Exhibit 2.2
[Translation note: On the upper left side of each page
appears a seal in which, among other, the following text
may be identified: "Lic. Erick Salvador Pullian Aburto.
Notary Public No. 196, Mexico, Federal District."]
[Translation note: On each page appears
a seal in which the following text may be
identified:"Notary Public No. 120, Principal.
Lic. Jose Luis Farias Montemayor.
Monterrey, N.L. Mex. First District."]
[Banamex Letterhead]
AMENDMENT AGREEMENT
TO THE TRUST AGREEMENT NUMBER 111033-9 ENTERED INTO BY AND BETWEEN CEMEX, S.A.
DE C.V., REPRESENTED HEREIN BY MR. RAMIRO VILLARREAL MORALES, IN HIS CAPACITY
OF SECRETARY OF THE BOARD OF DIRECTORS AND GENERAL ATTORNEY-IN-FACT OF THE
COMPANY, HEREINAFTER AND FOR THE PURPOSES OF THIS AGREEMENT REFERRED TO AS
"CEMEX", AND BANCO NACIONAL DE MEXICO, S.A., GRUPO FINANCIERO BANAMEX,
REPRESENTED HEREIN BY MESSRS. FRANCISCO JOSE BALTAZAR RODRIGUEZ AND MARIA DE
LOS ANGELES MONTEMAYOR GARZA, IN THEIR CAPACITY OF TRUST OFFICERS OF SUCH
INSTITUTION, HEREINAFTER AND FOR THE PURPOSES OF THIS AGREEMENT REFERRED TO AS
THE "TRUSTEE", WHO AGREE TO FORMALIZE THEIR AGREEMENT PURSUANT TO THE
FOLLOWING STATEMENTS AND CLAUSES.
---WITNESSETH---
I. The Parties hereby declare:
A) That they mutually acknowledge the legal capacity with which they
appear to execute this Agreement, having the authority to bind
their represented parties under the terms and conditions set forth
herein.
B) That on September 6, 1999, they entered into a Trust Agreement
registered under number 111033-9 to issue the Non-Redeemable
Ordinary Participation Certificates denominated "CEMEX.CPO",
referred to herein and for the effects of this Agreement only as
the "Trust".
C) That they ratify the rights and obligations set forth in the Trust.
D) That on April 25, 2002, "Cemex, Sociedad Anonima de Capital
Variable", held n Extraordinary General Shareholders Meeting,
whereby it was agreed to amend certain articles of its bylaws to
adequate its language and comply with the new provisions of the
Securities Market Law ("Ley del Mercado de Valores"), as well as to
include in its bylaws, additional provisions to those set forth in
the General Law of Commercial Companies ("Ley General de Sociedades
Mercantiles") to introduce measures to prevent the acquisition of
stock that grant the control of the corporation, either directly or
indirectly, having been protocolized through public deed number
75,536 dated July 4th, 2002, granted before Mr. Juan Manuel Garcia
Garcia, Notary Public Number 129, practicing in the city of San
Pedro Garza Garcia, Nuevo Leon, which was duly recorded in the
Public Registry of Commerce of the corporate address of
<page>
[Translation note: On the upper left side of each page
appears a seal in which, among other, the following text
may be identified: "Lic. Erick Salvador Pullian Aburto.
Notary Public No. 196, Mexico, Federal District."]
[Translation note: On each page appears
a seal in which the following text may be
identified:"Notary Public No. 120, Principal.
Lic. Jose Luis Farias Montemayor.
Monterrey, N.L. Mex. First District."]
CEMEX. A certified copy of such public deed is attached to this
amendment agreement in the form of "Exhibit A".
E) That in the above-mentioned Meeting, the company was authorized to
amend trust agreement number 111033-9 in which Banco Nacional de
Mexico, S.A. acts as Trustee, to amend its clauses to the statutory
amendments and agreements adopted in the Extraordinary Meeting,
authorizing the Chairman and Secretary of the Board of Directors,
who may act jointly or severally, to formalize the amendment to the
trust agreement issuing the "CEMEX.CPO".
F) That the Technical Committee of the TRUST, in its session dated
November 7, 2002, agreed to instruct the TRUSTEE, authorizing it to
formalize the amendment to the above-referenced trust agreement, in
order to comply with the resolutions adopted in the Extraordinary
General Shareholders Meeting of Cemex, S.A. de C.V., held on April
25, 2002. A certified copy of the corresponding minutes is attached
to this amendment agreement in the form of "Exhibit B".
G) That on November 5, 2002 a General Meeting of Non-Redeemable
Ordinary Participation Certificate "CEMEX.CPO" Holders was held,
whereby it was agreed to amend clauses Seven, Eight and Nine of the
issuance deed of the Non-Redeemable Ordinary Participation
Certificates "CEMEX.CPO", as well as clauses Fourth, Fifth and
Eleventh of trust agreement number 111033-9, having been
protocolized through public deed number 29.688 dated November 14,
2002, granted before Mr. Francisco Garza Calderon, Notary Public
Number 75, practicing in the city of San Pedro Garza Garcia, Nuevo
Leon. A certified copy of such public deed is attached to this
amendment agreement in the form of "Exhibit C".
H) That the TRUSTEE and CEMEX jointly filed a document before the
National Banking and Securities Commission ("Comision Nacional
Bancaria y de Valores") requesting its approval for the amendment
of clauses Seven, Eight and Nine of the issuance certificate of the
Non-Redeemable Ordinary Participation Certificates "CEMEX.CPO", as
well as clauses Fourth, Fifth and Eleventh of trust agreement
number 111033-9.
I) That they freely enter into this Agreement, pursuant to the
following:
---CLAUSES---
FIRST: PURPOSE OF THE AGREEMENT.
This Agreement is being executed for purposes of expressly evidencing the
amendments to the rights and obligations of each of the parties appearing
under any capacity in the TRUST, binding them to subject themselves to the
terms and conditions that arise as a result of the execution of this
instrument.
2
Amendment Agreement to Trust Agreement Number 111033-9
<page>
[Translation note: On the upper left side of each page
appears a seal in which, among other, the following text
may be identified: "Lic. Erick Salvador Pullian Aburto.
Notary Public No. 196, Mexico, Federal District."]
[Translation note: On each page appears
a seal in which the following text may be
identified:"Notary Public No. 120, Principal.
Lic. Jose Luis Farias Montemayor.
Monterrey, N.L. Mex. First District."]
SECOND: OF THE TOTAL ASSETS AND ITS INCREMENTS.
The parties hereby agree to amend clauses Fourth, Fifth and Eleventh of the
TRUST, which shall read as follows:
"FOURTH: RIGHTS AND OBLIGATIONS:
a. HOLDERS OF "CPO's": The individuals or legal entities, bodies,
trusts or companies, either Mexican or foreign, that acquire
the "CPO's" issued pursuant to this "TRUST", and the
individuals or legal entities, bodies, trusts or companies,
either Mexican or foreign, that adhere to it by means of a
contribution of "SHARES".
The persons referred to in the preceding paragraph, by the mere
fact of acquiring and holding the "CPO's", and for the mere
contribution of the "SHARES", shall be subject to the terms,
conditions and provisions contained in this Agreement and its
respective amendments to be implemented, and the respective
Issuance Deed and the certificate or certificates that
represent the "CPO's", and in according with the provisions of
Articles 7 (seven) and 10 (ten) of the Corporate Bylaws of
"CEMEX", in connection with the "CPOs" transfer restrictions or
for the acquisition of material portions of the capital of
"CEMEX".
b. "CEMEX" AND THE "ADHESIVE SETTLORS OF THE TRUST": Regarding
"CEMEX", it shall have the sole and only right to receive from
"THE TRUSTEE", the proceeds from the placement through a public
offering of the issuance of "CPO's", provided that the "SHARES"
have been previously contributed as a result of the issuance or
repurchase of said "SHARES" in accordance with applicable Law,
and "CEMEX" shall also have the right to receive the proceeds
of the placement of "CPO's" that "THE TRUSTEE" may have
repurchased with funds contributed by "CEMEX" or that "THE
TRUSTEE" may have directly repurchased; and in connection with
the "ADHESIVE SETTLORS OF THE TRUST" that contributed "SHARES"
for purposes of placing such "SHARES" among the investing
public, they shall have the right to receive from "THE TRUSTEE"
the proceeds of the offerings through the issuance of "CPO's".
c. The "SETTLORS" that adhere to this Agreement to obtain "CPO's"
with respect to the "SHARES" contributed to the "TRUST", as
well as the persons, bodies or legal entities that acquire
"CPO's", shall have, subject to the provisions of this
agreement, the economic and voting rights with respect to THE
"SHARES" that represent their respective "CPO's" holding
proportions regarding the total assets of the "TRUST". In
addition, the holders of "CPO's" shall have the right to
receive the net proceeds resulting from the sale of "THE
3
Amendment Agreement to Trust Agreement Number 111033-9
<page>
[Translation note: On the upper left side of each page
appears a seal in which, among other, the following text
may be identified: "Lic. Erick Salvador Pullian Aburto.
Notary Public No. 196, Mexico, Federal District."]
[Translation note: On each page appears
a seal in which the following text may be
identified:"Notary Public No. 120, Principal.
Lic. Jose Luis Farias Montemayor.
Monterrey, N.L. Mex. First District."]
SHARES" that form the corresponding proportion of the Total
Assets of the "TRUST" corresponding to each "CPO", or such
"SHARES" or participation certificates issued by the "MASTER
TRUST" in strict compliance with the terms and conditions
agreed in this Agreement."
"FIFTH: PURPOSES OF THE "TRUST".
The purposes of the Trust are:
a. That "THE TRUSTEE" acquires and maintains the trust property of
the "SHARES" that form part of the assets of this "TRUST".
b. That "THE TRUSTEE":
b.1 subscribe the "SHARES" to be issued or repurchased by
"CEMEX" for purposes of their public offering in
compliance with the applicable legal provisions, through
the contribution of "CPO's" to this Trust, and in such
event deliver to "CEMEX" the value of such "SHARES" with
the proceeds of the offering; furthermore, that "THE
TRUSTEE", with the proceeds contributed by "CEMEX" for
such purposes, reacquires "CPO's" for purposes of their
further offering in the terms of applicable law.
b.2 To acquire the trust property of those "SHARES"
contributed by the "ADHESIVE SETTLORS OF THE TRUST", and
b.3 To acquire the trust property of those "SHARES" resulting
from (i) capital stock increases derived from
capitalization of reserves or earnings, and restructuring
of the "SHARES", or (ii) in the event of the shares
resulting from mergers or spin-offs in which "CEMEX"
participates, and (iii) additionally to subscribe and
pay, conditioned to the previous contribution of the
funds required therefor by the BENEFICIARIES, the
"SHARES" resulting from capital stock increases by means
of additional contributions or reinvestment of
distributed earnings.
c. That, further to the terms of this Agreement, "THE TRUSTEE"
issues "CPO's" to be acquired by the individuals or legal
entities, of either Mexican or foreign nationality, provided
that "THE TRUSTEE" may only issue one CPO per three common
ordinary "SHARES" of "CEMEX" stock, two of which shall be
Series "A" shares, and one shall be Series "B" shares,
contributed to this Trust and that form part of the capital of
this "TRUST", consequently, an equal part of the Trust Assets
that will correspond to each "CPO" shall be conformed by two
Series "A" shares and one Series "B" shares, representing the
common, ordinary
4
Amendment Agreement to Trust Agreement Number 111033-9
<page>
[Translation note: On the upper left side of each page
appears a seal in which, among other, the following text
may be identified: "Lic. Erick Salvador Pullian Aburto.
Notary Public No. 196, Mexico, Federal District."]
[Translation note: On each page appears
a seal in which the following text may be
identified:"Notary Public No. 120, Principal.
Lic. Jose Luis Farias Montemayor.
Monterrey, N.L. Mex. First District."]
capital stock of "CEMEX"; provided that such
equal part may be amended by virtue of capitalization,
reinvestment of distributed earnings, restructuring of
"SHARES", reductions of capital, amortization of "SHARES", or
by mergers or spin-offs in which "CEMEX" participates.
d. That "THE TRUSTEE" shall transfer, through S.D. Indeval, S.A.
de C.V., the "CPO's" to be issued with respect of "THE SHARES",
to the corresponding national or foreign investors who are
entitled to such "CPO's", and in the same manner to the
national or foreign investors that have contributed "SHARES"
owned by them, to the "TRUST".
e. That `"THE TRUSTEE"', through S.D. Indeval, S.A. de C.V., shall
keep "SHARES" in deposit, provided that such deposit may be
accomplished through one or more other institutions for the
deposit of securities in accordance with the provisions of
applicable Law.
f. That "THE TRUSTEE" shall exercise the economic and corporate
rights vested on "SHARES", provided that the voting rights
shall be exercised through the respective attorneys-in-fact,
further to the following guidelines:
f.1 The "BENEFICIARIES" of Mexican Nationality shall have the
right to attend the Shareholders Meetings of "CEMEX"
either personally or by means of an attorney-in-fact for
purposes of representing and exercising the corporate
rights vested in "THE SHARES" that conform the respective
portion of the Total Assets of the "TRUST" which
corresponds to their respective "CPO" holdings, and for
these purposes it shall be sufficient to give an
instruction addressed to "THE TRUSTEE" with at least 72
(seventy-two) hours in advance to the date and time set
for the Shareholders Meeting of "CEMEX", and shall
jointly submit sufficient evidence, at the discretion of
"THE TRUSTEE", regarding their current "CPO's" holdings,
the nationality of the holder and the nationality of the
effective beneficiary of the "CPO's" in accordance with
the terms and conditions contained in this agreement; on
the other hand, in the event that it may be legally
applicable, "THE TRUSTEE" will issue in favor of the
corresponding "BENEFICIARY" or his respective
attorney-in-fact, the written document evidencing the
number of "SHARES" entitled to vote which islegally
entitled to represent at such Shareholders Meeting,
granting the corresponding Proxy.
f.2 The "BENEFICIARIES" shall be entitled to exercise the
voting rights of THE "SHARES" that conform the Total
Assets of the "TRUST", subject to the terms and
conditions set forth below.
5
Amendment Agreement to Trust Agreement Number 111033-9
<page>
[Translation note: On the upper left side of each page
appears a seal in which, among other, the following text
may be identified: "Lic. Erick Salvador Pullian Aburto.
Notary Public No. 196, Mexico, Federal District."]
[Translation note: On each page appears
a seal in which the following text may be
identified:"Notary Public No. 120, Principal.
Lic. Jose Luis Farias Montemayor.
Monterrey, N.L. Mex. First District."]
f.2(i) The "BENEFICIARIES" of Mexican Nationality shall
exercise the voting rights with the
representation granted in its case by "THE
TRUSTEE" further to the terms of Section f.1
above.
For purposes of this Agreement, "BENEFICIARIES" of
Mexican Nationality shall mean: (i) the individuals
of Mexican nationality, and (ii) the legal entities
whose By-laws include the Foreign Investors
Exclusion Clause, understood as the agreement or
express pact that, either directly or indirectly, no
foreign shareholders or partner or corporations with
foreign investment admission clause, shall be
admitted to participate in such entities.
f.2(ii) The "BENEFICIARIES" of Foreign Nationality
and the "BENEFICIARIES" which are Mexican
entities that directly or indirectly admit the
participation of foreign individuals, entities,
trusts, funds, Governments or any other legal
entities with or without personality, or whose
By-laws include a foreign investment admission
clause, shall be entitled to attend the
Shareholders Meetings of "CEMEX" in the terms of
paragraph (f.1), solely for the purposes of
representing and exercising the voting right of
the Series "B" shares (or shares with
unrestricted circulation) that conform the
respective portion of the total assets of this
"TRUST" corresponding to their "CPO's" holdings,
which shall be fully evidenced jointly with
their nationality, at the time in which they
deliver to "THE TRUSTEE" the respective
instruction with within the anticipation set
forth in this Agreement.
f.2(iii) The instructions to the given by the
"BENEFICIARIES" pursuant to this section (f.1)
shall be in written form, and shall indicate in
every case the complete name, nationality (such
nationality shall be duly proven with a public
document), evidence of being the lawful holder
of the "CPO's", the number of "CPO's" that such
holder is recognized to own, and in the event
that they elect that "THE TRUSTEE" represent THE
"SHARES" corresponding to their "CPO's"
holdings, the direction of the vote in each and
every item to be discussed during the
Shareholders Meeting of "CEMEX", in accordance
with the agenda set forth in the call for the
respective meeting, and any other information
and/or documentation necessary or convenient
that "THE TRUSTEE" requests for identification
or
6
Amendment Agreement to Trust Agreement Number 111033-9
<page>
[Translation note: On the upper left side of each page
appears a seal in which, among other, the following text
may be identified: "Lic. Erick Salvador Pullian Aburto.
Notary Public No. 196, Mexico, Federal District."]
[Translation note: On each page appears
a seal in which the following text may be
identified:"Notary Public No. 120, Principal.
Lic. Jose Luis Farias Montemayor.
Monterrey, N.L. Mex. First District."]
verification purposes. For purposes of the
provisions set forth in the Corporate By-laws of
"CEMEX" with respect to the acquisition,
holdings, ownership and transfer of "SHARES",
the "BENEFICIARIES" upon acquiring the "CPO's"
as a result by any act or legal form, shall do
so in a manner that, in respect of "THE SHARES"
conforming the corresponding proportion of the
"CPO's" acquired, complies with such provisions
of the by-laws, in addition to the provisions of
this Agreement, consequently all acquisitions of
"CPO's" shall be deemed as an acquisition and
transfer of "THE SHARES" that conform the "TOTAL
ASSETS" of "THE TRUST" corresponding to such
"CPO's", and if the provisions of the Corporate
By-laws of "CEMEX" or the terms of this
Agreements are not complied with, the respective
"BENEFICIARIES" will lack capacity to instruct
"THE TRUSTEE" with respect to the vote, nor will
they shall have the right to represent and vote
"THE SHARES" conforming the corresponding
proportion of the Total Assets of the "TRUST"
that correspond to their "CPO" holdings. The
"BENEFICIARIES" may freely use letters, telefax
or any other electronic mean, either through
computer or any other telecommunication devices,
to send their instructions, but at all times
complying with the terms and conditions set
forth in this Agreement.
f.2(iv) "THE TRUSTEE" will vote of the Series "A"
"SHARES" (and such shares that may only be
acquired by persons of Mexican Nationality) that
conform the total assets of the "TRUST", which
proportionally correspond to the "CPO's" held by
foreign "BENEFICIARIES", in the same direction
expressed by the Shareholders that represent the
majority of the Capital Stock entitled to vote.
f.2(v) "THE TRUSTEE" will attend the Shareholders
Meetings of "CEMEX" to represent and vote "THE
SHARES" of any Series or class that conform the
total assets of the "TRUST" and in respect of
which no instructions were received from the
"BENEFICIARIES" further to the terms and
conditions deemed appropriate, except for the
provisions of the preceding paragraph.
f.3 In connection with the representation of "THE SHARES" at
any intended Shareholders Meeting of "CEMEX", it will be
necessary that
7
Amendment Agreement to Trust Agreement Number 111033-9
<page>
[Translation note: On the upper left side of each page
appears a seal in which, among other, the following text
may be identified: "Lic. Erick Salvador Pullian Aburto.
Notary Public No. 196, Mexico, Federal District."]
[Translation note: On each page appears
a seal in which the following text may be
identified:"Notary Public No. 120, Principal.
Lic. Jose Luis Farias Montemayor.
Monterrey, N.L. Mex. First District."]
the "BENEFICIARIES" and "THE TRUSTEE" comply with the
provisions of Articles 7 (seven) and 10 (ten) of the
Corporate Bylaws of "CEMEX" in connection with the "CPO"
transfer restrictions or to acquire material portions of
the capital stock of "CEMEX".
g. That "THE TRUSTEE", through S.D. Indeval, S.A. de C.V., shall
subscribe the approved increases in the capital stock of
"CEMEX", in accordance with the provisions of clause Eighth
below, provided that "THE TRUSTEE" timely receives the
necessary funds from the Holders that desire to increase their
"CPO's" with the subscription to be made by "THE TRUSTEE".
h. That "THE TRUSTEE", through S.D. Indeval, S.A. de C.V., collect
the cash dividends approved by "CEMEX" and distribute such
dividends among the "CPO's" Holders in proportion with their
holdings. With respect to "THE SHARES" issued as a result of
capital increases derived from capitalization of reserves or
earnings, or derived from restructuring of the shares that form
the capital stock of "CEMEX", or resulting from the
reinvestment of earnings or shares delivered by mergers or
spin-offs in which "CEMEX" participates, "THE TRUSTEE" shall
receive and subscribe such "SHARES", and make them a part of
the total assets of "THE TRUST", which in such case shall
conform a part of the respective portion corresponding to each
CPO.
i. That "THE TRUSTEE" shall proceed, further to the provisions of
clause Ninth below, to withdraw from circulation the
corresponding "CPO's" in the event that "CEMEX" redeems "THE
SHARES" or reduces the Capital Stock by means of the respective
reimbursement.
j. That at the expiration of the term of this Agreement, and
further to the terms of clause Eleventh herein, "THE TRUSTEE"
shall proceed:
j.1 In the case of the "BENEFICIARIES" of Mexican
nationality, as defined in section f.2 of this clause, to
withdraw from circulation and to cancel the "CPO's",
awarding in favor of such "BENEFICIARIES" the
proportional part of the total assets of the "TRUST" in
accordance with their proportional holdings.
j.2. In the case of the "BENEFICIARIES" of foreign
nationality, as well as the "BENEFICIARIES" which are
Mexican entities that directly or indirectly admit the
participation of foreign governments, individuals, or
legal entities, acting with or without individual
capacity, to withdraw from circulation and cancel the
"CPO's", (i) to transfer in favor of such "BENEFICIARIES"
only the Series "B" shares (or shares of unrestricted
circulation) that form part of the total assets of
8
Amendment Agreement to Trust Agreement Number 111033-9
<page>
[Translation note: On the upper left side of each page
appears a seal in which, among other, the following text
may be identified: "Lic. Erick Salvador Pullian Aburto.
Notary Public No. 196, Mexico, Federal District."]
[Translation note: On each page appears
a seal in which the following text may be
identified:"Notary Public No. 120, Principal.
Lic. Jose Luis Farias Montemayor.
Monterrey, N.L. Mex. First District."]
the "TRUST" and that proportionally correspond to their
"CPO" holdings, and (ii) with respect to the Series "A"
Shares (or those shares whose holdings are limited to
Mexican nationals) that form part of the total assets of
the "TRUST" and proportionally correspond to their "CPO"
holdings, to contribute such "SHARES" to Trust No. 771-7
named "Master Trust for Neutral Investments" executed by
Nacional Financiera, S.N.C. as trustee, on November 24,
1989 (hereinafter, and for identification purposes, this
trust shall be referred to as the "MASTER "TRUST"), in
accordance with the approvals that are to be granted by
the relevant authorities, and shall proceed to exchange
the Ordinary Participation Certificates to be issued
based on said Trust to the respective "BENEFICIARIES",
through S.D. Indeval, S.A. de C.V., in accordance with
the provisions of Clause Eleventh herein.
j.3 The provisions of sections j.1 and j.2 above shall not be
applicable in the cases in which the transfer implies the
acquisition, transfer or encumbrance in any way of shares
or the rights inherent thereto with respect to the CPO's
or Shares which represent 2% (two percent) of the Capital
Stock of "CEMEX", or that, in the event of an acquisition
of the Property of "CPOs" or Shares represents 20%
(twenty percent) or more of the Capital Stock of "CEMEX",
in which case and for these purposes, "THE TRUSTEE" shall
be bound to the provisions of Articles 7 (seven) and 10
(ten) of the Corporate Bylaws of "CEMEX" in connection
with the "CPO" transfer restrictions or to acquire
material portions of the capital stock of "CEMEX".
k. That "THE TRUSTEE" shall proceed, further to the instructions
received from the Technical Committee designated hereinbelow,
to exchange the Securities that are representing "CPO's" that
are outstanding, for the new Securities in the event that the
Total Assets of "THE TRUST" is modified as a result of
capitalization, reinvestment of distributed earnings,
restructuring of "SHARES", reductions of capital stock of
"CEMEX", redemption of "SHARES", or by mergers or spin-offs in
which "CEMEX" participates. Furthermore, in the event the terms
and conditions under which such "CPO's" should be issued are
amended.
l. That "THE TRUSTEE", upon receipt of the required funds from
"CEMEX", shall temporarily acquire the "CPO's" issued, further
to the terms and conditions that the Technical Committee
instructs in writing, subject to the provisions of article 14
Bis 3, section I, of the Securities Market Law ("Ley del
Mercado de Valores") and the related general applicable
provisions issued by the Comision Nacional Bancaria y de
Valores.
9
Amendment Agreement to Trust Agreement Number 111033-9
<page>
[Translation note: On the upper left side of each page
appears a seal in which, among other, the following text
may be identified: "Lic. Erick Salvador Pullian Aburto.
Notary Public No. 196, Mexico, Federal District."]
[Translation note: On each page appears
a seal in which the following text may be
identified:"Notary Public No. 120, Principal.
Lic. Jose Luis Farias Montemayor.
Monterrey, N.L. Mex. First District."]
m. That "THE TRUSTEE", further to the instructions of the
Technical Committee, shall proceed with the exchange referred
to in Clause First herein; and proceed to apply for the
registration of the "CPO's" in the National Registry of
Securities ("Registro Nacional de Valores"), and before the
applicable authorities and regulatory bodies of other countries
with recognized markets, for purposes of registry and listing
the "CPO's" in the Securities Exchanges of Mexico and other
countries with recognized Markets."
"ELEVENTH: TERM.
The term of this Agreement shall be thirty (30) years counted since September
six (6), nineteen hundred and ninety-nine (1999), date of if its execution. As
long as this Trust and the trust referred to in the next paragraph remain in
effect, the Total Assets of the Trust shall remain devoted to the stated
purposes; both Trust are irrevocable.
Simultaneously with the termination date of the "TRUST", and with the
participation of the Common Representative of the "CPO" Holders, shall proceed
to settle an Irrevocable Trust with a fiduciary institution expressly
authorized for such effects in accordance with applicable laws and subject to
the terms and conditions set forth from time to time by the Technical
Committee, to which "THE TRUSTEE" shall contribute the "SHARES" which are part
of the total assets of the "TRUST", provided that the new Trust shall contain
the purposes, term, rights and obligations which as of such date are set forth
in this "TRUST". For these purposes, the trustee of the new Trust shall
proceed, further to the instructions given by the technical committee, to
substitute the outstanding "CPO's" with the "CPO's" which in its case may be
issued by the institution acting as Trustee for the new Trust.
The "TRUST" may be terminated by any of the events set forth in article 392
(three hundred and ninety-two) of the General Law of Negotiable Instruments
and Credit Transactions ("Ley General de Titulos y Operaciones de Credito")
and which is compatible with this "TRUST", and in such event "THE TRUSTEE",
with the participation of the Common Representative of the `"CPOs" Holders,
and further to the provisions of Clause Fifth section (j), shall proceed as
follows:
a. Shall carry-out the necessary acts to withdraw the "CPO's" that
are owned by Mexican individuals or by Mexican Legal Entities
whose by-laws contain the "Foreign Investment Exclusion Clause"
directly or indirectly (through other corporations or legal
entities) from the market, for purposes of delivering to such
persons the corresponding portion of the total assets of the
"TRUST" with respect to their holdings, with the exception of
the occurrence of any of the events set forth in Articles 7
(seven) and 10 (ten) of the Corporate By-laws of "CEMEX",
referred to in Clause Fifth, Section j.3 (in connection with
the restrictions for the transfer of shares or to acquire
material portions of the Capital Stock) in which event shall
proceed further to the terms of such article. The exchange of
the "CPO's" and the delivery of the "SHARES" that conform
10
Amendment Agreement to Trust Agreement Number 111033-9
<page>
[Translation note: On the upper left side of each page
appears a seal in which, among other, the following text
may be identified: "Lic. Erick Salvador Pullian Aburto.
Notary Public No. 196, Mexico, Federal District."]
[Translation note: On each page appears
a seal in which the following text may be
identified:"Notary Public No. 120, Principal.
Lic. Jose Luis Farias Montemayor.
Monterrey, N.L. Mex. First District."]
the total assets of the "TRUST" shall be done through S.D.
Indeval, S.A. de C.V.
b. Shall carry-out the necessary acts to withdraw the "CPO's" that
are held by foreign persons or by Mexican Entities that do not
have, directly and indirectly (through other corporations or
entities), the "Foreign Investment Exclusions Clause", from the
market, and proceed as follows:
b.1 Regarding the Series "A" Shares (or shares with
restricted circulation whose holdings are limited to
Mexican nationals) that are part of the total assets of
the "TRUST", shall contribute in trust to the "MASTER
TRUST" the corresponding part with respect to the ones
such "CPO's" were issued, provided that per each of the
"CPO's", Nacional Financiera, S.N.C. shall deliver to the
"BENEFICIARIES" the Ordinary Participation Certificates
issued based on the "MASTER TRUST" and that legally
correspond the such holders in proportion to their
holdings;
b.2 Regarding the Series "B" Shares (or shares with
unrestricted circulation) that are part of the total
assets of the "TRUST", shall deliver to such
"BENEFICIARIES" the corresponding portion of the total
assets of the "TRUST" with respect to their holdings,
with the exception set forth in paragraph a) of this
clause; and
b.3 in the absence of, and at the request of the
"BENEFICIARIES" referred to in this paragraph, shall
proceed to transfer the necessary and sufficient Series
"A" shares (or shares with restricted circulation whose
holdings are limited to Mexican nationals) forming part
of the "TRUST" assets to deliver to such "BENEFICIARIES"
the corresponding portion of the proceeds of the sale,
with respect to their holdings.
b.4 The exchange of the "CPO's", the delivery of the Ordinary
Participation Certificates issued based on the "MASTER
TRUST", the delivery of the Series "B" Shares (or shares
with unrestricted circulation) that are part of the total
assets of the "TRUST" and, as the case may be, the
delivery of the sale proceeds of the Series "A" Shares
(or shares with restricted circulation whose holdings are
limited to Mexican nationals) contributed to the Trust
and that legally corresponds to them in according to
their proportions, shall be done through S.D. Indeval,
S.A. de C.V. or '"THE TRUSTEE"', when legally applicable.
11
Amendment Agreement to Trust Agreement Number 111033-9
<page>
[Translation note: On the upper left side of each page
appears a seal in which, among other, the following text
may be identified: "Lic. Erick Salvador Pullian Aburto.
Notary Public No. 196, Mexico, Federal District."]
[Translation note: On each page appears
a seal in which the following text may be
identified:"Notary Public No. 120, Principal.
Lic. Jose Luis Farias Montemayor.
Monterrey, N.L. Mex. First District."]
In any of these events "THE TRUSTEE" shall timely proceed with the
cancellation of the "CPO's" once "THE TRUSTEE" has performed the corresponding
legal actions.
With respect to the provisions of paragraph b.1 above, "THE TRUSTEE" is hereby
bound to perform the necessary actions in order for Nacional Financiera,
S.N.C., in its capacity as Trustee of the "MASTER TRUST", to issue
non-redeemable ordinary participation certificates based on such "MASTER
TRUST", in order that such Certificates may be delivered to the
"BENEFICIARIES" referred to in such paragraph b.1 above.
The termination of this Agreement shall be subject, in any event, to the
provisions of article 228t (two hundred twenty-eight letter t) of the General
Law of Negotiable Instruments and Credit Transactions, which reads as follows:
"ARTICLE 228t.- The trust pursuant to which the issuance us being made shall
not be extinguished while there are unpaid balances as a result of credits
against the trust capital, the certificates or a participation in the products
or earnings"."
THIRD: TERM AND CONTINUITY.
The parties agree to be bound by all the terms set forth in the TRUST and this
Agreement; the rights and obligations of all of the parties in such documents
shall remain in effect, there being no novation of the TRUST. This Agreement
is effective between the parties as of its execution date.
HAVING THIS AGREEMENT BEEN READ BY THE PARTIES WHO HAVE BEEN MADE AWARE OF ITS
CONTENTS AND LEGAL EFFECT, IT IS EXECUTED IN SAN PEDRO GARZA GARCIA, NUEVO
LEON, ON NOVEMBER 21, 2002.
CEMEX
[Illegible Signature]
Cemex, S.A. de C.V.
Mr. Ramiro Villarreal Morales. Secretary of the Board
of Directors and Attorney-In-Fact.
<table>
<caption>
THE TRUSTEE
Banco Nacional de Mexico, S.A.
Grupo Financiero Banamex
<s>
[Illegible Signature] [Illegible Signature]
Mr. Francisco Jose Baltazar Rodriguez. Ms. Maria de los Angeles Montemayor Garza.
Trust Officer. Trust Officer.
</table>
12
Amendment Agreement to Trust Agreement Number 111033-9
<page>
[Translation note: On the upper left side of each page
appears a seal in which, among other, the following text
may be identified: "Lic. Erick Salvador Pullian Aburto.
Notary Public No. 196, Mexico, Federal District."]
[Translation note: On each page appears
a seal in which the following text may be
identified:"Notary Public No. 120, Principal.
Lic. Jose Luis Farias Montemayor.
Monterrey, N.L. Mex. First District."]
I, ATTORNEY-IN-FACT JOSE LUIS FARIAS MONTEMAYOR, Notary Public Number 120 with
authorization to practice in the First Registration District, hereby evidence
and CERTIFY: That this copy is integrated by eleven pages being a legitimate
reproduction of its original which I have before me and I issue for the
benefit of the interested party, registering this document under number
59333/2002 of the Open Minute Registry Book, in Monterrey, Nuevo Leon, United
Mexican States on the 22nd day of the month of November, 2002. IN WITNESS
WHEREOF.
[Illegible Signature]
JOSE LUIS FARIAS MONTEMAYOR
Notary Public Number 120
FAML-371126-IE0
13
Amendment Agreement to Trust Agreement Number 111033-9