Exhibit 1.1
ENGLISH VERSION (1)
DESC, S.A. DE C.V.
CORPORATE BYLAWS
NAME
FIRST. The name of the corporation is "DESC." This name shall be followed by the
words SOCIEDAD ANONIMA DE CAPITAL VARIABLE (variable capital stock company), or
the abbreviation thereof, "S.A. de C.V."
DOMICILE
SECOND. The domicile of the Corporation is Mexico City, Federal district.
However it may establish offices, branches or agencies at any place in the
Mexican Republic or abroad.
PURPOSES
THIRD. The purposes of the Corporation are the following:
a. The promotion and encouragement of industrial and tourist development
and the acquisition, alienation, stewardship and any other legal acts
that have as object shares, certificates of participation, bonds,
debentures, corporate interests and all kinds of securities issued by
Mexican companies.
b. Promotion and stimulation of industrial and tourist development through
acquisition, alienation, and any other legal acts which have as object
real estate, factories, laboratories, plants, warehouses, machinery,
equipment, personal property, credits and rights.
c. To grant all kinds of credit to the companies in which it is the direct
or indirect owner of shares or corporate interests, as well as to
guarantee or secure in any form the obligations it owes and the
obligations of the companies in which it is the direct or indirect
owner of shares or corporate interests.
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1 TN: This is an unofficial English version of the corporate bylaws of Desc,
S.A. de C.V. This version is for information purposes only. In case of
discrepancies with the Spanish version the latter will prevail.
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d. To provide all kinds of services and undertake studies for promotion,
expansion or restructuring intended solely or for those in which it may
have the intention of having any corporate participation.
e. The acquisition and alienation by any legal means of all kinds of real
estate which may be necessary or convenient to achieve the corporate
purposes.
f. Lease of all kinds of real estate and execution of all kinds of legal
acts by which use or use and enjoyment of real estate is obtained or
conceded.
g. Acquisition of personal property, machinery, equipment and tools as may
be necessary or convenient to achieve the corporate purposes.
h. Act as agent, representative or commission agent for persons or
companies, whether Mexican or foreign.
i. Give or take monies, under loan, provided that it be permitted by the
laws, obtaining as applicable the prior permits which are required.
j. Execute the acts and enter into the contracts related to the corporate
purposes.
DURATION
FOURTH-. The duration of the Corporation shall be ninety-nine years, counted
from the date of this instrument(2).
NATIONALITY
FIFTH. No foreign person, individual or corporate, nor Mexican corporations that
do not contain an exclusion of foreigners clause, may have any corporate
participation whatsoever of own shares in the Corporation.
If for any reason any of the persons referred to above due to any event should
acquire a corporate participation or become owner of one or more shares, thereby
contravening the provisions of this clause, it is agreed from this time forward
that said acquisition shall be null and therefor canceled and the corporate
participation at issue without any value and the certificates that represent it,
the capital stock being reduced in an amount equal to the value of the canceled
participation.
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2 TN: This refers to the charter of incorporation, dated August 28, 1973
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CAPITAL
SIXTH. The capital of the Corporation is variable. The minimum fixed capital is
the amount of EIGHT MILLION TWO HUNDRED SEVENTY-ONE THOUSAND FOUR HUNDRED
FORTY-THREE PESOS, MEXICAN CURRENCY, represented by 636,264,900 registered
Series A shares without expression of par value and shall represent at minimum
FIFTY-ONE PERCENT of the voting shares, without counting those with limited
voting rights.
The variable capital will always be represented by registered Series B shares or
their subseries, numerically progressive, which shall have the characteristics
determined by the Extraordinary Shareholders Meeting that resolves their issue
but which in all cases shall be without expression of par value and will
represent at maximum FORTY-NINE PERCENT of the shares with voting rights,
without counting those with limited vote.
The Corporation may issue Series B shares that will be retained in the corporate
Treasury to be delivered as they are subscribed.
Further, there will be a Series C, Limited Voting Shares with right to
retirement, which will represent up to a maximum of TWENTY-FIVE PERCENT of the
Corporation's capital stock. Said series of shares shall have only pecuniary
rights and not corporate rights, and may be freely acquired by Mexican
individuals or Mexican companies with an exclusion of foreigners clause, by
foreign individuals or companies, as well as by Mexican companies with an
admission of foreigners clause.
SEVENTH. All shares within their respective series shall confer equal rights and
obligations on their holders, except for the Limited Vote Series C of shares,
which shall have only pecuniary rights and a right to vote regarding the
following matters:
- Extension of the Corporation's duration
- Advance dissolution of the Corporation
- Transformation from one type of Corporation to another
- Change of the Corporation's nationality
- Change of the purpose of the Corporation
- Merger of the Corporation if it is not the survivor
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- Cancellation of the registration of the Corporation's shares
on the Bolsa Mexicana de Valores, Sociedad Anonima de Capital
Variable.
Each series A and B share shall give the right to one vote at the General
Shareholders Meetings.
Certificates representing the shares shall carry the signatures of any two
members of the Board of Directors, regular or alternate, in accordance with the
resolutions adopted for such purpose by said Board.
Facsimile signatures may be used if so resolved by the Board of Directors; in
this case the original signatures must be deposited in the corresponding section
of the Public Registry of Property and Commerce in the corporate domicile.
Stock certificates shall be progressively numbered and may represent one or
several shares, and shall have coupons attached for dividend payment or for
exercise of the right that the Shareholders Meeting may from time to time
resolve. The stock certificates or provisional certificates for each issue must
meet the requirements of Article One hundred twenty five of the General Law of
Commercial Companies, and must also contain the whole text of Clause Fifth
herein.
EIGHTH. The Corporation shall keep a Stock Register and shall consider as owner
of the shares the person who appears as such in said Register.
On request of any interested person, after appropriate proof, the Corporation
must record in said Register transfers which occur.
NINTH. The variable capital of the Corporation may be increased or reduced
without need of amending the corporate bylaws, with the sole formality that
increases or reductions be resolved by the General Extraordinary Shareholders
Meeting, duly protocolling the corresponding Minutes. The fixed minimum capital
of the Corporation may not be increased or reduced if not resolved by a General
Extraordinary Shareholders Meeting and the corporate bylaws are consequently
amended.
Any increase or reduction of the capital must be recorded in the (Variations of
Capital) Book kept for such purpose.
A capital increase may not be declared if all shares previously issued by the
Corporation are not wholly subscribed and fully paid.
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CAPITAL INCREASES
When the capital is increased, the following shall be observed:
a. When capital increases are with distributable profits or due to
capitalization of the legal reserve fund, due to capitalization of
premiums on shares or from other prior contributions by the
shareholders or due to capitalization of retained profits or reserves
from appraisal or reappraisal, all shareholders of the different
shareholding series shall have the right to subscribe the capital
increase in proportion to the number of shares that they hold.
b. When capital increases are by cash contributions from the shareholders,
they must be declared with assurance that the shareholding proportion
established in Clause Sixth herein is retained.
c. In the case of an increase in Series B, in order to reach the
percentage established in Clause Sixth hereof, (holders of shares in)
Series A and B currently in circulation shall have a preferential right
to subscribe the increase in proportion to the number of shares which
they hold. If any of the shareholders of such Series does not exercise
the right conferred in this section at the proper time, it shall be
exercised by the other shareholders of said Series pursuant to the
bases established at the Shareholders Meeting that declares the
increase.
d. In the event that once a capital increase has been declared, it has not
been fully subscribed by the shareholders, the Board of directors shall
determine the form and terms on which the unsubscribed portion must be
subscribed.
The right conferred in the preceding sections must be exercised within
the fifteen business days following the date on which the corresponding
resolutions are published in the federal Diario Oficial.
In cases of capital increase, the increase in question and the issue of
the shares that represent it shall not have effect until written notice
of the capital increase and issue of the corresponding shares has been
given to the National Securities commission and to the stock exchanges
where the Corporation's shares are listed, and until notice of the
capital increase and the issue that represents it is published in the
federal Diario Oficial, which notice must indicate the total number of
shares issued to represent the capital after the increase in question,
the Series into which it is divided, and the number of shares that
constitute each series.
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e. If the capital increase is declared in order to issue unsubscribed
shares for public offer, it shall be in accordance with Article Eighty
one of the Securities Market Law, through express waiver by the
shareholders of their preferential right at the Extraordinary
Shareholders Meeting that declares issue of these shares.
CAPITAL REDUCTIONS
Any capital reduction shall affect all shares representing the capital,
respecting the shareholding proportions established in clause Sixth hereof.
Reimbursement for complete shares will be made to shareholders at their book
value. Designation of the shares to be reimbursed will be done as resolved in
the corresponding Shareholders Meeting, through drawing before a public broker
or through reimbursement to all shareholders such that they represent, after the
corresponding capital reduction, the same shareholding percentages and if this
be not possible, the percentage of shares that is most similar to that which
they previously hold. Upon designation of the shares which must be reimbursed, a
notice will be published in the federal Diario Oficial stating the system
followed for retirement of the shares, the number of shares that will be
retired, and the number of the share certificates which as a consequence must be
canceled, or, as applicable, exchanged, and the credit institution where the
amount for reimbursement is deposited, which shall remain available to the
respective shareholders from the date of publication but shall not earn
interest.
On prior approval of the General Extraordinary Shareholders Meeting, the
Corporation may amortize shares with accumulated profits pursuant to Article One
hundred thirty six of the General Law of Commercial Companies.
TENTH. The Shareholders shall be entitled to partial or total retirement of
their contributions represented by Series B shares or their numerically
progressive subseries and Series C Limited Vote shares, provided they give
effective notice to the Corporation meeting the requirements of Articles Two
Hundred Twenty and Two Hundred Twenty One of the General Law of Commercial
Companies. The Corporation shall reimburse the respective participation to the
shareholder at the value which is the lesser of the two following options:
Ninety five percent of the value quoted on the market, obtained from the average
of transactions effected during the thirty days that the shares have been quoted
prior to the date when the retirement should take effect, or the book value of
the shares in accordance with the financial position statement for the fiscal
year when the separation should become effective, previously approved by the
General Ordinary Shareholders Meeting.
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Payment of the reimbursement may be requested of the Corporation from the day
following the General Ordinary Shareholders Meeting which has approved the
financial position statement corresponding to the fiscal year when the
retirement will become effective.
The reimbursement will be done against the delivery and cancellation of the
respective shares.
TENTH BIS. In the event of cancellation of the registration of the shares of the
Corporation in the Securities Section of the National Securities and Brokers
Registry, whether on request of the Corporation or by resolution adopted by the
National Securities Commission pursuant to the law, but except when said
cancellation has the consent of all of the shareholders of the Corporation, the
shareholders who hold control of the Corporation shall have the obligation to
make a public tender prior to cancellation and at the price that is the higher
of the average for the close of trades that have been done during the thirty
days during which the shares were quoted prior to the date of the tender, or at
the book value of the share according to the last quarterly report filed with
the National Securities Commission and the Mexican Securities Exchange prior to
the tender. This clause may be amended only with prior approval of the National
Securities Commission, through resolution from the General Extraordinary
Shareholders Meeting of the Corporation adopted by favorable vote of shares
representing at least 95% of the capital stock. The provisions of this clause
shall at all times be subject to the legal and administrative provisions in
force at the time when cancellation is planned and to the authorizations granted
for such purpose by the National Securities Commission, and shall not be
applicable or shall be applied in the terms and under the conditions provided in
said provisions and authorizations, as the case may be.
GENERAL SHAREHOLDERS MEETINGS
ELEVENTH. The General Shareholders Meeting is the highest authority of the
Corporation all other being subordinate thereto.
TWELFTH. Shareholders Meetings shall be Ordinary, Extraordinary, or Special, and
will be held at the corporate domicile.
a. Extraordinary Shareholders Meetings shall be those wherein any of the
issues listed in Article One Hundred Eighty Two or the General Law of
commercial Companies are addressed;
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b. Ordinary Shareholders Meetings are those listed in Article One Hundred
Eighty One of the General Law of Commercial Companies;
c. Special Shareholders Meetings are those which address issues relating
to the shareholders rights of Series A, B, or C shares, and will be
governed by Article One Hundred Ninety Five of the General Law of
commercial Companies.
THIRTEENTH. The Ordinary Shareholders Meeting will meet at least once each year
within the four months following the close of the corresponding fiscal year, on
the date set by the Board of Directors, and it shall address in addition to the
matters included on the Agenda, those matters enumerated in Article One Hundred
Eighty One of the General Law of commercial Companies, especially the
presentation, pursuant to Article One Hundred Seventy Two of said law, of the
report for the immediately preceding fiscal year of the Corporation(s) in which
the Corporation owns the majority of shares when the value of the investment in
each exceeds twenty percent of the shareholders equity according to the
financial position statement of the Corporation at the close of the
corresponding fiscal year.
The Extraordinary Shareholders Meeting shall meet whenever any of the matters
which are incumbent upon it under Article One Hundred eighty Two of the General
Law of commercial companies must be addressed.
FOURTEENTH. The call for the Shareholders Meetings must be done by the Board of
Directors, by the Statutory Auditors, or by judicial authority when applicable,
and will be signed by whomsoever resolves to issue the call.
FIFTEENTH. The call for Shareholders Meetings shall be done by publication of a
notice in the federal Diario Oficial or another periodical of major circulation
in Mexico city, never less than fifteen days prior to the date for the meeting
when balance sheets are to be approved. This period may be reduced to five days
with respect to other Ordinary or Extraordinary Shareholders Meetings if the
Board deems then urgent.
SIXTEENTH. The call for Shareholders Meetings must contain the place, date and
time when the Shareholders Meeting is to be held, the Agenda, and the signature
of the person making it.
SEVENTEENTH. A shareholders Meeting may be held without prior call provided that
all of the shares into which the capital stock is divided are represented.
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EIGHTEENTH. Ordinary Shareholders Meetings met on a first call will be deemed
legally met when at least half of the capital stock is represented and its
resolutions shall be valid if adopted by a majority of votes present.
NINETEENTH. If the Ordinary Shareholders Meeting could not be held on the date
set for it, a second call will be made with statement of this circumstance, and
at the meeting the matters set forth on the Agenda will be resolved by a
majority of votes regardless of the number of shares represented.
TWENTIETH. Extraordinary Shareholders Meetings met on a first call will be
deemed legally met if at least three quarters of the capital stock is
represented and its resolutions shall be valid if adopted by vote of the shares
representing the same proportion of the capital stock.
On a second or later call, the Extraordinary Shareholders Meeting will be deemed
legally met when at least half of the capital stock is represented, and its
resolutions will be valid if adopted by favorable vote of the numbers of shares
that represent, at least, fifty percent of the capital stock.
TWENTY-FIRST. In order for shareholders to have the right to attend Shareholders
Meetings and to vote therein, they must deposit their share certificates with
the Secretary of the Corporation at least one day prior to the Shareholders
Meeting, receiving the corresponding admission card. They may also deposit the
stock in a Mexican credit institution, and in this case, to obtain the admission
card, they must file with the Secretary of the Corporation a certificate from
the (credit) institution that evidences the deposit of the stock certificates
and the obligation of the corresponding credit institution to retain the
certificates deposited until the Secretary of the Board of Directors notifies if
that the Shareholders Meeting has concluded.
The Secretary of the Corporation shall deliver to the corresponding shareholders
an admission card which records the name of the shareholder, the number of
shares deposited and the number of votes to which the shareholders is entitled
by virtue of said shares.
TWENTY-SECOND. The shareholders may be represented in Shareholders Meetings by
proxies named through a simply proxy letter on the understanding that members of
the Board of Directors and Statutory Auditors may not act as proxies.
TWENTY-THIRD. Shareholders meetings shall be presided over by the Chairman of
the Board, and in his/her absence, by one of the Directors following the order
of their appointments, and in the absence of all of these, by the person named
by those present at the Shareholders Meeting. The Secretary or Assistant
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Secretary of the Board shall act as Secretary and in the absence of either of
these, the person designated by the acting Chairman.
TWENTY-FOURTH. At the beginning of the Shareholders Meeting, the person
presiding shall name two inspectors of Election to count shares represented
therein, who must prepare an attendance list whereon they note the names of the
shareholders present or represented, and number of shares which each of them has
deposited in order to appear at the corresponding Shareholders Meeting.
TWENTY-FIFTH. If once a Shareholders Meeting is legally met, there be not time
to decide on all of the matters for which it was called, it may adjourn and be
continued on the following days without need of a new call.
ADMINISTRATION
TWENTY-SIXTH. The Administration of the Corporation shall be vested in a Board
of Directors that shall be composed of a number of regular members between 5 and
15, as decided by the corresponding Shareholders Meeting, without there being
alternates.
One half plus one of the directors shall be elected by the vote of the majority
of the Series "A" shares, represented and voted in the Shareholders Meeting, and
but for minority rights, the rest shall be elected by majority vote of the
Series "B" or its progressive subseries shares represented and voted at the
Shareholders Meeting.
Any shareholder or group of shareholders holding shares in the same Series of
stock who represents at least ten percent of the capital stock, shall have the
right to elect one Director for the corresponding Series, pursuant to the
provisions of Article One Hundred Forty-Four of the General Law of Commercial
Companies.
The members of the Board of Directors need not be shareholders of the
Corporation and may not be over 75 years old at the time of their designation or
reelection, as applicable, unless the shareholders meeting expressly waives this
limitation for each exercise, on the understanding that in no event, any such
person is older than 78 years.
The Directors shall be elected for one year and shall remain in office, even if
the period for which they were elected has concluded, until the persons elected
to replace them take office.
TWENTY-SEVENTH. When the Shareholders Meeting so resolves, each of the Directors
and the Chief Executive Officer must secure the liabilities to which they may
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become subject in performance of their duties, through deposit in cash or
creation of a bond in favor of the Corporation in such amount as may be
established by the Shareholders Meeting. If the Chief Executive Officer is named
by the Board, it shall pertain to the Board to determine whether said person
must provide security and the amount thereof.
The security, if any, shall remain in force until the accounts for the relevant
period have been approved by the General Shareholders Meeting.
TWENTY-EIGHTH. The Board of Directors shall meet in Mexico City or in any other
place in the Mexican Republic or abroad that may be indicated for such purpose
at least 4 times a year, provide that it be convened by the Chairman, the
Secretary, at least 25% of the Directors, or by the Statutory Auditor(s).
The Statutory Auditors must be convened to all Board meetings, which they may
attend with the right to speak, but without vote.
The Board shall validly function with the presence of a majority of its members
and its resolutions shall be valid if adopted by majority vote of those present.
In the case of deadlock, the person who presides at the meeting shall have the
decision-making vote.
Pursuant to Article One Hundred Forty-Three of the General Law of Commercial
Companies, the Directors may adopt resolutions outside a Board Meeting by
unanimous vote. Said resolutions shall have, for all legal effects, the same
validity as if they were adopted in a Board Meeting, provided they be confirmed
in writing. Said confirmation may be recorded in a single document or in
separate documents. The text of the resolutions shall be transcribed in the book
referred to in Clause Twenty-Ninth hereafter, with notation of the date from
which they will be effective.
TWENTY-NINTH. For each Board Meeting, minutes shall be prepared wherein are
noted the resolutions approved. They must be recorded in the corresponding
Minute Book and will be signed by whoever presides at the meeting by the person
who acted as Secretary and by the other attendees who wish to do so.
THIRTIETH. The Board of Directors, in its first meeting held after the
shareholders meeting appointing the Board, will name a Chairman from among its
members. The Board will also designate a Secretary and an Assistant Secretary,
who may or not be members of the Board, as well as the Presidents of the
Compensation and Evaluation, Auditing, and Finance and Planning Committees.
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Furthermore, the Board at any time may designate one or more Vicepresidents, who
will perform the offices and will have the faculties and obligations that the
Board vests on them at their designation or afterwards and, if the Board deems
it necessary, one or more Delegate Directors with all necessary faculties to
carry out the Board's resolutions.
The temporary or permanent absences of the Chairman will be covered by one of
the Vicepresidents in the order of their designation or in the absence of
Vicepresidents by one of the Directors in the order of their designation; the
absences of the Secretary shall be covered by the Assistant Secretary, or in the
latter's absence by the person the Board designates. The Board of Directors may
also name a Chief Executive Officer or a Management Committee, as well as any
other types of committees, which will have the faculties and obligations
determined by the Board.
POWERS OF THE BOARD AND OF THE DIRECTORS
THIRTY-FIRST. The Board of Directors shall have the broadest faculties for the
unrestrained and proper management of the Corporation business, with the
broadest general power of attorney for lawsuits and collections, to administer
property, and to exercise acts of dominion, without any limitation whatsoever,
that is, with all general faculties and the specific faculties which require a
specific clause pursuant to the Law, in the terms of the first three paragraphs
of Article Two Thousand Five Hundred Fifty-Four of the Federal District Civil
Code, including the faculties enumerated in Article Two Thousand Five Hundred
Eighty-Seven of said Code.
Expressly, the Board will have the following faculties:
I. To represent the Corporation before all kinds of authorities, be they
Federal, State or Municipal; represent the Corporation before all kinds of
natural or legal persons, national or foreign; to represent the Corporation
before Labor Conciliation Boards and Labor Conciliation and Arbitration Boards,
be they federal or local; present constitutional relief [amparo] petitions and,
as applicable, withdraw same; file criminal complaints and, as applicable, grant
pardon; file criminal accusations and assist the Public Prosecutor; withdraw,
settle, assume commitments in arbitration, administer and respond to
depositions, and receive payments.
II. Grant, subscribe, endorse, and guarantee all kinds of credit instruments,
pursuant to Article Ninth of the General Law of Credit Operations and
Instruments.
III. Designate the members of the Management Committee, as well as the Chief
Executive Officer, vice-presidents, officers, employees, managers and
attorneys-in-fact of the Corporation, to whom the Board must indicate their
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duties, obligations, and remuneration. It shall also designate the Presidents of
the Compensation and Evaluation, Auditing, and Finance and Planning Committees.
IV. Establish or close offices, branches, or agencies.
V. Acquire shares and securities issued by third parties.
VI. Exclusively determine how to exercise voting rights on shares or corporate
interests of the Corporation in other companies at General Ordinary or
Extraordinary Shareholders meetings of said other companies.
VII. Enter into, amend, and rescind all kinds of contracts and legal acts.
VIII. Accept in the Corporation's name mandates from natural or legal persons,
Mexican or foreign.
IX. Establish bank accounts and withdraw deposits from same, and designate the
persons authorized to use the corporate signature and to deposit into said bank
accounts and withdraw deposits from same with the limitations that the Board may
decide to establish.
X. Confer, replace, delegate and revoke general and specific powers of attorney.
XI. Call Shareholders Meetings and execute the resolutions adopted by same.
XII. Establish the strategic vision for the Corporation.
XIII. Assure that the Shareholders and the market have access to the
Corporation's public information.
XIV. Establish mechanisms for internal control.
XV. Assure that the Corporation has the instruments it deems necessary which
permit the Corporation to verify that it complies with the different legal
provisions applicable to it.
XVI. Regularly evaluate the performance of the Chief Executive Officer and the
high level officers of the Corporation.
In the case of acquisition of alienation of shares in another company, or
exercise of the right of retirement, the Board shall require prior approval from
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the General Ordinary Shareholders Meeting, for which shareholders must be
convened as set forth in the bylaws, in the following cases:
a) When the value of the acquisition of shares in another company through one
acquisition or several acquisitions, simultaneous or successive, exceeds twenty
percent of shareholders equity, according to the last financial position
statement of the Corporation.
b) When the value of alienation of shares in another company, through one or
several alienations, simultaneous or successive, exceeds twenty percent of the
shareholders equity of the Corporation, according to the last financial position
statement of the Corporation.
c) When the Corporation exercises its right of retirement in the Commercial
Companies in which it is shareholder, if these have a variable capital
structure, when such retirement represents, through one or several simultaneous
or successive operations, the redemption of shares with a value exceeding twenty
percent of the shareholders equity, according to the Corporation's last
financial position statement, or implies loss of administrative control of the
relevant entity.
CHAIRMAN
THIRTY-SECOND. The Chairman shall preside at the Shareholders Meetings and at
the Board Meetings, shall be the representative of the Board, shall execute the
resolutions of the Shareholders Meeting and of the Board of Directors, unless
either shall designate a Delegate for execution thereof, shall oversee generally
corporate operations, assuring exact compliance herewith, with the regulations
and with the resolutions and provisions of the Shareholders Meetings, of the
Board of Directors and of the Law; he shall sign with the Secretary Minutes of
Shareholders Meetings and Board Meetings.
In the temporary or permanent absence of the Chairman, his functions shall be
performed with the same authorities by one of the Directors according to the
order of appointment.
THIRTY-THIRD. The Board of Directors shall have three mid-level administrative
bodies to support the Board in performance of its tasks: a Compensation and
Evaluation, Committee; an Auditing Committee; and a Finance and Planning
Committee. Said mid-level bodies shall be composed of a minimum of three and a
maximum of seven Directors, as determined by the Shareholders Meeting.
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The members of the Committees must be Directors of the Corporation and elected
in a General Ordinary Shareholders Meeting that resolves the election of the
members of the Board of Directors.
These Committees shall act without exception as collegial bodies, and their
faculties may not be delegated to individuals such as Directors, Managers,
Delegate Directors or Attorneys-in-Fact.
The Committees for Compensation and Evaluation, Auditing, and Finance and
Planning Committees shall present at least twice year a report on their actions
to the Board of Directors, or whenever facts or acts of importance for the
Corporation arise that so merits in their judgment.
The Statutory Auditor must be convened to all committee meetings, who shall
attend them with the right to speak but without vote.
The Committees for Compensation and Evaluation, Auditing, and Finance and
Planning shall have the following faculties:
I. The Compensation and Evaluation Committee shall have the following duties:
a) Suggest to the Board procedures for proposing the Chief Executive Officer and
high level officers.
b) Propose to the Board criteria for evaluation of the Chief Executive Officer
and the high level officers according to the general guidelines established by
the Board of Directors.
c) Analyze and taking to the Board of Directors the proposal made by the Chief
Executive Officer on structure and amount of remuneration for principal
Corporation executives.
II. The Auditing Committee shall have the following duties:
a) Recommend to the Board of Directors the candidates for external auditors of
the Corporation.
b) Recommend to the Board the conditions for contracting and the scope of the
professional mandate for the external auditors.
c) Support the Board of Directors in supervising performance of auditing
contracts.
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d) Serve as a communication channel between the Board of Directors and the
external auditors, as well as assuring the independence and objectivity of these
latter.
e) Review the work program, comment letters and auditing reports and reporting
to the Board of Directors on the results.
f) Recommend to the Board the bases for preparation of the financial
information.
g) Assist the Board through review of the financial information and its issue
process.
h) Contribute to the definition of the general guidelines for the internal
control system and evaluating its effectiveness.
i) Assist the Board in coordination and evaluation of annual internal auditing
programs.
j) Coordinate the work of the external auditor, internal auditor, and Statutory
Auditor.
k) Verify that the mechanisms are in place which are deemed necessary such that
the Corporation can prove that it complies with the different provisions to
which it is subject.
III. The Finance and Planning Committee shall have the following functions:
a) Evaluate and, as applicable, suggest investment policies for the Corporation
proposed by the Office of the Chief Executive Officer, to thereafter submit them
to the approval of the Board.
b) Evaluate and, as applicable, suggest financing policy (capital or debt) for
the Corporation proposed by the Office of the Chief Executive Officer, to later
be submitted to approval of the Board.
c) Evaluate and, as applicable, suggest general guidelines for determination of
strategic planning for the Corporation.
d) Give opinion on the premises of the annual budget and propose them to the
Board for its approval.
e) Do follow-up on application of the budget and the strategic plan.
f) Identify the risk factors to which the Corporation is subject and evaluate
the policies for their management.
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SECRETARY
THIRTY-FOURTH. The Secretary shall have the powers that the Board assigns to him
and shall keep the Minute Books, in one of which he shall note and sign with the
Chairman all minutes of Shareholders Meetings and in the other all minutes of
the Board of Directors.
In the absence of the Secretary these functions shall be assumed by the
Assistance Secretary, if any, and in the absence of the latter, the person who
the acting, Chairman designates shall perform said functions.
THIRTY-FIFTH. The Chief Executive Officer, and as applicable, the Management
Committee shall have the faculties, if any, conferred thereon by the Board of
Directors, and the remuneration that the latter may establish.
THIRTY-SIXTH. The oversight of the corporation shall be the function of a
Statutory Auditor and an Alternate, who need not be shareholders and who will be
named by the General shareholders Meeting by majority vote, with the exception
for the right of any shareholder or group of shareholders who represent ten
percent of the shares to name an additional Statutory Auditor and an Alternate
in accordance with Articles One Hundred Forty Four and One Hundred Seventy One
of the General Law of Commercial Companies, except the Limited Vote Series C
shares, which shall not have the right to name any Statutory Auditor.
The Statutory Auditors shall have the powers and obligations determined by the
law and shall remain in their positions for one year, on the understanding, that
they shall continue to act until those appointed to replace them assume their
duties.
THIRTY-SEVENTH. To assume the position of Statutory auditor, those elected must
guarantee their performance in the same manner as the Directors pursuant to
Clause Twenty Seventh herein.
FISCAL YEARS AND BALANCE SHEETS
THIRTY-EIGHT. Fiscal years shall be twelve months and shall be closed on the
dates determined by the General Shareholders Meeting or the Board of Directors.
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As exception, the first fiscal year may be irregular and will begin the day when
this instrument is protocolled and will end on the date which the General
Shareholders Meeting or the Board of Directors determines.3
THIRTY-NINTH. At the end of each fiscal year, a financial position statement
shall be prepared which must be audited by an independent public accountant and
which be completed within the four months following close of the corresponding
fiscal year.
The Board of Directors shall deliver the financial position statement to the
Statutory Auditors at least fifteen days prior to the date of the General
Shareholders Meeting, which is to discuss it, together with the profit and loss
statement, the statement of changes in the financial position, the statement of
changes in the entries that constitute the corporate property and the notes
needed to clarify or complete the information on the foregoing statements. The
Statutory Auditors within the fifteen days that follow shall render the report
referred to in Article One Hundred Sixty Six (IV) of the General Law of
Commercial Companies.
RESERVE FUND AND MANNER OF DISTRIBUTION PROFITS AND LOSSES
FORTIETH. The liquid profits shown on the statement of financial position after
being approved by the Annual Ordinary Shareholders Meeting shall be distributed
as follows:
a) First, five percent shall be separated for creation or replenishment of the
legal reserve fund until it represents an amount equal to one -fifth of the
capital.
b) Then, the amount, if any, that the General Shareholders Meeting resolves to
constitute additional reserve, special or extraordinary funds shall be
separated.
c) The remainder of the liquid profits may be distributed as a dividend among
the shareholders in proportion to their respective contributions to the capital;
the dividend payments shall be made against the respective coupons, unless the
Shareholders Meeting resolves another form of proof.
Dividends not collected in five years counted from and after the date
fixed for their payment shall prescribe in favor of the corporation.
d) The remainder of the distributable profits may also be applied to
amortization of shares, pursuant to Article One Hundred Thirty-Six of the
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3 TN: Mexican law currently requires that fiscal years run from January 1
through December 31.
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General Law of Commercial Companies, pursuant to the resolutions that the
Extraordinary Shareholders Meeting adopts for such purpose.
The Annual Ordinary Shareholders Meeting shall establish the
remuneration for the Directors and Statutory Auditors, which shall be charged to
general expenses.
If there are losses, these shall be reported by the shareholders in
proportion to the respective number of their shares, but at all times the
obligations of the shareholders shall be limited to payment of the amount of
their shares, and no additional payment may be demanded of them.
FORTIETH BIS. The Corporation may acquire the shares representing its capital
stock on prior resolution of the Board of Directors, through the Mexican
Securities Market at the price current in the market, without the prohibition
being applicable that is established in the first paragraph of Article 134 of
the General Law of Commercial Companies, provided the purchase be made with
charge to the capital and, as applicable, to a reserve from the net profits
titled reserve for acquisition of shares.
The General Ordinary Shareholders Meeting shall determine the amount of the
capital that can be allocated to purchase of the Corporation's shares and the
amount of the corresponding reserve which will be created by the Shareholders
Meeting with the sole limitation that the sum of the resources that can be
allocated to this purpose may not exceed the total balance of the net profits of
the Corporation.
Purchase of its own shares by the Corporation shall be done by affecting the
capital account for an amount equal to the par value of the shares purchased,
determined through division of the amount of the paid capital by the number of
the Corporation's outstanding shares. The surplus shall be charged to the
reserve for acquisition of shares. If the purchase price for the shares is less
than the par value determined as indicated above, only the capital account shall
be affected for the amount equal to the par value of the shares purchased.
As a consequence of the purchase of its shares, the Corporation shall proceed to
reduce its capital on the same date as the acquisition, and as applicable, at
the same time shall affect the reserve for acquisition of shares.
The Corporation may issue treasury shares for their later placement for
investment by the public. The shares acquired by the Corporation shall become
treasury shares and may be placed for public investment and, in this case, the
capital shall be increased by the amount equal to the par value of the shares,
multiplied by the total number of treasury shares placed for public investment,
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and the surplus of the proceeds of the placement, if any, shall be used to
replenish the reserve for acquisition of shares. The gain generated by the
difference between the proceeds from the placement and the purchase price, if
any, shall be recorded in the account titled premium for subscription of shares.
The capital reductions and increases derived from purchase and placement of
shares as referred to in this clause shall not require any resolution by the
Shareholders Meeting or any resolution by the Board of Directors.
The Board of Directors, or the persons it may designate to perform stock
repurchase operations or placement of treasury shares with the investing public
shall assure that in no case said operations result in exceeding the maximum
authorized percentage of limited voting shares of the Corporation.
The operations for purchase and placement of shares provided for in this clause,
the reports on same to be submitted to the General Ordinary Shareholders
Meeting, the rules for disclosure through financial information, and the form
and terms on which these operations will be notified to the National Securities
Commission, to the Mexican Securities Market, and to the investing public, shall
be subject to the general provisions issued by the National Securities
Commission.
FORTY-FIRST. The incorporating shareholders do not reserve any participation in
the profits.
FORTY-FIRST.BIS. The company or companies in which the Corporation is a majority
shareholder may not directly or indirectly invest in the shares of the
Corporation, nor in shares of companies that are majority shareholders in the
Corporation, or without being so, have knowledge that it is a shareholder
therein.
FORTY-SECOND. The Corporation shall dissolve:
I. Due to expiration of the period established herein(4).
II. Due to impossibility of continuing realization of the primary purpose
of the corporation.
III. By agreement of the shareholders taken in accordance with the corporate
bylaws and the law.
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4 TN: See footnote No. 1
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IV. Because the number of shareholders becomes less than five, the minimum
required by the law(5).
V. Due to losses of two thirds of the capital.
BASES FOR LIQUIDATION
FORTY-THIRD. Should a case of liquidation arise, the General Shareholders
Meeting will appoint by majority vote one or more liquidators, who shall be the
representatives of the corporation and shall have the powers and obligations set
forth in Article Two Hundred Forty Two of the General law of Commercial
Companies, and who must in due course proceed to distribution of the remainder
among the shareholders pursuant to Article Two Hundred Forty Seven and Two
Hundred Forty Eight of the law.
FORTY-FOURTH. The provisions of the General Law of Commercial Companies shall
govern in all matters on which these bylaws do not provide an express clause.
FORTY-FIFTH. Any dispute that may arise from the execution, interpretation and
performance of this contract shall be submitted to the competent courts of the
First Judicial District of those into which the Federal District is divided.
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5 TN: The current minimum is two.
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