General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D General Statement of Beneficial Ownership 16 76K
2: EX-99.1 Miscellaneous Exhibit 7 36K
3: EX-99.2 Miscellaneous Exhibit 1 7K
4: EX-99.3 Miscellaneous Exhibit 14 73K
5: EX-99.9 Miscellaneous Exhibit 14 72K
EX-99.3 — Miscellaneous Exhibit
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EXHIBIT 99.3
(TRANSLATION FROM SPANISH)
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THE PARTIES INCLUDE THE FOLLOWING GENERAL INFORMATION AS AN INTEGRAL PART OF THE AGREEMENT:
AGREEMENT NO.: 49464-EE DATE: 27 OF MARCH 2000
TYPE OF ACCOUNT: INDIVIDUAL (X) JOINT ( ) SEVERAL ( )
ACCOUNT MANAGEMENT: DISCRETIONAL ( ) NON-DISCRETIONAL (X)
LIMITED DISCRETIONAL ( ) LIMIT ______________________________
CUSTOMER INFORMATION:
NAME(S) OR TRADING NAME ADMINISTRADORA CORPORATIVA Y MERCANTIL, S.A. DE C.V.
ADDRESS POTASIO 150 COL. CIUDAD INDUSTRIAL ZIP CODE 34220 DURANGO, MEXICO
TELEPHONE NUMBER 67297082 ******** F.T.R. ACM000223SX2
NATIONALITY MEXICAN IMMIGRATION STATUS ________________________________________________
ACCOUNT NO. ********** BANK ********************* BRANCH *** ACCOUNT TYPE ************
ACCOUNT NO. ********** BANK ********************* BRANCH *** ACCOUNT TYPE ************
LEGAL ENTITIES AND ECONOMIC UNITS:
TYPE OF ENTITY OR UNIT OPEN-END STOCK CORPORATION
INSTRUMENT 11964 DATE 23-02-2000 NOTARY 18
OF ************************ OTHERS ____________________________________________________________
ENTRY IN THE PUBLIC TRADE REGISTRY 17593 DATED 03-03-2000
LEGAL REPRESENTATIVE(S) WHO SIGNED THE AGREEMENT
INSTRUMENT 11964 DATE 23-02-2000 NOTARY 18
OF ************************ OTHERS ____________________________________________________________
ENTRY IN THE PUBLIC TRADE REGISTRY 187201 - 26-08-1996
LEGAL REPRESENTATIVE(S) WHO SIGNED THE AGREEMENT
INSTRUMENT ********************* DATE ********************* NOTARY ******************
OF ________________________ OTHERS ____________________________________________________________
ENTRY IN THE PUBLIC TRADE REGISTRY ***************************************************************
PERSON(S) AUTHORIZED TO MANAGE THE ACCOUNT
INSTRUMENT ********************* DATE ********************* NOTARY ******************
OF ________________________ OTHERS ____________________________________________________________
ENTRY IN THE PUBLIC TRADE REGISTRY ***************************************************************
BENEFICIARY(IES) %BENEFIT
**************************************************** ******************************************
**************************************************** ******************************************
**************************************************** ******************************************
**************************************************** ******************************************
INTEREST ESTABLISHED FOR THE PURPOSES OF SECTION 3 OF THE THIRTY-SEVENTH CLAUSE:
THREE TIMES THE EIIR AT TWENTY-EIGHT (28) DAYS, CORRESPONDING TO THE PERIOD OF
DEFAULT. THE PARTIES HAVING READ THIS AGREEMENT AND FULLY AWARE OF ITS CONTENTS
AND LEGAL SCOPE, THEY SIGN IT IN EVIDENCE ON THE SAME DATE IN TRIPLICATE IN THE
GENERAL INFORMATION SECTION AND ON EACH PAGE OF THIS AGREEMENT IN THE SPACES
INDICATED TO SUCH EFFECT, ONE COPY REMAINING IN THE POSSESSION OF EACH PARTY.
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AUTHORIZED SIGNATURE: TYPE (JOINT)
NAME MAYELA DE LA PAZ RINCON ARREDONDO DE VELASCO F.T.R. *********** SIGNATURE
PROFESSION, PREPONDERANT ACTIVITY: ********************************** (Illegible Signature)
AUTHORIZED SIGNATURE: TYPE (JOINT)
NAME ******************************* F.T.R. *********** SIGNATURE
PROFESSION, PREPONDERANT ACTIVITY: ********************************** *******************************
AUTHORIZED SIGNATURE: TYPE (JOINT)
NAME ******************************* F.T.R. *********** SIGNATURE
PROFESSION, PREPONDERANT ACTIVITY: ********************************** *******************************
NAME ******************************* F.T.R. *********** SIGNATURE
PROFESSION, PREPONDERANT ACTIVITY: ********************************** *******************************
NAME ******************************* F.T.R. *********** SIGNATURE
PROFESSION, PREPONDERANT ACTIVITY: ********************************** *******************************
OBSERVATIONS ______________________________________________________________________________________________
ON BEHALF OF ACCIONES Y VALORES DE MEXICO, S.A. DE C.V.
LUIS DUHART MEADE
(Illegible Signature)
LEGAL REPRESENTATIVE
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INSTRUMENT 19590 DATE 25TH OF NOVEMBER 1996 NOTARY 197
OF MEXICO CITY FEDERAL DISTRICT OTHERS ____________________________________________________________
ENTERED IN THE PUBLIC TRADE REGISTRY WITH FOLIO 17206 ON THE 12TH OF JANUARY 1997
THE CLAUSES AND GENERAL INFORMATION OF THE CUSTOMER FORM AN INTEGRAL PART OF THE
AGREEMENT. AUTHORIZATION OF THE NATIONAL BANKING AND SECURITIES COMMISSION
OFFICIAL LETTER 001 FEBRUARY 27, 1976 NATIONAL SECURITIES COMMISSION
REGISTRATION 20-2 DECEMBER 17, 1975 FEDERAL TAXPAYERS' REGISTRATION
AVM-760909-UKO Paseo de la Reforma 398, Zip Code 06600 Mexico City, Federal
District. Tel. 326-48-48 208-00-11 Fax 225-08-62
SECURITIES TRADING AGREEMENT ENTERED INTO BY AND BETWEEN ACCIONES Y VALORES DE
MEXICO, S.A. DE C.V., BROKERAGE FIRM, MEMBER OF THE BANAMEX ACCIVAL FINANCIAL
GROUP (THE "BROKERAGE FIRM") AND THE PERSON(S) MENTIONED IN THE GENERAL
INFORMATION SECTION OF THIS AGREEMENT (THE "CUSTOMER", AND TOGETHER WITH THE
BROKERAGE FIRM THE "PARTIES") PURSUANT TO THE FOLLOWING:
RECITALS
I. The Brokerage Firm states:
That it is a company incorporated pursuant to the laws of the United Mexican
States and that it possesses the necessary authorizations for the making of this
agreement, and that its representative enjoys all the sufficient and necessary
powers to represent it.
II. The Customer States:
a. He/she is an individual in full use and enjoyment of his/her
faculties, of the nationality indicated in the general information
section of this agreement, which he/she evidences with the documents
attached hereto for such purpose (Only Individuals); (a) It is a
duly incorporated Legal Entity, of the nationality mentioned in the
general information section of this agreement, as evidenced with the
documents attached hereto for such purposes, and that its
representative(s) possess(es) the necessary powers to represent it,
which have not been revoked or restricted;
b. That the resources or funds used for the performance of the
transactions covered by this agreement come and will at all times
come from legal activities; and
c. That he/she/it is aware of and understands the provisions contained
in the Mexican Stock Market Act, and in the circulars issued by the
Mexican National Banking and Securities Commission, published in the
Mexican Official Gazette, which are applicable to the transactions
covered by this agreement and that furthermore, he/she/it is bound
and exclusively responsible for being aware of any change thereto.
d. That he/she/it accepts that the Brokerage Firm should, in the
performance of its transactions, also abide by the general
provisions issued by the Bank of Mexico, and therefore he/she/it
will at all times be bound to consult with the Brokerage Firm
regarding the scopes and changes thereto, insofar as they are
applicable to the transactions performed under the coverage of this
agreement.
Pursuant to the foregoing recitals, the Parties agree on the following:
CLAUSES
DEFINITIONS
First. The terms used starting with a capital letter in this agreement will have
the meanings listed for each of them, which will equally apply to the singular
and plural forms, accordingly:
Agent: Individual authorized by the CNBV to perform transactions with
the public and appointed by the Brokerage Firm, according to
its internal procedures, as its representative to perform
transactions with or on behalf of the Customer.
Self-entry: Transactions by means of which the Brokerage Firm purchases or
sells securities with a variable return on its own behalf,
from those listed in the corresponding chapter of this
agreement, from or to the Customer's position through the BMV,
with the aim of providing the market with liquidity and
facilitating the exchange of instruments between investors.
BMV: Mexican Stock Exchange (Bolsa Mexicana de Valores, S.A. de
C.V.)
Pledge of
Securities: Guaranty over Securities established to ensure the performance
of obligations assumed by the Brokerage Firm with or on behalf
of the Customer.
Circulars: General provisions issued by the CNBV or the Bank of Mexico
according to the respective Securities and transactions.
CNBV: Mexican National Banking and Securities Commission (Comision
Nacional Bancaria y de Valores).
Administrative
Shorts: Result of an international transaction in which the Customer
assumes the status of debtor of the Securities kept in custody
in other entities in virtue of a sales operation in which, due
to a difference between times, days or settlement terms
between the markets involved in such operation, the Customer
does not have enough Securities to perform its obligations
within the settlement term.
Security Custodian and
Administrator: The Brokerage Firm or the lending institution that acts on its
own behalf or as trustee, which has the status of depositor in
the INDEVAL and administers guaranties granted by the Customer
under the coverage of the transactions performed in the terms
of this agreement.
Account: That whose number is identified in the general information
section of this agreement.
Days: Those days other than Saturdays and Sundays on which brokerage
firms are bound to open their offices or branches according to
the calendar published every year by the CNBV in the Mexican
Official Gazette.
Executor: The Brokerage Firm or the lending institution appointed by
mutual agreement of the parties to execute the Pledge of
Securities that is established, as applicable.
Indeval: S.D. INDEVAL, S.A. de C.V. Securities Depository Institution.
Act: Stock Market Act.
Minimum
Amount: Securities, sums in cash or amount of the credit portfolio, if
applicable, necessary to ensure the performance of the
obligations derived from the Securities Loan transactions
performed by the Parties, which will be determined in the
terms of the applicable Circulars.
Securities
Loan: Transaction in virtue of which the owner of the Securities
(the lender), transfers their property to the borrower, who
receives them under loan and is bound, upon maturity of the
established term, to return to the former other Securities
from the same issuer, with the same par value, and of the same
kind, class, series and maturity date; or, in the cases
described in this Agreement, to deliver their cash equivalent;
as well as to pay the established price or premium; and to
refund the product of the property rights that may have been
generated by the Securities during the term of the loan, if so
established.
Repo: Credit transaction in virtue of which the repurchasee acquires
the property of Securities from the repurchaser for a sum of
money and is bound to transfer the property of other
Securities of the same kind to the repurchaser in a stipulated
term and against the refunding of the same price plus a
premium in favor of the repurchasee, if so established.
Short Sale: Is the Securities purchase-sale transaction performed
through the BMV, whose settlement is made by the vendor with
Securities obtained under loan, pursuant to the provisions of
the Act and applicable Circular.
Securities: The shares, obligations, debentures, bonds, certificates and
other negotiable instruments and documents issued in series or
en masse, as well as all those negotiable instruments and
other documents to which the system established by the
Securities Act applies and the transactions performed with
them.
II. GENERAL POWER OF ATTORNEY FOR STOCK MARKET BROKERAGE ACTS
Second. The Customer grants the Brokerage Firm a general power of attorney for
stock market brokerage acts consisting of purchasing, selling, giving under
loan, exchanging, repurchasing, assigning, transferring, performing Short Sales,
participating in Self-Entry transactions, safeguarding, administering, giving
under Pledge, granting guaranties and depositing all type of Securities,
including minted metals; as well as to represent the Customer in meetings of
shareholders, debenture-
holders, holders of share certificates or other Securities and to exercise the
corresponding corporate and property rights, as well as to carry out any act or
transaction related to shares, Securities or other negotiable instruments or
documents authorized by the CNBV that the Customer keeps in the Account.
In the management of the Account, the Brokerage Firm does not assume any
obligation to guarantee returns or yields, and nor is it responsible for the
losses that the investor may suffer as a consequence of the transactions
performed pursuant to the Act and this agreement.
Third. The management of the Account will be discretional or non-discretional as
stated by the Customer in the general information section of this agreement, in
the understanding that in the case of omission it will be understood that the
Customer has opted for the non-discretional management of the Account.
Fourth. In the case that the management of the Account is non-discretional, the
power of attorney contained in this Agreement will be subject to the precise
instructions given to the Brokerage Firm by the Customer in writing or by any of
the means authorized and acknowledged in this agreement for the performance of
any transaction.
Fifth. The Brokerage Firm will fulfill the power of attorney and will perform
all the transactions covered by this agreement, through its Agent, who may be
substituted either temporarily or permanently thereby, at any time. The
Brokerage Firm is bound to inform the Customer of any definitive substitution of
the Agent, in the account statement for the month in which the substitution
occurs. In exercising the power of attorney, the Brokerage Firm may ask the
Customer to confirm its instructions in writing, inclusively using forms
prepared by the Brokerage Firm and to suspend the execution of any instruction
until it receives the confirmation referred to in the foregoing paragraph.
Sixth. The Parties agree that the instructions that the Customer gives to the
Brokerage Firm for the performance of transaction, exercise of rights,
fulfillment of obligations, making of movements in the Account or ordering the
withdrawal of Securities or cash, may be given, except for the provisions of the
fifth clause, either verbally, in writing, personally, by telephone or using any
electronic, computer or telecommunications media established between the
Parties. The Parties expressly acknowledge the telegraph, telex, fax,
tele-informatic elements, e-mail, videotexts, and videophones as valid means for
giving instructions. Furthermore, the Customer authorizes the Brokerage Firm so
that it may record the content of the conversations or instructions given by the
Customer, at its own discretion.
In the case that the Parties use the electronic media referred to in the
foregoing paragraph, the Customer should prove its identity by means of access
codes provided thereto by the Brokerage Firm. The Parties agree that the use of
the access codes referred to by this paragraph: (i) will be the exclusive
responsibility of the Customer, and, (ii) will substitute the use of handwritten
signatures, and therefore the documental or technical evidence derived from the
use of this media will produce the same effects as private documents in the
terms of the Act.
In any case, the Customer's instructions for the performance of transactions or
movements in its Account should state the type of transaction or movement, the
type, kind, class, issuer, quantity, price and any other characteristic required
to identify the Securities subject to each transaction or movement.
Seventh. In the case that the discretional management of the Account is
established, the Parties agree that the following stipulations will be
applicable thereto:
(i) The Brokerage Firm is authorized by the Customer to perform purchase,
sale, repurchase, loan, Self-entry, short sale or other transactions
that may be covered by this agreement in the terms of the Act and of
the Circulars, as well as to exercise the rights derived from the
Securities whose safeguarding and administration has been commissioned
thereto. The foregoing, irrespective of the particular requirements
established in the terms of this agreement for the performance of the
respective transactions. Such transactions and acts will be performed
by the Brokerage Firm acting at its discretion and prudently, and
looking after such account as if it were its own.
(ii) The acts and transactions referred to by the foregoing paragraph will
be ordered by the Agent handling the Account of the Customer, without
the approval or ratification of the Customer being required for each
transaction.
(iii) The Customer may limit the level of discretion in the management of
the Account regarding determined transactions, Securities, amounts or
other aspects by written instruction, which should be given in a
specific and detailed manner.
The level of discretion established in this clause may be revoked at any time by
the Customer by means of written communication in which such revocation is
recorded in a reliable fashion, which will enter into effect on the date of its
reception by the Promotion department of the Brokerage Firm. However,
transactions established prior to such communication, pending performance or
settlement will be performed as established.
Eighth. The Customer is expressly bound to perform with the Brokerage Firm, the
obligations that the latter has contracted with third parties with whom it has
contracted on behalf and by instruction of the Customer pursuant to this
agreement, in their terms.
Ninth. Under no circumstance will the Brokerage Firm be bound to carry out the
instructions of the Customer if the latter does not have the necessary
Securities or funds in its Account, or if the Account does not contain the
necessary credit balances or lines of credit available for the execution of such
instructions.
The Brokerage Firm should be excused from carrying out the instructions of the
Customer that contravene the provisions of the Act, the Circulars or any other
applicable provision, without assuming any liability as a result.
Tenth. The Parties agree that the Brokerage Firm will carry out the orders of
the Customer according to its Transactions Order Reception and Allocation
System, an extract of which is attached to this agreement as an integral part
thereof.
III. SAFEGUARDING AND ADMINISTRATION
Eleventh. The Brokerage Firm is bound to provide the safeguarding and
administration service of the Securities belonging to the Customer, as well as
those that are transferred thereto or acquired on behalf thereof and to keep
them deposited in the Indeval or in another institution authorized for such
effects. Additionally, the Brokerage Firm is bound to make the collections of
returns or yields, to exercise the rights, make the payments and to perform the
necessary acts for the conservation of the rights and performance of the
obligations that the Securities impose on the Customer and regarding which it is
providing the safeguarding and administration service by means of a charge to
the Account as long as it contains the necessary funds and, if applicable, the
required instructions. Under no circumstance will the Brokerage Firm have the
obligation to exercise the rights or judicial or administrative actions related
to the Securities belonging to the Customer.
In the case of cash, when due to any circumstance, the Brokerage Firm is unable
to apply the funds to the transactions instructed by the Customer, on the same
Day of its reception, it should deposit them in a lending institution or acquire
shares representing the capital stock of a mutual fund in debt instruments
selected by the Brokerage Firm on behalf of the Customer.
The physical withdrawal or transfer of the deposited Securities may be performed
or ordered, as applicable, by the Customer or the representative of its
succession or its assignees by means of the signing of the documents requested
by the Brokerage Firm to verify the refund or transfer.
Twelfth. The Customer who wishes to attend a meeting regarding the deposited
Securities, will request it in writing to the Brokerage Firm at least eight Days
in advance of the date on which the participants register is closed and if this
does not exist, prior to the date on which the meeting is to be held, so that
the Brokerage Firm may, in the terms of the law, give the Customer the necessary
documentation to evidence its right of attendance to the respective meeting in
due time.
The power of attorney granted by the Customer to the Brokerage Firm in this
agreement specifically includes the powers referred to by Articles 192 of the
General Law on Business Corporations, 221 and 228 of the General law on
negotiable Instruments and Credit Transactions and other applicable precepts of
these or other laws, so that the Brokerage Firm may represent it in meetings of
shareholders, debenture-holders, holders of share certificates or other
Securities regarding which the safeguarding and administration service is being
provided.
The Customer hereby authorizes the Brokerage Firm to exercise the vote and any
other corporate rights derived from the Securities of the Customer, which it
keeps safeguarded and under administration in the Account, as decided by the
Brokerage Firm at its entire discretion, except when the Account is
non-discretional and as long as in all cases the Brokerage Firm receives written
notification at least five Days in advance of the date of the meeting, which
precisely states that the way in which the respective rights should be
exercised, as well as, where applicable, as long as the Account contains
sufficient funds to exercise the respective rights, at least two Days prior to
the expiration of the term required for the exercise of the respective right.
Except when the Brokerage Firm has not observed the instructions of the
Customer, given in time and in writing in accordance with the foregoing
paragraph, the Customer releases the Brokerage Firm from all liability for the
way in which the respective corporate rights have been exercised, as well as for
any damage or loss caused to the Customer.
The Brokerage Firm will inform the Customer, when so requested in writing by the
latter, regarding the resolutions adopted in the meeting to which the former has
attended in exercise of the power of attorney conferred in the terms of this
agreement.
Thirteenth. The Brokerage Firm should exercise the property rights and make the
payments or exhibitions in relation to the Securities regarding which it is
providing the safeguarding and administration service by means of a charge to
the Account when it has sufficient available funds.
In the case of an non-discretional account and that the Securities grant a right
of option or preference, the Brokerage Firm will exercise such right according
to the instructions of the Customer, as long as it has received sufficient funds
from the Customer at least two Days in advance of the expiration of the term for
making the payment of such right. Additionally, in the case of a discretional
Account, the Brokerage Firm will exercise such rights, as long as sufficient
funds exist in the Account at least two Days prior to the expiration of the term
for making the payment or exercising such right. Regarding discretional
accounts, the provisions of the seventh clause will apply.
The Customer agrees to that the Brokerage Firm is released from all liability
with the Customer for the acts or facts of the Indeval or any pother institution
that provides a similar service, which affect or hinder the exercise of any
right.
Fourteenth. The Brokerage Firm will provide the Customer with the safeguarding
and administration service of investments that consist of bank deposits in money
with interest in the understanding that the funds applied from or to such bank
deposits will always be delivered to Banco Nacional de Mexico, S.A.,
Full-Service Bank. In the case of funds that the Customer delivers in cash to
the Brokerage Firm and that the latter Is unable to apply for the purpose
indicated by the Customer on the same Day of their reception, the Brokerage Firm
should deposit them at the latest by the next Day in the lending institution of
its choice, or acquire shares representing the capital stock of any mutual fund
in debt instruments on behalf of the Customer, including those managed by Banco
Nacional de Mexico, S.A. Full-Service Bank, the Brokerage Firm or any other
member of the Banamex-Accival Financial Group.
Fifteenth. The Parties accept that, in the terms of the Act, the Brokerage Firm
is authorized to subscribe the endorsements and assignments of registered
Securities issued or endorsed in favor of the Customer regarding which the
service referred to by this chapter is being provided, on behalf and in the name
of the Customer.
IV. OWN BEHALF AND SELF-ENTRY TRANSACTIONS
Sixteenth. When due to the characteristics of the Securities traded on the
market or the mechanisms of their operation, the competent authority has
authorized the Brokerage Firm, by means of general provisions, to trade the
aforementioned Securities on its own behalf (i) the Brokerage Firm may perform
transactions directly with the Customer consisting of the purchase, sale,
repurchase and in general to perform any transaction on its own behalf that is
authorized by the competent authority, (ii) the transactions will be established
between the Customer and the Brokerage Firm by means of the Agent, (iii) the
Brokerage Firm will obtain the profit or loss derived from the differences in
the purchase and sale prices of the respective Securities, except when any duty
is established by the CNBV.
Seventeenth. The Customer may, by written notification to the Brokerage Firm,
authorize it to perform Self-entry transactions with shares, the trust
certificates that represent them, property contribution certifications, share
convertible bonds of high, low and medium marketability, as well as regarding
the options kept in its Account. The Brokerage Firm will inform the Customer
regarding these transactions in the terms stipulated in this agreement, and in
the case of options, will inform it of the quotations pursuant to the applicable
Circulars.
The Brokerage Firm may only perform Self-entry transactions (i) when all the
orders of the rest of its customers in the same sense (purchase or sale) have
been fulfilled regarding the Securities of the same issuer and at the same or
higher price, and as long as the order of the Customer has not been established
in the BMV with another Brokerage Firm, as previously indicated by the Customer
to the Brokerage Firm and under its own responsibility; (ii) when the Brokerage
Firm acts as purchaser, and a bid above the price at which the Brokerage Firm is
willing to buy has been made prior to the sale bid by the Customer on the
trading floor of the BMV, and (iii) when the Brokerage Firm acts as vendor when
a lower bid to the price at which the Brokerage Firm is willing to sell has been
presented on the trading floor of the BMV prior to the purchase bid of the
Customer.
The Brokerage Firm may perform Self-entry transactions with low marketability
shares according to the terms and conditions contained in the applicable
Circulars.
V. SHORT SALE TRANSACTIONS
Eighteenth. In the case that the Customer asks the Brokerage Firm to perform any
Short Sale transactions on behalf of the Customer, it should request it in
writing from the Brokerage Firm, which will make a prospectus available to it,
which will clearly explain the characteristics, requirements, stages and risks
inherent to the transaction, which should be signed by the Customer prior to
performing any transactions in the terms of this chapter. Once the prospectus
has been signed by the Customer, it will be considered to form an integral part
of this agreement.
Nineteenth. The Brokerage Firm may only perform Short Sale transactions with
shares, ordinary share certificates over shares and property contribution
certificates that correspond to the categories of high and medium marketability,
as well as any other Security that is authorized by the CNBV for these purposes,
which must be registered in the National Securities Registry.
VI. SECURITIES LOAN TRANSACTIONS
Twentieth. The Brokerage Firm may perform Securities Loan transactions with the
Customer including loans for Short Sales and to cover Administrative Shorts.
The Brokerage Firm may not establish Securities Loan transactions without
instructions from the Customer and written confirmation of the Brokerage Firm
signed by the Customer, even if the Account is discretional in which the
Securities, quantity, term, premium and guaranties will be detailed, the Pledge
of Securities, if applicable, the appointment of the Executor and the terms of
execution, as well as the other general conditions that will govern the
performance of this type of transaction in specific cases, pursuant to the
provisions of the Act and this agreement, as well as the applicable Circulars,
to which it agrees to be bound from the moment it instructs the Brokerage Firm
to perform these transactions. The term will be freely established by the
Parties for each transaction, without being able to exceed the maximum term
established in the applicable Circular. In these transactions, all calculations
will be done using the formula of a commercial year with 360 calendar days and
the number of Days effectively passed.
Twenty-first. Only those Securities authorized in the terms of the applicable
Circulars may be subject to loan, entered in the National Securities Registry
and deposited in the Bank of Mexico, in INDEVAL or in any other authorized
institution for the deposit of Securities. The minimum amount of the loans will
be governed by the provisions of the applicable Circulars and in the case of
government Securities and bank instruments, in the terms provided by the
applicable Circulars, by the operating manuals that the Brokerage Firm will make
available to the Customer, and will be reported by the Brokerage Firm by means
of written communication with acknowledgement of receipt, prior to the
performance of the first Securities Loan transaction.
Twenty-second. In the case that the Customer acts as a lender, only those
Securities that are credited to its Account at the close of trading on the Day
prior to the date agreed for the loan may be subject to lending.
Twenty-third. The transfer of the Securities covered by the loan should be
performed on the same date as the performance of the transaction.
Twenty-fourth. In the case that the Customer acts as borrower, the Securities
Loan transactions in which it participates should be guaranteed with cash,
Securities or with an irrevocable letter of credit granted by the lending
institution of its choice or with any other guaranty authorized pursuant to the
applicable Circulars. In the case of guaranties constituted with Securities,
these may only be established with Securities authorized by the CNBV pursuant to
such Circulars. The guaranty should be established on the same date on which the
Securities are transferred and the Minimum Amount should be the percentage or
sum established by the applicable Circulars and, failing this, that fixed by
mutual agreement of the Parties.
The borrower may substitute the guaranty following authorization of the lender,
or, if applicable, acting on its own behalf, as long as the Minimum Amount is
met in all cases, in the terms of the Circulars and of the stipulations of each
loan transaction.
Twenty-fifth. When the Securities are entrusted to the Brokerage Firm for their
administration and are attached to a Pledge, the Brokerage Firm will act as the
Custodian and Administrator of the Guaranty. In such case, the Brokerage Firm
should: (i) value the Securities under loan on a daily basis, as well as the
corresponding guaranty; (ii) require the borrower to reconstitute or increase
the guaranty in the terms of the applicable Circulars; (iii) release, if
applicable, the proportional part of the guaranty; (iv) notify the Executor when
applicable; (v) makes the Securities given under guaranty available to the
Executor so that it may proceed with the extrajudicial sale thereof, when
applicable, and (vi) release the guaranties following the settlement of the
premium, the agreed commissions and the corresponding expenses to be paid to the
Custodian and Administrator of the Guaranty and once the Securities covered by
the loan have been returned to the lender.
Twenty-sixth. The Parties agree that the Securities Loan transactions may only
be settled with the delivery of the Securities by the Customer or with the
product of the execution of the guaranties. In any case, the loan for the
settlement of pending transactions should respect the maximum terms established
in the applicable Circulars.
Twenty-seventh. The Securities Loan will be terminated in advance: (i) by mutual
agreement of the Parties; (ii) when the quotation of the loaned Securities is
suspended on the BMV within eight Days prior to the maturity date of such
transaction and the suspension lasts for 5 Days; (iii) if the borrower is in
voluntary or involuntary bankruptcy proceedings; and (iv) in the case that the
borrower breaches the obligation to refund the minimum amount of the guaranty,
as agreed with the Brokerage Firm in the instruction referred to in the previous
clause.
If the quotation of the Securities on the BMV is suspended, the transaction will
be settled in cash in the terms of the applicable Circulars.
VII. REPO TRANSACTIONS
Twenty-eighth. In the Repo transactions performed by the Parties: (i) the
Brokerage Firm will act as repurchaser and the Customer as repurchasee, (ii)
they should establish, using any of the forms accepted in the terms of this
agreement, the price, premium and term of the Repo, as well as the class of
Securities subject thereto, as long as they are authorized in the terms of the
Circulars, and (iii) will be subject, regarding anything not provided for in
each transaction and in this agreement, to the provisions of the Act and the
applicable Circulars.
Twenty-ninth. The maximum term of the Repo transactions performed by the Parties
and their extensions will be that which corresponds according to the Act and the
applicable Circulars, depending on the Securities covered by each transaction.
The term established by the Parties may not exceed the maturity date of the
Securities. If the term of the Repo matures on a non-business day, the Repo will
be understood to be automatically extended to the next Day except with regards
to Repos over instruments subject to international arbitrage, in which case the
Brokerage Firm reserves the right to terminate the respective transactions in
advance. The term fixed for the maturity of each transaction may only be
terminated in advance with the consent of the Parties in the cases described by
the Act and the Circulars.
Thirtieth. In the case that the repurchased Securities correspond to the
capitals market and their issuer decree an exchange during the term of the Repo,
the Customer will be bound to deliver Securities from the same issuer equivalent
to those originally received under Repo to the Brokerage Firm; furthermore, in
the case that the Securities confer options to be exercised during the term of
the Repo, the Customer, following the provision of funds at least two Days in
advance, will be bound to exercise such option on behalf of the Brokerage Firm.
In the case that the Securities are traded "at a discount", a) the price agreed
in the Repo will be that resulting from applying the annual discount rate of
purchase-sale transactions between brokerage firms performed in the BMV
corresponding to the date on which the Repo transaction has been established to
the par value of the Securities, and b) the sum of the price plus the
established premium should not exceed the par value of the instruments subjects
to the Repo.
In the case of Securities traded "at price", a) the agreed price may not differ
from the result of adding the price that corresponds to Securities of the same
issue as the repurchased ones covered by the last purchase-sale transactions
performed between brokerage firms in the BMV except for those called "same day
value" to the accrued and unpaid interest of the instruments subject to the
Repo, and b) the sum of the price plus the established premium should not exceed
the result of adding the interest corresponding to the term of the transaction
to the par value of the Securities subject to the Repo, considering for these
effects, the interest rate on the date of their performance. If the Securities
are denominated in a foreign currency, and the price is established in US
dollars, in order to calculate the price, the selling exchange rate published by
the BMV in the "daily movement of the stock market" on the second Day prior to
the date on which the transaction is performed will be used.
The Customer should pay the Brokerage Firm the price of the Repo and the
Brokerage Firm will transfer the respective Securities to the Account of the
Customer, on the same value date, which may not be later than the fourth Day
following the date on which the transaction is established, except for the
provisions of the Circulars depending on the Securities subject to the Repo.
Upon maturity, the aforementioned transfers should be performed on the same
maturity date.
Thirty-first. The premium of Repo transactions will be determined by applying
the rate agreed between the Parties to the price established in each
transaction, as an annual percentage for the duration of the Repo.
Except in the case of extensions, on the maturity date of the term of the Repo:
(i) the Customer should deliver the Securities covered by the Repo to the
Brokerage Firm, and (ii) the Brokerage Firm should deliver the agreed price and
premium to the Customer. When extensions exist, the Brokerage Firm should pay
the Customer the amount of the premium corresponding to the original transaction
on the date on which the respective extension is formalized. Additionally, it
should refund the price and pay the premium applicable to the extension on the
final maturity date of the transaction.
If the day on which the transaction should be settled, the Brokerage Firm does
not settle it, it will be understood to be abandoned, extinguishing the
obligation of the Customer to give the Brokerage Firm the Securities covered by
the Repo, in which case the Customer may claim the payment of the agreed premium
from the Brokerage Firm, as well as the differences resulting between such
premium and the price of the average purchase quotation offered on the BMV by
the brokerage firms for the repurchased Securities, corresponding to the second
Day following the maturity date of the Repo transaction.
Thirty-second. The Repo transactions performed under the coverage of this
agreement should (i) be settled in Mexican territory and in Mexican currency,
even in the case that the price is denominated in US dollars, using the selling
exchange rate published by the BMV in the "Daily Stock Market Movement" of the
day prior to the payment; and (ii) all the calculations will use the formula of
a commercial year with 360 days and the number of calendar days effectively
passed in each transaction.
VIII.GENERAL PROVISIONS
Thirty-third. The Brokerage Firm will register in the Customer's Account, the
transactions, deliveries or transfers of Securities or cash made by the
Customer, the amount of the interest, returns, yields or dividends received, the
redemptions made, the price of the amount of sales of instruments and rights
and, in general, any balance in favor of the Customer in Securities or cash; as
well as the withdrawals of Securities or cash made by the Customer and the fees,
remunerations, expenses and other payments that the Customer makes or should pay
as well as the transfer of the duly detailed Value Added Tax and the
withholding, where applicable, of Income Tax.
Thirty-fourth. The Brokerage Firm will prepare a receipt for each transaction it
performs under the coverage of this agreement, which will contain all the
necessary information for its identification and the amount of the transaction.
This receipt and the book registration number will be available to the Customer
in the office of the Brokerage Firm as of the Day following the date on which
the transaction is performed, unless it is managed through an office located
outside of the city in which the head offices of the Brokerage Firm are located,
in which case the receipt will be available to the Customer on the second Day
following the performance of the transaction. The foregoing, irrespective of
whether the transaction is shown in the monthly account statement.
Thirty-fifth. The Brokerage Firm will be bound to send the Customer, within the
first 5 days following the monthly cut-off date, an account statement containing
the list of all the transactions performed with it or on its behalf, which shows
the position of the Customer's Securities and cash to the last Day of the
monthly cut-off date, as well as the position of Securities and cash from the
previous month.
The account statement should be sent to the address indicated by the Customer in
the general information section of this agreement.
Thirty-sixth. The Customer will have 20 Days following the sending of the
account statement in which to object to it in writing. Otherwise, the Customer
irrevocably accepts that the transactions listed in the account statement have
been consented to, without the right to make any claim or compensation of any
kind.
In order to be able to make the objections it deems appropriate in due time, the
Customer will have access to and may collect from the offices of the Brokerage
Firm, a copy of such account statement from the Day following the Account
cut-off date.
Thirty-seventh. The Customer expressly authorizes the Brokerage Firm to charge
the following to the Account, among other concepts:
1. The amount of the transactions that the Brokerage Firm performs in compliance
with the power of attorney.
2. The remunerations that the Brokerage Firm is entitled to receive according to
the stipulations of the parties or with the duties established by the
competent authority, if applicable.
3. The normal and default interest specified in the general information section
of this agreement, which will be paid on the sums that the Customer owes to
the Brokerage Firm for any concept in virtue of the performance of the legal
acts covered by this agreement.
4. The expenses caused in virtue of the fulfillment of the performed
transactions and the services provided by the Brokerage Firm and, if
applicable, the taxes, duties and contributions derived from them.
Thirty-eighth. The receipts, proof, account statements and other documents that
the Brokerage Firm issues in favor of the Customer to evidence the reception or
transfer of Securities and cash will always be issued in the name of the
Customer and will under no circumstance be negotiable.
Thirty-ninth. The Customer acknowledges and accepts that all the Securities and
cash belonging to the Customer registered in the Account are understood to be
specially and preferentially destined for the payment of the remunerations,
interest, expenses or any other debt of the Customer with the Brokerage Firm,
and therefore the Customer may not withdraw such Securities or cash until such
debts have been paid.
Fortieth. The Parties agree that the cash withdrawals ordered by the Customer
will be documented: (i) by check drawn by the Brokerage Firm in favor of the
Customer; (ii) by deposit or by the use of electronic means, which will only be
done in the account opened in the name of the Customer in the bank mentioned in
the general information section or in the account for electronic transfers whose
number appears in the general information section or which is stated by the
Customer in a separate document delivered to the Brokerage Firm and which is
satisfactory for the latter; and (iii) by written communication that the
Customer sends to the Brokerage Firm.
Forty-first. For the effects of this instrument, the way of handling the Account
is understood to mean: (i) individual ("Individual") that in which the holder is
a single person; (ii) several ("Several") that in which two or more individuals
are the holders of the same Account, considering all of them as indistinctive
holders of the rights and obligations derived from this agreement, each of the
holders being authorized to independently give orders and instructions,
establish the transactions described in this agreement and to make total or
partial withdrawals of Securities or cash and any other transaction related to
the Account; and (iii) joint ("Joint") that in which all of the holders are
required to give instructions, establish the transactions described in this
agreement and to make total or partial withdrawals of Securities or cash and any
other transactions related to this agreement.
If the Customer is a legal entity, the Account will be individual without the
acceptance of joint holders or beneficiaries.
In the case that the Customer is a legal entity, it appoints as its
representative(s) the person(s) indicated in the general information section of
this agreement. In the case of changing representative(s) or limiting their
powers, the Customer is bound to notify this in writing, attaching the copies of
the documents that evidence such representation.
Forty-second. In the case that the Customer is one (or several) individual(s)
and the Account is individual or joint respectively and that for any reason
he/she (they) are legally unable to manage the Account, the Brokerage Firm,
based on the notification made thereto of such circumstance, will be solely
bound to fulfill the transactions performed pending settlement, suspending in
continuation the performance of new transactions until the representatives of
the holder in question appear before the Brokerage Firm to evidence their powers
for the management of the Account.
In the case that the Account is discretional, the management will be suspended
until the Brokerage Firm receives written instructions from the person
authorized to give orders on behalf of the Customer.
Forty-third. In the terms of the law, the Customer appoints as beneficiary(ies)
of the agreement, the person(s) mentioned in the general information section of
this agreement who will have the right to receive from the Brokerage Firm,
regarding such agreement, individually or prorated or, according to the
instructions of the Customer, a sum that does not exceed the equivalent of ten
times the general daily minimum wage in Mexico City taken up to one year. Any
surplus will be delivered in the terms of common legislation.
Forty-fourth. The stipulations contained in this agreement will be applicable to
any transactions or act commissioned by the Customer from the Brokerage Firm,
regarding any stock exchange or extra-stock exchange instrument with which the
Brokerage Firm trades. If the transactions with any instruments or Securities
require the granting of any contract or legal act other than this instrument,
the Parties should formalize it so that Brokerage Firm is able to perform the
corresponding transactions.
Forty-fifth. In the event of amendments or additions to this agreement, as well
as to any other agreement, contract or legal act derived from it, the Brokerage
Firm will send the respective amendment to the Customer, duly signed by its
representative, by registered mail with acknowledgement of receipt, to the
address of the Customer, whose terms may be opposed within 20 Days following the
date of reception and by the same means. Otherwise, the Customer accepts that,
in the terms of the Act, the amendment will be considered to have been accepted
and will enter into full legal effect, even without the signature of the
Customer. Additionally, prior to the conclusion of the term established in the
foregoing paragraph or the reception of any objection, any act or instruction
made by the Customer according to the terms of the amendment will be considered
as an acceptance thereof, and therefore it will enter into full legal effect.
Forty-sixth. The Customer accepts that for anything not provided for in this
agreement, the provisions of the Act and the Circulars applicable to each of the
transactions covered by this agreement will apply.
Forty-seventh. The duration of this agreement is indefinite. Either of the
Parties may terminate it by simple written notification to the other party,
given five Days in advance. In the case that the Brokerage Firm decides to
terminate this agreement, the Customer is bound to withdraw its Securities and
cash, instructing the Brokerage Firm to this effect at the latest by the Day on
which the termination is effective. Otherwise, the Brokerage Firm may proceed in
accordance with the applicable legal provisions.
Forty-eighth. The Brokerage Firm indicates as its address: Paseo de la Reforma
398, Col. Juarez, Mexico City, Federal District, Zip Code 06600 and the
Customer, that indicated in the general information section of this Agreement.
Forty-ninth. This agreement is subject to and will be governed and construed
according to the applicable laws of the United Mexican States. For its
construction and performance, the Parties expressly consent to the competent
courts of Mexico City, Federal District, waiving the right to any other
jurisdiction, venue or competence that may correspond thereto in virtue of their
domicile or for whatever other reason.
Fiftieth. This securities trading agreement substitutes any securities trading,
commission, deposit, Securities loan and Self-entry contract or agreement and
any other entered into by and between the Parties that refers to transactions
governed by the Act, and previously executed by the Parties.
The Customer irrevocably states that it is aware of and understands the contents
of the Act, of the MFA, Circulars and of any other legal provisions applicable
to the transactions to be performed under the coverage of this agreement, and
that the expression of its desires does not include any error, mala fides or
vice of consent whatsoever.
This agreement is signed in triplicate in the margin, at the foot and in the
general information section thereof, with one copy for the Customer.
ACCIONES Y VALORES DE MEXICO, S.A. DE C.V., BROKERAGE FIRM
PROCEDURE FOR THE RECEPTION OF CAPITAL MARKET PURCHASE-SALE ORDERS AND
ALLOCATION OF TRANSACTIONS
EXTRACT FOR CUSTOMER INFORMATION
Procedure for the reception of orders and allocation of transactions for the
purchase-sale of variable yield securities and securities representing debt that
are quoted on the stock exchange.
The procedure for the reception of orders and allocation of cash transactions
used by Acciones y Valores de Mexico, S.A. de C.V., brokerage firm, (Accival),
was approved by the National Banking and Securities Commission with official
letter number DGIB-981/21692 dated the 4th of September 1998.
1. In order for your orders to be attended, the securities trading agreement
and other master agreements for the performance of securities purchase-sale
transactions, securities loan transactions, short sales, international
arbitrage, transactions with options must have been executed, as well as
the submittal of the documentation that evidences your nationality,
official identification, proof of address and Federal taxpayers'
Registration, etc.
2. The orders reception times will be adapted to the timetable of the trading
floor sessions, which will be informed by the Stock Exchange at least five
(5) business days prior to the effective date, by means of official
bulletins; the entry of orders will start sixty (60) minutes prior to the
trading floor session.
3. The purchase-sale orders may be "morning", corresponding to those received
during the trading floor session timetable and which will be valid only on
the date on which they are generated; "evening", those that are received
from 4:00 to 6:00 p.m., and which will form part of the valid orders for
the next business days; and "weekly", which will be those whose validity
ends on the last business day of each week. These orders may be "at limited
price" or "at market price".
4. The customers' orders are accessed from the automated orders reception and
allocation system, through the personal code, detailing the type of order,
either purchase or sale, short sale, short sale in international arbitrage
or short sale to maintain hedges in issues of options,; the time at which
the customer's instruction was received, agreement number, issuer, number
of instruments and price at which the transaction was requested, as well as
the type of order mentioned in the foregoing point. The system will
automatically register the date on which the order is received, time at
which the order was entered, name of the customer and consecutive folio.
5. The agent and the control desk will check that to the settlement date of
the transaction sufficient securities or funds exist in the customer's
account; otherwise the order will be rejected free of all liability for
Accival. In the case of sale orders, the securities should be checked to
ensure that they have not been given under guaranty, are not registered as
securities subject to loan, in short sale transactions; that the securities
covered by the sale are allocated under loan to the account and the
guaranties have been established.
6. "Market price" orders are those that do not have any price restriction for
their performance. "Limited price" orders will be attended when the selling
price traded on the floor is equal to or higher than that requested by the
customer; in the case of purchases, the order will be attended when the
price is equal to or less than that requested.
7. The orders of the head office and branches will be concentrated in an
automated control desk for their transmission to the trading floor for
their posterior operation. The maximum time between the time at which the
order was received by the agent and its inclusion in the system will be
thirty (30) minutes.
8. When the customer requires the cancellation or change of its order in terms
of volume or price, it may do so following consultation by its agent of the
control desk to check whether its initial order has not yet been performed,
and in the case that the change or cancellation is admissible, it will be
considered as a new order for chronological purposes. A change will be
understood to mean the instruction from the customer that has the aim of
canceling or altering an initial order, being admitted when the ordered
transaction has not been performed.
9. Correction will be understood to mean the act carried out by Accival with
the aim of correcting errors imputable to the brokerage firm that may occur
in the order reception, operation and allocation process.
10. The allocation of orders will be done according to chronological order,
observing the principle of "first come first serve".
11. The allocation will also identify the following types of transactions:
"Extraordinary": Are those that due to their volume or amount in individual
transactions represent, in the first case, a minimum of 2.5% of the capital
stock of the issuing company and, secondly, those performed for more than
$500,000. Their execution will be independent from the other orders,
however the "first come, first serve" principle will be respected, except
in those cases that allow the benefiting of orders not considered as
extraordinary received after them. These operations will not apply to
transactions with options.
"Package": Are those acquired on the trading floor for their later
allocation among the customers, subject to the volume and price levels of
the "extraordinary" transactions, according to the foregoing paragraph.
Their allocation will observe the following:
These transactions will only be performed with issuers rated as highly
marketable, or any others that the present or future regulations allow;
their registration will be done within ten (10) minutes following their
performance; they may not be performed with shares of brokerage firms or of
companies in whose capital brokerage firms are prohibited from
participating; the allocation should be done at the price at which the
transaction was performed, irrespective of the market price of the shares
at the term of their allocation; all pending orders will be attended as
long as they are under the price conditions at which the package was
traded; the allocation in discretional accounts and mutual funds managed by
Acciones y Valores de Mexico, S.A. de C.V. (Accival), should be performed
respectively within thirty (30) and sixty (60) minutes following the moment
in which the transaction was performed; in the case of non-discretional
accounts, the allocation will be carried out once the instruction has been
received; on the same day on which the transaction was performed, the
customer should be informed when established of both the price of the
transaction and the market price at such time; in the case that a package
transaction is not allocated to any customer, it will be allocated to the
own position of the Brokerage Firm. This type of operation will not be
applicable to transactions with options or short sales.
"Global" orders: Are those that group together orders from different
customers with identical characteristics in terms of price, issuer, series
and current coupon in discretional accounts, as well as in the accounts of
foreign financial brokers, according to the following:
They will be identified as global from the moment they are entered into the
system for their transmission to the trading floor. They will be
individually listed within thirty (30) minutes following their entry,
mentioning the data indicated in point four (4), except in the case of
orders given by foreign financial brokers that keep several accounts in
Accival, in which case the allocation of the securities will be performed
at the latest by 6:00 p.m. of the date of the transaction, in the accounts
that the foreign financial broker determines and in which it appears as
holder or joint holder of the agreements. The Mutual Funds managed by
Accival will be allocated within sixty (60) minutes following the order.
These orders will be valid for one day and will not apply to transactions
with options.
Global orders will be identified as such on the allocation list.
The allocation will be done based on the chronological folio, indicating
the date and time, when the order fully meets the same price, it will be
done proportionally or in a prorated form when it arises partially or at
different prices without prorating the latter.
12. Accival will notify the customer by telephone on the following day
regarding the carrying out of the instructions thereof; in any case, if it
is impossible to contact the customer, the latter will be responsible for
checking the performance thereof. The customer swill have a term of three
(3) months in which to request evidence of their orders, which will be
delivered thereto when requested through their agent.
A proof of the totally or partially unsatisfied orders will be kept for one
year available to the customer.
SIGNATURES
(Illegible signatures)
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