Exhibit 1.1
KANSAS CITY SOUTHERN
1,494,469 Shares of Common Stock
Underwriting Agreement
December 4, 2006
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Grupo TMM, S.A., a sociedad anonima organized under the laws of the United
Mexican States and a stockholder (the "Selling Stockholder") of Kansas City
Southern, a Delaware corporation (the "Company"), proposes to sell to ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated (the "Underwriter"), an aggregate of 1,494,469 shares
(the "Shares") of common stock, par value $0.01 per share (the "Stock"), of the
Company. The Stock, including the Shares, will have attached thereto rights (the
"Rights"). The Rights are to be issued pursuant to a Rights Agreement (the
"Rights Agreement") dated as of September 29, 2005 between the Company and UMB
Bank, n.a., as Rights Agent.
The Company and the Selling Stockholder hereby confirm their agreement with
the Underwriter concerning the purchase and sale of the Shares as follows:
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Securities Act"), a registration statement on Form S-1 (File No.: 333-138831)
which contains a form of prospectus to be used in connection with the public
offering and sale of the Shares. Such registration statement, as amended at the
time it became effective, including the information, if any, deemed pursuant to
Rule 430A under the Securities Act to be a part of the registration statement at
the time of its effectiveness (the "Rule 430 Information") is referred to herein
as the "Registration Statement"; and as used herein the term "Prospectus" means
the prospectus in the form first used to confirm sales of Shares (or in the form
first made available to the Underwriter by the Company to meet requests of
purchasers pursuant to Rule 173 under the Securities Act) and the term
"Preliminary Prospectus" means any preliminary form of the Prospectus. Any
reference in this Agreement to the Registration Statement, any Preliminary
Prospectus, the Time of Sale Information (as defined herein) or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-1 under the Securities Act, and any
reference to "amend", "amendment" or "supplement" with respect to the
Registration Statement, any Preliminary Prospectus, Time of Sale Information (as
defined below) or the Prospectus shall be deemed to refer to and include any
documents filed by the Company under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") that are deemed to be incorporated by
reference therein. Capitalized terms
used but not defined herein shall have the meanings given to such terms in the
Registration Statement and the Prospectus.
The Company has prepared the following information (collectively with the
information referred to in the next succeeding sentence, the "Time of Sale
Information"): a Preliminary Prospectus dated December 1, 2006, as amended and
supplemented, as of the Applicable Time (as defined below), including all
information incorporated by reference therein, and each free-writing prospectus
(as defined pursuant to Rule 405 under the Securities Act) and other information
listed on Annex C hereto. If, subsequent to the date of this Agreement, the
Company and the Underwriter have determined that such information included an
untrue statement of material fact or omitted a statement of material fact
necessary to make the information therein not misleading and have agreed to
provide an opportunity to purchasers to terminate their old contracts and enter
into new contracts, then "Time of Sale Information" will refer to the
information available to purchasers at the time of entry into the first such new
contract. "Applicable Time" means 5.30 P.M., New York City time, on the date of
this Agreement.
Purchase of the Shares by the Underwriter. (a) The Selling Stockholder
agrees to sell the Shares to the Underwriter as provided in this Agreement, and
the Underwriter, on the basis of the representations, warranties and agreements
set forth herein and subject to the conditions set forth herein, agrees,
severally and not jointly, to purchase from the Selling Stockholder at a
purchase price per share of $25.7839 (the "Purchase Price") the number of Shares
(to be adjusted by you so as to eliminate fractional shares) as set forth
opposite its name in Schedule I hereto.
The Selling Stockholder understands that the Underwriter intends to
make a public offering of any or all Shares on the terms set forth in the
Prospectus as soon after the effectiveness of this Agreement as in the
judgment of the Underwriter is advisable. The Selling Stockholder
acknowledges and agrees that the Underwriter may offer and sell Shares to
or through any affiliate of an Underwriter and that any such affiliate may
offer and sell Shares purchased by it to or through the Underwriter.
Payment for the Shares shall be made by wire transfer in immediately
available funds to the account specified by the Selling Stockholder at the
offices of Shearman & Sterling LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇ at 9.00 A.M. New York City time on December 4, 2006, or at such other
time or place on the same or such other date, not later than the fifth
business day thereafter, as the Underwriter and the Selling Stockholder may
agree upon in writing. The time and date of such payment for the Shares are
referred to herein as the "Closing Date".
Payment for the Shares to be purchased on the Closing Date shall be made
against delivery to the Underwriter for the account of the Underwriter of the
Shares to be purchased on such date in definitive form registered in such names
and in such denominations as the Underwriter shall request in writing not later
than two full business days prior to the Closing Date with any transfer taxes
payable in connection with the sale of the Shares duly paid by the Selling
Stockholder. The certificates for the Shares will be made available for
inspection and
packaging by the Underwriter at the office of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
set forth above not later than 4.00 P.M., New York City time, on the business
day prior to the Closing Date.
Each of the Company and the Selling Stockholder acknowledges and
agrees that the Underwriter is acting solely in the capacity of an arm's
length contractual counterparty to the Selling Stockholder with respect to
the offering of Shares contemplated hereby (including in connection with
determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Company, the Selling Stockholder or any
other person. Additionally, the Underwriter is not advising the Company,
the Selling Stockholder or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction. The
Company and the Selling Stockholder shall consult with their own advisors
concerning such matters and shall be responsible for making their own
independent investigation and appraisal of the transactions contemplated
hereby, and the Underwriter shall have no responsibility or liability to
the Company or the Selling Stockholder with respect thereto. Any review by
the Underwriter of the Company, the transactions contemplated hereby or
other matters relating to such transactions will be performed solely for
the benefit of the Underwriter and shall not be on behalf of the Company or
the Selling Stockholder.
Representations and Warranties of the Company. The Company represents and
warrants to the Underwriter and the Selling Stockholder that:
Preliminary Prospectus. No order preventing or suspending the use of
any Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, complied in all
material respects with the Securities Act and did not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that the Company makes no representation and warranty with respect
to any statements or omissions made in reliance upon and in conformity with
information relating to the Underwriter or the Selling Stockholder
furnished to the Company in writing by the Underwriter and the Selling
Stockholder, respectively, expressly for use in any Preliminary Prospectus.
Time of Sale Information. The Time of Sale Information, at the Time of
Sale did not, and at the Closing Date will not, contain any 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, not misleading; provided that the Company makes
no representation and warranty with respect to any statements or omissions
made in reliance upon and in conformity with information relating to the
Underwriter or the Selling Stockholder furnished to the Company in writing
by the Underwriter or the Selling Stockholder, respectively, expressly for
use in such Time of Sale Information. No statement of material fact
included in the Prospectus has been omitted from the Time of Sale
Information and no statement of material fact included in the Time of Sale
Information that is required to be included in the Prospectus has been
omitted therefrom.
Free Writing Prospectus. Other than the Preliminary Prospectus and the
Prospectus, the Company (including its agents and representatives, other
than the Underwriter in its capacity as such) has not made, used, prepared,
authorized, approved or referred to and will not prepare, make, use,
authorize, approve or refer to any written communication (as defined in
Rule 405 under the Securities Act) that constitutes an offer to sell or
solicitation of an offer to buy the Shares (each such communication by the
Company or its agents and representatives (other than a communication
referred to in clause (i) below) a "Free Writing Prospectus") other than
(i) any document not constituting a prospectus pursuant to Section
2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or
(ii) the documents listed on Annex D hereto and other written
communications approved in writing in advance by the Underwriter. Each such
Free Writing Prospectus complied in all material respects with the
Securities Act, has been filed in accordance with the Securities Act (to
the extent required thereby) and, when taken together with the Preliminary
Prospectus accompanying, or delivered prior to delivery of, such Free
Writing Prospectus, did not, and at the Closing Date will not, contain any
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, not misleading; provided that the
Company makes no representation and warranty with respect to any statements
or omissions made in reliance upon and in conformity with information
relating to the Underwriter or the Selling Stockholder furnished to the
Company in writing by the Underwriter or the Selling Stockholder,
respectively, expressly for use in any Free Writing Prospectus.
Registration Statement and Prospectus. No order suspending the
effectiveness of the Registration Statement has been issued by the
Commission and no proceeding for that purpose or pursuant to Section 8A of
the Securities Act against the Company or related to the offering has been
initiated or threatened by the Commission; as of the applicable effective
date of the Registration Statement and any amendment thereto, the
Registration Statement complied and will comply in all material respects
with the Securities Act, and did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading; and as of the date of the Prospectus and any amendment or
supplement thereto and as of the Closing Date the Prospectus will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon
and in conformity with information relating to the Underwriter or the
Selling Stockholder furnished to the Company in writing by the Underwriter
and the Selling Stockholder, respectively, expressly for use in the
Registration Statement and the Prospectus and any amendment or supplement
thereto.
Incorporated Documents. The documents incorporated by reference in the
Prospectus, when they become effective or were filed with the Commission,
as the case may be, conformed in all material respects to the requirements
of the Securities Act or the Exchange Act, as applicable, and none of such
documents contained any untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the Prospectus,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and will not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
Financial Statements. The historical financial statements and the
related notes thereto of the Company and its consolidated subsidiaries
(including Grupo KCSM, S.A. de C.V. ("Grupo KCSM")) included or
incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus comply in all material respects with the
applicable requirements of the Securities Act and the Exchange Act, as
applicable, and present fairly the financial position of the entities
purported to be covered thereby at the respective dates indicated and the
results of their operations and their cash flows for the respective periods
specified; such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods covered thereby, and the supporting schedules
included or incorporated by reference in the Registration Statement, the
Time of Sale Information, and the other financial information included or
incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus has been derived from the accounting records
of the Company and its subsidiaries and presents fairly the information
shown thereby; and the pro forma financial information and the related
notes thereto included or incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus have been
prepared in accordance with the applicable requirements of the Securities
Act and the Exchange Act, as applicable, and the assumptions underlying
such pro forma financial information are reasonable and are set forth in
the Registration Statement, the Time of Sale Information and the
Prospectus. No other financial statements, including pro forma financial
statements, are required to be included in the Registration Statement, the
documents incorporated by reference therein, the Time of Sale Information
and the Prospectus. The other historical financial and statistical
information and data included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus
are, in all material respects, fairly presented.
The Company is not an "ineligible issuer" in connection with the
offering pursuant to Rules 164, 405 and 433 under the Securities Act. Any
Free Writing Prospectus that the Company is required to file pursuant to
Rule 433(d) under the Securities Act has been, or will be, filed with the
Commission in accordance with the requirements of the Securities Act and
the applicable rules and regulations of the Commission thereunder. Each
Free Writing Prospectus that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the Securities Act or that was prepared by or
behalf of or used or referred to by the Company complies or will comply in
all material respects with the requirements of the Securities Act and the
applicable rules and
regulations of the Commission thereunder. Except for the Free Writing
Prospectuses, if any, identified in Annex D hereto, and electronic road
shows, if any, furnished to you before first use, the Company has not
prepared, used or referred to, and will not, without your prior consent,
prepare, use or refer to, any Free Writing Prospectus.
No Material Adverse Change. Since the date of the most recent
financial statements of the Company included or incorporated by reference
in the Registration Statement, the Time of Sale Information and the
Prospectus, there has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, except in
each case as otherwise disclosed in the Registration Statement, the Time of
Sale Information and the Prospectus.
Organization and Good Standing. The Company has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of Delaware, has the corporate power and authority to own its
property and to conduct its business as described in the Time of Sale
Information and the Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the
business, properties, management, financial position, stockholders' equity,
results of operations or prospects of the Company and its subsidiaries,
taken as a whole (a "Material Adverse Effect").
Subsidiaries. Each subsidiary of the Company has been duly organized,
is validly existing as a corporation, limited liability company or limited
partnership, as the case may be, in good standing under the laws of the
jurisdiction of its organization, has the corporate, limited liability
company or limited partnership power and authority, as the case may be, to
own its property and to conduct its business as described in the Time of
Sale Information and the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a Material Adverse Effect; all of the
outstanding shares of capital stock of the Company (including the Shares to
be sold by the Selling Stockholder) have been duly and validly authorized
and issued and are fully paid and non-assessable and are not subject to any
pre-emptive or similar rights; the capital stock of the Company conforms to
the description thereof contained in the Registration Statement; and all of
the issued shares of capital stock, membership interests or partnership
interests, as the case may be, of each subsidiary of the Company have been
duly and validly authorized and issued, are fully paid and non-assessable
and, except as otherwise described in the Time of Sale Information and the
Prospectus, are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims, except those that arise
under the Amended and Restated Credit Agreement dated as of April 28, 2006,
as amended through the date hereof, among the Company, The Kansas City
Southern Railway Company, the subsidiary guarantors named therein and the
lenders thereto (collectively, the "KCS Credit Facilities")
Due Authorization. The Company has full right, power and authority to
execute and deliver this Agreement and perform its obligations thereunder,
and all corporate action required to be taken for the due and proper
authorization, execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly taken.
Underwriting Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
No Preemptive Rights. The sale or delivery of the Shares is not
subject to any preemptive right of stockholders of the Company arising
under law or certificate of incorporation or by-laws of the Company, to any
contractual right of first refusal or other right in favor of any person.
The Rights. The Rights Agreement has been duly authorized, executed
and delivered by the Company and constitutes a valid and legally binding
agreement of the Company enforceable against the Company in accordance with
its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally or by equitable principles relating to enforceability; and the
Rights have been duly authorized by the Company and validly issued, and the
poison pill security has been duly authorized by the Company and validly
reserved for issuance and upon the exercise in accordance with the terms of
the Rights Agreement, will be validly issued, fully paid and
non-assessable.
No Violation or Default. Neither the Company nor any of its
subsidiaries is (i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default in any material respect, and no
event has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject; or (iii) in violation in any
material respect of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory
authority, except (a) in the case of clause (i) above, and only with
respect to The Texas Mexican Railway Company, for any such violations that
would not, individually or in the aggregate, have a Material Adverse Effect
and (b) in the case of clauses (ii) and (iii) above, for any such default
or violation that would not, individually or in the aggregate, have a
Material Adverse Effect.
No Conflicts. The execution, delivery and performance by the Company
of this Agreement, and the consummation by the Company of the transactions
contemplated hereby will not contravene any provision of applicable law or
the certificate of incorporation or by-laws of the Company and its
subsidiaries or any agreement or other instrument binding upon the Company
and its subsidiaries that are material to the Company and its subsidiaries,
taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company and
its subsidiaries, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company and its subsidiaries of their obligations under
this Agreement, except such as may be required by the securities or blue
sky laws of the various states in connection with the offer and sale of the
Shares and the registration of the Shares under the Securities Act.
Legal Proceedings. There are no legal or governmental proceedings
pending or, to the knowledge of the Company, threatened to which the
Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject other than
proceedings accurately described in all material respects in the
Registration Statement, the Time of Sale Information and the Prospectus and
proceedings that could not reasonably be expected to have a Material
Adverse Effect, or which could have a material advese effect on the power
or ability of the Company to perform its obligations under this Agreement
or to consummate the transactions contemplated hereby.
Independent Accountants. KPMG LLP, who have certified certain
financial statements of the Company and its subsidiaries are independent
public accountants with respect to the Company and its subsidiaries as
required by the Securities Act. KPMG ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, S.C., who have
certified certain financial statements of Grupo KCSM and its subsidiaries
are independent public accountants with respect to Grupo KCSM and its
subsidiaries as required by the Securities Act. PricewaterhouseCoopers
S.C., who have audited financial statements of Grupo KCSM and its
subsidiaries (and delivered its report with respect to the audited
consolidated financial statements of Grupo KCSM and its subsidiaries as of
December 31, 2004) incorporated by reference in the Registration Statement,
the Time of Sale Information and the Prospectus, are independent public
accountants with respect to Grupo KCSM and its subsidiaries as required by
the Securities Act.
Title to Real and Personal Property. The Company and each of its
subsidiaries have good and marketable title in fee simple to, or have valid
rights to lease or otherwise use, all items of real and personal property
which are material to the business of the Company and its subsidiaries, in
each case free and clear of all liens, encumbrances, claims and defects and
imperfections of title except those that (i) arise under the KCS Credit
Facilities or (ii) do not materially interfere with the use made and
proposed to be made of such property by the Company and its subsidiaries
and could not reasonably be expected to have a Material Adverse Effect.
Title to Intellectual Property. The Company and each of its
subsidiaries own or possess adequate rights to use all patents, patent
applications, trademarks, service marks, trade names, trademark
registrations, service ▇▇▇▇ registrations, copyrights, licenses and knowhow
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures) necessary
for the conduct of their
respective businesses, except where the failure to possess such rights
could not reasonably be expected to have a Material Adverse Effect, and the
conduct of their respective businesses will not conflict with, and, except
as described in the Time of Sale Information and the Prospectus, the
Company and its subsidiaries have not received any notice of any claim or
conflict with, any such rights of others that, if determined adversely to
the Company or any of its subsidiaries, would, individually or in the
aggregate, have a Material Adverse Effect.
No Undisclosed Relationships. No relationship, direct or indirect,
exists between or among the Company or any of its subsidiaries, on the one
hand, and the directors, officers, stockholders, customers or suppliers of
the Company or any of its subsidiaries, on the other, that is required by
the Securities Act to be described in the Registration Statement and the
Prospectus and that is not so described in such documents and in the Time
of Sale Information.
Investment Company Act. The Company is not and, after giving effect to
the consummation of the transactions as described in the Prospectus, will
not be required to register as an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended, and the rules
and regulations of the Commission thereunder (collectively, "Investment
Company Act").
Taxes. The Company and each of its subsidiaries have filed all
federal, state, local and foreign income and franchise tax returns required
to be filed through the date hereof and have paid all taxes due thereon,
and no tax deficiency has been determined adversely to the Company or any
of its subsidiaries which has had (nor does the Company have any knowledge
of any tax deficiency which, if determined adversely to the Company or any
of its subsidiaries, could reasonably be expected to have) a Material
Adverse Effect.
Licenses and Permits. The Company and each of its subsidiaries possess
all material licenses, certificates, authorizations and permits issued by,
and have made all declarations and filings with, the appropriate federal,
state or foreign regulatory agencies or bodies which are necessary or
desirable for the ownership of their respective properties or the conduct
of their respective businesses as described in the Registration Statement,
the Time of Sale Information and the Prospectus, except where the failure
to possess or make the same would not, singularly or in the aggregate, have
a Material Adverse Effect, and, except as disclosed in the Time of Sale
Information and the Prospectus, neither the Company nor any of its
subsidiaries has received notification of any revocation or modification of
any such license, certificate, authorization or permit or has any reason to
believe that any such license, certificate, authorization or permit will
not be renewed in the ordinary course, except where such revocation,
modification or non renewal could not reasonably be expected to, singularly
or in the aggregate, have a Material Adverse Effect.
No Labor Disputes. No labor disturbance by or dispute with employees
of the Company or any of its subsidiaries exists or, to the knowledge of
the Company, is contemplated or threatened, except as would not have a
Material Adverse Effect.
Compliance With Environmental Laws. The Company and its subsidiaries
(i) are in compliance with any and all applicable foreign, federal, state
and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or
approval, in each case except as described in the Time of Sale Information
and the Prospectus or where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or failure
to comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a Material Adverse
Effect.
In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries. On the basis
of such review, the Company has concluded that, except as described in the
Time of Sale Information and the Prospectus, there are no costs or
liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and
any potential liabilities to third parties) which would, singly or in the
aggregate, have a Material Adverse Effect
Except as otherwise disclosed in the Time of Sale Information and the
Prospectus, there has been no storage, generation, transportation,
handling, treatment, disposal, discharge, emission or other release of any
kind of toxic or other wastes or other hazardous substances by, due to or
caused by the Company or any of its subsidiaries (or, to the knowledge of
the Company, any other entity (including any predecessor) for whose acts or
omissions the Company or any of its subsidiaries is or could reasonably be
expected to be liable) upon any of the property now or previously owned or
leased by the Company or any of its subsidiaries, or upon any other
property, in violation of any statute or any ordinance, rule, regulation,
order, judgment, decree or permit or which would, under any statute or any
ordinance, rule (including rule of common law), regulation, order,
judgment, decree or permit, give rise to any liability, except for any
violation or liability that could not reasonably be expected to have,
singularly or in the aggregate with all such violations and liabilities, a
Material Adverse Effect; and, except as otherwise disclosed in the Time of
Sale Information and the Prospectus, there has been no disposal, discharge,
emission or other release of any kind onto such property or into the
environment surrounding such property of any toxic or other wastes or other
hazardous substances with respect to which the Company has knowledge,
except for any such disposal, discharge, emission or other release of any
kind which could not reasonably be expected to have, singularly or in the
aggregate with all such discharges and other releases, a Material Adverse
Effect.
Compliance With ERISA. No "prohibited transaction" (as defined in
Section 406 of the Employee Retirement Income Security Act of 1974, as
amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section
4975 of the Internal Revenue Code of 1986, as amended from time to time
(the "Code")) or "accumulated funding deficiency" (as defined in Section
302 of ERISA) or any of the events set forth in Section 4043(b) of ERISA
(other than events with respect to which the 30-day notice requirement
under Section 4043 of ERISA has been waived) has occurred with respect to
any employee benefit plan of the Company or any of its subsidiaries which
could reasonably be expected to have a Material Adverse Effect, each such
employee benefit plan is in compliance with applicable law, including ERISA
and the Code, except where such noncompliance, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect, the Company and each of its subsidiaries have not incurred and do
not expect to incur liability under Title IV of ERISA with respect to the
termination of, or withdrawal from, any pension plan for which the Company
or any of its subsidiaries would have any liability; and each such pension
plan that is intended to be qualified under Section 401 (a) of the Code is
so qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which could reasonably be expected to cause
the loss of such qualification.
Disclosure Controls. The Company and its subsidiaries maintain an
effective system of disclosure controls that is designed to ensure that
information required to be disclosed by the Company is recorded, summarized
and reported to the Commission, including controls and procedures designed
to ensure that such information is accumulated and communication to the
Company's management as appropriate to allow timely decisions regarding
required disclosure.
Accounting Controls. The Company and its subsidiaries maintain systems
of internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles or international financial reporting
standards, as the case may be, and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except as
disclosed in the Time of Sale Information and the Prospectus, there are no
material weaknesses in the Company's internal controls.
Insurance. The Company and each of its subsidiaries carry, or are
covered by, insurance covering their respective properties, operations,
personnel and businesses, which insurance is in amounts and insures against
such losses and risks as are adequate to protect the Company and its
subsidiaries and their respective businesses. Neither the Company nor any
of its subsidiaries has received notice from any insurer or agent of such
insurer that material capital improvements or other material expenditures
are required or necessary to be made in order to continue such insurance.
No Unlawful Payments. Neither the Company nor, to the best knowledge
of the Company, any director, officer, agent, employee or other person
associated with or acting
on behalf of the Company or any of its subsidiaries has (i) used any
corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; (ii) made any direct or
indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; (iii) violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977, as amended; or (iv)
made any unlawful bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
No Broker's Fees. Neither the Company nor any of its subsidiaries is a
party to any contract, agreement or understanding with any person (other
than this Agreement) that would give rise to a valid claim against the
Company or any of its subsidiaries or the Underwriter for a brokerage
commission, finder's fee or like payment in connection with the offering
and sale of the Shares.
No Registration Rights. No person other than the Selling Stockholder
has the right to require the Company or any of its subsidiaries to register
any securities for sale under the Securities Act by reason of the filing of
the Registration Statement with the Commission or, to the best knowledge of
the Company, the sale of the Shares to be sold by the Selling Stockholder
hereunder
Contracts. There are no contracts, documents, pending legal or
governmental actions, suits or proceedings of a character that would be
required to be described in the Registration Statement, the Time of Sale
Information and the Prospectus that are not set forth or incorporated by
reference in the Registration Statement, the Time of Sale Information and
the Prospectus. All descriptions in the Registration Statement, the Time of
Sale Information and the Prospectus of such contracts or documents are
accurate in all material respects.
No Legal Impediment to Sale. To the knowledge of the Company, no
action has been taken and no statute, rule, regulation or order has been
enacted, adopted or issued by any governmental agency or body which
prevents the sale of the Shares or suspends the sale of the Share in any
jurisdiction; no injunction, restraining order or order of any nature by
any federal or state court of competent jurisdiction has been issued with
respect to the Company or any of its subsidiaries which would prevent or
suspend the sale of the Shares or the use of the Prospectus in any
jurisdiction; no action, suit or proceeding is pending against or, to the
knowledge of the Company, threatened against or affecting the Company or
any of its subsidiaries before any court or arbitrator or any governmental
agency, body or official, domestic or foreign, which could reasonably be
expected to interfere with or adversely affect the sale of the Shares or
the validity of this Agreement or any action taken or to be taken pursuant
hereto.
No Stabilization. The Company has not taken, directly or indirectly,
any action designed to or that could reasonably be expected to cause or
result in any stabilization or manipulation of the price of the Shares.
Forward-Looking Statements. No forward-looking statement (within the
meaning of Section 27A of the Securities Act and Section 21 E of the
Exchange Act) contained in the Registration Statement, the Time of Sale
Information and the Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. There is and has been no failure on the part of
the Company or any of the Company's directors or officers, in their
capacities as such, to comply with any provision of the SarbanesOxley Act
of 2002 and the rules and regulations promulgated in connection therewith
(the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act"), including Section 402 related to loans and
Sections 302 and 906 related to certifications.
Shares Listed on the NYSE. The Shares are listed on the New York Stock
Exchange.
Representations and Warranties of the Selling Stockholder. The Selling
Stockholder represents and warrants to the Underwriter and the Company that:
Required Consents; Authority. Except for the consents, approvals,
authentications, orders and registrations or qualifications as may be
required under federal securities laws and applicable state securities laws
and "blue sky" laws in connection with the purchase and distribution of the
Shares by the Underwriter, all consents, approvals, authorizations and
orders necessary for the execution and delivery by the Selling Stockholder
of this Agreement and the Escrow and Custody Agreement dated December 4,
2006 (the "Custody Agreement") between the Selling Stockholder and the
transfer agent for ths Shares, and for the sale and delivery of the Shares
to be sold by the Selling Stockholder hereunder, will be obtained as of the
Closing Date; and the Selling Stockholder has full right, power and
authority to enter into this Agreement and the Custody Agreement
(collectively, the "Stockholder Documents"), and to sell, assign, transfer
and deliver the Shares to be sold by the Selling Stockholder hereunder on
the Closing Date; and the Stockholder Documents have each been duly
authorized, executed and delivered by the Selling Stockholder.
No Conflicts. The execution, delivery and performance by the Selling
Stockholder of the Stockholder Documents, the sale of the Shares to be sold
by the Selling Stockholder and the consummation by the Selling Stockholder
of the transactions herein and therein contemplated will not (i) conflict
with or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Selling Stockholder pursuant to, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Selling
Stockholder is a party or by which the Selling Stockholder is bound or to
which any of the property or assets of the Selling Stockholder is subject,
(ii) result in any violation of the provisions of the charter or by-laws or
similar organizational documents of the Selling Stockholder or (iii) result
in the violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory agency
having jurisdiction over the Selling
Stockholder except, in the case of clause (i) and (iii) for such conflicts,
breaches or violations which could not, individually or in the aggregate,
be reasonably expected to have a material adverse effect on the
consummation of the transactions contemplated by this Agreement.
Title to Shares. The Selling Stockholder has good and valid title to
the Shares to be sold at the Closing Date by the Selling Stockholder
hereunder, free and clear of all liens, encumbrances, equities or adverse
claims other than those pursuant to the Stockholders' Agreement (as defined
in Section 4(k) hereof); the Selling Stockholder will have good and valid
title to the Shares to be sold at the Closing Date by the Selling
Stockholder hereunder, free and clear of all liens, encumbrances, equities
or adverse claims; and upon (i) payment by the Underwriter for the Shares
to be sold by the Selling Stockholder in accordance with this Agreement,
(ii) delivery (within the meaning of Section 8-301 of the Uniform
Commercial Code as in effect in the State of New York as of the date hereof
(the "UCC")) of such Shares, as directed by the Underwriter, to, and
receipt by Cede & Co. or other nominee designated by The Depository Trust
Company ("DTC"), (iii) registration of the transfer of such Shares to, and
registration of such Shares in the name of, Cede & Co. or other nominee
designated by DTC and (iv) the crediting of such Shares to the account of
the Underwriter maintained by DTC, assuming that such accounts are
"securities accounts" (as defined in Section 8-501 of the UCC), DTC will be
a protected purchaser (within the meaning of Section 8-503 of the UCC) of
such Shares, the Underwriter will acquire "security entitlements" (as
defined in Section 8-102 of the UCC) in respect of such Shares and,
assuming that the Underwriter does not have "notice of an adverse claim"
(within the meaning of Section 8-105 of the UCC) to such Shares, no action
based on an "adverse claim" (within the meaning of Section 8-102(a)(i) of
the UCC) to such Shares, whether framed in conversion, replevin,
constructive trust, equitable lien, or other theory, may be asserted
against the Underwriter with respect to such "security entitlement."
No Stabilization. The Selling Stockholder has not taken and will not
take, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Shares.
Registration Statement and Prospectus. (i) as of the applicable
effective date of the Registration Statement and any amendment thereto, the
Registration Statement complied and will comply in all material respects
with the Securities Act, and did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading; (ii) as of the Applicable Time, the Time of Sale Information
did not, and as of the Closing Date will not, contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and (iii)
as of its date, the Prospectus and any amendment or supplement thereto did
not, and as of the Closing Date, the Prospectus will not, contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under
which they were made, not misleading; provided that the Selling Stockholder
only makes such representation and warranty to the extent such statements
or omissions were made or omitted in reliance upon and in conformity with
information relating to the Selling Stockholder and were furnished to the
Company in writing by the Selling Stockholder expressly for use in the
Registration Statement, Time of Sale Information and the Prospectus and any
amendment or supplement thereto.
Selling Stockholder Information. Wherever in this Agreement reference
is made to any information relating to the Selling Stockholder contained in
the Registration Statement, any Preliminary Prospectus, the Prospectus, any
Free Writing Prospectus, any amendment or supplement thereto, or any Time
of Sale Information in reliance upon and in conformity with information
furnished to the Company in writing by the Selling Stockholder expressly
for use therein, such information shall be deemed to include any
information regarding the Selling Stockholder contained in the latest draft
of any such document which has been submitted to the Selling Stockholder or
its counsel for review and which has either been approved by the Selling
Stockholder or its counsel or as to which no objection or comment was made
by the Selling Stockholder or its counsel prior to the public availability
of the same
Material Information. As of the date hereof, the Applicable Time and
the Closing Date, the sale of the Securities by the Selling Stockholder is
not and will not be prompted by any material information concerning the
Company which is not set forth or incorporated by reference in the
Registration Statement or the Prospectus.
Solvency. The Selling Stockholder is, and will be after giving effect
to the sale of the Shares and giving effect to the transactions related
thereto as described in the Prospectus), Solvent. As used in this
paragraph, the term "Solvent' `means, with respect to a particular date,
that on such date (i) the present fair market value (or present fair
saleable value) of the assets of the Selling Stockholder is not less than
the total amount required to pay the probable liabilities of the Selling
Stockholder on its total existing debts and liabilities (including
contingent liabilities) as they become absolute and matured, (ii) the
Selling Stockholder is able to realize upon its assets and pay its debts
and other liabilities, contingent obligations and commitments as they
mature and become due in the normal course of business, (iii) assuming the
sale of the Shares as contemplated by this Agreement, the Selling
Stockholder is not incurring debts or liabilities beyond its ability to pay
as such debts and liabilities mature, (iv) the Selling Stockholder is not
engaged in any business or transaction, and is not about to engage in any
business or transaction, for which its property would constitute
unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which the Selling Stockholder is engaged and
(v) the Selling Stockholder does not fall within any of the provisions of
Article 10 of the Mexican Ley de Concursos Mercantiles. In computing the
amount of such contingent liabilities at any time, it is intended that such
liabilities will be computed in an amount that, in the light of all the
facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability.
No Violation or Default. The Selling Stockholder is not (i) in
violation of its charter or by-laws or similar organizational documents;
(ii) in default, and no event has occurred that, with notice or lapse of
time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Selling Stockholder or any of its subsidiaries is a party or by
which the Selling Stockholder or any of its subsidiaries is bound or to
which any of the property or assets of the Selling Stockholder or any of
its subsidiaries is subject; or (iii) in violation in any material respect
of any law or statute or any judgment, order, rule or regulation of any
court or arbitrator or governmental or regulatory authority except for such
violation which could not, individually or in the aggregate, be reasonably
expected to have a material adverse effect on the consummation of the
transaction contemplated by this Agreement. The Selling Stockholder is
current in its payment obligations under all its outstanding indebtedness
and no default or event of default under such indebtedness has occurred and
is continuing.
Discharge of Existing Instruments. The obligations of the Selling
Stockholder under each of (i) the indenture, dated as of August 11, 2004
(as amended by a supplemental indenture, effective as of August 20, 2004,
by and among the Selling Stockholder, the guarantors named therein and The
Bank of New York, as trustee; (ii) the security agreement dated April 1,
2005 between the Selling Stockholder and the Bank of New York as collateral
agent and; (iii) the Mexican pledge agreement dated August 11, 2004 by and
between the Selling Stockholder and The Bank of New York have been
discharged in full as of the date hereof.
Compliance with Stockholders Agreement and Registration Rights
Agreement. The Selling Stockholder represents and acknowledges that the
sale of the Shares by the Selling Stockholder pursuant to this Agreement
will not violate the Stockholders Agreement, dated as of December 15, 2004,
as amended by the certain letter agreement dated August 30, 2006 (the
"Letter Agreement") by and between the Company, the Selling Stockholder and
other parties named therein (the "Stockholders Agreement"), and the
Registration Rights Agreement, dated as of December 15, 2004, by and
between the Company, the Selling Stockholder and other parties named
therein (the "Registration Rights Agreement").
The Selling Stockholder specifically agrees that the obligations of the
Selling Stockholder hereunder shall not be terminated by operation of law or by
the dissolution of the Selling Stockholder or by the occurrence of any other
event. If the Selling Stockholder should be dissolved, or if any other such
event should occur, before the delivery of the Shares hereunder, certificates
representing such Shares shall be delivered by or on behalf of the Selling
Stockholder in accordance with the terms and conditions of this Agreement and
actions taken by the Selling Stockholder shall be as valid as if such
dissolution or other event had not occurred, regardless of whether or not the
Selling Stockholder shall have received notice of such dissolution or other
event.
Further Agreements of the Company. The Company covenants and agrees with
the Underwriter that:
Effectiveness of the Registration Statement. The Company will use
commercially reasonable efforts to cause the Registration Statement to
become effective at the earliest possible time and, if required, will file
the final Prospectus with the Commission within the time periods specified
by Rule 424(b) and Rule 430A under the Securities Act and to file promptly
all reports and any information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of the Shares; and the Company will furnish copies of the
Prospectus to the Underwriter in New York City prior to 10.00 A.M., New
York City time, on the business day next succeeding the date of this
Agreement in such quantities as the Underwriter may reasonably request.
Delivery of Copies. The Company will deliver, at its expense, (i) to
the Underwriter, two signed copies of the Registration Statement as
originally filed and each amendment thereto, in each case including all
exhibits and consents filed therewith and documents incorporated by
reference therein; and (ii) to the Underwriter (A) a conformed copy of the
Registration Statement as originally filed and each amendment thereto
(without exhibits) and (B) during the Prospectus Delivery Period (as
defined below), as many copies of the Prospectus (including all amendments
and supplements thereto and documents incorporated by reference therein)
and each Free Writing Prospectus as the Underwriter may reasonably request.
As used herein, the term "Prospectus Delivery Period" means such period of
time after the first date of the public offering of the Shares as in the
opinion of counsel for the Underwriter a prospectus relating to the Shares
is required by law to be delivered (or required to be delivered but for
Rule 172 under the Securities Act) in connection with sales of the Shares
by the Underwriter or dealer.
Amendments or Supplements. Before preparing, using, authorizing,
approving, referring to or filing any Free Writing Prospectus, and before
filing any amendment or supplement to the Registration Statement or the
Prospectus, whether before or after the time that the Registration
Statement becomes effective, the Company will furnish to the Underwriter
and counsel for the Underwriter a copy of the proposed Free Writing
Prospectus, amendment or supplement for review and will not prepare, use,
authorize, approve, refer to or file any such Free Writing Prospectus or
file any such proposed amendment or supplement to which the Underwriter
reasonably objects.
Notice to the Underwriter. The Company will advise the Underwriter
promptly, and confirm such advice in writing, (i) when the Registration
Statement has become effective; (ii) when any amendment to the Registration
Statement has been filed or becomes effective; (iii) when any supplement to
the Prospectus or any amendment to the Prospectus has been filed; (iv) of
any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or the receipt
of any comments from the Commission relating to the Registration Statement
or any other request by the Commission for any additional information; (v)
of the issuance
by the Commission of any order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of the
Preliminary Prospectus or the Prospectus or the initiation or threatening
of any proceeding for that purpose or pursuant to Section 8A of the
Securities Act; (vi) of the occurrence of any event within the Prospectus
Delivery Period as a result of which the Prospectus as then amended or
supplemented would include any 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 existing when the Prospectus is delivered
to a purchaser, not misleading; and (vii) of the receipt by the Company of
any notice with respect to any suspension of the qualification of the
Shares for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and the Company will use
its best efforts to prevent the issuance of any such order suspending the
effectiveness of the Registration Statement, preventing or suspending the
use of the Preliminary Prospectus or the Prospectus or suspending any such
qualification of the Shares and, if any such order is issued, will obtain
as soon as possible the withdrawal thereof.
Ongoing Compliance of the Prospectus. If during the Prospectus
Delivery Period (i) any event shall occur or condition shall exist as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, not misleading or (ii) in the
opinion of counsel for the Underwriter, it is necessary to amend or
supplement the Prospectus to comply with law, the Company will immediately
notify the Underwriter thereof and forthwith prepare and, subject to
paragraph (c) above, file with the Commission and furnish to the
Underwriter, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law.
Blue Sky Compliance. The Company will endeavor to qualify the Shares
for offer and sale under the securities or blue sky laws of such
jurisdictions as the Underwriter shall reasonably request; provided that
the Company and its subsidiaries shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which they have not so qualified
or to file a general consent to service of process in any jurisdiction.
Earning Statement. The Company will make generally available to its
security holders and the Underwriter as soon as practicable an earning
statement that satisfies the provisions of Section 11 (a) of the Securities
Act and Rule 158 of the Commission promulgated thereunder covering a period
of at least twelve months beginning with the first fiscal quarter of the
Company occurring after the "effective date" (as defined in Rule 158) of
the Registration Statement.
No Stabilization. The Company will not take, directly or indirectly,
any action designed to or that could reasonably be expected to cause or
result in any stabilization or manipulation of the price of the Shares.
Record Retention. The Company will, pursuant to reasonable procedures
developed in good faith, retain copies of each Free Writing Prospectus that
is not filed with the Commission in accordance with Rule 433 under the
Securities Act.
Further Agreements of the Selling Stockholder. The Selling Stockholder
covenants and agrees with the Underwriter that:
Tax Form. It will deliver to the Underwriter prior to or at the
Closing Date a properly completed and executed United States Treasury
Department Form W-8BEN (or other applicable form or statement specified by
the Treasury Department regulations in lieu thereof) in order to facilitate
the Underwriter's documentation of its compliance with the reporting and
withholding provisions of the Tax Equity and Fiscal Responsibility Act of
1982 with respect to the transactions herein contemplated.
Conditions of Underwriter's Obligations. The obligation of the Underwriter
to purchase the Shares on the Closing Date as provided herein is subject to the
performance by the Company and the Selling Stockholder of their respective
covenants and other obligations hereunder and to the following additional
conditions:
Registration Compliance; No Stop Order. The Registration Statement (or
if a post-effective amendment thereto is required to be filed under the
Securities Act, such post-effective amendment) shall have become effective,
and the Underwriter shall have received notice thereof, not later than 5:00
P.M., New York City time, on the date hereof; no order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceeding for such purpose or pursuant to Section 8A under the Securities
Act shall be pending before or threatened by the Commission; the Prospectus
and each Free Writing Prospectus shall have been timely filed with the
Commission under the Securities Act (in the case of a Free Writing
Prospectus, to the extent required by Rule 433 under the Securities Act)
and in accordance with Section 5(a) hereof; and all requests by the
Commission for additional information shall have been complied with to the
reasonable satisfaction of the Underwriter.
Representations and Warranties. The respective representations and
warranties of the Company and the Selling Stockholder contained herein
shall be true and correct on the date hereof and on and as of the Closing
Date; and the statements of the Company and its officers and of the Selling
Stockholder and its officers made in any certificates delivered pursuant to
this Agreement shall be true and correct on and as of the Closing Date.
No Downgrade. Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, (i) there shall not have occurred
any downgrading, nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded (x)
the Company or any of its subsidiaries, any of the Company's or its
subsidiaries' securities or in the rating outlook for the Company or any of
its subsidiaries and (y) the Selling Stockholder or any of its
subsidiaries, any of the Selling Stockholder's
or its subsidiaries' securities or in the rating outlook for the Selling
Stockholder or any of its subsidiaries, in each case by any "nationally
recognized statistical rating organization", as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act (in each case other
than an announcement with positive implications of a possible upgrading).
No Material Adverse Change. No event or condition of a type described
in Section 3(h) hereof shall have occurred or shall exist, which event or
condition is not described in the Time of Sale Information (excluding any
amendment or supplement thereto pursuant to termination of old contracts
and entry into new contracts by prospective purchasers) and the Prospectus
(excluding any amendment or supplement thereto) and the effect of which in
the judgment of the Underwriter makes it impracticable or inadvisable to
proceed with the offering, sale or delivery of the Shares on the Closing
Date, on the terms and in the manner contemplated by this Agreement, the
Time of Sale Information and the Prospectus.
Officer's Certificate. The Underwriter shall have received on and as
of the Closing Date a certificate:
with respect to the Company, in form and substance reasonably
satisfactory to the Underwriter, of an executive officer of the Company (A)
confirming that such officer has carefully reviewed the Registration
Statement, the Time of Sale Information and the Prospectus and, to the best
knowledge of such officer, the representation of the Company set forth in
Section 3(b) hereof is true and correct, (B) confirming that the other
representations and warranties of the Company in this Agreement are true
and correct and that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to such Closing Date and (C) to the effect set forth in
paragraphs (a), (c) and (d) above with respect to the Company and its
subsidiaries and
with respect to the Selling Stockholder, in form and substance
reasonably satisfactory to the Underwriter, of an executive officer or
chief accounting officer of the Selling Stockholder and one additional
senior executive officer of the Selling Stockholder who is satisfactory to
the Underwriter (A) confirming that such officers have carefully reviewed
the Registration Statement, the Time of Sale Information and the Prospectus
and the representation of the Selling Stockholder set forth in Section 4(e)
hereof is true and correct, (B) confirming that the other representations
and warranties of the Selling Stockholder in this Agreement are true and
correct and that the Selling Stockholder has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date, (C) to the effect set forth in
paragraphs (c) and (d) above with respect to the Selling Stockholder and
its subsidiaries and (D) confirming that the requirements for the delivery
of such Shares to the Underwriter free and clear of all liens,
encumbrances, equities or claims upon payment therefor in accordance with
this Agreement have been complied with.
KPMG Comfort Letters. (i) On the date of this Agreement and on the
Closing Date KPMG LLP, independent public accountants, with respect to the
Company and its subsidiaries, shall have furnished to the Underwriter, at
the request of the Company, letters, dated the respective dates of delivery
thereof and addressed to the Underwriter in form and substance reasonably
satisfactory to the Underwriter, containing statements and information of
the type customarily included in accountants' "comfort letters" to
Underwriter with respect to the financial statements and certain financial
information contained or incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus; provided, that
each letter delivered on the Closing Date shall use a "cut-off' date no
more than three business days prior to such Closing Date and (ii) On the
date of this Agreement, KPMG ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, S.C., independent public
accountants with respect to Grupo KCSM, S.A. de C.V. and its subsidiaries,
shall have furnished to the Underwriter, at the request of the Company, a
letter dated the date of this Agreement and addressed to the Underwriter,
in form and substance reasonably satisfactory to the Underwriter,
containing statements and information of the type customarily included in
accountants' "comfort letters" with respect to the financial statements and
certain financial information contained or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus
provided, that such letter shall use a "cut-off' date no more than three
business days prior to the date of this Agreement..
PWC Comfort Letters. On the date of this Agreement
PricewaterhouseCoopers S.C., independent public accountants with respect to
Grupo KCSM, S.A. de C.V. and its subsidiaries, shall have furnished to the
Underwriter, at the request of the Company, a letter dated the date of this
Agreement and addressed to the Underwriter, in form and substance
reasonably satisfactory to the Underwriter, containing statements and
information of the type customarily included in accountants' "comfort
letters" with respect to the financial statements and certain financial
information contained or incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus provided, that
such letter shall use a "cut-off' date no more than three business days
prior to the date of this Agreement.
Opinion of Counsel for the Company. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP,
outside United States counsel for the Company, and White & Case, outside
Mexican counsel for the Company, shall have furnished to the Underwriter,
at the request of the Company, their written opinions, dated the Closing
Date and addressed to the Underwriter, in form and substance reasonably
satisfactory to the Underwriter, to the effect set forth in Annex A-1 and
A-2, respectively, hereto.
Opinion of U.S. and Mexican Counsel for the Selling Stockholder.
▇▇▇▇▇▇ and ▇▇▇▇▇ LLP, U.S. counsel for the Selling Stockholder, and ▇▇▇▇▇▇
and ▇▇▇▇▇ ▇.▇., Mexican counsel for the Selling Stockholder, shall have
furnished to the Underwriter, at the request of the Selling Stockholder,
their written opinions, dated the Closing Date and addressed to the
Underwriter, in form and substance reasonably satisfactory to the
Underwriter, to the effect set forth in Annex B hereto.
Opinion of U.S. Counsel for the Underwriter. The Underwriter shall
have received on and as of the Closing Date an opinion of Shearman &
Sterling LLP, U.S. counsel for the Underwriter, with respect to such
matters as the Underwriter may reasonably request, and such counsel shall
have received such documents and information as they may reasonably request
to enable them to pass upon such matters.
No Legal Impediment to Sale. No action shall have been taken and no
statute, rule, regulation or order shall have been enacted, adopted or
issued by any federal, state or foreign governmental or regulatory
authority that would, as of the Closing Date prevent the sale of the
Shares; and no injunction or order of any federal, state or foreign court
shall have been issued that would, as of the Closing Date prevent the sale
of the Shares.
Good Standing. The Underwriter shall have received on and as of the
Closing Date satisfactory evidence of the good standing of the Company and
its subsidiaries and the Selling Stockholder (certified copy of
Registration of the Selling Stockholder, or any Mexican subsidiary of the
Company, as the case may be, before the public registry of Commerce) in
their respective jurisdictions of organization and their good standing as
foreign entities in such other jurisdictions as the Underwriter may
reasonably request, in each case in writing or any standard form of
telecommunication from the appropriate Governmental Authorities of such
jurisdictions.
Additional Documents. On or prior to the Closing Date the Company and
the Selling Stockholder shall have furnished to the Underwriter such
further certificates and documents as the Underwriter may reasonably
request.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriter.
Indemnification and Contribution.
Indemnification of the Underwriter by the Company. The Company agrees
to indemnify and hold harmless the Underwriter, its affiliates, directors
and officers and each person, if any, who controls the Underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus (or any amendment or supplement thereto), any Free Writing
Prospectus or any Time of Sale Information, or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities arise out of, or are
based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
any information relating to the Underwriter furnished to the Company in
writing by the Underwriter expressly for use therein, it being understood
and agreed that the only such information furnished by the Underwriter
consists of the information described as such in subsection (d) below.
Indemnification of the Underwriter and the Company by the Selling
Stockholder. The Selling Stockholder agrees to indemnify and hold harmless
(i) the Underwriter, its affiliates, directors and officers and each
person, if any, who controls the Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including,
without limitation, the legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted, as
such fees and expenses are incurred), joint or several, that arise out of,
or are based upon, any untrue statement or alleged untrue statement of a
material fact relating to the Selling Stockholder provided in writing to
the Company by the Selling Stockholder for use in, and contained in, the
Registration Statement or the Prospectus (or any amendment or supplement
thereto), any Free Writing Prospectus or any Time of Sale Information, or
caused by any omission or alleged omission to state therein a material fact
about the Selling Stockholder required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to the
Underwriter furnished to the Company in writing by the Underwriter
expressly for use therein, it being understood and agreed that the only
such information furnished by the Underwriter consists of the information
described as such in subsection (d) below; and (ii) the Company, its
affiliates, directors and officers and each person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (including, without limitation, the legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred),
joint or several, that arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact relating to the
Selling Stockholder provided in writing to the Company by the Selling
Stockholder for use in, and contained in, the Registration Statement or the
Prospectus (or any amendment or supplement thereto), any Free Writing
Prospectus or any Time of Sale Information, or caused by any omission or
alleged omission to state therein a material fact about the Selling
Stockholder required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
Notwithstanding anything to the contrary contained herein, the aggregate
liability of the Selling Stockholder under Section 8 hereof shall not exceed the
net proceeds received by such Selling Stockholder hereunder.
Indeminifcation of the Selling Stockholder by the Company. The Company
agrees to indemnify and hold harmless the Selling Stockholder, its
affiliates, directors and officers and each person, if any, who controls
the Selling Stockholder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (including, without limitation, the legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred),
joint or several, that arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto), any Free Writing Prospectus or any Time of Sale Information, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or liabilities
arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in
conformity with information relating to the Selling Stockholder furnished
to the Company in writing by the Selling Stockholder expressly for use
therein.
Indemnification of the Company and the Selling Stockholder. The
Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who signed the
Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act and the Selling Stockholder to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any
losses, claims, damages or liabilities that arise out of, or are based
upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information
relating to the Underwriter furnished to the Company in writing by the
Underwriter expressly for use in the Registration Statement, the Prospectus
(or any amendment or supplement thereto), any Free Writing Prospectus or
any Time of Sale Information.
Notice and Procedures. If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought
or asserted against any person in respect of which indemnification may be
sought pursuant to the preceding paragraphs of this Section 8, such person
(the "Indemnified Person") shall promptly notify the person against whom
such indemnification may be sought (the "Indemnifying Person") in writing;
provided that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have under this Section 8 except
to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall
not relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 8. If any such proceeding shall be
brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall
retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others entitled to indemnification
pursuant to this Section 8 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such
counsel related to such proceeding, as incurred. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary; (ii) the Indemnifying
Person has failed within a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Person; (iii) the Indemnified Person shall
have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the
Indemnifying Person; or (iv) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and
the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them. It is understood and agreed that the Indemnifying
Person shall not, in connection with any proceeding or related proceeding
in the same jurisdiction, be liable for the fees and expenses of more than
one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be paid or reimbursed as
they are incurred. Any such separate firm for the Underwriter, its
affiliates, directors and officers and any control persons of the
Underwriter shall be designated in writing by the Underwriter, any such
separate firm for the Company, its directors, its officers who signed the
Registration Statement and any control persons of the Company shall be
designated in writing by the Company and any such separate firm for the
Selling Stockholder shall be designated in writing by the Selling
Stockholder. The Indemnifying Person shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify each Indemnified Person from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of
any proceeding effected without its written consent if (i) such settlement
is entered into more than 30 days after receipt by the Indemnifying Person
of such request and (ii) the Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of
such settlement. No Indemnifying Person shall, without the written consent
of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or
could have been a party and indemnification could have been sought
hereunder by such Indemnified Person, unless such settlement (x) includes
an unconditional release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on
claims that are the subject matter of such proceeding and (y) does not
include any statement as to or any admission of fault, culpability or a
failure to act by or on behalf of any Indemnified Person.
Contribution. If the indemnification provided for in paragraphs (a),
(b), (c) and (d) above is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraph, in
lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person as a
result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by
the Company and the Selling Stockholder on the one hand and the Underwriter
on the other from the offering of the Shares or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company and
the Selling Stockholder on the one hand and the Underwriter on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Selling Stockholder on the one hand and the Underwriter on the other shall
be deemed to be in the same respective proportions as the net proceeds
(before deducting expenses) received by the Selling Stockholder from the
sale of the Shares and the total underwriting discounts and commissions
received by the Underwriter in connection therewith, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate
offering price of the Shares. The relative fault of the Company and the
Selling Stockholder on the one hand and the Underwriter on the other shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company and the Selling Stockholder or by the Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
Limitation on Liability. The Company, the Selling Stockholder and the
Underwriter agree that it would not be just and equitable if contribution
pursuant to this Section 8 were determined by pro rata allocation (even if
the Selling Stockholder or the Underwriter were treated as one entity for
such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (f) above.
The amount paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to in paragraph (f) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Person in connection
with any such action or claim. Notwithstanding the provisions of this
Section 8, in no event shall the Underwriter be required to contribute any
amount in excess of the amount by which the total underwriting discounts
and commissions received by the Underwriter with respect to the offering of
the Shares exceeds the amount of any damages that the Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
Non-Exclusive Remedies. The remedies provided for in this Section 8
are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any Indemnified Person at law or in equity.
Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
Termination. This Agreement may be terminated in the absolute discretion of
the Underwriter, by notice to the Company and the Selling Stockholder, if after
the execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by any
of the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options Exchange, the
Chicago Mercantile Exchange or the Chicago Board of Trade; (ii) trading of any
securities issued or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market; (iii) a general moratorium on
commercial banking activities shall have been declared by federal or New York
State authorities; or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis,
either within or outside the United States, that, in the judgment of the
Underwriter, is material and adverse and makes it impracticable or inadvisable
to proceed with the offering, sale or delivery of the Shares on the Closing Date
on the terms and in the manner contemplated by this Agreement, the Time of Sale
Information and the Prospectus.
Payment of Expenses. (b) Whether or not the transactions contemplated by
this Agreement are consummated or this Agreement is terminated, the Company will
pay or cause to be paid all costs and expenses incident to the performance of
its obligations hereunder, including without limitation, (i) the costs incident
to the sale, preparation and delivery of the Shares and any taxes payable in
that connection; (ii) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement, the Preliminary
Prospectus, any Free Writing Prospectus, the Time of Sale Information and the
Prospectus (including all exhibits, amendments and supplements thereto) and the
distribution thereof; (iii) the costs of reproducing and distributing any other
documents relating to the offering of the Shares; (iv) the fees and expenses of
the Company's counsel and independent accountants; (v) the fees and expenses
incurred in connection with the registration or qualification and determination
of eligibility for investment of the Shares under the laws of such jurisdictions
as the Underwriter may designate and the preparation, printing and distribution
of a Blue Sky Memorandum (including the related fees and expenses of counsel for
the Underwriter); (vi) the cost of preparing stock certificates; (vii) the costs
and charges of any transfer agent and any registrar; (viii) all expenses and
application fees incurred in connection with any filing with, and clearance of
the offering by, the National Association of Securities Dealers, Inc.
If (i) the Selling Stockholder for any reason fails to tender the
Shares for delivery to the Underwriter or (ii) the Underwriter declines to
purchase the Shares for any reason permitted under this Agreement, the
Selling Stockholder agrees to reimburse the Underwriter for all
out-of-pocket costs and expenses (including the fees and expenses of their
counsel) reasonably incurred by the Underwriter in connection with this
Agreement and the offering contemplated hereby.
The Selling Stockholder shall pay all Selling Expenses, and shall
reimburse the Company for all Registration Expenses (as such terms are
defined in the Letter Agreement), related to the offering and sale of the
Shares and the performance of the
Company's obligations hereunder and under the Registration Rights Agreement
and Letter Agreement. The Selling Stockholder shall be credited with all
Registration Expenses advanced by the Selling Stockholder to the Company
prior to the Closing Date. One business day prior to the Closing Date, the
Company shall provide to the Underwriter and the Selling Stockholder a
written good faith estimate of the total Registration Expenses incurred,
net of all Registration Expenses theretofore advanced by the Selling
Stockholder to the Company (the "Estimated Net Registration Expenses"),
provided, however, that if the Company fails to provide such written good
faith estimate of the Estimated Net Registration Expenses then the amount
of the Estimated Net Registration Expenses shall be $367,000. The
Underwriter shall disburse the offering proceeds net of underwriting
discounts and commissions, Selling Expenses and the Estimated Net
Registration Expenses to the Selling Stockholder and concurrently disburse
the Estimated Net Registration Expenses to the Company. The Company shall
provide the Underwriter and the Selling Stockholder with copies of all
invoices for Registration Expenses actually incurred as and when received
by the Company. Any amount by which the Estimated Net Registration Expenses
exceed the total Registration Expenses actually incurred less all
Registration Expenses theretofore advanced by the Selling Stockholder to
the Company and any Registration Expenses remitted to the Company by the
Underwriter in accordance with this Section 11(c) (the "Actual Net
Registration Expenses") shall be reimbursed by the Company to the Selling
Stockholder not later than 30 days after the date the Actual Net
Registration Expenses are finally determined. Any amount by which the
Actual Net Registration Expenses exceed the Estimated Net Registration
Expenses shall be reimbursed by the Selling Stockholder to the Company not
later than 30 days after the date the Actual Net Registration Expenses are
finally determined. It is specifically understood and agreed that the
Underwriter and the Selling Stockholder may rely on the written good faith
estimate provided by the Company as set out above, as the case may be, and
shall have no responsibility therefor other than as set forth in this
Section 11(c).
Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and any controlling persons referred
to in Section 8 hereof. Nothing in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein. No
purchaser of Shares from the Underwriter shall be deemed to be a successor
merely by reason of such purchase.
Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company, the Selling
Stockholder and the Underwriter contained in this Agreement or made by or on
behalf of the Company, the Selling Stockholder or the Underwriter pursuant to
this Agreement or any certificate delivered pursuant hereto shall survive the
delivery of and payment for the Shares and shall remain in full force and
effect, regardless of any termination of this Agreement or any investigation
made by or on behalf of the Company, the Selling Stockholder or the Underwriter.
Certain Defined Terms. For purposes of this Agreement, (c) except where
otherwise expressly provided, the term "affiliate" has the meaning set forth in
Rule 405 under the Securities Act; (b) the term "business day" means any day
other than a day on which banks are permitted or required to be closed in New
York City; and (c) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act; and (d) the term "significant subsidiary" has the
meaning set forth in Rule 1-02 of Regulation S-X under the Exchange Act.
Miscellaneous.
Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or
transmitted and confirmed by any standard form of telecommunication.
Notices to the Underwriter shall be given to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Attention: Equity
Syndicate Desk with a copy to the Legal Department. Notices to the Company
shall be given to it at Kansas City Southern, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (Fax: 816983-1227); Attention: General Counsel.
Notices to the Selling Stockholder shall be given to the Selling
Stockholder at Grupo TMM, S.A., ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, DF (Fax: 5255-5666-1486);
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
Governing Law; Submission to Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of New
York.
Each of the Selling Stockholder, the Company and the Underwwriter
irrevocably agrees that any legal suit, action or proceeding arising out of or
based upon this Agreement or the transactions contemplated hereby ("Related
Proceedings") may be instituted in the federal courts of the United States of
America located in the City of New York or the courts of the State of New York
in each case located in the Borough of Manhattan in the City of New York
(collectively, the "Specified Courts"), and irrevocably submits to the
jurisdiction of such courts in any such suit, action or proceeding. The Selling
Stockholder has appointed CT Corporation
System as its authorized agent in the Borough of Manhattan in The City of New
York upon which process may be served in any such suit, action or proceeding
relating to this Agreement, and agrees that service of process upon such agent,
and written notice of said service to the Selling Stockholder by the person
serving the same to the address provided in paragraph (b) above, shall be deemed
in every respect effective service of process upon the Selling Stockholder in
any such suit, action or proceeding. The Selling Shareholder further agrees
that, in the event that CT Corporation System shall at any time cease to be such
duly appointed and authorized agent for service of process, it shall take any
and all action as may be necessary to ensure that there shall be a duly
appointed and authorized agent for service of process in the Borough of
Manhattan, The City of New York. Each of the Selling Stockholder, the Company
and the Underwriter hereby irrevocably and unconditionally, to the fullest
extent permitted by law, waives any objection to the laying of venue of any
lawsuit, action or other proceeding in the Specified Courts, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such lawsuit, action or other proceeding brought in any such
court has been brought in an inconvenient forum.
With respect to any Related Proceedings, the Selling Stockholder
irrevocably waives, to the fullest extent permitted by applicable law,
all immunity (whether on the basis of sovereignty or otherwise) from
jurisdiction, service of process, attachment (both before and after
judgment) and execution to which it might otherwise be entitled in the
Specified Courts, and with respect to any judgment by a Specified
Court ("Related Judgment"), the Selling Stockholder waives any such
immunity in the Specified Courts or any other court of competent
jurisdiction, and will not raise or claim or cause to be pleaded any
such immunity at or in respect of any such Related Proceeding or
Related Judgment, including, without limitation, any immunity pursuant
to the United States Foreign Sovereign Immunities Act of 1976, as
amended.
Nothing herein shall be construed to prevent or impair the right of
the Underwriter to serve process in any other manner permitted by law.
Counterparts. This Agreement may be signed in counterparts (which may
include counterparts delivered by any standard form of telecommunication),
each of which shall be an original and all of which together shall
constitute one and the same instrument.
Amendments or Waivers. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in
any event be effective unless the same shall be in writing and signed by
the parties hereto.
Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
If the foregoing is in accordance with your understanding, please
indicate your acceptance of this Agreement by signing in the space
provided below.
Very truly yours,
KANSAS CITY SOUTHERN
By:
----------------------------------
Name:
Title:
GRUPO TMM, S.A.
By:
----------------------------------
Name:
Title:
Accepted: December 4, 2006
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: ▇▇▇▇▇▇ STANLEY& CO. INCORPORATED
By:
------------------------------------
Name:
Title:
Schedule I
Underwriter Number of Shares
----------- ----------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 1,494,469
---------
Total 1,494,469
Annex A-1
[Form of Opinion of United States Counsel for the Company]
Annex A-2
[Form of Opinion of Mexican Counsel for the Company]
Annex B-1
[Form of Opinion of Counsel for the Selling Stockholder]
Annex C-1
Time of Sale Information
Annex D-2
[Free Writing Prospectuses]
NONE.