by the Audit Committee.
SEVENTEEN. The Board of Directors shall have the legal representation of
the Company and may carry out all operations inherent to the corporate purpose
of this Company and those not reserved to another body by reason of this
instrument or by law. As an enumeration but not as a limitation, the Board of
Directors of the Company shall enjoy the following authorities:
(a) General power-of-attorney for lawsuits and collections with all
general and special authorities requiring a special clause in accordance with
the law, under the terms of the first paragraph of article two thousand five
hundred and fifty-four (2554) of the Civil Code for the Federal District and its
correlative articles in the Civil Codes for the other entities where the
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power-of-attorney is exercised, including the authority to withdraw from
"amparo" proceedings, pursue it throughout its terms and withdraw therefrom;
file remedies against interlocutory and definitive decrees; consent the
favorable ones and ask for the issuance and revocation of powers-of-attorney,
answer claims filed against the principal; make and file complaints,
denunciations or accusations and assist the Public Prosecutor in criminal
processes, the Company being able to become the civil party in such processes
and grant pardons when in its opinion the case so deserves it; acknowledge, sign
documents and impugn as false those submitted by the counterparty, submit
witness, see the witness of the counterparty, examine and cross-examine them,
make and answer questions in court, settle, submit to arbitration, challenge
magistrates, judges and all other judicial officers, without cause, with cause,
or under protest of the law, as well as to appoint experts.
Neither any director nor the Chairman of the Board of Directors nor the
general director of the Company shall be entitled to reply interrogatories, for
which reason they are prevented from making and answering questions in court in
any lawsuit or proceeding in which the Company is a party. The mentioned
authorities shall exclusively correspond to the attorneys-in-fact of the Company
who had been granted these authorities expressly.
(b) General power-of-attorney to manage the business and corporate
assets under the widest terms in accordance with the provisions of the second
paragraph of article two thousand five hundred and fifty-four (2554) of the
Civil Code for the Federal District and its correlative articles in the Civil
Codes for the entities on which the power-of-attorney is exercised, accordingly,
the Board of Directors is vested with the widest authorities to manage all
business related to the corporate purpose of the Company.
(c) General power-of-attorney to exercise acts of ownership in
accordance with the provisions of the third paragraph of article two thousand
five hundred and fifty-four (2554) of the Civil Code for the Federal District
and its correlative articles in the Civil Codes for the entities on which the
power-of-attorney is exercised. Powers-of-attorney for acts of ownership must be
exercised jointly by at least two (2) attorneys-in-fact, with the modalities
determined by the Board of Directors.
(d) The Board of Directors shall enjoy the authorities of a general
attorney-in-fact by the delegation of the legal representation of the principal
company, to represent the same in labor lawsuits or proceedings under the terms
and for the purposes referred to in articles eleven (11), forty-six (46),
forty-seven (47), one hundred and thirty-four (134), section three (iii), five
hundred and twenty-three (523), six hundred and ninety-two (692) section (ii)
and (iii), six hundred and ninety-four (894), six hundred and ninety-five (695),
seven hundred and eighty-six (786), seven hundred and eighty-seven (787), eight
hundred and seventy-three (873), eight hundred and seventy-four (874), eight
hundred and seventy-six (876), eight hundred and seventy-eight (878), eight
hundred and eighty (880), eight hundred and eighty-three (883), eight hundred
and eighty-four (884), and eight hundred and ninety-nine (899), in connection
with the provisions of chapters Twelve (XII) and Seventeen (XVII), of title
Fourteen (14), all of them of the Federal Labor Law in force, with the
attributions, obligations and rights regarding legal capacity referred to in
such legal provisions. Likewise, the labor representation is granted to it under
the terms of article eleven (11) of the mentioned Federal Labor Law. The
power-of-attorney being granted, the legal representation being delegated and
the employers representation being granted by means of this instrument shall be
exercised by the Board of Directors with the following authorities which are
mentioned as an enumeration but not as limitation:
12
(i) To act before the unions with which collective labor
agreements are executed and for all effects of
collective conflicts;
(ii) To act before workers personally considered and for all
effects of individual conflicts and, in general, for all
employer-employee matters;
(iii) To appear before any labor authorities and social
service authorities referred to in article five hundred
and twenty-three (523) of the Federal Labor Law;
(iv) To appear before Boards of Conciliation and Arbitration,
either local or federal;
(v) Accordingly, and on behalf of the Company, the Board of
Directors may appear to laboral lawsuits with all
attributions and authorities mentioned in the sections
(a) and (b) of this clause, as applicable and it will
also have the employers representation of the Company
for the purposes of article eleven (11), forty-six (46),
and forty-seven (47) of the Federal Labor Law, as well
as the legal representation of the Company for the
purposes of evidencing the legal capacity of the company
in a lawsuit or out of it, under the terms of article
six hundred and ninety two (692) section two (II) and
(III) of the mentioned law;
(vi) To appear to interrogatories under the terms of articles
seven hundred and eighty-seven (787) and seven hundred
and eighty-eight (788) of the Federal Labor Law, with
authorities to make and answer questions in court and
deal with the confessional evidence throughout its
stages;
(vii) To appoint contractual domiciles to receive
notifications under the terms of article eight hundred
and seventy-six (876) of the Federal Labor Law;
(viii) To Appear with sufficient legal representation to the
hearing referred to in article eight hundred and
seventy-three (873), of the Federal Labor Law in its
three stages of conciliation, demand and objections of
offering and admission of evidences, under the terms of
article eight hundred and seventy-five (875), eight
hundred and seventy-six (876) sections first (I) and
sixth (VI), eight hundred and seventy-seven (877), eight
hundred and seventy-eight (878), eight hundred and
seventy-nine (879) and eight hundred and eighty (880) of
the Federal Labor Law;
(ix) To appear to the hearing of the dealing of evidences,
under the terms of articles eight hundred and
seventy-three (873) and eight hundred and seventy-four
(874) of the Federal Labor Law; and
13
(x) To offer and accept conciliation arrangements, enter
into transactions, take any kind of decisions, negotiate
an subscribe labor, judicial or extrajudicial
agreements; at the same time, it may act as
representative of the company as administrator regarding
and for any kind of labor lawsuits or proceedings,
individual or collective, being dealt with before any
authority; it may execute labor agreements and rescind
them, offer reinstatements, answer any kinds of demands,
claims or summons.
Neither any director not the Chairman of the Board of Directors nor the
general director of the Company shall be entitled to answer interrogatories, for
which reason they are prevented from making and answering questions in court in
any lawsuit or proceeding on which the company is a party. These authorities
shall exclusively correspond to the attorneys-in-fact of the Company to whom
they have been expressly granted.
(e) General power-of-attorney to draw, accept, endorse,
negotiate, draw, guarantee ("avalar"), certify and in any other manner subscribe
credit instruments on behalf of the Company, under the widest terms established
by article nine (9) section one (1) of the general Law of Credit Instruments and
Operations. The powers-of-attorney referred to in this section must be exercised
jointly by at least two (2) attorneys-in-fact, with the modalities determined by
the Board of Directors.
(f) Authorities to open and cancel bank accounts, investment
accounts and any other kind of accounts, as well as to make deposits and draw
against such accounts through the person or persons determined by the Board of
Directors itself.
(g) Authority to appoint and remove the general director of the
Company and the lower hierarchical level officers, as well as to determine their
authorities, powers, guarantee to give, working conditions and remunerations.
(h) Authority to appoint and remove any other employees not
mentioned in the above section, as well as any attorneys-in-fact and agents,
with the authority to determine their powers, guarantees, working conditions or
conditions for the rendering of services and remunerations.
(i) Authority to grant general or special powers-of-attorney, where
the authority of substitution may be granted, as well as to substitute or
delegate their powers, always keeping the exercise thereof and revoke any other
powers granted, substituted or delegated;
(j) The Board of Directors, through its chairman or regular or
alternate secretary may call general ordinary and extraordinary shareholders
meetings as well as special shareholders meetings in all events provided for by
these by-laws or when considered convenient, as well as to fix the date, time
and agenda for such meetings.
(k) To carry out the resolutions adopted by any shareholders meeting
of the Company, which shall be made through its Chairman, exception made that
such authority is delegated to another director.
(l) To establish offices, branches, establishments or agencies of
the Company anywhere in the United Mexican States or abroad.
14
(m) To place the shares of the Company which are not subscribed by
the shareholders thereof under the terms of clause Nine of these by-laws.
(n) To resolve on the acquisition by the Company of shares issued by
it, under the terms on section first (1) of article fourteen Bis three (14 Bis
3) of the Securities Market Law and according to the following:
(i) The general ordinary shareholders meeting shall indicate
the amount of capital stock that can be affected to
repurchase the Company's own shares, as well as the
amount of the corresponding reserves, created for that
effect by said shareholders meeting, with the only
restriction that the sum of all resources that can be
destined to such purpose shall in no case exceed the
total balance of the Company's net profit, including
retained earnings;
(ii) The purchase of own shares shall be made by affecting
the account of capital stock by an amount equal to the
"theoretical value of the shares", which is the quotient
that results from dividing the paid capital stock by the
number of released shares of the company. The surplus
shall be charged to the reserves for the acquisition of
own shares;
(iii) In case of the purchase price of the shares being lower
that the theoretical value, the account of capital stock
shall only be affected by that amount that is equivalent
to the theoretical value of the acquired shares;
(iv) The Board of Directors shall appoint the person or
persons responsible for the purchase and sale of its own
shares; (v) The treasury shares may be sold to the
investing public, and the Company's shareholders shall
not have the preemptive right granted by article one
hundred and thirty two (132) of the General Law of
Commercial Companies, and the product of the sell shall
be applied to increase the capital stock by an amount
equal to the theoretical value of said shares, hence
reconstituting the reserves for the acquisition of own
shares by means of the surplus, if any. If the case may
be, the surplus generated by the difference between the
product of the sell and the price of acquisition shall
be registered at the account named "Prime for
subscription of shares"; (vi) Capital stock reductions
and increases derived from the purchase and selling of
shares, as provided in this paragraph (n), shall not
require a previous resolution from the shareholders
meeting, nor from the Board of Directors.
(v) As long as the shares belong to the Company, they can
not be represented at any shareholders meeting of any
series; and
(vi) The Board of Directors must comply with any other
provisions contained in the Securities Market Law or in
circulars issued by the National Banking and Securities
Commission, with respect to the purchase and sale of its
shares, being bound to file the corresponding reports.
15
(o) To determine the sense on which the voting right corresponding
to the shares held by the Company must be exercised at any shareholders meetings
on which this Company has a corporate participation.
(p) Prior resolution of the corresponding meeting according to the
type of shares in question, to establish plans for the option for the purchase
of shares for employees of this Company or its subsidiaries.
(q) Independently and without prejudice to the exercise of the
powers granted to the Board of Directors pursuant to Mexican law, particularly
the Mexican Securities Market Law and other applicable regulations, the Board of
Directors shall be entitled to grant or delegate in favor of the Audit Committee
those powers that it deems necessary or convenient to comply with the legal and
regulatory provisions applicable to the Company, as well as to determine the
rules pursuant to which the Audit Committee shall exercise such powers,
including the right to revoke or modify them.
(r) The following is non-delegable authority of the Board of
Directors: to approve the transactions (i) to be entered into between the
Company and/or its subsidiaries and its shareholders, with persons that form
part of its management and/or the management of its subsidiaries or with whom
such persons have patrimonial or family links up to the second grade, spousal or
concubine, and that are outside the ordinary course of business; (ii) the
purchase or sale of the ten percent (10%) or more of the assets of the Company
and/or its subsidiaries; (iii) the granting of a resulting in a potential
liability exceeding thirty percent (30%) of the assets of the Company and/or its
subsidiaries, as well as, any other transaction, other than the transactions
described above, involving an amount in excess of one percent (1%) of the assets
of the Company and/or its subsidiaries. The members of the Board of Directors
are responsible of the resolutions that they reach with respect to the matters
referred herein above except in the case established in article one hundred and
fifty nine (159) of the General Law of Commercial Companies.
(s) (1) In terms of section VII of article fourteen Bis three (14
Bis 3) of the Securities Market Law, and without prejudice of what is stipulated
in clause Twelve of these by-laws and in fulfillment of the general rules
applicable to the acquisition of securities that must be disclosed and to the
public offers of purchase of securities, published in the Official Gazette of
the Federation on April 25, 2002 (the "Rules"), as mentioned therein, the prior
consent of at least two thirds of the members of the Board of Directors shall be
required for (i) any acquisition of "Shares" (as said term is defined below)
that represent thirty percent (30%) or more of the capital stock of the Company,
by one or more shareholders or individuals that pretend to be shareholders of
the Company, including the persons that are defined in the Rules as "Acquiring
Group" whether such acquisition is made by means of one or more simultaneous or
successive transactions of any nature through or outside the securities market,
directly or indirectly or through any third person; or (ii) for the case that
several shareholders or third parties, including the persons defined in the
Rules as ("Acquisition Group"), obtain the voting right over thirty percent
(30%) or more of the capital stock of the Company through any mechanism or
arrangement for the exercise of voting rights.
16
The term "Shares" shall include the "Securities with Voting Right", as
such term is defined in section IX of the rule First of the Rules.
(2) The acquisition of Shares in the terms mentioned in paragraph
(i) sub item (l) above, that has been previously authorized by at least two
thirds of the members of the Board of Directors at least or that is not made
pursuant to the Rules, will not be registered in the stock registry book of the
Company and, as a consequence thereof, the Company will not recognize said
persons as shareholders, and therefore, such Shares shall not be entitled to
vote at any shareholder meeting of the Company, nor its owner shall be able to
exercise any of its corporate rights granted by the General Law of Commercial
Companies or herein granted, including the right to appoint the members of the
Board of Directors as it may correspond. Likewise, the adoption of any mechanism
or arrangement to exercise voting rights that results in the obtainment of the
right of vote in the terms of paragraph (ii) of sub item (l) above, has not been
previously authorized by at least two thirds of the members of the Board of
Directors shall not be recognized by the Company and the persons related
thereto, shall not be able to exercise their corresponding voting rights through
such mechanism or arrangement whether at any general shareholders meeting or
Board of Directors meeting.
(3) In the event that for any reason one or more persons mentioned
in the sub item (1) above, acquire Shares or obtain voting rights without the
prior favorable consent of the Board of Directors as required in sub item (l)
above, said person or persons shall unconditionally and irrevocably submit to
the resolutions in such respect by the Board of Directors, which may include
among others the following: (i) the sale by means of public offering of the
acquired Shares, or (ii) the rescission of the acquisition of the Shares; or
(iii) the purchase by means of public offering or directly when necessary, of
all or part of the remaining Shares of the capital stock of the Company by this
person or persons following for such effect the mechanisms established in the
Sixth and Seventh rule of the Rules as such be the case, or (iv) the rejection
of the mechanisms or corresponding arrangements to exercise voting rights.
(4) Independently and without prejudice of the foregoing those
persons referred to in sub item (l) above, that intend to carry out an
acquisition of Shares or the adoption of any mechanisms or arrangement to
exercise voting rights as mentioned in sub item (l) above, shall inform of their
intention to the chairman and secretary of the Board of Directors (the latter
being bound to immediately notify the situation to all other regular and
alternate members of the Board of Directors) by means of written communication
together with all the elements related to the proposed transaction, so that a
call is made in the terms of these by-laws to a Board of Directors meeting to be
held within the thirty (30) days following the date of receipt of the
corresponding notice with the purpose of informing at such meeting the above
mentioned transaction and delivering all elements available in order for the
members of the Board of Directors to review them and adopt the corresponding
resolution according to the terms of sub item (1) above. The Board of Directors
may determine to invite the interested person or persons to a new special
meeting in order to clarify the doubts that they may have or to request any
additional information that may be required in order for the Board of Directors
to have the necessary elements to take a resolution, in the understanding that
the Board of Directors must adopt the corresponding resolution within the thirty
(30) days following the date on which said Board of Directors has all the
necessary elements for such effect. In order for the Board of Directors to
resolve favorably any of these transactions which must be subject to the Rules,
the respective person or persons
17
must always request the favorable consent of the Board of Directors with respect
to any additional acquisition of Shares, regardless of the percentage of the
Shares or the adoption of any mechanism or arrangement to exercise voting rights
different from the one originally submitted, otherwise said transactions will
not be recognized by the Company and the corresponding voting rights will not be
able to be exercised at any general shareholders meetings or Board of Directors
meetings.
The Board of Directors may analyze the respective transaction with the
purpose of adopting the corresponding resolution using for such effect, without
limitation, the following criteria: (i) the characteristics of the interested
person or persons, such as its citizenship, moral and economic status,
activities engaged, etc., (ii) the advantages or disadvantages that its
participation will have for the Company considering among others, the effects
over the radio license, economic competition, etc., and (iii) its experience in
the communications sector, in particular, radio and publicity.
(5) Acquisition of Shares, or adoption of mechanisms or arrangement
to exercise voting rights, by any shareholder or third party, including those
persons defined in the Rules as "Group of Acquirers", that represents five (5%)
or more of the capital stock of the Company in one or more transactions, must be
notified within five (5) working days following of its formalization to the
chairman and secretary of the Board of Directors (the latter being bound to
notify immediately of this respect to all the other regular and alternate
members of the Board of Directors) by means of a written communication which
must made in accordance with the applicable provisions of the Rules in
connection with disclosure of acquisition of securities, in order to be
registered and, therefore acknowledge by the Company.
To modify this item (s) of clause Seventeen of the by-laws, the prior
written authorization of the National Banking and Securities Commission will be
required.
(t) In general, to carry out all necessary or convenient acts to comply
with the corporate purpose of the company and which are not reserved to another
body in accordance with these by-laws or with the law.
EIGHTEEN. In addition to the Board of Directors, the Company shall have
an intermediate administration body, which shall be an Executive Committee as
well as an Audit Committee, which shall be integrated and shall operate as
follows:
A. EXECUTIVE COMMITTEE.
(i) An Executive Committee of the Board of Directors is
formed by a minimum of five (5) and a maximum of seven
(7) regular members and if such be the case their
respective alternates is hereby created. Members of the
Executive Committee must be directors and be appointed
to hold such position by the general ordinary
shareholders meeting, by simple majority vote, from
among the regular and alternate directors who had been
appointed or designated at such meeting;
18
(ii) Except for the provisions contained in this clause, the
Executive Committee shall be formed and operate in
accordance with the same rules applicable for the
operation of the Board of Directors and shall have those
authorities determined by the general ordinary
shareholders meeting so appointing it, exception made of
the authorities provided for in paragraphs (n), (o) and
(q) of clause Seventeen, which may only be exercised by
the Board of Directors of the Company;
(iii) Members of the Executive Committee shall always
constitute themselves as a collegiate body, without its
authorities being delegated on individuals such as
directors, managers, advisors, delegates,
attorneys-in-fact or equivalent positions, provided,
however, that this limitation shall not be applicable to
the performance of specific acts by those persons
appointed therefore by the Executive Committee itself
when validly adopting a resolution;
(iv) The Executive Committee must inform the Board of
Directors, at least three (3) calendar days before the
holding of any ordinary meeting of the Board itself, of
its activities and must inform the Board itself, within
the three (3) calendar days it is aware thereof, of the
facts or acts that may be transcendental for the Company
and that it in its opinion so deserve; and
(v) The examiner or examiners of the Company must be called
to every meeting of the Executive Committee and must
attend with the right to speak but not to vote. The
Executive Committee may appoint a secretary who is not
required to be a director of the Company.
B. AUDIT COMMITTEE.
An Audit Committee is hereby established, which members will be
appointed by the general ordinary shareholders meeting. Members of the Audit
Committee must be regular members of the Board of Directors of the Company in
the understanding that all of its members must be independent members of the
Board of Directors of the Company as defined under applicable laws and
regulations. The members of the Committee shall remain in their office for one
year unless they are substituted by the Board of Directors or a shareholders
meeting, but they will stay in such capacity until new members are appointed to
replace them; the members of the Committee might be reelected and the Board of
Directors or a shareholders meeting will determine the compensation that they
will receive for their acting in such capacity.
The Committee shall act as college organ. The Committee will not get
involved in management activities or such that are reserved either by law or by
these by-laws to the meetings of shareholders or the Board of Directors of the
Company. Its decision duties cannot be delegated to natural persons, but it can
appoint such persons to carry out specific acts related to its decisions.
The meetings of the Committee will be called for the statutory auditor
or statutory auditors of the Company who will attend to this with voice but
without vote.
19
The Committee will determine the schedule for its meetings and,
notwithstanding this, will be able to meet at any other time, upon summons from
any of its members or the statutory auditor. The calls for its meetings will be
signed by its president and its secretary or deputy secretary and will be
delivered at least five (5) calendar days before the day of the meeting at the
address that its members notify in writing, by telefax confirmed by express mail
return receipt, requested prepaid postage, or any other form that assures that
the addressee will receive it.
A minute of every meeting of the Committee will be prepared, which will
contain the names of the persons present, their discussions, their voting and
the resolutions. Either the secretary or the deputy secretary of the Committee
will prepare such minutes. The Board of Directors must be notified of the
resolutions of the Committee.
For a meeting of the Audit Committee to be valid, the majority of its
members must be present and the Audit Committee must adopt its resolutions by
majority vote.
The Audit Committee will have, among other powers established in these
By-laws and in applicable law, the following duties to: (i) prepare an annual
report regarding its activities that will be presented to the Board of Directors
and such Board of Directors will present it to the shareholders meeting; (ii)
give an opinion with respect to transactions entered into by "Related Persons"
(as said term is defined below) with the Company and/or its subsidiaries; the
purchase or sale of ten percent (10%) or more of the assets of the Company
and/or its subsidiaries, the granting of guarantees for amounts exceeding thirty
percent (30%) of the assets of the Company and/or its subsidiaries, as well as
transactions different from the foregoing that represent more than one percent
(1%) of the assets of the Company and/or its subsidiaries; and (iii) approve any
additional non- audit services, if such be the case, to be rendered by the
accounting firm in which the external auditor works, and (iv) propose the hiring
of independent specialists in the cases that they deem convenient so that they
express their opinion with respect to the above mentioned transactions.
In relation with the transactions to be carried out with Related
Persons, the members of the Committee must take into consideration the prices
and conditions existing in the market for the goods or services involved, so
that they are carried out, according to the members of the Committee, on an
arms'-length basis, as it made with third party's that are not Related Persons.
As to sales of commercial air time to Related Persons, the standard to be
applied by the Committee will be that of availability, to assure that the
relevant air time would not remain unused, even though its sale has to be
accomplished at less than market price.
For purposes of these by-laws, "Related Persons" shall mean any person
that meets any of these characteristics: shareholders and partners of the
Company, persons that form part of the management of the Company with whom said
persons maintain patrimonial or, family links up to the second degree, the wife
or husband or concubine.
NINETEEN. (a) The surveillance of the Company shall be vested in an
examiner or examiners and, if such be the case, to their respective alternate or
alternates. The examiner or examiners may be a shareholder or not but he/they
may not fall within any of the assumptions provided for in articles one hundred
and sixty-five (165) of the General Law of Commercial Companies.
20
(b) The appointment of examiners shall be made at a general ordinary
shareholders meeting. The holders of shares with or without voting rights that
represent at least ten percent (10%) of the capital stock, shall be entitled to
appoint one examiner in the understanding that the appointment of such examiners
may only be revoked if the appointment of all the other examiners of the Company
are also revoked.
(c) The examiner or examiners shall have the attributions and
obligations listed in article one hundred and sixty-six (166) of the General Law
of Commercial Companies as well as those entrusted to them by the shareholders
who appointed them.
(d) The examiner or examiners shall remain in office for one year
and may be reelected provided that while a new examiner or examiners have not
been appointed and had accepted his/their position and granted the guarantee
provided for in these by-laws, the retiring examiner or examiners shall continue
holding office.
(e) The general ordinary shareholders meeting shall determine the
remunerations to be received by the examiner or examiners.
(f) Only in the event that it is so required by the general ordinary
shareholders meeting as guarantee of his management, the examiner or examiners
shall deposit at the treasury of the Company the amount in Mexican currency that
determine the shareholders meeting or shall constitute a bond in such amount
issued in favor of the Company by an authorized bonding institution when taking
office of his/their position. The deposit or bond may not be withdrawn but until
the management of the examiner or examiners has been approved by the general
ordinary shareholders meeting of the Company.
TITLE EIGHT
SHAREHOLDERS MEETING
TWENTY. The shareholders meeting is the supreme body of the Company and
its resolutions shall be binding for all shareholders even for those absent or
dissident.
TWENTY-ONE. Shareholders meeting shall be ordinary, extraordinary and
special and each of them shall deal with the following matters:
(a) Ordinary meetings shall meet to deal with any of the matters
referred to in articles one hundred and eighty (180) and one hundred and
eighty-one (181) of the General Law of Commercial Companies and all other
matters contained in the agenda and which in accordance with the law of these
by-laws are not expressly reserved to an extraordinary or special shareholders
meeting.
It must also be submitted to the consideration of the ordinary general
shareholders meeting, for each fiscal year, the maximum amount of resources that
the Company can use for the purchase of its own shares a report regarding the
behavior of the purchase and sale of its own shares, and another report of the
performance of the Audit Committee.
21
(b) Extraordinary meetings shall be those held to deal with any of
the following matters:
1. Extension of the term of existence of the Company;
2. Advanced dissolution of the Company;
3. Increase or decrease in the fixed capital stock of the
company or increase in the variable capital stock above
the maximum authorized as well as increase of the
capital under the terms of article eighty-one (81) of
the Securities Market Law;
4. Change of the corporate purpose of the Company;
5. Change of the nationality of the Company;
6. Transformation of the Company;
7. Merger with another company or split of this Company;
8. Issuance of preferred shares and common stock issued for
preferred shares called in;
9. Redemption by the Company of its own shares and issuance
of common stock issued for preferred shares called in;
10. Issuance of bonds;
11. Any other amendment to the by-laws; and
(c) Those meetings held to deal with matters of the exclusive
interest of a special series of shares shall be special shareholders meetings.
Also, those meetings held by the shareholders holding shares of limited voting
rights or shares with restricted vote that the Company may issue, to deal with
matters that correspond to them according to these by-laws shall also be special
shareholders meetings. These meetings must be held at least once a year prior to
the holding of the annual general ordinary shareholders meeting.
TWENTY-TWO. Shareholders meetings shall be subject to the following
rulings:
(a) Save for the provisions otherwise contained herein, shareholders
meetings may be held when deemed convenient by the Board of Directors, through
its chairman, regular or alternate secretary, or at the request of the examiner
or examiners or of shareholders holding shares which, at least, represent ten
percent (10%) of the capital stock of the Company represented by voting shares,
including those of limited or restricted voting rights or by any shareholder in
the events provided for by article one hundred and eighty-five (185) of the
General Law of Commercial Companies.
22
(b) General ordinary meetings must be held at least once every year
within the four months following the end of each fiscal year. From the date of
publication of the call for a shareholders meeting until the date fixed for the
meetings, the information and documents regarding the items of the agenda to be
discussed, must be available to the shareholders on business days and hours.
(c) All shareholders meetings shall be held at the domicile of the
Company, except for an act of God or force majeure, but in any case within the
national territory.
(d) The call for any meeting shall be made by the Board of Directors
through its chairman, regular or alternate secretary or the examiner or
examiners, or in accordance with the provisions of article one hundred and
sixty-eight (168), one hundred and eighty-four (184) and one hundred and
eighty-five (185) of the General Law of Commercial Companies.
(e) The call shall be published in the Official Gazette of the
Federation which shall be considered the official newspaper of the domicile of
the company or in a newspaper having a wide circulation at the corporate
domicile of the Company, at least fifteen (15) calendar days in advance to the
date of such meeting.
(f) The call shall contain, at least, the date, hour and place for
the meeting, as well as the agenda therefore and shall be signed by the chairman
or the regular or alternate secretary of the Board of Directors or by the
examiner or in the absence thereof, by a competent judge according to the
provisions of articles one hundred and sixty-eight (168), one hundred and
eighty-four (184) and one hundred and eighty-five (185) of the General Law of
Commercial Companies.
(g) Any shareholders meeting may be held without the need of prior
call if shareholders holding or representing all the shares entitled to vote at
such meeting are present or represented at the time of voting or when it
continues from one held before in the events provided for in article one hundred
and ninety-nine (199) of the General Law of Commercial Companies.
(h) Any shareholder may be represented at any shareholders meeting
by the person appointed in writing as attorney-in-fact. The persons that attend
on behalf of the shareholders in the meetings, shall evidence their capacity by
means of a simple proxy granted before two (2) witnesses or by means of a power
of attorney granted in the format prepared by the Company, that meet the
following requirements: (i) provide in a clear manner the name of the Company as
well as the respective agenda, without being able to include under the item of
general matters, those matters referred to in article one hundred and eighty one
(181) and one hundred and eighty two (182) of the General Law of Commercial
Companies; and (ii) contain space for the instructions that the grantor will
provide for the exercise of this power. The above mentioned formats will be
available to the shareholders or their representatives at the offices of the
Company on business days and hours, since the date of the publication of the
call for any type of meeting. The secretary of the Board of Directors of the
Company must verify compliance with the forgoing, and shall inform on that
regard to the meeting, of which reference shall be made in the respective
minutes.
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(i) Save in the event of a judicial order otherwise, the Company
shall only acknowledge as shareholders those individuals or corporations whose
names are written in the registry of shares or who evidence their capacity as
shareholders by complying with the provisions of article seventy-eight (78) of
the Securities Market Law. The registry of shares shall be considered closed
three (3) calendar days before the date fixed for the holding of the meeting
even though the meeting is adjourned for any reason.
(j) General ordinary and extraordinary shareholders meetings shall
be presided over by the Chairman of the Board of Directors, assisted by the
regular or alternate secretary thereof and in the absence of any of them, those
directors appointed by the meeting by a simple majority vote shall act on their
behalf as chairman or secretary, as the case may be. Special shareholders
meetings shall be presided over by the shareholder or representative of the
shareholder appointed by a simple majority vote by the shareholders attending
such special meeting.
(k) Before the meeting is convened, the person presiding over it
shall appoint from among the members thereof one or more tellers to count the
shares represented at the meeting, who shall verify and certify the capacity as
shareholder of the Company or as representative of the shareholder of the
attending parties and the number of votes each of them is entitled to cast.
(l) At the request of shareholders with voting rights, including,
shares with limited or restricted voting rights representing ten percent (10%)
of the shares represented at the meeting, the meeting may be adjourned by three
(3) business days, without the need of a new call, regarding any matter that
said group of shareholders considers is not duly apprised of this right may be
exercised just one of the same matter.
(m) For a general ordinary shareholders meeting held due to first
call to be legally convened, at least fifty percent (50%) of Series "A" shares
must be represented thereat. Regarding the second or ulterior call, the general
ordinary shareholders meeting shall be considered validly convened whichever the
number of Series "A" shares therein represented.
(n) To consider that a general extraordinary shareholders meeting is
duly convened to deal with matters with respect to which holders of shares with
limited or restricted voting rights issued by the Company, are not entitled to
vote, held due to the first call, at least seventy-five percent (75%) of Series
"A" shares must be represented thereat. Regarding the second or ulterior call, a
general extraordinary shareholders meeting of the kind referred to in this
paragraph shall be considered legally convened if attended by at least fifty
percent (50%) of Series "A" shares.
(o) For a general extraordinary shareholders meeting to be
considered legally convened to deal with matters with respect to which holders
of Shares of limited or restricted voting rights issued by the Company,
shareholders are entitled to vote, held due to first call, at least seventy-five
percent of the capital stock must be represented thereat. A general
extraordinary shareholders meeting of the kind referred to in this paragraph
shall be considered legally convened in second or ulterior call if attended by
at least fifty percent (50%) of the capital stock.
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(p) Once the existence of a quorum to hold the respective meeting
has been proven, the person presiding over it shall declare it legally convened
and shall submit to its consideration the items of the agenda.
(q) All voting shall be by show of hands unless the attending
members representing at least the majority of all shares issued and outstanding
resolve that the vote be secret.
(r) Shareholders are entitled to cast a vote for each share at any
ordinary, extraordinary or special shareholders meeting.
(s) For the validity of the resolutions adopted at a general
ordinary shareholders meeting held due to first or ulterior call, the vote of at
least the majority of the shares represented at the meeting shall be required.
(t) For the validity of the resolutions adopted at a general
extraordinary shareholders meeting held due to first or ulterior call, the vote
of at least fifty (50%) of the outstanding shares entitled to vote at the
meeting in question.
(u) Special shareholders meetings shall be subject to the same
attendance and voting quorums required for the general extraordinary
shareholders meetings.
(v) The shareholders that represent at least the fifteen percent
(15%) of the capital stock, shall be entitled to exercise directly the judicial
action of civil liability against the members of the Board of Directors of the
Company, provided that the requirements established in article one hundred and
sixty three (163) of the General Law of Commercial Companies have been met. Such
judicial action may also be exercised with respect to the examiners and members
of the Audit Committee in accordance with said legal provision.
(w) The holders of the shares with voting rights shares, including
with limited or restricted voting rights that represent at least twenty percent
(20%) of the capital stock shall be entitled to judicially oppose to the
resolutions of the shareholders general meetings, with respect to which they
have voting rights provided that the requirements of article two hundred and one
(201) of the General Law of Commercial Companies have been met, being also
applicable the provisions of article two hundred and two (202) of said Law.
(x) The person acting as secretary shall draft minutes from each
shareholders meeting, which shall be contained in the respective minutes book
and which shall be signed, at least, by the chairman and the secretary in
office, as well as by the examiner if attending the meeting. Likewise, the
secretary of the meeting shall prepare a file containing:
(i) A copy of the newspapers where the call was published,
if any;
(ii) The powers-of-attorney which had been submitted or a
summary thereof certified by the teller or tellers
together with the attendance list and the documents
evidencing the shareholding of the attendance;
(iii) The reports, information and all other documents
submitted to the meeting; and
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(iv) A copy of the minutes of the meeting.
(y) If for any reason a legally called meeting is not convened, or
if it is convened but the necessary quorum to take resolutions does not exist,
this fact and the reason therefore shall be evidenced in the minutes book
forming a file in accordance with section (x) above.
TITLE NINE
FISCAL YEAR, FINANCIAL STATEMENTS, ALLOCATION OF
LOSSES AND PROFITS AND RESERVES
TWENTY-THREE. The fiscal year of the Company shall start on the first
(1st) day of January and shall end on the thirty-first (31st) day of December of
each year, exception made of the last fiscal year which shall start on the first
day of January of the respective year to the date on which this Company ceases
its existence for any reason.
TWENTY-FOUR. An audited general balance sheet and profit and loss
statement shall be prepared at the end of each fiscal year containing all
necessary information to evidence the financial condition of the Company at the
closing date of the fiscal year just ended. The balance sheet and the documents
referred to in article one hundred and seventy-two (172) of the General Law of
Commercial Companies must be completed within the three (3) months following the
end of each fiscal year and must be made available to the shareholders within
the term established by article one hundred and seventy-three (173) of the
General Law of Commercial Companies and according to the provisions of these
by-laws.
TWENTY-FIVE. After setting aside the necessary amounts for the payment
of taxes, profit sharing, creation or increase of the legal reserve fund until
it reaches one fifth of the capital stock, if any, creation of the reserve to
repurchase shares or others that may be required, the profits obtained by the
Company in accordance with the approved financial statement shall be applied
according to the resolutions of a general ordinary shareholders meeting.
TWENTY-SIX. Founders of the Company do not reserve any special
participation in the profits of the Company.
TITLE TEN
DISSOLUTION AND LIQUIDATION OF THE COMPANY
TWENTY-SEVEN. The Company shall be dissolved in the events listed in
article two hundred and twenty-nine (229) of the General Law of Commercial
Companies.
TWENTY-EIGHT. The liquidation of the Company must be subject to the
provisions of Chapter Eleven (XI) of the General Law of Commercial Companies.
The extraordinary shareholders meeting resolving the dissolution of this Company
shall determine the number of liquidators and how they shall act.
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TWENTY-NINE. During the liquidation process of the Company, the
liquidators shall have the same authorities and obligations the Board of
Directors of the Company has during the normal term or existence of the Company.
THIRTY. While the appointment of liquidators had not been registered in
the Public Registry Bureau and they had not taken office, the Board of Directors
and the officers of the Company shall continue in office, only for the purposes
of article two hundred and forty-two (242) of the General Law of Commercial
Companies, but they may not start new operations.
TITLE ELEVEN
RESPONSIBILITIES OF CONTROLING SHAREHOLDERS
THIRTY-ONE. In the event of cancellation of the registration of the
shares of the Company in the Securities Section at the National Registry of
Securities either by request of the Company itself or by resolution taken by the
National Banking and Securities Commission under the terms of the Securities
Market Law, prior to cancellation, the shareholders that hold the majority of
the ordinary shares or that are entitled to take the decisions in the general
shareholders meeting or to appoint the majority of the members of the Board of
Directors of the Company the ("Controlling Shareholders") shall be obliged to
make a public offer for the purchase of the shares.
In the event that, after the public offer has been made and prior to the
cancellation of the registration of the shares at the National Registry of
Securities, the Controlling Shareholders that hold the control of the Company
are not able to acquire one hundred percent (100%) of the paid capital stock,
they shall place in trust for a minimum period of six (6) months the necessary
funds for the exclusive purpose to buy at the same price the shares of those
investors that did not attend to the offer. The terms and conditions of the
above mentioned trust, must be disclosed in the corresponding booklet.
The public offer referred above at least must be at the higher price of
either the trade value (valor de cotizacion) in the Mexican Stock Exchange, in
accordance with the following paragraph, or the book value, pursuant to the last
quarterly report filed before the National Banking and Securities Commission and
the Mexican Stock Exchange before the offer, except when said value has been
modified pursuant to the criteria applicable to determining the relevant
information, in which case, the most recent financial information of the Company
shall be taken into account.
The trade value in the Mexican Stock Exchange shall be the average price
for the trading volume that has been carried out during the last thirty (30)
days in which the shares of the issuer have been traded, prior to the date of
the offer, during a period that cannot exceed six (6) months. In the event that
the period in which the shares were traded is less than thirty (30) days, the
actual number of days in which the shares were traded will be taken into
account. If the shares are not traded within such period, the book value of the
shares will be used.
In the event that the offer involves more than one series of shares, the
average mentioned in the preceding paragraph shall be determined for each series
of shares to be cancelled, taking as trading value for the purchase offer of all
series the higher average.
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The Board of Directors of the Company must provide its opinion
supporting the price of the public offer within the five (5) business days prior
to the date of the offer, taking into account the interests of the minority
shareholders, in compliance with the second paragraph of Article 16 of the
Securities Market Law and the opinion of the Audit Committee, which should be
disclosed in the event it is to the contrary. In case that, the Board has any
conflict of interest, it shall present an opinion issued by an independent
expert appointed by the Audit Committee which shall protect the rights of the
minority shareholders.
In the event that the Controlling Shareholders obtain the consent of
shareholders representing 95% of the capital stock of the Company by a
resolution adopted at a shareholders meeting, and the price offered for the
shares in accordance with this clause is less than 300,000 investment units, it
will not be necessary for the Controlling Shareholders to carry out a public
offer in the understanding that in order to request the cancellation, the
Company shall place in trust for a minimum of six (6) months an amount of funds
necessary to acquire the remaining shares at the same price of the offer and
must notify the cancellation and creation of the trust through "SEDI".
This provision will also be applicable to the ordinary participation
certificates representing the share as well as to the certificates
representative of two or more shares of one or more series of shares of the
Company.
The Controlling Shareholders may request authorization from the National
Banking and Securities Commission to use a different basis for the determination
of the price, provided that the consent of the Board of Directors is given along
with the prior favorable opinion of the Audit Committee containing the reasons
for establishing a different purchase price, together with the report of an
independent expert evidencing that the price is consistent with article 16 of
the Securities Market Law.
In order to amend this clause, it will require the vote of at least
ninety five (95%) of the capital stock and the prior approval of the National
Banking and Securities Commission.
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