Exhibit(d)(16)(A)
STOCK PURCHASE AGREEMENT
dated as of July 12, 2002
between
CEMEX, S.A. de C.V.
and
PAN ASIAN CEMENT INVESTORS LP
483745.01-New York S4A
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of July 12, 2002 (the "Agreement"),
between CEMEX, S.A. de C.V., a corporation organized under the laws of the
United Mexican States ("CEMEX"), and PAN ASIAN CEMENT INVESTORS LP, a limited
partnership organized under the laws of the State of Delaware (the "Seller").
The Seller and CEMEX are herein sometimes referred to individually as a "Party"
and collectively as the "Parties."
WITNESSETH:
WHEREAS, the Seller beneficially owns 127,146 shares (the "Seller's
Shares") of common stock of CEMEX Asia Holdings, Ltd. ("CAH");
WHEREAS, this Agreement contemplates a transaction in which CEMEX will
purchase from the Seller, and the Seller will sell to CEMEX, the Seller's
Shares;
WHEREAS, subject to the terms and conditions set forth herein, on or
before each Subsequent Closing Date (as hereinafter defined), CEMEX will deliver
or cause to be delivered to the Seller (or the Seller's designee) either (i)
CEMEX Ordinary Participation Certificates ("CPOs"), each CPO representing two
shares of series A common stock ("A Shares") and one share of series B common
stock ("B Shares" and, together with the A Shares, the "CEMEX Common Stock") of
CEMEX or (ii) cash sufficient to purchase the Number of CPOs (as hereinafter
defined), as consideration for the Number of Shares (as hereinafter defined);
WHEREAS, this Agreement sets forth the terms and conditions upon which
the Seller will sell such Seller's Shares to CEMEX; and
WHEREAS, subject to the terms and conditions set forth herein, CEMEX
and the Seller have agreed to enter into (i) an Escrow Agreement by and among
CEMEX, the Seller, and JPMorgan Chase Bank, as escrow agent (the "Escrow
Agent"), to be dated on or prior to the Closing Date (as defined herein),
substantially in the form attached hereto as Exhibit A (the "Escrow Agreement"),
and (ii) a Third Amended and Restated Shareholders Agreement, to be dated on or
prior to the Closing Date, substantially in the form attached hereto as Exhibit
B (the "Amended Shareholders Agreement" and, together with this Agreement and
the Escrow Agreement, the "Transaction Documents"). Capitalized terms used but
not
483745.01-New York S4A
defined herein shall have the respective meanings given to them in the Amended
Shareholders Agreement.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties and covenants herein contained, intending to be
legally bound hereby, the Parties agree as follows:
ARTICLE I
PURCHASE AND SALE OF SELLER'S SHARES
------------------------------------
1. Basic Transaction. (a) On and subject to the terms and conditions
of this Agreement and the Escrow Agreement, on March 31, 2003, June 30, 2003,
September 30, 2003 and December 31, 2003 (or if any such day is not a business
day in each of New York, Mexico and Singapore (a "Business Day"), then the first
day thereafter that is a Business Day)(each a "Subsequent Closing Date"), CEMEX
agrees to purchase from the Seller, and the Seller agrees to sell to CEMEX, the
number of Seller's Shares set forth in the column corresponding to such
Subsequent Closing Date opposite the Seller's name on Schedule A to the Escrow
Agreement (such number of Seller's Shares to be sold on a Subsequent Closing
Date being referred to herein as the "Number of Shares").
(b) Notwithstanding anything to the contrary contained in the
foregoing Article I(1)(a), at any time from and after Closing, upon prior
written notice to the Seller and all other parties to the Escrow Agreement,
CEMEX may designate any Business Day after the thirtieth day following such
notice and prior to a Subsequent Closing Date as the "Early Subsequent Closing
Date" for such Subsequent Closing Date. Following any such designation, such
Early Subsequent Closing Date shall be deemed to be the Subsequent Closing Date
for all purposes under the Transaction Documents, and references to such
Subsequent Closing Date shall be deemed to be references to such Early
Subsequent Closing Date.
(c) If at any time or from time to time after the date hereof
and prior to the final Subsequent Closing Date, CEMEX designates an Early
Subsequent Closing Date in respect to the Seller's Shares, or in respect to the
shares of CAH to be acquired by CEMEX in accordance with those separate Stock
Purchase Agreements referred to in Article III(10), CEMEX shall
contemporaneously designate the same Early Subsequent Closing Date for such
other holders of CAH shares and the Seller, as applicable.
483745.01-New York S4A 2
2. Purchase Price. On or before each Subsequent Closing Date, CEMEX
shall deliver or cause to be delivered to the Seller (or its designee), as
consideration for the Number of Shares to be purchased by CEMEX on such
Subsequent Closing Date, either (i) a number of CPOs (the "Number of CPOs")
equal to the product obtained by multiplying such Number of Shares times
U.S.$95.00 and dividing such product by U.S.$4.998, or (ii) an amount (the
"Acquisition Amount") of cash in immediately available United States Dollars
equal to the sum of (A) the purchase price of the Number of CPOs, plus (B) all
transaction costs, including brokerage fees and commissions, currency exchange
costs and other fees and expenses reasonably estimated to be incurred in
connection with the acquisition and deposit of such Number of CPOs to the
Seller's Depositary Account (as defined in the Escrow Agreement); provided,
however, that should CEMEX elect to deliver the Acquisition Amount, then CEMEX
shall, in accordance with Section 5(b)(iv) of the Escrow Agreement, (x) deliver
such cash to the Escrow Agent sufficiently in advance of the relevant Subsequent
Closing Date to permit the Escrow Agent to arrange for the purchase of the
Number of CPOs with such funds, and to have such CPOs available for delivery to
the Seller (or its nominee) on such Subsequent Closing Date, and (y) give
written instructions to the Escrow Agent regarding the procedures for such
purchase; and further provided, however, that CEMEX's obligation to deposit the
Number of CPOs on any Subsequent Closing Date to the Seller's Depositary Account
(as defined in the Escrow Agreement) shall not be satisfied until such Number of
CPOs is so deposited. The Number of CPOs to be delivered on a Subsequent Closing
Date pursuant to the preceding sentence shall be adjusted from time to time as
set forth in Article I(5) below.
3. Closing. Subject to the conditions set forth in Article V below,
the closing to occur on the Closing Date contemplated by this Agreement (the
"Closing") shall occur at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
LLP, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, at 10:00 am, local time, on July 12,
2002 or at such other time and place, no later than the thirtieth day following
such date, as shall be agreed by the Parties (such date being referred to herein
as the "Closing Date").
483745.01-New York S4A 3
4. Deliveries at the Closing.
(a) At the Closing, subject to the terms and conditions set
forth herein, the Seller will deliver:
(i) to CEMEX, (A) a counterpart to the Escrow Agreement
and the Amended Shareholders Agreement, each duly executed by the Seller,
and (B) the officer's certificate contemplated by Article V(1)(e);
(ii) to the Escrow Agent, (A) a counterpart to the Escrow
Agreement, duly executed by the Seller, and (B) the documents and
instruments comprising the Deposit (as defined in the Escrow Agreement);
(iii) a release substantially in the form attached hereto as
Exhibit C (the "Release"), duly executed by the Seller; and
(iv) all other previously undelivered documents required by
the Transaction Documents to be delivered by the Seller at or prior to the
Closing Date.
(b) At the Closing, subject to the terms and conditions set
forth herein, CEMEX will deliver to the Seller:
(i) counterparts to the Escrow Agreement and the Amended
Shareholders Agreement, each duly executed by all of the parties thereto on
their own behalf;
(ii) the officer's certificate contemplated by Article
V(2)(g);
(iii) a counterpart to the Release delivered by the Seller
pursuant to Section 4(a)(iii), duly executed by CAH;
(iv) a true and complete copy of the Amended and Restated
Charter of CAH (substantially in the form of Exhibit D attached hereto)
(the "Amended and Restated Charter"), as will be lodged by CAH within 14
days from the Closing Date in the Office of the Registrar of Companies and
Business, Singapore (the "Registrar"), conforming CAH's Charter to the
Amended Shareholders Agreement; and
483745.01-New York S4A 4
(v) all other previously undelivered documents required by
the Transaction Documents to be delivered by CEMEX at or prior to the
Closing Date.
5. Adjustments to the Number of CPOs. The Number of CPOs to be
delivered on any Subsequent Closing Date shall be adjusted from time to time as
set forth in this Article I(5); provided, however, that no adjustment shall be
made for any dividend or other distribution paid to or for the benefit of the
Seller pursuant to Article IV(5) below.
(a) In case CEMEX shall pay or make a dividend or other
distribution on all or any portion of the CEMEX Common Stock exclusively in
CEMEX Common Stock or shall pay or make a dividend or other distribution on any
other class of capital stock of CEMEX which dividend or distribution includes
CEMEX Common Stock, the Number of CPOs as of the opening of business on the day
following the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be increased by multiplying
such Number of CPOs by a fraction of which the denominator shall be the number
of shares of all CEMEX Common Stock outstanding at the close of business on the
date fixed for such determination and the numerator shall be the sum of such
number of shares and the total number of shares of CEMEX Common Stock
constituting such dividend or other distribution, such increase to become
effective immediately after the opening of business on the day following the
date fixed for such determination.
(b) In case CEMEX shall pay or make a dividend or other
distribution on all or any portion of the CEMEX Common Stock consisting of, or
shall otherwise issue to holders of all or any portion of the CEMEX Common
Stock, rights, warrants or options entitling the holders thereof to subscribe
for or purchase shares of any class of CEMEX Common Stock at a price per share
less than the current market price per share (determined as provided in
paragraph (g) of this Article I(5)) of such class on the date fixed for the
determination of stockholders entitled to receive such rights, warrants or
options (each such class, an "affected class"), the Number of CPOs in effect at
the opening of business on the day following the date fixed for such
determination shall be increased by multiplying such number by a fraction of
which the denominator shall be the number of shares of all CEMEX Common Stock
outstanding at the close of business on the date fixed for such determination
plus, for each affected class, the number of shares of such class which the
aggregate of the offering price of the total number of shares of such class so
offered for subscription or purchase would purchase at such current market price
and the numerator shall be the number of shares of all CEMEX Common Stock
outstand-
483745.01-New York S4A 5
ing at the close of business on the date fixed for such determination plus, for
each affected class, the number of shares of such class so offered for
subscription or purchase, such increase to become effective immediately after
the opening of business on the day following the date fixed for such
determination.
(c) In case all or any portion of the outstanding CEMEX Common
Stock shall be subdivided into a greater number of shares of CEMEX Common Stock,
the Number of CPOs in effect at the opening of business on the day following the
day upon which such subdivision becomes effective shall be proportionately
increased (based on the change in the total number of shares of all CEMEX Common
Stock, without regard to classes), and, conversely, in case all or any portion
of the outstanding CEMEX Common Stock shall be combined into a smaller number of
shares of CEMEX Common Stock, the Number of CPOs in effect at the opening of
business on the day following the day upon which such combination becomes
effective shall be proportionately reduced (based on the change in the total
number of shares of all CEMEX Common Stock, without regard to classes), such
increase or reduction, as the case may be, to become effective immediately after
the opening of business on the day following the day upon which such subdivision
or combination becomes effective.
(d) Subject to the last sentence of this paragraph (d), in case
CEMEX shall, by dividend or otherwise, distribute to holders of all or any
portion of the CEMEX Common Stock evidences of CEMEX's indebtedness, shares of
any class of capital stock, securities, cash or property (excluding any rights,
warrants or options referred to in paragraph (b) of this Article I(5), any
dividend or distribution paid exclusively in cash and any dividend or
distribution referred to in paragraph (a) of this Article I(5)), the Number of
CPOs shall be increased so that the same shall equal the number determined by
multiplying the Number of CPOs in effect immediately prior to the effectiveness
of the increase in the Number of CPOs contemplated by this paragraph (d) by a
fraction of which the denominator shall be the current market capitalization
(determined as provided in paragraph (g) of this Article I(5)) of the CEMEX
Common Stock on the date fixed for such distribution less the fair market value
(as determined in good faith by the board of directors of CEMEX, whose
determination shall be conclusive and shall, in the case of securities being
distributed for which prior thereto there is an actual or when issued trading
market, be no less than the value determined by reference to the average of the
closing prices in such market over the period specified in the succeeding
sentence), on the date of such effectiveness, of the evidences of indebtedness,
shares of capital stock, securities, cash and other property so distributed and
the numerator shall be such current market capitalization, such increase to
become effective immediately prior to the opening of
483745.01-New York S4A 6
business on the day following the date fixed for the payment of such
distribution (such date being referred to as the "Reference Date"). If the board
of directors of CEMEX determines the fair market value of any distribution for
purposes of this paragraph (d) by reference to the actual or when issued trading
market for any securities comprising such distribution, it must in doing so
consider the prices in such market over the same period used in computing the
current market capitalization pursuant to paragraph (g) of this Article I(5).
For purposes of this paragraph (d), any dividend or distribution that includes
shares of CEMEX Common Stock or rights, warrants or options to subscribe for or
purchase shares of CEMEX Common Stock shall be deemed instead to be (A) a
dividend or distribution of the evidences of indebtedness, cash, shares of
capital stock, other securities or other property other than such shares of
CEMEX Common Stock or such rights, warrants or options (making any increase in
the Number of CPOs required by this paragraph (d)) immediately followed by (B) a
dividend or distribution of such shares of CEMEX Common Stock or such rights,
warrants or options (making any further increase in the Number of CPOs required
by paragraph (a) or (b) of this Article I(5), except (A) the Reference Date of
such dividend or distribution as defined in this paragraph (d) shall be
substituted as "the date fixed for the determination of stockholders entitled to
receive such rights, warrants or options" and "the date fixed for such
determination" within the meaning of paragraphs (a) and (b) of this Article I(5)
and (B) any shares of CEMEX Common Stock included in such dividend or
distribution shall not be deemed "outstanding at the close of business on the
date fixed for such determination" within the meaning of paragraph (a) of this
Article I(5)).
(e) In case CEMEX shall, by dividend or otherwise, make a
distribution to holders of all or any portion of the CEMEX Common Stock
exclusively in cash in an aggregate amount that, together with (A) the aggregate
amount of any other distributions to holders of all or any portion of the CEMEX
Common Stock made exclusively in cash within the 12 months preceding the date of
payment of such distribution and in respect of which no adjustment in the Number
of CPOs pursuant to this paragraph (e) has been made and (B) the aggregate of
any cash plus the fair market value (as determined in good faith by the board of
directors of CEMEX, whose determination shall be conclusive), as of the
expiration of the tender or exchange offer referred to below, of consideration
payable in respect of any tender or exchange offer by CEMEX or a subsidiary of
CEMEX for all or any portion of the CEMEX Common Stock concluded within the 12
months preceding the date of payment of such distribution and in respect of
which no adjustment in the Number of CPOs pursuant to paragraph (f) of this
Article I(5) has been made, exceeds 12.5% of the current market capitalization
of the CEMEX Common Stock (determined as provided in paragraph (g) of this
Article I(5)) on the date fixed for the determination
483745.01-New York S4A 7
of stockholders entitled to receive such distribution, the Number of CPOs shall
be increased so that the same shall equal the number determined by multiplying
the Number of CPOs in effect immediately prior to the effectiveness of the
number increase contemplated by this paragraph (e) by a fraction of which the
denominator shall be the current market capitalization of the CEMEX Common Stock
(determined as provided in paragraph (g) of this Article I(5)) on the date fixed
for such distribution less the amount of cash distributed in such distribution
and the numerator shall be such current market capitalization, such increase to
become effective immediately prior to the opening of business on the day
following the date fixed for the payment of such distribution.
(f) In case a tender or exchange offer made by CEMEX or any
subsidiary of CEMEX for all or any portion of the CEMEX Common Stock shall
expire and such tender or exchange offer shall involve an aggregate
consideration having a fair market value (as determined in good faith by the
board of directors of CEMEX, whose determination shall be conclusive) at the
last time (the "Expiration Time") tenders or exchanges may be made pursuant to
such tender or exchange offer (as it may be amended) that, together with (A) the
aggregate of the cash plus the fair market value (as determined in good faith by
the board of directors of CEMEX, whose determination shall be conclusive), as of
the expiration of the other tender or exchange offer referred to below, of
consideration payable in respect of any other tender or exchange offer by CEMEX
or a subsidiary of CEMEX for all or any portion of the CEMEX Common Stock
concluded within the 12 months preceding the Expiration Time and in respect of
which no adjustment to the Number of CPOs pursuant to this paragraph (f) has
been made and (B) the aggregate amount of any distributions to all holders of
the CEMEX Common Stock made exclusively in cash within the 12 months preceding
the Expiration Time and in respect of which no adjustment to the Number of CPOs
pursuant to paragraph (e) of this Article I(5) has been made, exceeds 12.5% of
the current market capitalization of the CEMEX Common Stock (determined as
provided in paragraph (g) of this Article I(5)) at the Expiration Time
(calculated by treating as outstanding any shares tendered for sale or
exchange), the Number of CPOs shall be increased so that the same shall equal
the number determined by multiplying the Number of CPOs in effect immediately
prior to the Expiration Time by a fraction of which the denominator shall be (i)
the current market capitalization of the CEMEX Common Stock (determined as
provided in paragraph (g) of this Article I(5)) at the Expiration Time
(calculated by treating as outstanding any shares tendered for sale or exchange)
minus (ii) the fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders pursuant to such tender or exchange offer
based on the acceptance (up to any maximum specified in the terms of the tender
or exchange offer) of all shares validly
483745.01-New York S4A 8
tendered for sale or exchange and not withdrawn as of the Expiration Time (the
shares deemed so accepted, up to any such maximum, being referred to as the
"Purchased Shares") and the numerator shall be such current market
capitalization at the Expiration Time (calculated by reducing the relevant
number of outstanding shares by the number of Purchased Shares), such increase
to become effective immediately prior to the opening of business on the day
following the Expiration Time.
(g) For the purpose of any computation under this paragraph and
paragraphs (b), (d) and (e) of this Article I(5), the current market price per
share of any class of CEMEX Common Stock on any date in question shall be deemed
to be the average of the daily Closing Prices (as defined herein) for such class
for the five consecutive Trading Days (as defined herein) selected by CEMEX
commencing not more than 20 Trading Days before, and ending not later than, the
date in question; provided, however, that (A) if the "ex" date (as hereinafter
defined) for any event (other than the issuance or distribution requiring such
computation) that requires an adjustment to the Number of CPOs pursuant to
paragraph (a), (b), (c), (d), (e) or (f) above ("Other Event") occurs on or
after the 20th Trading Day prior to the date in question and prior to the "ex"
date for the issuance or distribution requiring such computation (the "Current
Event"), the Closing Price for such class for each Trading Day prior to the "ex"
date for such Other Event shall be adjusted by multiplying such Closing Price by
the reciprocal fraction by which the Number of CPOs is so required to be
adjusted as a result of such Other Event, (B) if the "ex" date for any Other
Event occurs after the "ex" date for the Current Event and on or prior to the
date in question, the Closing Price for such class for each Trading Day on and
after the "ex" date for such Other Event shall be adjusted by multiplying such
Closing Price by the same fraction by which the Number of CPOs is so required to
be adjusted as a result of such Other Event, (C) if the "ex" date for any Other
Event occurs on the "ex" date for the Current Event, one of those events shall
be deemed for purposes of clauses (A) and (B) of this proviso to have an "ex"
date occurring prior to the "ex" date for the other event, and (D) if the "ex"
date for the Current Event is on or prior to the date in question, after taking
into account any adjustment required pursuant to clause (B) of this proviso, the
Closing Price for such class for each Trading Day on or after such "ex" date
shall be adjusted by adding thereto an amount calculated by dividing (1) the
amount of any cash plus the fair market value on the date in question (as
determined in good faith by the board of directors of CEMEX (in a manner
consistent with any determination of such value for purposes of paragraph (d) or
(e) of this Article I(5)), whose determination shall be conclusive) of the
rights, warrants, options, evidences of indebtedness, shares of capital stock,
securities or other property being distributed by (2) the number of all shares
of CEMEX Common Stock
483745.01-New York S4A 9
outstanding as of the close of business on the day before such "ex" date. For
the purpose of any computation under paragraph (f) of this Article I(5), the
current market price per share of any class of CEMEX Common Stock on any date in
question shall be deemed to be the average of the daily Closing Prices for the 5
consecutive Trading Days selected by CEMEX commencing on or after the latest
(the "Commencement Date") of (A) the date 20 Trading Days before the date in
question, (B) the date of commencement of the tender or exchange offer requiring
such computation and (C) the date of the last amendment, if any, of such tender
or exchange offer involving a change in the maximum number of shares for which
tenders are sought or a change in the consideration offered, and ending not
later than the date of the Expiration Time of such tender or exchange offer
(which shall occur on a day no earlier than the last of the 5 consecutive
trading days beginning on the Commencement Date); provided, however, that if the
"ex" date for any Other Event (other than the tender or exchange offer requiring
such computation) occurs on or after the Commencement Date and on or prior to
the date of the Expiration Time for the tender or exchange offer requiring such
computation, the Closing Price for such class for each Trading Day prior to the
"ex" date for such Other Event shall be adjusted by multiplying such Closing
Price by the reciprocal fraction by which the Number of CPOs is so required to
be adjusted as a result of such other event. For the purpose of any computation
under paragraph (d), (e) or (f) of this Article I(5), the current market
capitalization of the CEMEX Common Stock on any day shall be deemed to be the
sum of the market values for each class of CEMEX Common Stock on such day. For
each such class, the market value on any day shall be deemed to equal the
current market price per share for such class on such day, multiplied by the
number of shares of such class outstanding on such day; provided that, in
determining such number of outstanding shares on such day, no effect shall be
given to any change in the number of such shares outstanding attributable to any
event for which an adjustment was made to any Closing Price used to determine
such current market price pursuant to clause (B) or (D) of the proviso to the
second preceding sentence and provided, further, that the same 5 Trading Days
shall be used to calculate the current market price for each class of CEMEX
Common Stock. Similarly, in determining the number of shares of all CEMEX Common
Stock outstanding on the relevant date for the purpose of calculating any
adjustment in the Number of CPOs pursuant to paragraph (b) of this Article I(5),
no effect shall be given to any change in the number of such shares outstanding
attributable to any event for which adjustment was made pursuant to such clause
(B) or (D) to any Closing Price used to determine the current market price of an
affected class for the purpose of calculating such adjustment. For purposes of
this paragraph, the term "ex" date, (A) when used with respect to any issuance
or distribution, means, with respect to any class of CEMEX Common Stock, the
first date on which such class trades regular way on the relevant
483745.01-New York S4A 10
exchange or in the relevant market from which the Closing Price was obtained
without the right to receive such issuance or distribution, (B) when used with
respect to any subdivision or combination of shares of CEMEX Common Stock, means
the first date on which such class trades regular way on such exchange or in
such market after the time at which such subdivision or combination becomes
effective, and (C) when used with respect to any tender or exchange offer means
the first date on which such class trades regular way on such exchange or in
such market after the Expiration Time of such tender or exchange offer.
"Closing Price" means (i) in respect of any class of Common Stock, for
any Trading Day, the last reported sale price, regular way, of such Common Stock
or, in case no such reported sale takes place on such Trading Day, the average
of the reported closing bid and asked prices, regular way, of such Common Stock
on the Mexican Stock Exchange (the Bolsa Mexicana de Valores, S.A. de C.V.) or,
if such Common Stock is not listed or admitted for trading on such exchange, the
average of the reported closing bid and asked prices of such Common Stock as
furnished by any three leading Mexican Stock Exchange member firms selected from
time to time by CEMEX for that purpose and (ii) in respect of any class of CPOs
representing Common Stock for any Trading Day, the last reported sale price,
regular way, of or, in case no such reported sale takes place on such Trading
Day, the average of the reported closing bid and asked prices, regular way, for
such CPOs, on the Mexican Stock Exchange or, if such CPOs are not listed or
admitted for trading on such exchange, the average of the reported closing bid
and asked prices of such CPOs as furnished by any three leading Mexican Stock
Exchange member firms selected from time to time by CEMEX for that purpose.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday, other than any day on which the Mexican Stock Exchange is not open for
trading.
(h) (i) In case CEMEX shall issue or sell any shares of any
class of CEMEX Common Stock without consideration or at a price per share less
than 90% of the current market price per share (determined as provided in
paragraph (g) of this Article I(5)) of such class on the date of such issuance
or sale, the Number of CPOs in effect at the opening of business on the day
following the date of such issuance or sale shall be increased by:
(A) multiplying the Number of CPOs in effect at the close
of business on the day immediately preceding the date of
such issuance or sale by
483745.01-New York S4A 11
(B) a fraction, of which
(1) the numerator shall be the number of shares of
CEMEX Common Stock outstanding at the close of
business on the date immediately preceding such
issuance or sale, plus the number of shares of
CEMEX Common Stock so issued or sold, and
(2) the denominator shall be the number of shares of
CEMEX Common Stock outstanding at the close of
business on the date immediately preceding such
issuance or sale, plus the number of shares of
CEMEX Common Stock which the aggregate
consideration, if any, received (or to be
received) by CEMEX for the total number of such
additional shares of CEMEX Common Stock so issued
or sold would purchase at such current market
price per share.
(ii) For the purposes of this Article I(5)(h), the issuance
of any warrants, options, subscriptions, or purchase rights with respect to
shares of any class of CEMEX Common Stock and the issuance of any
securities convertible into or exchangeable for shares of any class of
CEMEX Common Stock (or the issuance of any warrants, options or any rights
with respect to such convertible or exchangeable securities) shall be
deemed an issuance of such shares of such class of CEMEX Common Stock at
such time if the Net Consideration Per Share (as hereinafter determined)
which may be received by CEMEX for such CEMEX Common Stock shall be less
than 90% of the current market price per share (determined as provided in
paragraph (g) of this Article I(5)) of such class on the date of such
issuance. Any obligation, agreement, or undertaking to issue warrants,
options, subscriptions, or purchase rights at any time in the future shall
be deemed to be an issuance at the time such obligation, agreement or
undertaking is made or arises.
483745.01-New York S4A
12
(iii) No adjustment to the Number of CPOs shall be made
under this Article I(5)(h) upon the sale or issuance (or deemed issuance)
of any shares of CEMEX Common Stock pursuant to:
(A) the exercise of any warrants, options, subscriptions, or
purchase rights or the exercise of any conversion or
exchange rights in any convertible securities, in each case,
outstanding as of the close of business on the date hereof;
(B) any employee stock option, purchase or incentive plan,
whether or not existing on the date hereof;
(C) any of the events referred to in paragraphs (a), (b),
(c), (d), (e) and (f) of this Article I(5);
(D) anti-dilution provisions contained in any of the
securities referred to in the preceding clauses (A), (B) and
(C) hereof; or
(E) if any adjustment shall previously have been made, or
deemed not required hereunder, upon the issuance of any such
warrants, options, or subscription or purchase rights or
upon the issuance of any convertible securities (or upon the
issuance of any warrants, options or any rights therefor) as
above provided.
(iv) If the Net Consideration Per Share of any such
warrants, options, subscriptions, or purchase rights, or convertible
securities is decreased from time to time, then, upon the effectiveness of
each decrease, the Number of CPOs shall be adjusted to such Number of CPOs
as would have obtained (A) had the adjustments made upon the issuance of
such warrants, options, rights, or convertible securities been made upon
the basis of the decreased Net Consideration Per Share of such securities,
and (B) had adjustments made to the Number of CPOs since the date of
issuance of such securities been made to the Number of CPOs as adjusted
pursuant to clause (A) above. Any adjustment of the Number of CPOs with
respect to this paragraph which relates to warrants, options,
subscriptions, purchase rights or
483745.01-New York S4A 13
convertible securities with respect to shares of CEMEX Common Stock shall
be disregarded if, as, when and to the extent such warrants, options,
subscriptions, purchase rights or convertible securities expire or are
canceled without being exercised or converted, so that the Number of CPOs
effective immediately upon such cancellation or expiration shall be the
same as the Number of CPOs in effect at the time of the issuance of the
expired or canceled warrants, options, subscriptions, purchase rights, or
convertible securities with such additional adjustments as would have been
made to that Number of CPOs had the expired or canceled warrants, options,
subscriptions, purchase rights or convertible securities not been issued.
(v) "Net Consideration Per Share" shall mean the total
amount of consideration, if any, received by CEMEX as of the date of
issuance in respect to the issuance of such warrants, options,
subscriptions, or other purchase rights or convertible or exchangeable
securities, plus the minimum amount of consideration, if any, payable to
CEMEX upon exercise or conversion thereof, divided by the aggregate number
of shares of CEMEX Common Stock that would be issued if all such warrants,
options, subscriptions, or other purchase rights or convertible or
exchangeable securities were exercised, exchanged, or converted, without
giving effect to any possible future upward price adjustments or rate
adjustments.
(vi) If part or all of the consideration received by CEMEX
in respect to the issuance of CEMEX Common Stock or of any of the
securities described in this Article I(5)(h) consists of property other
than cash, such consideration shall be deemed to have a fair market value
reasonably determined in good faith by the board of directors of CEMEX.
(i) No adjustment in the Number of CPOs shall be required unless
such adjustment would require an increase or decrease of at least 1% in the
Number of CPOs; provided, however, that any adjustments which by reason of this
paragraph (i) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment.
(j) In addition to the adjustments in the Number of CPOs
required by paragraphs (a), (b), (c), (d), (e), (f) and (h) of this Article
I(5), CEMEX may from time to time in its discretion make such increases in the
Number of CPOs as it considers to be advisable in order to avoid or diminish any
Mexican income tax to any holders of shares of CEMEX Common Stock resulting from
any dividend or distribution of stock or issuance of rights or warrants to
purchase or subscribe for
483745.01-New York S4A 14
stock or from any event treated as such for income tax
purposes or for any other reasons.
(k) For purposes of calculating the number of shares of CEMEX
Common Stock at any time outstanding or the number of shares of CEMEX Common
Stock acquired in any tender or exchange offer, the number of shares of CEMEX
held in its treasury shall not be included.
(l) CEMEX shall ensure that the time for determining the
stockholders entitled to receive any dividend, issuance or other distribution in
respect of any CEMEX Common Stock, the time of effectiveness of any subdivision
or combination of any CEMEX Common Stock and the expiration time of any tender
or exchange offer made by CEMEX or any subsidiary of CEMEX for any CEMEX Common
Stock shall be at or after the close of business on the date fixed for
determining such stockholders, or on the date of such effectiveness or
expiration, as the case may be, so that (whether or not any adjustment to the
Number of CPOs is required pursuant to this Article I(5)) any Subsequent Closing
Date occurring on such date shall be deemed to have occurred prior to such
relevant time on such date.
(m) Whenever the Number of CPOs is adjusted as herein provided,
CEMEX shall promptly deliver to the Seller a notice setting forth the adjusted
Number of CPOs and showing in reasonable detail the facts upon which such
adjustment is based.
(n) In the event that CEMEX shall be a party to any transaction
(including any (i) recapitalization or reclassification of all or any portion of
the CEMEX Common Stock (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination of all or any portion of the CEMEX Common Stock), (ii)
consolidation of CEMEX with, or merger of CEMEX into, any other person, or any
merger of another person into CEMEX (other than a merger which does not result
in a reclassification, conversion, exchange or cancellation of any outstanding
CEMEX Common Stock), (iii) conveyance, transfer, sale or lease of all or
substantially all of the assets of CEMEX, or (iv) compulsory share exchange)
pursuant to which the CPOs are converted into the right to receive other
securities, cash or other property, then lawful provision shall be made as part
of the terms of such transaction providing that the Seller shall have the right
thereafter, to purchase the kind and amount of securities, cash and other
property receivable upon such consolidation,
483745.01-New York S4A 15
merger, reclassification, conveyance, transfer or sale by a holder of the Number
of CPOs which the Seller was entitled to purchase immediately prior to such
consolidation, merger, reclassification, conveyance, transfer or sale (the
"Transaction Consideration"), assuming the Seller is not a Person with which
CEMEX consolidated or into which CEMEX merged or which merged into CEMEX, or to
which such sale or transfer was made, as the case may be (a "Constituent
Person"), or an Affiliate of a Constituent Person, and failed to exercise his
right of election, if any, as to the kind or amount of securities, cash or other
property receivable upon such consolidation, merger, reclassification,
conveyance, transfer or sale (provided that if the kind or amount of securities,
cash and other property receivable upon such consolidation, merger, sale or
transfer is not the same for each CPO in respect of which such rights of
election shall not have been exercised ("non-electing share"), then for the
purpose of this Article I(5) the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer by each
non-electing share shall be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares).
CEMEX or the person formed by such consolidation or resulting from
such merger or which acquired such assets or CEMEX's shares, as the case may be,
shall execute and deliver to the Seller a notice setting forth the Seller's
rights as provided above. Such notice shall provide for adjustments which, for
events subsequent to the effective date of such notice, shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article
I(5). The above provisions of this Article I(5) shall similarly apply to
successive transactions of the foregoing type.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
----------------------------------------
The Seller hereby represents and warrants to CEMEX as follows:
1. Corporate Organization. The Seller is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all necessary power and authority to carry on its business as
it is now being conducted and to own the properties and assets it now owns and
is qualified or licensed to do business as a foreign limited partnership in
every jurisdiction in which it is required to so qualify and in which the
failure to so qualify would have a material adverse effect on the business,
results of operations or financial condition (a "Material Adverse Effect") of
the Seller and its subsidiaries taken as a whole.
483745.01-New York S4A 16
2. Authorization. The Seller has all necessary power and authority
to enter into the Transaction Documents and to carry out the transactions on its
part contemplated thereby. The Seller has taken all actions required by law, its
charter documents or otherwise to be taken by it to authorize the execution and
delivery of the Transaction Documents and the consummation of the transactions
on its part contemplated thereby. Each of the Transaction Documents and any
other instrument to be executed and delivered by the Seller at the Closing or on
any Subsequent Closing Date is, or will be when executed and delivered, the
valid and binding agreement of the Seller enforceable against it in accordance
with its terms, except to the extent that (i) such validity, binding effect or
enforceability may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief sought may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
3. No Violation. Neither the execution and delivery of the
Transaction Documents by the Seller nor the consummation by the Seller of the
transactions contemplated thereby, including, without limitation, any short
sales and hedging transactions to be effected by the Seller, will (i) violate
any provision of the organizational documents of the Seller, or (ii) violate,
conflict with, or constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under, or result in the termination
of, or permit a third party to terminate the rights of the Seller under, or
accelerate the performance required by, or create or accelerate any rights to
repurchase, rights of first offer or rights of first refusal under, or cause the
acceleration of the maturity of any debt or obligation pursuant to, or result in
the creation or imposition of any security interest, lien or other encumbrance
upon any property of the Seller under any agreement or commitment to which it is
a party, or (iii) violate any statute or law or any judgment, decree, order,
regulation or rule of any court or governmental authority, except in the case of
each of clauses (i), (ii) and (iii) where such violations, conflicts, defaults,
terminations or accelerations individually or in the aggregate would not (x)
have a Material Adverse Effect on the Seller and its subsidiaries taken as a
whole or (y) adversely affect the Seller's ability to perform its obligations
hereunder.
4. Ownership of Seller's Shares. The Seller is the record and
beneficial owner of all of the Seller's Shares, except to the extent a portion
of the Seller's Shares (i) is held by the Trustee under the Investor Trust
Agreement or (ii) has been transferred pursuant to the terms hereof. On the
Closing Date, the Seller
483745.01-New York S4A 17
will own the Seller's Shares free and clear of all liens and encumbrances that
would prohibit the sale thereof. On each of the Subsequent Closing Dates, CEMEX
(or its nominee or designee) will acquire good and marketable title to the
Number of Shares purchased by it on such date free and clear of all liens and
encumbrances.
5. Securities Law Matters. The Seller has conducted its offer and
sale of the Seller's Shares in such a manner that it is not required to register
the offering and sale of such Seller's Shares with any securities regulatory
authority in Singapore, the United States of America or Mexico.
6. No Registration. The Seller understands and acknowledges (a) that
it must bear the economic risk of its investment in the CPOs and the underlying
A Shares and B Shares (collectively, the "Securities"); (b) that the Securities
have not been registered under the securities laws of any jurisdiction other
than Mexico and are being offered and sold in reliance upon exemptions provided
in applicable securities laws (other than those of Mexico) for transactions not
involving any public offering and, therefore, cannot be resold or transferred
unless they are subsequently registered under applicable securities laws (other
than those of Mexico, as such Mexican registration will be in effect at the time
of delivery of Securities to the Seller) or unless an exemption from such
registration is available; (c) no regulatory authority has made any finding or
determination as to the fairness for investment of the Securities and no
regulatory authority has recommended or endorsed or will recommend or endorse
any such offer or sale; (d) that it is acquiring the Securities for its own
account and not with any view toward a distribution thereof in violation of any
applicable securities laws; (e) that it has no contract, undertaking, agreement
or arrangement with any person to sell, transfer or pledge to such person or
anyone else any of the Securities which it hereby acquires or any part thereof
other than pursuant to the Seller's limited partnership agreement and in
compliance with all applicable securities laws, and it has no present plans to
enter into any such contract, undertaking, agreement or arrangement other than
in compliance with all applicable securities laws; (f) that CEMEX does not have
any obligation or intention to register the Securities for sale under any
securities laws other than under those of Mexico; (g) that, other than as set
forth in Article III(4), the Seller has no right to require the registration of
the Securities under applicable securities laws and regulations; and (h) the
Securities may not be deposited into any unrestricted depositary receipt
facility established or maintained by a depositary bank.
7. Status of the Seller. The Seller represents and warrants that
either (i) at the time the offer of CPOs was made, at the time of the Closing
and on each Subsequent Closing Date, it was and will be outside the United
States and, at
483745.01-New York S4A 18
each such time, it was not and will not be a U.S. person (and was not and will
not be purchasing for the account or benefit of a U.S. person) within the
meaning of Regulation S under the U.S. Securities Act of 1933, as amended, or
(ii) it is an "accredited investor" within the meaning of Rule 501(a) under the
U.S. Securities Act of 1933, as amended.
8. Brokers' Fees. The Seller has no liability or obligation to pay
any fees or commissions to any broker, finder, or agent with respect to the sale
of the Seller's Shares to CEMEX as contemplated by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CEMEX
---------------------------------------
CEMEX hereby represents and warrants to the Seller as follows:
1. Corporate Organization. CEMEX is a corporation duly organized,
validly existing and in good standing under the laws of Mexico and has all
necessary power and authority to carry on its business as it is now being
conducted and to own the properties and assets it now owns and is qualified or
licensed to do business as a foreign corporation in every jurisdiction in which
it is required to so qualify and in which the failure to so qualify would have a
Material Adverse Effect on the business, results of operations or financial
condition of CEMEX and its subsidiaries taken as a whole.
2. Authorization. CEMEX has all necessary power and authority to
enter into the Transaction Documents and to carry out the transactions on its
part contemplated thereby. CEMEX has taken all actions required by law, its
charter documents or otherwise to be taken by it to authorize the execution and
delivery of the Transaction Documents and the consummation of the transactions
on its part contemplated thereby. Each of the Transaction Documents and any
other instrument to be executed and delivered by CEMEX at the Closing or on any
Subsequent Closing Date is, or will be when executed and delivered, the valid
and binding agreement of CEMEX enforceable against it in accordance with its
terms, except to the extent that (i) such validity, binding effect or
enforceability may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief sought may be subject
483745.01-New York S4A 19
to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
3. No Violation. Neither the execution and delivery of the
Transaction Documents by CEMEX nor the consummation by CEMEX of the transactions
contemplated hereby, including, should CEMEX so elect, the delivery to the
Escrow Agent of the Acquisition Amount and the acquisition and deposit to the
Seller's Depositary Account of the Number of CPOs, will (i) violate any
provision of its charter documents, or (ii) violate, conflict with, or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under, or result in the termination of, or permit a
third party to terminate its rights under, or accelerate the performance
required by, or create or accelerate any rights to repurchase, rights of first
offer or rights of first refusal under, or cause the acceleration of the
maturity of any debt or obligation pursuant to, or result in the creation or
imposition of any security interest, lien or other encumbrance upon any property
of CEMEX under, any agreement or commitment to which CEMEX is a party, or (iii)
violate any statute or law or any judgment, decree, order, regulation or rule of
any court or governmental authority, except in the case of each of clauses (i),
(ii) and (iii) where such violations, conflicts, defaults, terminations or
accelerations individually or in the aggregate would not (x) have a Material
Adverse Effect on CEMEX and its subsidiaries taken as a whole or (y) adversely
affect CEMEX's ability to perform its obligations hereunder.
4. CPOs. Any CPOs and any underlying A Shares and B Shares to be
delivered for the account of the Seller on a Subsequent Closing Date will, on
such Subsequent Closing Date and subject to the terms and conditions set forth
herein, be:
(a) duly authorized and validly issued and fully paid and
nonassessable;
(b) with respect to such CPOs deposited to the Seller's
Depositary Account, free and clear of all liens and encumbrances;
(c) registered with the Securities Section (the "Securities
Section") of the National Registry of Securities maintained by the National
Banking and Securities Commission of Mexico; and
(d) listed for trading on the Mexican Stock Exchange and not
subject to restrictions on transfer imposed by Mexico.
483745.01-New York S4A 20
CEMEX will maintain such registration with the Securities Section and listing
for trading on the Mexican Stock Exchange in full force and effect until the
first to occur of (i) the Seller's sale of all Securities to be acquired by it
hereunder, or (ii) the second anniversary of the final Subsequent Closing Date
hereunder.
5. Securities Law Matters. CEMEX has conducted the offering and sale
of the CPOs to the Seller in such a manner that it is not required to register
the offering and sale of such CPOs with any securities regulatory authority in
Singapore, the United States of America or Mexico, except, with respect to
Mexico, for such registrations that have been or will be obtained prior to the
delivery of any such CPOs.
6. No Registration. CEMEX understands and acknowledges (a) that it
must bear the economic risk of its investment in the Seller's Shares; (b) that
the Seller's Shares have not been registered under the securities laws of any
jurisdiction and are being offered and sold in reliance upon exemptions provided
in applicable securities laws for transactions not involving any public offering
and, therefore, cannot be resold or transferred unless they are subsequently
registered under applicable securities laws or unless an exemption from such
registration is available; (c) no regulatory authority has made any finding or
determination as to the fairness for investment of the Seller's Shares and no
regulatory authority has recommended or endorsed or will recommend or endorse
any such offer or sale; (d) that it is acquiring the Seller's Shares for
investment purposes only for its own account and not with any view toward a
distribution thereof; (e) that it has no contract, undertaking, agreement or
arrangement with any person to sell, transfer or pledge to such person or anyone
else any of the Seller's Shares which it hereby acquires or any part thereof
(excluding the Transaction Documents), and it has no present plans to enter into
any such contract, undertaking, agreement or arrangement (excluding the
Transaction Documents); (f) that the Seller does not have any obligation or
intention to register the Seller's Shares for sale under any securities laws;
(g) that CEMEX has no right to require the registration of the Seller's Shares
under applicable securities laws and regulations; and (h) the Seller's Shares
may not be deposited into any unrestricted depositary receipt facility
established or maintained by a depositary bank.
7. Status of CEMEX. CEMEX represents and warrants that either (i) at
the time the offer of the Seller's Shares was made, at the time of the Closing
and on each Subsequent Closing Date, it was and will be outside the United
States and, at each such time, it was not and will not be a U.S. person (and was
not and will not be purchasing for the account or benefit of a U.S. person)
within the
483745.01-New York S4A 21
meaning of Regulation S under the U.S. Securities Act of 1933, as amended, or
(ii) it is an "accredited investor" within the meaning of Rule 501(a) under the
U.S. Securities Act of 1933, as amended.
8. Brokers' Fees. CEMEX has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the sale of
the Number of CPOs to the Seller as contemplated by this Agreement
9. Financial Statements and Disclosures.
(a) The consolidated historical financial statements of CEMEX
and its consolidated subsidiaries, and the related notes thereto, included in
CEMEX's Annual Report on Form 20-F for the fiscal year ended December 31, 2001
(the "2001 Form 20-F"), as filed by CEMEX with the U.S. Securities and Exchange
Commission (the "SEC"), present fairly in all material respects the consolidated
financial position of CEMEX and its consolidated subsidiaries taken together as
a whole as of the dates indicated and the results of their operations and the
changes in their consolidated cash flows for the periods specified; and said
financial statements have been prepared in conformity with Mexican generally
accepted accounting principles applied on a consistent basis throughout the
periods involved (except as otherwise noted therein).
(b) As of the date of this Agreement, (i) there has been no
change in the consolidated assets, liabilities or financial condition of CEMEX
from that reflected in the 2001 Form 20-F, except for changes in the ordinary
course of business none of which have, singly or in the aggregate, had a
Material Adverse Effect on CEMEX and its subsidiaries taken as a whole, (ii)
other than general economic or political conditions, since the filing of the
2001 Form 20-F, there has been no event causing a Material Adverse Effect as to
CEMEX and its subsidiaries taken as a whole, nor any development that could,
singly or in the aggregate, reasonably be expected to result in a Material
Adverse Effect as to CEMEX and its subsidiaries taken as a whole, and (iii) the
aggregate number of shares of CEMEX Common Stock issued or issuable pursuant to
the exercise of all warrants, options, subscriptions, purchase rights or
conversion or exchange rights in any convertible securities does not materially
exceed the aggregate number of such shares issued or so issuable as reflected in
the consolidated financial statements of CEMEX included in the 2001 Form 20-F,
except, in the case of clauses (i), (ii) and (iii), as disclosed to the Seller
in writing or otherwise publicly disclosed by CEMEX.
483745.01-New York S4A 22
(c) The 2001 Form 20-F did not, at the time of its filing with
the SEC, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when the 2001 Form 20-F was so
filed, not misleading.
10. Contemporaneous Agreements. Contemporaneously with entering into
this Agreement, CEMEX is entering into separate Stock Purchase Agreements
substantively identical to this Agreement (other than in respect to Article
IV(7) and (11) hereof) with each of AIG Asian Infrastructure Fund II LP, IONA
Investment Pte. Ltd., and GIMV N.V., who together with the Seller and Orchid
Asia II, L.P. constitute, as of the date hereof, all of the stockholders of CAH
that have elected to sell all or any portion of their shares of common stock of
CAH to CEMEX.
11. No Liquidation of CAH. Until the later of January 2, 2004 or the
date that no further Seller's Shares remain subject to this agreement, CEMEX
shall not effect or permit any liquidation, merger, consolidation or other
organic change in the organization of CAH.
ARTICLE IV
COVENANTS
---------
The Parties agree as follows, subject to the terms and condition set
forth herein:
1. General. Each of the Parties will use its reasonable efforts to
take all actions and to do all things necessary to consummate and make effective
the transactions contemplated by the Transaction Documents.
2. Notices and Consents. Each Party will give any notices to, make
any filings with, and use its reasonable efforts to obtain any authorizations,
consents, and approvals of governments and governmental agencies that are
required for the consummation of the transactions contemplated hereby.
3. Short Sales and Hedging. The Seller agrees (i) not to sell any
CPOs to be received hereunder until received, and (ii) not to engage in short
sales, ▇▇▇▇▇▇ or other derivative transactions (collectively, "Hedge") with
respect to CPOs prior to their receipt; provided, however, that the Seller may,
in accordance with all
483745.01-New York S4A 23
applicable securities laws, Hedge a portion of the CPOs which it will acquire
hereunder, as follows:
% of CPOs Remaining
to Be Acquired
Hereunder That
Period May Be Hedged
--------------------------------- -------------------
January 1, 2002 - March 31, 2002 10%
April 1, 2002 - June 30, 2002 20%
July 1, 2002 - September 30, 2002 30%
October 1, 2002 and thereafter 40%
; provided, further, that any such Hedging activities must be conducted in such
a manner as to not require registration under the securities laws of any
jurisdiction (including, without limitation, the United States of America). It
being understood that the Seller may not Hedge more than 40% of the CPOs
remaining to be acquired by it hereunder at any time (which limitation is
exclusive of any CPOs the Seller may have already acquired hereunder).
4. Dividends on Seller's Shares. All dividends on the Seller's
Shares will be paid by the Seller to CEMEX upon receipt by the Seller. Seller
hereby instructs the paying agent for CAH to pay any such dividends directly to
CEMEX at:
Bank: Citibank International, Plc.
Branch: Madrid, Spain
Swift: CITIESMX
Company: Cemex Manila Investments B.V.
Account: 0008668019
Notwithstanding the foregoing, the Seller may retain such portion of any
dividend on the Seller's Shares to the extent required to discharge any tax or
withholding expense borne by the Seller and arising from such dividend.
5. Dividends on CPOs. To the extent that CEMEX makes a dividend or
other distribution in CEMEX Common Stock on the CPOs to be received by the
Seller hereunder, such that the aggregate value (as determined in good faith by
the board of directors of CEMEX (in a manner consistent with any determination
of
483745.01-New York S4A 24
such value for purposes of Article I(5)) of all dividends or other distributions
made exclusively in CEMEX Common Stock on such CPOs within the 12 months
preceding the date of payment of such dividend or distribution (and including
the value of such distribution), and in respect of which no adjustment in the
Number of CPOs pursuant to Article I(5) has been made, exceeds 5% of the
aggregate weighted average price of such CPOs on the Mexican Stock Exchange on
the date such dividend or distribution is declared, then the amount of CEMEX
Common Stock by which such dividends or distributions exceed 5% shall be for the
benefit of the Seller.
6. Escrow of Seller's Shares. The Seller and CEMEX will execute and
deliver the Escrow Agreement at Closing.
7. Amended Shareholders Agreement and Charter. CEMEX and the Seller
each will (and to the extent required, CEMEX will cause Cemex Manila Investments
B.V. and CEMEX's other Affiliates that own shares of CAH to) (i) approve and
execute the Amended Shareholders Agreement, and (ii) approve the Amended and
Restated Charter. CEMEX will cause CAH to lodge the Amended and Restated Charter
with the Registrar prior to the first Subsequent Closing Date.
8. Notice of Developments. Each Party will give prompt written
notice to the other of any material adverse development causing a breach of any
of its own representations, warranties, covenants or agreements contained herein
or in the Escrow Agreement.
9. General. After the Closing, each of the Parties shall, from time
to time, at the request of the other Party and without further cost or expense
to the Party making the request, execute and deliver (and, if appropriate, file)
or cause to be executed and delivered (and, if appropriate, filed) such other
instruments of conveyance and transfer and other documents reasonably required
to carry out the intent of the Transaction Documents as any other Party may
reasonably request and continue to use reasonable efforts to obtain any
consents, approvals, authorizations and waivers necessary in order to more
effectively consummate the transactions contemplated herein and therein.
10. Confidentiality. The Seller will treat and hold as such all
Confidential Information (as defined below), refrain from using any Confidential
Information except in connection with this Agreement, and deliver promptly to
CEMEX or destroy, at the request and option of CEMEX, all tangible embodiments
(and all copies) of Confidential Information that are in its possession;
provided, however, that Seller may share such Confidential Information on an as
needed basis
483745.01-New York S4A 25
with its officers, Affiliates, limited partners and legal and financial advisers
if such officers, Affiliates, limited partners and advisers are instructed by
the Seller to treat and hold as such all Confidential Information. If the Seller
is required under law, regulation or legal process to disclose any Confidential
Information, the Seller may disclose such Confidential Information as is so
required to be disclosed. In the event that the Seller is requested or required
to disclose any Confidential Information, the Seller will notify CEMEX promptly
of the request or requirement. For purposes hereof, "Confidential Information"
means any information received from CEMEX, CAH or any of their respective
representatives or Affiliates concerning the businesses and affairs of CAH that
is not already generally available to the public. In any event, the aforesaid
confidential obligations do not apply to any Confidential Information that is in
the public domain other than as a result of the Seller's breach of undertaking
herein, or in relation to any Confidential Information that has been given to
the Seller by a third party who is not known to the Seller to be in breach of
any obligation of secrecy to CEMEX or to any Confidential Information already in
Seller's free possession at the time of disclosure by CEMEX, CAH or any of their
respective Affiliates.
11. Ownership of Seller's Shares. For the avoidance of doubt, CEMEX
and the Seller acknowledge and agree that pursuant to Section 4.1(a) of the
Amended Shareholders Agreement, notwithstanding the delivery of the Seller's
Shares to the Escrow Agent as contemplated by the Transaction Documents, the
Seller shall be deemed to "own" the Seller's Shares held by the Escrow Agent for
purposes of Section 4.1(a) of the Amended Shareholders Agreement; provided, that
the Seller shall not be deemed to "own" any Seller's Shares transferred to CEMEX
(or its nominee or designee) on a Subsequent Closing Date.
12. Subsequent Modification. If at any time or from time to time
after the date hereof and prior to the final Subsequent Closing Date, CEMEX or
any of its Affiliates shall have entered into an agreement or understanding
relating to the acquisition of or other payment in respect to (whether for cash
or other consideration, and whether pursuant to any form of option, call, put,
purchase, redemption, exchange, retirement or other right) shares of common
stock of CAH from a stockholder other than the Seller, and the terms of such
other agreement or understanding are more favorable to such stockholder than the
terms hereof or the Escrow Agreement are to the Seller, then, within thirty (30)
days of the date of such other agreement or understanding, CEMEX shall provide
to Seller a written description of such other agreement or understanding and
provide Seller a period of at least thirty (30) days in which to decide whether
or not to modify the terms hereof or of the Escrow Agreement to reflect the
terms of such other agreement or
483745.01-New York S4A 26
understanding (including, without limitation, a change in the amounts used to
calculate the Number of CPOs in Article I(2) hereof).
13. No Other Transfer of Seller's Shares.
(a) CEMEX hereby consents to the transfer and release of all of
the Seller's Shares held of record by the Trustee under the Investor Trust
Agreement for purposes of the transactions contemplated in this Agreement;
provided, however, that if the sale of all the Seller's Shares to CEMEX
contemplated hereby is not consummated, then the Seller shall promptly redeposit
50% of such unsold Seller's Shares with the Trustee under the Investor Trust
Agreement.
(b) The Seller agrees that, except as expressly permitted by
this Agreement or the Transaction Documents, it will not (i) sell, assign (by
operation of law or otherwise) or otherwise dispose of, or grant any option with
respect to, any of the Seller's Shares, or (ii) create or suffer to exist any
lien, security interest, option or other charge or encumbrance upon or with
respect to any of the Seller's Shares.
ARTICLE V
CONDITIONS AND OBLIGATIONS TO CLOSE
-----------------------------------
1. Conditions to Obligations of CEMEX. The obligation of CEMEX to
consummate the transactions to be performed by it in connection with the Closing
and in connection with each Subsequent Closing Date is subject to satisfaction
(or the written waiver by CEMEX) of all of the following conditions that are
required to be satisfied on or prior to such date:
(a) Representations and Warranties True. The representations and
warranties of the Seller set forth in Article II above and in all certificates
and other documents delivered and to be delivered by the Seller pursuant to this
Agreement and the Escrow Agreement or in connection with the transactions
contemplated hereby shall be true and accurate in all material respects as of
the date when made and at and as of the Closing or such Subsequent Closing Date
as though such representations and warranties were made at and as of such date,
except for changes expressly permitted or contemplated by the terms of this
Agreement.
(b) Performance. The Seller shall have performed and complied in
all material respects with all agreements, obligations and conditions
483745.01-New York S4A 27
required by the Transaction Documents to be so performed or complied with by the
Seller at or prior to Closing or such Subsequent Closing Date, as the case may
be.
(c) Transaction Documents. The Seller shall have duly executed
and delivered to CEMEX each Transaction Document and any other document or
instrument required to be executed and/or delivered by the Seller to CEMEX as
contemplated hereby or thereby at or prior to the Closing or the Subsequent
Closing Date, as the case may be. On the Closing Date, (i) the Amended
Shareholders Agreement shall have been duly approved by all regular members of
the Board of Directors of CAH, duly executed by all shareholders of CAH on their
own behalf, and CAH shall have ratified the Amended Shareholders Agreement and
agreed to be bound thereby, and (ii) the Amended and Restated Charter shall have
been duly approved by all regular members of the Board of Directors of CAH and
duly approved by all shareholders of CAH on their own behalf.
(d) No Injunction. (i) On the Closing Date, there shall be no
effective injunction, writ, preliminary injunction, temporary restraining order,
hold-separate order or any order of any nature issued by a court of competent
jurisdiction directing that the transactions provided for herein or in any other
Transaction Document not be consummated as so provided or imposing any
conditions on the consummation of the transactions contemplated hereby.
(ii) On such Subsequent Closing Date, there shall be no
effective injunction, writ, preliminary injunction, temporary restraining
order, hold-separate order or any order of any nature issued by a court of
competent jurisdiction directing that the sale of the Seller's Shares
provided for herein not be consummated as so provided or imposing any
conditions on the consummation thereof.
(e) Release. On the Closing Date, the Buyer shall have received
the Release, duly executed by the Seller.
(f) Officer's Certificate. The Seller shall have delivered to
CEMEX a certificate, dated as of the Closing Date or such Subsequent Closing
Date, certifying to its fulfillment of the conditions specified in paragraphs
(a) through (e) of this Article V(1) required to be satisfied by the Seller on
or before the respective date.
2. Conditions to Obligations of the Seller. The obligation of the
Seller to consummate the transactions to be performed by it in connection with
the Closing and in connection with each Subsequent Closing Date is subject to
483745.01-New York S4A 28
satisfaction (or the written waiver by the Seller) of all of the following
conditions that are required to be satisfied on or prior to such date:
(a) Representations and Warranties True. The representations and
warranties of CEMEX set forth in Article III above and in all certificates and
other documents delivered and to be delivered by CEMEX pursuant to this
Agreement and the Escrow Agreement or in connection with the transactions
contemplated hereby shall be true and accurate in all material respects as of
the date when made and at and as of the Closing or such Subsequent Closing Date
(except for the representations and warranties set forth in Article III(9) which
shall be given only as of the Closing) as though such representations and
warranties were made at and as of such date, except for changes expressly
permitted or contemplated by the terms of this Agreement.
(b) Performance. CEMEX and its Affiliates shall have performed
and complied in all material respects with all agreements, obligations and
conditions required by the Transaction Documents to be so performed or complied
with by CEMEX or an Affiliate at or prior to Closing or such Subsequent Closing
Date, as the case may be.
(c) Transaction Documents. CEMEX shall have duly executed and
delivered to Seller each Transaction Document to which the Seller is a party and
any other document or instrument required to be executed by CEMEX and delivered
to the Seller as contemplated hereby or thereby. On the Closing Date, (i) the
Amended Shareholders Agreement shall have been duly approved by all regular
members of the Board of Directors of CAH, and duly executed by all shareholders
of CAH on their own behalf, and CAH shall have ratified the Amended Shareholders
Agreement and agreed to be bound thereby, and (ii) the Amended and Restated
Charter shall have been duly approved by all regular members of the Board of
Directors of CAH and duly approved by all shareholders of CAH on their own
behalf. On the first Subsequent Closing Date, the Amended and Restated Charter
shall have been duly filed by CAH with the Registrar.
(d) No Injunction. (i) On the Closing Date, there shall be no
effective injunction, writ, preliminary injunction, temporary restraining order,
hold-separate order or any order of any nature issued by a court of competent
jurisdiction directing that the transactions provided for herein or in any other
Transaction Document not be consummated by the Seller as so provided or imposing
any conditions on the consummation by the Seller of the transactions
contemplated hereby.
483745.01-New York S4A 29
(ii) On such Subsequent Closing Date, there shall be no
effective injunction, writ, preliminary injunction, temporary restraining
order, hold-separate order or any order of any nature issued by a court of
competent jurisdiction directing that the sale of the Seller's Shares by
the Seller provided for herein not be consummated as so provided or
imposing any conditions on the consummation thereof by the Seller.
(e) Release. On the Closing Date, the Seller shall have received
the Release, duly executed by CAH.
(f) Listing and Registration of CPOs. On each Subsequent Closing
Date, the CPOs to be delivered to the Seller on such date shall be registered
with the Securities Section and listed for trading on the Mexican Stock Exchange
and not subject to restrictions on transfer imposed by Mexico.
(g) Officer's Certificate. CEMEX shall have delivered to the
Seller a certificate, dated as of the Closing Date or such Subsequent Closing
Date, certifying to its fulfillment of the conditions specified in paragraphs
(a) through (f) of this Article V(2) required to be satisfied by CEMEX on or
before the respective date.
ARTICLE VI
MISCELLANEOUS PROVISIONS
------------------------
1. Reasonable Efforts. Each of the Parties agrees that, subject to
its legal obligations and to the terms and conditions set forth herein, it will
use reasonable efforts to fulfill all conditions specified herein and in the
Transaction Documents, to the extent that such conditions are within its
control, and to do all things reasonably necessary to consummate the
transactions contemplated hereby and thereby.
2. Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified and supplemented only by the written
agreement of each of the Parties.
3. Waiver of Compliance. Any failure of a Party to comply with any
obligation, covenant, agreement or condition or any inaccuracy, inadequacy,
mistake or misstatement in any representation or warranty herein may be
expressly
483745.01-New York S4A 30
waived in writing by the appropriate officers of the other Party, but such
waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement, condition, representation or warranty shall not operate as
a waiver of, or estoppel with respect to, any subsequent or other failure.
4. Expenses. All expenses incurred by a Party hereunder shall be
borne solely by the Party incurring such expense, except to the extent provided
in the Escrow Agreement.
5. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be considered as properly given if in
writing and (a) delivered against receipt therefor, (b) delivered to a
responsible and internationally recognized express courier service or (c) sent
by telefax machine, in each case to the address or telefax number, as the case
may be, set forth below:
(a) If to CEMEX, to:
CEMEX, S.A. de C.V.
Ave. Constitucion 444 Pte.
Monterrey, N.L.
Mexico C.P. 64000
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇ (▇▇) ▇▇▇▇-▇▇▇▇
Facsimile: ▇▇ (▇▇) ▇▇▇▇-▇▇▇▇
with copies to the Legal Department, at the same
address or telefax number, or to such other person or
address or telefax number as CEMEX shall furnish to
the Seller in writing.
(b) If to the Seller, to:
Pan Asian Cement Investors LP
c/o AIG Asian Infrastructure Fund II LP
c/o Emerging Markets Partnership
2001 Pennsylvania Avenue, N.W.
Washington, D.C. 2001
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
483745.01-New York S4A 31
with copies to ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and:
MetLife Investments Asia
▇▇/▇, ▇▇▇▇▇ ▇▇▇▇-▇▇, ▇▇▇▇▇▇▇▇▇▇ Tower
The Landmark
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇, Associate Director
Telephone: ▇▇▇ (▇▇▇) ▇▇▇▇-▇▇▇▇
Facsimile: ▇▇▇ (▇▇▇) ▇▇▇▇-▇▇▇▇
Metropolitan Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Director - Emerging Markets
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Metropolitan Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, Senior Counsel -
Securities Investments
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Delivery of any communication given in accordance herewith shall be effective
only upon actual receipt thereof by the party or parties to whom such
communication is directed. Any party to this Agreement may change the address to
which communications hereunder are to be directed to it by giving written notice
to the other parties hereto in the manner provided in this Article VI(5). All
signatures of the parties to this Agreement may be transmitted by facsimile, and
such facsimile will, for all purposes, be deemed to be the original signature of
such party whose signature it reproduces, and will be binding upon such party.
6. Assignment. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the Parties and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights,
483745.01-New York S4A 32
interests or obligations hereunder shall be assigned by any of the Parties
without the prior written consent of the other Party, except by operation of
law.
7. Publicity. Neither Party shall make or issue, or cause to be made
or issued, any announcement or written statement concerning this Agreement or
the transaction contemplated hereby for dissemination to the general public
without the prior written consent of the other Party; provided, however, that
CEMEX may make such public announcements, press releases and other public
disclosures concerning this Agreement and not referring to the Seller or any
Affiliate of the Seller without the prior written consent thereof as it may
consider necessary in light of the status of CAH as a subsidiary of CEMEX. This
provision shall not apply, however, to any announcement or written statement
required to be made by law or the regulations of any federal or state
governmental agency or any stock exchange. Notwithstanding anything contained in
this Article VI(7), CEMEX shall provide to the other Party any written public
disclosure concerning this Agreement at least one Business Day prior to
dissemination.
8. GOVERNING LAW. THIS AGREEMENT AND ALL RIGHTS AND REMEDIES AMONG
THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAW DOCTRINE OTHER
THAN NEW YORK GENERAL OBLIGATIONS LAW Section 5-1401 AND Section 5-1402.
9. Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
10. Headings. The headings of the Sections and Articles of this
Agreement are inserted for convenience only and shall not constitute a part
thereof or affect in any way the meaning or interpretation of this Agreement.
11. Severability. Each of the representations and undertakings in
this Agreement shall be construed separately and severably; if, in any judicial
proceeding, a court shall refuse to enforce any of the provisions included in
any paragraph or subparagraph of this Agreement, then the remaining provisions
shall be deemed separate and shall continue in full force and effect.
12. Entire Agreement. This Agreement, the other Transaction Documents
and the other documents and certificates referred to herein or delivered
483745.01-New York S4A 33
pursuant to the terms hereof, set forth the entire agreement and understanding
of the Parties in respect of the subject matter contained herein, and supersede
all prior agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer, employee
or representative of any Party, including, without limitation, the letter of
intent, dated as of February 5, 2002, between CEMEX and the Seller.
13. Third Parties. Except as specifically set forth or referred to
herein, nothing herein expressed or implied is intended or shall be construed to
confer upon or give to any person or entity other than the Parties and their
successors or assigns, any rights or remedies under or by reason of this
Agreement.
14. Arbitration. In the event of a dispute between the Parties
regarding the application or interpretation of any provision of this Agreement
or the performance thereof, or the availability of any remedies for breach
hereunder (a "Dispute"), such Dispute shall be settled within thirty (30) days
by mutual discussion, the Dispute shall be settled by an arbitral tribunal as
set forth in Article VI of the Amended Shareholders Agreement; provided that for
purposes of this Agreement, the law governing such arbitration shall be New York
law.
15. Termination of Agreement.
(a) This Agreement may be terminated as provided below:
(i) Both Parties may terminate this Agreement by mutual
written consent;
(ii) Either Party may terminate this Agreement by giving
written notice to the other Party in the event that an arbitral tribunal
determines that one of the Parties has materially breached this Agreement
and that such breach is not subject to cure within a reasonable period of
time;
(iii) Either Party may terminate this Agreement by giving
written notice to each other Party if the Closing has not occurred by the
close of business on (A) October 15, 2002, unless both Parties elect in
writing to extend the date for Closing in accordance with this Article
VI(15)(a)(iii), or (B) if said extension occurs, the date as to which
Closing has been extended in accordance herewith (provided, however, that
the right to terminate this Agreement under this Article VI(15)(a)(iii)
shall not be available to any Party whose failure to fulfill any obligation
of such Party under this Agreement has
483745.01-New York S4A 34
been the cause of or resulted in the failure of the transactions
contemplated herein to be completed on or before such date);
(iv) Either Party may terminate this Agreement by giving
written notice to each other Party if the first Subsequent Closing Date has
not occurred by the close of business on (A) June 30, 2003, unless both
Parties elect in writing to extend the date for such Subsequent Closing
Date in accordance with this Article VI(15)(a)(iv), or (B) if said
extension occurs, the date as to which such Subsequent Closing Date has
been extended in accordance herewith (provided, however, that the right to
terminate this Agreement under this Article VI(15)(a)(iv) shall not be
available to any Party whose failure to fulfill any obligation of such
Party under this Agreement has been the cause of or resulted in the failure
of the transactions contemplated herein to be completed on or before such
date); and
(v) Either Party may terminate this Agreement by giving
written notice to the other Party if a court of competent jurisdiction or
other governmental authority has issued a final order, decree or ruling, or
taken any other action, having the effect of permanently restraining,
enjoining or otherwise prohibiting any of the transactions contemplated
herein, and all appeals with respect to such order, decree, ruling or
action have been exhausted or the time for appeal of such order, decree,
ruling or action shall have expired.
(b) In the event of the termination of this Agreement pursuant
to Article VI(15)(a), written notice thereof shall promptly be given to the
other Party, whereupon this Agreement shall terminate, all further obligations
of the Parties hereunder and under the Escrow Agreement to satisfy the
conditions precedent to the Closing or any Subsequent Closing Date that has not
yet occurred shall terminate, and the transactions contemplated hereby and
thereby shall be abandoned without further action by either of the Parties. Any
termination pursuant to this Article VI(15) shall be without liability to the
Parties, except to the extent that there shall have occurred any breach of this
Agreement or the Escrow Agreement, as to each of which all legal and other
remedies under this Agreement or the Escrow Agreement of the Party(ies)
adversely affected shall survive and be enforceable for a period of two years
from the date of termination.
[signatures on next page]
483745.01-New York S4A 35
IN WITNESS WHEREOF, the Parties have caused this Stock Purchase
Agreement to be duly executed, all as of the day and year first above written.
CEMEX, S.A. de C.V.
By: /s/ Illegible
------------------------------------
Name:
Title:
PAN ASIAN CEMENT INVESTORS LP,
as Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Attorney-in-Fact