Filed Pursuant to Rule 424(b)(3).
Registration Statement on Form F-6
(Reg. No. 33-80128)
EXHIBIT A
Number
AMERICAN DEPOSITARY SHARES
(EACH REPRESENTING
20 SHARES OF SERIES B COMMON
STOCK, WITHOUT EXPRESSION
OF PAR VALUE)
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
EVIDENCING
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED SHARES OF SERIES B COMMON STOCK, WITHOUT PAR VALUE,
OF
DESC, S.A. DE C.V.
(Incorporated 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), such Depositary's principal office being located at 111 Wall
Street, New York, New York 10043, hereby certifies that _____________, or
registered assigns, is the owner of __________________________ American
Depositary Shares, representing deposited shares of Series B Common Stock or
evidence of rights to receive Series B Common Stock, without par value
("Shares"), of DESC, S.A. DE C.V., a corporation organized under the laws of the
United Mexican States (the "Company"). At the date of the Deposit Agreement (as
hereafter defined), each American Depositary Share represents 20 Shares
deposited under the Deposit Agreement with the Custodian which at the date of
execution of the Deposit Agreement is Citibank, N.A. Sucursal en Mexico (the
"Custodian"). The ratio of American Depositary Shares to Shares is subject to
subsequent amendment as provided in Article IV of the Deposit Agreement.
(1) The Deposit Agreement. This American Depositary Receipt is one
of an issue (herein called the Receipts), all issued and to be issued upon the
terms and conditions set forth in the Amended and Restated Deposit Agreement,
dated June 29, 1994, as amended from time to time (the "Deposit Agreement"), by
and among the Company, the Depositary and all Holders from time to time of
Receipts issued thereunder, each of whom by accepting a Receipt agrees to become
a party thereto and becomes bound by all the terms and provisions thereof. The
Deposit Agreement sets forth the rights of Holders and the rights and duties of
the Depositary in respect of the Shares deposited thereunder and any and all
other securities, property and cash from time to time received in respect of
such Shares and held thereunder (such Shares, securities, property and cash are
herein called "Deposited Securities"). Copies of the Deposit Agreement are on
file at the Principal Office of the Depositary and the Custodian. 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.
Terms used and not defined herein shall have the same meaning as in the Deposit
Agreement.
(2) Surrender of Receipts and Withdrawal of Deposited Securities.
Upon surrender at the Principal Office of the Depositary of this Receipt for the
purpose of withdrawal of the Deposited Securities represented hereby, and upon
payment of the fee of the Depositary provided in article (6) of this Receipt,
2
the payment of any tax, other governmental charge or expense provided in article
(4) of this Receipt, and subject to the terms and conditions of the Deposit
Agreement and articles (3) and (22) hereof, the Holder hereof is entitled to
delivery of Shares, to him or upon his order, or to electronic delivery to an
account designated by or on behalf of such person or Holder of the Shares, and
in either case any other Deposited Securities at the time represented by the
American Depositary Shares evidenced by this Receipt. Delivery of such Deposited
Securities and other securities may be made by (1) (a) evidence of electronic
transfer of such securities to or for the account of the Holder with S.D.
Indeval, S.A. de C.V., the Mexican central securities depositary ("Indeval") or
(b) by the delivery of any Deposited Securities in certificated form, in the
name of each Holder or as ordered by him or by certificates properly endorsed or
accompanied by proper instruments of transfer to such Holder or as ordered by
him, and in any such event shall be subject to the applicable clearing
procedures of Indeval and the Estatutos Sociales of the Company and (2) delivery
of any other securities, property and cash to which such Holder is then entitled
in respect of such Receipts to such Holder or as ordered by him. Such evidence
that Shares have been electronically transferred to the account of the Holder,
or of delivery of certificated shares, as the case may be, will be made without
unreasonable delay and, at the option of the Holder hereof, if delivery of
certificated Shares is available, either at the office of any Custodian or at
the Principal Office of the Depositary, provided that the forwarding of
certificates evidencing Shares or other Deposited Securities for such delivery
at the Principal Office shall be at the risk and expense of the Holder hereof.
The Depositary shall not accept for surrender a Receipt evidencing
American Depositary Shares representing less than one Share. In the case of
surrender of a Receipt evidencing a number of American Depositary Shares
representing other than a whole number of Shares, the Depositary shall cause
ownership of the appropriate whole number of Shares to be recorded in the name
of the Holder surrendering such Receipt, and shall issue and deliver to the
person surrendering such Receipt a new Receipt evidencing American Depositary
Shares representing any remaining fractional Share.
3
(3) Transfers, Split-ups and Combinations. The transfer of this
Receipt is registrable on the books of the Depositary by the Holder hereof in
person or by duly authorized attorney, upon surrender of this Receipt to the
Principal Office of the Depositary properly endorsed or accompanied by proper
instruments of transfer and funds sufficient to pay any applicable transfer
taxes and the fees and expenses of the Depositary and upon compliance with such
regulations, if any, as the Depositary may establish; provided, however, that,
subject to article (22) of this Receipt, the Depositary may close the transfer
books, at any time or from time to time, when deemed expedient by it in
connection with the performance of its duties under the Deposit Agreement. This
Receipt may be split into other Receipts or may be combined with other Receipts
into one Receipt, representing the same aggregate number of American Depositary
Shares as the Receipt or Receipts surrendered. As a condition precedent to the
execution and delivery, registration of transfer, split-up, combination or
surrender of any Receipt or withdrawal of any Deposited Securities, the
Depositary or the Custodian may require payment from the presentor of a Receipt
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, charge, fee or expense with respect to Shares being deposited or withdrawn
in accordance with applicable laws) and payment of any applicable fees as
provided in article (6) of this Receipt, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature
(including, but not limited to, a signature guarantee in accordance with
industry practice) or other matters and may also require compliance with any
laws or governmental regulations relating to American Depositary Receipts, the
withdrawal of Deposited Securities and such regulations, if any, as the
Depositary may establish consistent with the provisions of the Deposit
Agreement, subject to article (22) hereof.
4
The Depositary may refuse to execute and to deliver Receipts,
register the transfer of any Receipt, or make any distribution of, or related
to, Deposited Securities until it has received such proof of citizenship,
residence, exchange control approval or other information as it may deem
necessary or proper in accordance with applicable laws and regulations and the
terms of the Deposit Agreement, subject to article (22) hereof. The delivery of
Receipts against deposits of particular Shares may be suspended, or the delivery
of Receipts against the deposit of particular Shares may be 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, the Company or of Indeval are closed, or
if any such action is deemed necessary or advisable by the Depositary or the
Company at any time or from time to time because of any requirement of law or of
any governmental body or commission or in accordance with the Deposit Agreement
or the provisions of or governing Deposited Securities, or for any other reason,
subject to the terms of article (22) of this Receipt. The Depositary and the
Custodian shall refuse to accept Shares for deposit whenever notified, as
hereafter provided, that the Company has restricted transfer of such Shares to
comply with the ownership restrictions referred in Section 3.05 of the Deposit
Agreement. The Company shall notify the Depositary and the Custodian in writing
with respect to any such restriction on transfer of its Shares for deposit
hereunder.
Notwithstanding any provision of the Deposit Agreement or this
Receipt, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended, except as permitted in General Instruction
IA(1) to Form F-6 (as the same may be amended from time to time) under the
Securities Act of 1933 in connection with (i) temporary delays caused by closing
the transfer books of the Depositary or the Company (or the appointed agent for
the Company for the transfer and registration of Shares) or the deposit of
Shares in connection with voting at a shareholders' meeting, or the payment of
dividends or similar distributions of cash, Shares or rights, (ii) the payment
of fees, taxes and similar charges, and (iii) compliance with any U.S. or
foreign laws or governmental regulations relating to the Receipts or to the
withdrawal of the Deposited Securities. Without limitation of the foregoing, the
5
Depositary will not knowingly accept for deposit under the Deposit Agreement any
Shares or other Deposited Securities, which, if sold by the holder thereof in
the United States (as defined in Regulation S under the United States Securities
Act of 1933 (the "Securities Act of 1933")), would be subject to the
registration provisions of the Securities Act of 1933, as from time to time
amended, unless a registration statement is in effect as to such Shares or other
Deposited Securities, nor shall the Depositary knowingly accept for deposit or
transfer Shares or other depositary receipts representing Shares which are
restricted securities (as such term is defined under Rule 144 of the Securities
Act of 1933).
(4) Liability of Holder For Taxes. If any tax, other governmental
charge or assessment imposed under applicable laws shall become payable with
respect to this Receipt or any Deposited Securities represented hereby, such
tax, other governmental charge or expense shall be payable by the Holder hereof
to the Depositary. The Depositary may refuse, and the Company shall be under no
obligation, to effect any registration of transfer, split up or combination of
this Receipt or any deposit or withdrawal of Deposited Securities represented
hereby until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Holder hereof any part or all
of the Deposited Securities represented 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
(5) Representations and Warranties by Depositor. Every person
depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that such Shares and certificates, if any, evidencing same
are validly issued, fully paid, non-assessable and that all preemptive rights,
if any, with respect to such Shares have been validly waived or exercised, and
that the person making such deposit is duly authorized so to do. Each such
person shall also be deemed to represent that Shares deposited by that person
are not Restricted Securities, and that the deposit of Shares or sale of Receipt
by that person is not restricted, under the Securities Act of 1933. Such
representations and warranties shall survive the deposit of Shares and issuance
of Receipts.
(6) Charges of Depositary. The Depositary shall charge any party to
whom Receipts are issued (including, without limitation, issuance pursuant to a
stock dividend or stock split declared by the Company or an exchange of stock
regarding the Receipts or Deposited Securities or a distribution of Receipts
pursuant to Section 4.04 or 4.09 of the Deposit Agreement) or who surrenders
Receipts a fee of $5.00 or less per 100 American Depositary Shares (or portion
thereof) for the issuance or surrender, respectively, of a Receipt. The
Depositary shall also charge the Holder hereof a fee of $1.50 or less per
certificate for a Receipt or Receipts for transfers made pursuant to the terms
of the Deposit Agreement. The Company will pay the other fees, charges and
reasonable expenses of the Depositary and the Registrar, co-transfer agent and
co-registrar, if any, as indicated in Exhibit B to the Deposit Agreement and as
agreed upon in writing from time to time between the Company and the Depositary.
7
All charges may be changed by agreement in writing between the
Depositary and the Company at any time and from time to time, effective only
after 90 days' notice thereof is given to Holders.
(7) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit or any Holder may be required from time to time to
file such proof of citizenship, residence or exchange control approval, or such
information relating to the registration on the books of the Company (or those
of Indeval or any other appointed agent of the Company for transfer and
registration of Shares), compliance with applicable laws and the terms of the
Deposit Agreement or other information, to execute such certificates and to make
such representations and warranties, as the Depositary may deem necessary or
proper or as the Company may require by written request to the Depositary, in
either case, consistent with the terms and provisions of the Deposit Agreement.
The Depositary may withhold the execution or delivery or registration of
transfer of any Receipt or the distribution or sale of any dividend or other
distribution of rights or of the proceeds thereof or the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed to the Depositary's satisfaction. The Depositary shall
provide the Company in a timely manner with copies, or originals if necessary
and appropriate, of (i) any such proofs of citizenship, residence, or exchange
control approval which the Depositary receives, and (ii) any other information
or documents which the Company may reasonably request and which the Depositary
shall request and receive from the Holders.
(8) Disclosure of Beneficial Ownership; Ownership Restrictions. To
the extent that provisions of or governing any Deposited Securities or the rules
or regulations of any governmental authority or securities exchange or automated
quotation system may require the disclosure of beneficial or other ownership of
Shares, other shares and other securities to the Company or other persons, the
Depositary shall use its best efforts to comply with Company instructions in
respect of any such enforcement or limitation and Holders shall comply with all
such disclosure requirements and shall cooperate with the Depositary's
compliance with such Company instructions.
8
The Company may restrict transfers of the Shares where such transfer
might result in ownership of Shares exceeding the limits under applicable law.
The Company may also restrict, in such manner as it deems appropriate, transfers
of the American Depositary Shares where such transfer may result in the total
number of Shares represented by the American Depositary Shares owned by a single
Holder to exceed the limits under any applicable law. The Company, may, in its
sole discretion, instruct the Depositary to take action with respect to the
ownership of any Holder in excess of the limitation set forth in the preceding
sentence, including but not limited to a mandatory sale or disposition on behalf
of a Holder of the Shares represented by the American Depositary Shares held by
such Holder in excess of such limitations, if and to the extent such disposition
is permitted by applicable law and to the extent the same action could have been
taken with respect to holders of Shares under similar circumstances.
(9) Title to Receipts. It is a condition of this Receipt, and every
successive Holder hereof by accepting or holding the same consents and agrees,
that title to this Receipt (and to the American Depositary Shares evidenced
hereby), when properly endorsed or accompanied by proper instruments of
transfer, is transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, however, that the Depositary, notwithstanding
any notice to the contrary, may deem and treat the person in whose name this
Receipt is registered on the books of the Depositary as the absolute owner
hereof for 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.
9
(10) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any purpose,
unless this Receipt shall have been executed by the Depositary by the manual
signature of a duly authorized officer or, if a Registrar for the Receipts shall
have been appointed, such signature may be a facsimile if this Receipt is
countersigned by the manual signature of a duly authorized officer of such
Registrar.
(11) Available Information. The Company is subject to the periodic
reporting requirements of the Securities Exchange Act of 1934 and accordingly
files certain information with the Commission. These public reports can be
inspected by Holders and copied at the public reference facilities maintained by
the Commission located at the date of the Deposit Agreement at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549.
Dated:
Countersigned CITIBANK, N.A.,
as Depositary
By:________________________ By:_________________________
Authorized officer Vice President
The address of the Principal Office of the Depositary is 111 Wall
Street, 5th Floor, New York, New York 10043.
10
(FORM OF REVERSE OF RECEIPT)
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(12) Dividends and Distributions; Rights. Whenever the Custodian
shall receive any cash dividend or other cash distribution by the Company on any
Deposited Securities, the Depositary or the Custodian shall, subject to the
provisions of Section 4.06, convert such dividend or distribution into dollars
and shall remit the amount thus received to the Depositary which shall, after
fixing a record date in respect thereof pursuant to Section 4.07, distribute
such amount (net of the customary expenses and the fees of the Depositary set
forth in Exhibit B hereto) to the Holders entitled thereto in proportion to the
number of American Depositary Shares representing such Deposited Securities held
by them respectively; provided, however, that in the event that the Company, the
Custodian or the Depositary shall be required to withhold, subject to Section
4.13 hereof, and does withhold 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 for American
Depositary Shares representing such Deposited Securities shall be reduced
accordingly. The Depositary shall distribute only such amount, however, as can
be distributed without attributing to any Holder a fraction of one cent. Any
such fractional amounts shall be rounded downward to the nearest whole cent and
so distributed to the Holders entitled thereto, and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by the
Depositary for distribution to Holders then outstanding. The Company or its
agent will remit to the appropriate governmental authority or agency in Mexico
all amounts withheld and owing to such authority or agency. The Depositary will
forward to the Company or its agent such information from its records as the
Company may reasonably request to enable the Company or its agent to file
necessary reports with governmental authorities or agencies, and the Custodian,
the Depositary or the Company or its agent may file any such reports necessary
to obtain benefits under applicable tax treaties for the Holders.
11
Whenever the Custodian shall receive any distribution other than
cash, Shares or rights upon any Deposited Securities, the Depositary shall, upon
consultation with the Company, cause the securities or property so received to
be distributed to the Holders as of a record date fixed pursuant to Section 4.07
hereto, entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them respectively, in any
manner that the Depositary may deem equitable and practicable for accomplishing
such distribution; provided, however, that if in the opinion of the Depositary
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 or the
Depositary withhold an amount on account of taxes or other governmental charges,
any requirement under applicable securities or exchange control regulations, or
that such securities must be registered under the Securities Act of 1933 in
order to be distributed to Holders) 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 (net of fees of the
Depositary as set forth in Exhibit B and its reasonable expenses) shall be
distributed by the Depositary to the Holders entitled thereto as in the case of
a distribution received in cash, provided that any unsold balance of such
securities or property shall be distributed by the Depositary to the Holders
entitled thereto, if such distribution is feasible without withholding for or on
account of any taxes or other governmental charges and without registration
under the Securities Act of 1933, in accordance with such equitable and
practicable method as the Depositary may have adopted.
12
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, 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 Shares to be deposited with Indeval and
registered in the name of the Custodian, and (ii) distribute to the Holders, as
of the record date fixed pursuant to Section 4.07 hereof, of outstanding
Receipts entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them respectively,
additional Receipts for an aggregate number of American Depositary Shares
representing the number of Shares received as such dividend or free
distribution, subject to the terms of this Deposit Agreement, including, without
limitation, Sections 2.02, 2.03, 4.13 and 5.09 hereof. In lieu of delivering
Receipts for fractional American Depositary Shares in any such case, the
Depositary shall sell the number of Shares represented by the aggregate of such
fractions and distribute the net proceeds, all in the manner and subject to the
conditions described in Section 4.02. If additional Receipts are not so
distributed (except as pursuant to the preceding sentence), each American
Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
In the event that the Company shall offer or cause to be offered to
the holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall, after
consultation with the Company, have discretion as to the procedure to be
followed (i) in making such rights available to the Holders, subject to Section
5.07, or (ii) in disposing of such rights on behalf of such Holders and
distributing the net proceeds available in dollars to such Holders as in the
case of a distribution of cash pursuant to Section 4.02 hereof, or (iii) in
allowing such rights to lapse (without incurring liability to any person as a
consequence thereof) in the event such rights may not be made available to
Holders or be disposed of as a consequence of the terms of such rights offering
or by reason of applicable law; provided, however, that the Depositary may, and
if requested by the Company shall, take action, subject to the terms of this
Deposit Agreement, as follows:
13
if at the time of the offering of any rights the Depositary
determines in its discretion that it is lawful and feasible to make
such rights available to all Holders or certain Holders but not to
others by means of warrants or otherwise, the Depositary may, after
deduction or upon payment of the fees and expenses of the
Depositary, distribute warrants or other instruments therefor in
such form and upon such terms as it may determine to the Holders
entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them
respectively, or employ such other method as it may deem feasible in
order to facilitate the exercise, sale or transfer of rights by such
Holders; or
if at the time of the offering of any rights the Depositary
determines in its discretion that it is not lawful or not feasible
to make such rights available to certain Holders by means of
warrants or otherwise, or if the rights represented by such warrants
or such other instruments are not exercised and appear to be about
to lapse, the Depositary in its discretion may sell such rights or
such warrants or other instruments, if a market therefor is
available, at public or private sale, at such place or places and
upon such terms as it may deem reasonable and proper, and allocate
the proceeds of such sales (net of the fees and expenses of the
Depositary) for the account of the Holders otherwise entitled to
such rights, warrants or other instruments upon an averaged or other
practicable basis without regard to any distinctions among such
Holders because of exchange restrictions or the date of delivery of
any Receipt or Receipts, or otherwise, and distribute such net
proceeds so allocated to the extent practicable as in the case of a
distribution of cash pursuant to Section 4.02 hereof. The Depositary
shall not be responsible for any failure to determine that it may be
lawful or feasible to make such rights available to Holders in
general or any Holder or Holders in particular.
14
If a Holder requests the distribution of warrants or other
instruments in order to exercise the rights allocable to the American Depositary
Shares of such Holder hereunder, the Depositary will make such rights available
to such Holder upon written notice from the Company to the Depositary that (a)
the Company has elected in its sole discretion to permit such rights to be
exercised and (b) such Holder has executed such documents as the Company has
determined in its sole discretion are reasonably required under applicable laws.
Upon instruction pursuant to such warrants or other instruments to the
Depositary from such Holder to exercise such rights, upon payment by such Holder
to the Depositary for the account of such Holder of an amount equal to the
purchase price of the Shares or other securities to be received in exercise of
the rights, and upon payment of the fees of the Depositary as set forth in such
warrants or other instruments, the Depositary shall, on behalf of such Holder,
exercise the rights and purchase the Shares or such other securities, and the
Company shall cause the Shares or such other securities so purchased to be
delivered to the Depositary on behalf of such Holder. As agent for such Holder,
the Depositary will cause the Shares or such other securities so purchased to be
deposited pursuant to Section 2.02 of this Deposit Agreement, and shall,
pursuant to Section 2.03 of this Deposit Agreement, execute and deliver to such
Holder Receipts.
15
If registration under the Securities Act of 1933 of the securities
to which any rights relate is required in order for the Company to offer such
rights or such securities to Holders and to sell the securities represented by
such rights, the Depositary will not offer such rights to the Holders (i) unless
and until a registration statement under the Securities Act of 1933 covering
such offering is in effect, or (ii) unless the Company furnishes the Depositary
an opinion of counsel for the Company in the United States reasonably
satisfactory to the Depositary or other evidence reasonably satisfactory to the
Depositary to the effect that the offering and sale of such securities to the
Holders of such Receipts are exempt from or do not require registration under
the provisions of the Securities Act of 1933.
If an exemption from such registration requirements is not available
and a registration statement is not filed, Holders would not be permitted to
purchase such securities or otherwise exercise such rights and the Depositary
would, to the extent possible, dispose of such rights for the account of such
Holders as provided in (b) above. Such a disposal of rights may reduce the
proportionate equity interest in the Company of the Holders. Because Mexican law
does not currently contemplate the issuance of pre-emptive rights in negotiable
form and the possibility of such issuance is unlikely, a liquid market for
pre-emptive rights may not exist, and this may adversely affect the ability of
the Depositary to dispose of such rights or the amount the Depositary would
realize upon disposal of rights. The Company shall have no obligation to
register such rights or such securities under the Securities Act of 1933.
16
(13) Record Dates. Whenever the Depositary shall receive notice of
the fixing of a record date by the Company for the determination of holders of
Deposited Securities entitled to receive any cash dividend or other cash
distribution or any distribution other than cash, or any rights to be issued, or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each American Depositary Share with respect to the
Deposited Securities, or whenever the Depositary shall receive notice of any
meeting of holders of Shares or other Deposited Securities, or shall give notice
or solicit any consent, the Depositary, after consultation with the Company,
will fix a record date for the determination of the Holders who will be entitled
to receive such dividend, distribution, rights or the net proceeds of the sale
thereof, or changed number of Shares, or to give instructions for the exercise
of voting rights at any such meeting, or to give or withhold such consent,
subject to the provisions of the Deposit Agreement, such record date to be as
near as practicable to that set by the Company.
(14) Voting of Deposited Securities. As soon as practicable after
receipt of notice of any meeting or solicitation of consents or proxies of
holders of Shares or other Deposited Securities, the Depositary shall fix a
record date in respect of such meeting or for the giving of instructions for
voting such consent or proxy, as provided in Section 4.07 of the Deposit
Agreement, and shall mail to the Holders a notice which shall contain: (a) such
information as is contained in such notice of meeting, (b) a statement in
English and otherwise in a form provided by the Company, that the Holders at the
close of business on a specified record date will be entitled, subject to any
applicable provisions of the laws of Mexico, of the Estatutos Sociales of the
Company and the provisions of or governing Deposited Securities (which
provisions, if any, shall be summarized in English in pertinent part), to
instruct the Depositary as to the exercise of voting rights, if any, pertaining
to the Shares or other Deposited Securities evidenced by their respective
Receipts, and (c) a brief statement as to the manner in which such instructions
may be given. 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 will endeavor insofar as practicable and permitted under applicable
law, the provisions of the Estatutos Sociales of the Company and the provisions
of or governing the Deposited Securities to vote or cause to be voted the Shares
or other Deposited Securities represented by such American Depositary Shares
evidenced by such Receipt in accordance with such instructions set forth in such
request.
17
The Depositary agrees not to, and shall ensure that the Custodian
and each of their nominees do not, vote or attempt to exercise the right to vote
the Shares or other Deposited Securities evidenced by a Receipt, other than in
accordance with such written instructions.
(15) Changes Affecting Deposited Securities. Upon any change in
nominal or par value, split-up, consolidation or any other reclassification of
Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary in exchange for, in
conversion of or replacement or otherwise in respect of Deposited Securities
shall be treated as new Deposited Securities under the Deposit Agreement, and
American Depositary Shares shall, subject to the terms of the Deposit Agreement
and any applicable laws, including any applicable provisions of the Securities
Act of 1933, thenceforth represent the new Deposited Securities so received in
exchange, conversion, replacement or otherwise, unless additional or new
Receipts are delivered pursuant to the following sentence. In any such case the
Depositary may with the Company's approval, and shall if the Company shall so
request, subject to the Deposit Agreement, execute and deliver additional
Receipts as in the case of a stock dividend, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts. Notwithstanding the
foregoing, in the event that any security so received may not be lawfully
distributed to some or all Holders, the Depositary may, with the Company's
approval, and shall if the Company requests, sell such securities at public or
private sale, at such place or places and upon such terms as it may deem proper,
and may allocate the net proceeds of such sales for the account of the Holders
otherwise entitled to such securities upon an averaged or other practicable
basis without regard to any distinctions among such Holders and distribute the
net proceeds so allocated to the extent practicable as in the case of a
distribution received in cash. Holders will receive notice upon the occurrence
of any such change, conversion or exchange.
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(16) Reports; Inspection of Transfer Books. The Depositary will make
available for inspection by Holders at its Principal Office any reports and
communications received, including any proxy soliciting material, from the
Company which are both (a) received by the Depositary, 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 Depositary will also send to Holders copies of such reports when furnished
by the Company as provided in the Deposit Agreement. The Depositary will keep
books for the registration of Receipts and their transfer which at all
reasonable times will be open for inspection by the Company and Holders,
provided that such inspection shall not be for the purpose of communicating with
Holders in the interest of a business or object other than the business of the
Company or a matter related to the Deposit Agreement or the Receipts.
(17) Withholding. In connection with any distribution to Holders,
the Company or its agent or the Depositary or its agent, as appropriate, will
remit to the appropriate governmental authority or agency all amounts (if any)
required to be withheld by the Company or the Depositary and owing to such
authority or agency. The Depositary will forward to the Company or its agent
such information from its records as the Company may reasonably request to
enable the Company or its agent to file necessary reports with governmental
authorities or agencies. Notwithstanding any other provisions of the Deposit
Agreement, in the event that the Depositary determines that any distribution
property (including Shares or rights to subscribe therefor) is subject to any
tax or other governmental charge or assessment which the Depositary or the
Custodian is obligated to withhold, the Depositary may dispose of all, or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, charges or assessments by public or private sale,
and the Depositary shall distribute the net proceeds (without liability for
interest) of any such sale or the balance of any such property after deduction
of such taxes, charges or assessments to the Holders entitled thereto (and net
of fees of the Depositary).
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(18) Liability of the Company and Depositary. Neither the Depositary
or its agents nor the Company or its agents will incur any liability to any
Holder of this Receipt, if by reason of any provision of any present or future
law of any country or of any governmental authority, or by reason of any
provision, present or future, of the Estatutos Sociales of the Company or
governing any Deposited Securities, or by reason of any act of God or war or
other circumstance beyond its control, the Depositary or its agents or the
Company or its agents shall be prevented or forbidden from, or subjected to any
civil or criminal penalty on account of, or delayed, in doing or performing any
act or thing which by the terms of the Deposit Agreement it is provided shall be
done or performed; nor shall the Depositary or the Company, nor any of their
respective directors, employees, agents or affiliates, incur any liability to
any Holder by reason of any non-performance or delay, caused as aforesaid, in
the performance of any act or thing which by the terms of the Deposit Agreement
it is provided shall or may be done or performed, or by reason of any exercise
of, or failure to exercise, any discretion provided for in the Deposit
Agreement. Where, by the terms of a distribution pursuant to Sections 4.02,
4.03, or 4.04 of the Deposit Agreement, or an offering or distribution pursuant
to Section 4.05 or 4.09 of the Deposit Agreement, or for any other reason, such
distribution or offering may not be made available to Holders, and the
Depositary may not dispose of such distribution or offering on behalf of such
Holders and make the net proceeds available to such Holders, then the Depositary
shall not make such distribution or offering, and shall allow any rights, if
applicable, to lapse. Neither the Company or its agents nor the Depositary or
its agents assumes any obligation or shall be subject to any liability under the
Deposit Agreement to Holders, except that each of them agrees to use its best
judgment and to act in good faith in the performance of such duties as are
specifically set forth in the Deposit Agreement. The Depositary shall not be
subject to any liability with respect to the validity or worth of the Deposited
Securities. Neither the Depositary nor any of its agents nor the Company nor any
of its agents will be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of any Deposited Securities or in
respect of the Receipts, which in its opinion may involve it in expense and
liability, unless indemnity satisfactory to it against all expense and liability
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be furnished as often as may be required, and no Custodian will be under any
obligation whatsoever with respect to such proceedings, the responsibility of
the Custodian being solely to the Depositary. Neither the Depositary nor the
Company will be liable for any action or inaction by it in reliance upon the
advice of or information from legal counsel, accountants, any person presenting
Shares for deposit, any Holder, or any other person believed by it in good faith
to be competent to give such advice or information. The Depositary and its
agents will not be responsible for any failure to carry out any instructions to
vote any of the Deposited Securities, or for the manner in which any such vote
is cast or effect of any such vote, provided that any such action or inaction is
in good faith. 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
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against the Depositary or the Company or their respective agents. No disclaimer
of liability under the Securities Act of 1933 is intended by any provision of
the Deposit Agreement. Subject to the further terms and provisions of the
Deposit Agreement and of this Paragraph (18), Citibank, N.A. and its agents may
own and deal in any class of securities of the Company and its affiliates and in
Receipts. The Depositary may issue Receipts for evidence of rights to receive
Shares from the Company, or any custodian, Registrar, transfer agent, clearing
agency or other entity involved in ownership or transaction records in respect
of the Shares. Such evidence of rights shall consist of written blanket or
specific guarantees of ownership of Shares furnished on behalf of the holder
thereof. Neither the Depositary nor the Custodian shall lend Shares or Receipts;
provided, however, that the Depositary reserves the right to issue Receipts
prior to the receipt of Shares pursuant to Section 2.02 of the Deposit Agreement
(a "Pre-Release"). The Depositary may receive Receipts in lieu of Shares in
satisfaction of a Pre-Release. Each such Pre-Release will be (a) subject to (x)
a written representation from the person to whom Receipts are to be delivered
that such person, or its customer, owns the Shares to be remitted, or (y) such
evidence of ownership of Shares, as the Depositary deems appropriate, (b) at all
times fully collateralized with cash, United States Government securities or
such other collateral of comparable safety and liquidity, (c) terminable by the
Depositary on not more than five (5) business days' notice, and (d) subject to
such further indemnities and credit regulations as the Depositary deems
appropriate. The Depositary will normally limit the number of Receipts and
Shares involved in such transactions at any one time to fifteen percent (15%) of
the Receipts outstanding (without giving effect to Receipts outstanding pursuant
to this paragraph 18), provided, however, that the Depositary, after
consultation with the Company and upon its consent, shall have the right to
change or disregard such limit from time to time as it deems appropriate. The
Depositary will also set limits with respect to the number of Receipts involved
in transactions to be effected hereunder with any one person on a case by case
basis as it deems appropriate.
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The Depositary may retain for its own account any compensation
received by it in connection with the foregoing. The collateral referred to
above, but not the earnings thereon, shall be held for the benefit of the
Holders only. No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
(19) Resignation and Removal of Depositary; Substitution of
Custodian. The Depositary may at any time resign as Depositary under the Deposit
Agreement by 60 days' written notice of its election so to do delivered to the
Company, such resignation to be effective upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may at any time be removed by the Company by written
notice of such removal, such removal to be effective upon the appointment of a
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement. The Depositary may at any time appoint a substitute or an
additional custodian and the term "Custodian" shall also refer to such
substitute or additional custodian.
(20) Amendment of Deposit Agreement and Receipts. The form of the
Receipts and any provisions of the Deposit Agreement may at any time and from
time to time be amended by agreement between the Company and the Depositary in
any respect which they may deem desirable. Any amendment which shall impose or
increase any fees or charges (other than the fees of the Depositary for the
execution and delivery of Receipts and taxes or other governmental charges), or
which shall otherwise prejudice any substantial existing right of Holders, shall
not, however, become effective as to outstanding Receipts until the expiration
of 3 months after notice of such amendment shall have been given to the Holders
of outstanding Receipts. Every Holder at the time any amendment so becomes
effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by the Deposit Agreement 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.
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(21) Termination of Deposit Agreement. The Depositary will, at the
written direction of the Company, at any time, terminate the Deposit Agreement
by mailing notice of such termination to the Holders of all Receipts then
outstanding at least 30 days prior to the date fixed in such notice for such
termination. The Depositary may likewise terminate this Deposit Agreement by
mailing notice to the Company and any holders of all Receipts then outstanding
at any time 60 days after (i) the Depositary shall have resigned, or (ii) the
Company shall have given notice of the removal of the Depositary under the
Deposit Agreement, and, in either case, a successor depositary shall not have
been appointed and accepted its appointment. If any Receipts shall remain
outstanding after the date of termination, the Depositary thereafter will
discontinue the registration of transfers of Receipts, will suspend the
distribution of dividends to the Holders thereof, and will not give any further
notices or perform any further acts under the Deposit Agreement, except the
collection of dividends and other distributions pertaining to Deposited
Securities, the sale of property and rights and the delivery of 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 (after deducting, or charging, the fees of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes or other governmental charges). At any time after the
expiration of six months from the date of termination, the Depositary may sell
the Deposited Securities then held under the Deposit Agreement and may
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thereafter hold uninvested the net proceeds of any such sale, together with any
other cash then held by it under the Deposit Agreement, in an unsegregated
escrow account, without liability for interest, for the pro rata benefit of the
holders of Receipts not theretofore surrendered. Thereafter the Depositary will
be discharged from all obligations under the Deposit Agreement, except to
account for such net proceeds and other cash (after deducting or charging such
fees, expenses, taxes and charges as aforesaid). Upon the termination of the
Deposit Agreement, the Company shall be discharged from all obligations under
the Deposit Agreement.
(22) Compliance With U.S. Securities Laws. Notwithstanding any
provisions in this Receipt or the Deposit Agreement to the contrary, the Company
and the Depositary have each agreed that it will not exercise any rights it has
under the Deposit Agreement or the Receipt to prevent the withdrawal or delivery
of Deposited Securities in a manner which violate the United States securities
laws, including, but not limited to Section IA(1) of the General Instructions to
Form F-6 Registration Statement, as amended from time to time, under the
Securities Act of 1933.
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(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
NOTE: The signature to any endorsement hereon must correspond with the
name as written upon the face of this Receipt in every particular,
without alteration or enlargement or any change whatever.
If the endorsement be executed by an attorney, executor,
administrator, trustee or guardian, the person executing the
endorsement must give his full title in such capacity and proper
evidence of authority to act in such capacity, if not on file with
the Depositary, must be forwarded with this Receipt.
All endorsements or assignments of Receipts must be guaranteed by a
New York Stock Exchange member firm or member of the Clearing House
of the American Stock Exchange Clearing Corporation or by a bank or
trust company having an office or correspondent in the City of New
York.
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