EXECUTION VERSION
Conversion and Termination Agreement
This Conversion and Termination Agreement (this "Agreement") is
executed this 27th day of April, 2000 by and between:
(a) France Telecom Financiere Internationale ("FTFI"), a corporation
duly organized and validly existing under the laws of the
Republic of France, represented herein by Xx. Xxxxxxx Mialet, its
Attorney in Fact;
(b) Carso Global Telecom, S.A. de C.V. ("Carso"), a corporation duly
organized and validly existing under the laws of the United
Mexican States ("Mexico"), represented herein by Xx. Xxxxx Xxxxx
Xxxxx, its Vice-Chairman of the Board;
(c) SBC International Inc. ("SBC" and, together with FTFI and Carso,
the "Trust Parties"), a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, United States of America, represented herein by Xx.
Xxxx X. Xxxxx, its Vice President-Development; and
(d) Telefonos de Mexico, S.A. de C.V. ("Telmex" and, together with
the Trust Parties, the "Parties"), a corporation duly organized
and validly existing under the laws of Mexico, represented herein
by Xx. Xxxxxx Xxxxxx Xxxxx, its Chief Financial Officer.
This Agreement is subject to the following recitals and clauses.
Recitals
I. Whereas, the Trust Parties and Banco Internacional, S.A., Trust
Division, member of Grupo Financiero Bital (the "Trustee"), a multiple banking
institution (institucion de banca multiple) duly incorporated and validly
existing under the laws of Mexico, executed on December 20th, 1990 a Trust
Agreement (as amended from time to time, the "Trust Agreement"), regarding their
investment in Telmex;
II. Whereas, the Trust Parties executed on November 14th, 1990 a
Shareholders Agreement (as amended from time to time, the "Shareholders
Agreement");
III. Whereas, terms defined in the Trust Agreement and in the
Shareholders Agreement are used herein as therein defined as the context
require;
IV. Whereas, pursuant to the Trust Agreement, the Trust Parties and the
Trustee created the Trust to hold AA Shares of Telmex;
V. Whereas, Section 3.7.4 of the Trust Agreement allows termination of
the Trust during the Second Five Year Period with the consent of all the Trust
Parties;
VI. Whereas, FTFI has expressed an interest to the other Trust Parties
to cause the Trustee to convert the AA Shares that correspond to FTFI's
Beneficial Rights in the Trust into L Shares and to withdraw such L Shares from
the Trust;
VII. Whereas, Carso and SBC, according to the terms of this Agreement,
consent to the conversion of the AA Shares that correspond to FTFI's Beneficial
Rights in the Trust into L Shares and the withdrawal of such L Shares from the
Trust;
VIII. Whereas, the Trust Parties and Telmex consider it advisable that
in connection with the foregoing, FTFI provides certain information and other
rights to Telmex regarding disposition of the L Shares and Telmex provides FTFI
certain registration rights to facilitate disposition of the L Shares;
IX. Whereas, as a result of the conversion of the AA Shares that
correspond to FTFI's Beneficial Rights in the Trust into L Shares and the
withdrawal of such L Shares from the Trust, the Trust Parties consider it
advisable to terminate the Trust Agreement and the Shareholders Agreement solely
with respect to FTFI;
X. Whereas, Telmex is authorized pursuant to its by-laws to convert the
AA Shares that correspond to FTFI's Beneficial Rights under the Trust to
(readily available) L Shares and the issuance of the Conversion L Shares are in
compliance with its by laws and all applicable laws, rules and regulations; and
XI. Whereas, the Technical Committee of the Trust, in a meeting held
today, a copy of the minutes of which are attached hereto as Exhibit "A", has
irrevocably agreed to instruct the Trustee to convert the AA Shares that
correspond to FTFI's Beneficial Rights in the Trust into L Shares and the
withdrawal of such L Shares from the Trust and the distribution of such L Shares
to FTFI.
XII. Whereas, Trust Parties have received opinion of counsel to the
effect that no regulatory approval in Mexico is required to carry out the
provisions contained herein.
Now, therefore, in consideration of the foregoing Recitals and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree to the terms and conditions contained in
the following clauses:
Clauses
First. Conversion into L Shares. (a) The Trust Parties agree and hereby
instruct the Trustee to convert 1,059,890,076 AA Shares (the "Converted AA
Shares") that correspond to FTFI's Beneficiary Rights under the Trust into
1,059,890,076 L Shares (the "Conversion L Shares") and the Trust Parties shall
cause the Trustee to acknowledge receipt of such instructions and carry them out
simultaneously herewith.
(b) The Parties recognize and acknowledge that the Technical Committee
has authorized and instructed the Trustee to convert the Converted AA Shares
into Conversion L Shares and to withdraw the Conversion L Shares from the Trust
and deliver such Conversion L Shares to FTFI.
(c) The Trustee shall deliver to Telmex a share certificate,
representing the Converted AA Shares, and Telmex shall acknowledge receipt in
writing of such share certificate for cancellation.
(d) Telmex shall thereupon deliver a certificate for the Conversion L
Shares to FTFI by transferring them to the account of FTFI in Inversora
Bursatil, S.A. de C.V., Casa de Bolsa, Grupo Financiero Inbursa, through the
facilities of S.D. Indeval, S.A. de C.V., Institucion para el Deposito de
Valores, and FTFI shall acknowledge in writing receipt of the Converted L Shares
through such mechanism and hereby releases Telmex and the Trustee of any
requirement to deliver the Converted L Shares to it, provided that, in the event
Telmex does not deliver such Conversion L Shares pursuant to the above within 10
(ten) business days from the date of execution hereof, this Agreement shall be
terminated and the Parties shall retain its current rights and obligations as if
this Agreement had never existed. FTFI hereby acknowledge that the Converted L
Shares are not registered under applicable provisions of the 34 Act or any other
United States securities laws and may, therefore subject to applicable
restrictions on the sale or transfer of such securities under the United States
laws.
(e) Telmex hereby agrees to make as promptly as possible hereafter a
notation in its shareholders registry regarding the conversion of the Converted
AA Shares and their cancellation and the delivery of the Conversion L Shares and
to provide to FTFI a certified copy of such notation.
Second. Termination of Agreements. (a) The Trust Parties hereby jointly
agree to terminate the Trust Agreement solely with respect to FTFI and FTFI
shall withdraw from the Trust Agreement, provided that such Trust Agreement
shall remain in full force and effect as to Carso and SBC.
(b) The Trust Parties hereby agree to terminate the Shareholders
Agreement only with respect to FTFI. Carso and SBC hereby reaffirm the
continuation of the Shareholders Agreement as among them.
(c) Telmex and FTFI hereby agree to terminate, effective as of the date
the Converted L Shares are effectively delivered to FTFI, the technical
assistance, management (Contrato de Prestacion de Servicios de Operacion y
Administracion dated February 14, 2000) and any other agreement or ancillary
arrangement that was entered between and among the Trust Parties or Telmex only
with respect to FTFI, and therefore will hereafter be of no further force and
effect, including any obligations and liabilities incurred thereunder by any
party prior to the date hereof shall not survive such termination.
(d) Each of the Parties hereby releases each of the other Parties to
the fullest extent permitted by law with respect to all the agreements herein
terminated.
(e) SBC, Carso and Telmex agree that if for any reason SBC's rights
under the Trust, Management Services or Shareholders Agreements are in any way
diminished as a result of entering into this Agreement, SBC, Carso and Telmex
shall negotiate in good faith to amend such Agreements so that the provisions
therein are preserved to the greatest extent permitted or not specifically
prohibited under the law.
(f) FTFI agrees that during the term of its investment in Telmex that
it has received and has had access to confidential and/or proprietary
information of Telmex and its subsidiaries ("Information"). FTFI agrees that all
Information shall remain the exclusive property of the disclosing Party or its
Affiliates, and such Information shall not be used by FTFI for any purpose
whatsoever, unless agreed to in writing by the disclosing party.
(g) FTFI shall treat the Information as the confidential and
proprietary information of the disclosing Party, shall not disclose it to any
other person or entity except as may be authorized herein, and shall safeguard
the Information at least to the extent that it would its own confidential and
proprietary information, but to no extent less than reasonable care.
(h) FTFI agrees that all Information, if written, and any copies
thereof, as well as any written summaries of any Information disclosed orally,
shall be returned to the disclosing party within 30 days of the execution of
this Agreement (or 30 days after termination of any ongoing services provided by
FTFI as appropriate). FTFI shall provide the Parties with a written
certification by an officer of FTFI that this provision has been fully complied
with and that all Information has been returned.
(i) The obligations contained herein shall not apply to: (a)
information which is now in or hereafter enters the public domain without a
breach of this Agreement; (b) information known to the recipient prior to the
time of disclosure by the disclosing party or independently developed by the
recipient; or (c) information disclosed in good faith to the recipient by a
third person legally entitled to disclose the same free of any non-disclosure
restrictions.
Third. Information, Registration and Other Rights. (a) FTFI hereby
agrees to use commercially reasonable best efforts to keep Telmex informed,
subject to applicable law, of any intended disposal by FTFI of the Conversion L
Shares by means of a private sale or by means of open market transactions, by
providing notice to Telmex prior to any such disposition, provided that Telmex
shall, at all times, keep such notice strictly confidential, and provided
further, however that, FTFI may not knowingly after reasonable inquiry sell,
convey, assign or otherwise hypothecate, other than in a public offering, any
Conversion L Shares directly or indirectly to any person or legal entity engaged
in the Telecommunications Business in Mexico without the express written consent
of each of Telmex, SBC and Carso (in this last two cases so long that SBC and
Carso maintain any board representative in the Board of Directors of Telmex),
which consent will not be unreasonably withheld.
(b) Telmex hereby grants to FTFI the right to cause Telmex for a period
of 2 (two) years after the date of execution of this Agreement (the
"Registration Period"), to use commercially reasonable best efforts to register
the Conversion L Shares for any public disposition thereof in any market where
the Telmex shares are registered at that time and provide any further assistance
which FTFI may reasonably require in connection with such disposition including
the attendance to any road show (the "Registration"), subject to: (i) the
payment by FTFI of all related costs and expenses incurred at the written
request of FTFI to comply this Section (b), (ii) Telmex' right, in its sole
discretion, to postpone any such registration for up to ninety (90) days from
the date on which Telmex receives a written request from FTFI to undertake any
such Registration, only if Telmex is in the process of making or preparing to
make a registered offering to raise capital primarily (more than 50% of the
offering) for itself in which case FTFI may participate in the offering with the
prior written consent of Telmex, and (iii) Telmex shall have no obligation to
undertake more than four (4) Registrations during the Registration Period.
(c) Except as expressly permitted under a written agreement between
FTFI and Telmex, during a period of three (3) years following the date of the
execution of this Agreement, neither FTFI nor any of its Affiliates shall either
directly or indirectly, for itself or through, on behalf of, or in conjunction
with any natural person or legal entity, own, franchise, maintain, operate,
engage in, be employed by, any Telecommunications Business in Mexico (a
"Competing Business") or acquire and hold a five percent (5%) or greater passive
interest in any company or enterprise engaged materially in the
Telecommunications Business in Mexico, provided that, in no event shall FTFI
participate in the management of such Competing Business. For the purpose of
this Agreement, the right to nominate, select, or otherwise select any Officer
or Director of a Competing Business or the right or obligation to provide
consulting or management services of any kind to a Competing Business shall be
deemed to be participation in the management of such Competing Business.
(d) Notwithstanding anything to the contrary in this Section Three,
neither FTFI nor any of its Affiliates shall be prohibited from engaging,
participating or having an interest in, or being connected with, any business
opportunity that would otherwise fall within the scope of this Agreement if FTFI
shall have made such business opportunity available to Telmex by written notice
describing the business opportunity in reasonable detail and Telmex shall have
notified FTFI in writing within thirty (30) business days of receipt of such
notice that it does not wish to pursue such business opportunity or Telmex,
after providing such notice, shall fail diligently to pursue such opportunity,
provided that, in the event Telmex does not provide such notice to FTFI within
such thirty (30) business day period, FTFI shall be free to pursue such
engagement, participation, interest or connection, on its own; and provided,
however, that, if Telmex it is prohibited from pursuing such business
opportunity due to any law, rule or regulation of any governmental agency of
Mexico (a "Regulatory Limitation"), then the provisions of this Section 3(d)
shall not apply to FTFI as to the business opportunity that is the subject of
the Regulatory Limitation.
(e) FTFI agrees that until 5 years after the execution date of this
Agreement it shall not, and shall cause each of its directors, officers,
employees, agents, Affiliates or representatives (any of the foregoing, a
"Representative") not to, without the prior written consent of the Board of
Directors of Telmex, specifically expressed in a resolution approved by a
majority of the directors of Telmex, directly or indirectly, through one or more
intermediaries or otherwise, (i) acquire, agree to acquire or make any proposal
to acquire any equity securities of Telmex or any of its subsidiaries, any
warrant or option to acquire any such equity securities, any security
convertible into or exchangeable for any such equity securities or any other
right to acquire any such equity securities; (ii) seek or propose any merger,
consolidation, business combination, tender or exchange offer, sale or purchase
of assets or equity securities, dissolution, liquidation, restructuring,
recapitalization or similar transaction of or involving Telmex or any of its
subsidiaries; (iii) make, or in any way participate in, any "solicitation" of
proxies or consents (whether or not relating to the election or removal of
directors) within the meaning of Rule 14a-1 under the 34 Act with respect to any
equity securities of Telmex or any of its Subsidiaries, or seek to advise or
influence any person with respect to the voting of any equity securities of
Telmex or any of its subsidiaries or demand a copy of the stock ledger, list of
stockholders, or any other books and records of Telmex or any of its
subsidiaries; (iv) form, join or in any way participate in a "group" (within the
meaning of Section 13(d)(3) of the 34 Act), with respect to any equity
securities of Telmex or any of its Subsidiaries; (v) otherwise act, alone or in
concert with others, to seek to control or influence, in any manner, the
management, Board of Directors or policies of Telmex or any of its Subsidiaries;
(vi) call or seek to have called any meeting of the stockholders of Telmex or
execute any written consent with respect to Telmex or the common stock; (vii)
seek, alone or in concert with others, representation on the Board of Directors
or seek the removal of any member of such Board or a change in the composition
or size of such Board; (viii) have any discussions or enter into any
arrangements, understandings or agreements (whether written or oral) with, or
advise, finance, assist or encourage, any other persons in connection with any
of the foregoing, or make any investment in any other person that engages, or
offers or proposes to engage, in any of the foregoing; or (ix) make any publicly
disclosed proposal regarding any of the foregoing.
(f) For purposes of this Agreement: "Telecommunications Business in
Mexico" means any telecommunication business in the Mexican territory, excluding
the activities that Global One currently performs (i.e.: international long
distance, voice and data transmission services to multinational and large
corporates) and any activity related to broadcasting and internet content
services; "Affiliate" has the meaning ascribed to it in Rule 12b-2 under the 34
Act; and, "34 Act" means the Securities Exchange Act of 1934, as amended, or any
similar federal law then in force in the United States of America.
Fourth. Representations and Warranties. (a) Each of the Parties hereto
represent and warrant to the other that: (i) it is a corporation duly organized
and validly existing under the laws of its place of incorporation, and it has
full corporate power and authority to enter into this Agreement and to perform
its obligations hereunder; (ii) the execution of this Agreement has been duly
authorized by all necessary corporate action; (iii) this Agreement constitutes a
legal, valid and binding obligations of such Party, enforceable in accordance
with their terms, except as may be limited by bankruptcy, insolvency, suspension
of payments and the availability of equitable remedies; and (iv) the execution
of this Agreement and performance of its obligations hereunder will not conflict
with, or result in a breach of or default under, any agreement or instrument to
which it is a party or by which it is bound, or any order, decree or judgment of
any court of governmental agency or body.
(b) Telmex hereby represents and warrants to the Trust Parties that the
Conversion L Shares will be validly issued, non-assessable and free of any
liens, encumbrances or any preemptive or other rights of third parties and have
been issued as provided under Article Eleventh of its by-laws.
Fifth. Miscellaneous. (a) Notices. All notices, demands, consents, and
reports provided for in this Agreement shall be in writing and shall be given to
the other party, by registered air mail, postage prepaid, return receipt
requested, by hand delivery or by facsimile with a confirmation of transmission,
at the address set forth below, or at such other address as a party, may
hereafter specify in writing:
FTFI:
x/x Xxxxxx Xxxxxxx
0, xxxxx x'Xxxxxxx - 00000
Xxxxx Cedex 00
Xxxxxxxx xx Xxxxxx
Telefax: 01 44 44 98 03
Attn.: Xxxx Xxxxxxx
With a copy to:
Telefax: 01 44 44 21 54
Attn.: Xxxxxxxx XxxXxxxxxxx.
Carso:
Xxxxxxxxxxx Xxx 0000
Xxxxxxx Xxxx Xxxxx
00000 Xxxxxx, D.F.
Telefax: (000) 000-0000
Attn.: Xxxxxxxxx Xxxxxx Xxxx
SBC:
SBC International, Inc.
000 X. Xxxxxxx St., 00xx Xxxxx
Xxx Xxxxxxx, Xxxxx 00000
Xxxxxx Xxxxxx of America
Telefax: (000) 000-0000
Attn.: Xxxxxx Xxxxxxx
With a copy to:
Xxxxxx Xxxxxx
Xxxxxxx y Xxxxxxxx, S.C.
Telefax: (00) 0000-0000
Telmex:
Parque Xxx Xx. 000, Xxxx 00
Xxxxxxx Xxxxxxxxxx
00000 Xxxxxx, D.F.
Telefax: (000) 000-0000
Attn.: Xxxxxx Xxxxxx Xxxxx
With a copy to:
Xxxxxx Xxxxxx Xxxxx
Xxxxxx,Xxxxxxx, Duclaud y Xxxxxx, S.C
Paseo de las Palmas No. 405-3er. Piso
Colonia Xxxxx xx Xxxxxxxxxxx
00000 Xxxxxx, Distrito Federal
Telefax: (00)00 00 00 00
Any notice so given shall be deemed to be effective upon receipt.
(b) Language; Counterparts. This Agreement is executed in the English,
and has been executed in five counterparts, each of which shall be deemed to be
an original of this Agreement and constitute a single agreement.
(c) Governing Law; Arbitration. (1) This Agreement shall be governed
by, construed and interpreted in accordance with, the laws of New York, New
York, (without regard to the conflict of law provisions contained therein); (2)
All disputes arising out of, or in connection with, this Agreement shall be
finally settled under the Rules of Arbitration of the International Chamber of
Commerce by one or more arbitrators appointed in accordance with said rules. Any
such arbitration shall be conducted in the English language, and held in New
York, New York, United States of America, unless the parties mutually agree to a
location in another country which is a party to the New York Convention on
Recognition and Enforcement of Foreign Arbitral Awards. The award rendered by
the majority of the arbitrators shall be final, and judgment may be entered upon
it in accordance with applicable law in any court having jurisdiction thereof.
The demand for arbitration shall be made within a reasonable time after the
claim, dispute or other matter in question has arisen and in no event shall it
be made after the date when institution of legal proceedings based on such
claim, dispute or other matter in question would be barred by the applicable
statute of limitations. All costs and expenses in connection with any such
arbitration shall be borne in the manner which the majority of the arbitrators
making the determination shall direct; and, (3) THE PARTIES HEREBY IRREVOCABLY
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE
FEDERAL COURT OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE OF NEW YORK
SOLELY IN RESPECT OF THE ENFORCEMENT OF ANY ARBITRATION AWARD ISSUED IN
ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT, AND HEREBY WAIVE, AND AGREE
NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR THE
ENFORCEMENT HEREOF, THAT IT IS NOT SUBJECT THERETO OR THAT SUCH ACTION, SUIT OR
PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT THE
VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS AGREEMENT OR ANY SUCH DOCUMENT
MAY NOT BE ENFORCED IN OR BY SUCH COURTS. THE PARTIES HEREBY CONSENT TO AND
GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE
SUBJECT MATTER OF SUCH DISPUTE. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY
CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS
WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (iv) EACH PARTY HAS
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVER AND CERTIFICATIONS IN THIS SECTION 5(c).
(d) Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective permitted successors and
assigns.
(e) Entire Agreement. This Agreement constitutes the entire agreement
between the Parties hereto relating to the subject matter hereof, and supersedes
all prior agreements, representations, and understandings of the Parties. There
are no other terms, obligations, covenants, representations, statements or
conditions other than those contained herein and therein.
(f) Further Instruments and Acts. The Parties hereto will execute and
deliver such further instruments and do such further acts as may be necessary or
proper to carry out more effectively the purposes of this Agreement.
(g) Waivers; Amendments. No failure by either Party hereto to insist on
the strict performance of any covenant, agreement, term or condition of this
Agreement, or to exercise any right or remedy consequent upon the breach
thereof, shall constitute a waiver of any such breach or any subsequent breach
of such covenant, agreement, term or condition. No provision of this Agreement
(and no breach thereof) shall be waived, altered, amended supplemented or
modified except by written instrument signed by all Parties on which such
waiver, alteration, amendment or modification is binding. No waiver of any
breach shall affect or alter this Agreement, but each and every covenant,
agreement, term and condition of this Agreement shall continue in full force and
effect with respect to any other than existing or subsequent breach thereof.
(h) Headings. Headings of Sections and Subsections are for convenience
of reference only and are not intended to define, limit or describe the scope or
intent of any provision of this Agreement.
(i) Unenforceability. If any provision of this Agreement shall be found
to be invalid or unenforceable, the remainder of this Agreement shall remain in
full force and effect.
(j) Public Notice. The Trust Parties and Telmex hereby agree to jointly
release, as soon as practicable to each Party, upon execution of this Agreement,
a public notice substantially in the form attached hereto as Exhibit "B".
(k) Specific Performance. The obligations of the Parties hereto under
this Agreement are unique. If any Party should default in its obligations under
this Agreement, the defaulting Party acknowledges that it would be extremely
impracticable to measure the resulting damages. Accordingly, in addition to any
other available rights or remedies, the non-defaulting Party or Parties may
seek, and the Arbitrators shall specifically be authorized to order specific
performance and each defaulting Party expressly waives any defense that a remedy
in damages will be adequate.
(l) Third-Party Beneficiaries. Nothing in this Agreement, whether
express or implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any persons other than the Parties and their
respective successors and permitted assigns, nor is anything in this Agreement
intended to relieve or discharge the obligation or liability of any person (not
a party hereto) to any Party to this Agreement, nor shall any provision give any
person (not a party hereto) any right of subrogation or action over against any
Party to this Agreement.
(m) Expenses. Each Party shall pay all costs and expenses incurred or
to be incurred by it in connection with the negotiation and preparation of this
Agreement.
(n) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
In witness whereof, the parties hereto have executed or caused this
Agreement to be executed, all as of the day and year first above written.
France Telecom Financiere Internationale
By: Laurent Mialet
Its: Attorney in Fact
Carso Global Telecom, S.A. de C.V.
By: Xxxxx Xxxxx Xxxxx
Its: ViceChairman of the Board
SBC International, Inc.
By: Xxxx X. Xxxxx
Its: VicePresident-Development
Telefonos de Mexico, S.A. de C.V.
By: Xxxxxx Xxxxxx Xxxxx
Its: Chief Financial Officer
Exhibits:
"A" Minutes of Technical Committee
"B" Press Release
Exhibit A
ACTA No. 18
Acta de la Sesion del Comite Tecnico del Fideicomiso 2226-5 sobre las acciones
Serie "AA" de Telefonos de Mexico, S.A. de C.V., del que es Fiduciario Banco
Internacional, S.A., Grupo Financiero Bital, Departamento Fiduciario, celebrada
con fecha 27 de abril de 2000, en la cual estuvieron presentes la totalidad de
los miembros de dicho Comite que al final xxxxxx la presente acta.
Fungio como Presidente el senor Ing. Xxxxx Xxxxx Xxxxx y actuo como Secretario
de actas el Lic. Xxxxxx X. Xxxxxx Xxxxxxx.
Habiendose cubierto los requisitos que se preven en el sub-inciso 5.3.4 del
Contrato de Fideicomiso 2226-5 sobre las acciones Serie "AA" de Telefonos de
Mexico, S.A. de C.V., del que es Fiduciario el Banco Internacional, S.A., Grupo
Financiero Bital, Departamento Fiduciario y una vez que los presentes hicieron
constar que la sesion se encontraba legalmente instalada, se procedio al
desahogo de los siguientes asuntos: I. Acuerdo e instrucciones a Banco
Internacional, S.A., Grupo Financiero Bital, Departamento Fiduciario para
convertir 1,059,890,076 acciones Serie AA que corresponden a los derechos de
fideicomisario de France Telecom Financiere Internationale, en 1,059,890,076
acciones Serie L; II. Nombramiento de delegados de la Sesion; III. Aprobacion
del acta de la Sesion. Al respecto, el Comite Tecnico adopto, por unanimidad de
votos de sus miembros presentes, las siguientes resoluciones:
I. En relacion con el punto I del Orden del Dia, se resuelve aprobar y en este
acto instruir a Banco Internacional, S.A., Grupo Financiero Bital, Departamento
Fiduciario, en su caracter de fiduciario del Fideicomiso 2226-5, a que, de
conformidad con lo dispuesto en el contrato del Fideicomiso, solicite a
Telefonos de Mexico, S.A. de C.V. que convierta 1,059,890,076 acciones Serie AA
que corresponden a los derechos de fideicomisario de France Telecom Financiere
Internationale en terminos del contrato del Fideicomiso en 1,059,890,076
acciones Serie L, e inmediatamente Telefonos de Mexico, S.A. de C.V. las
entregue a France Telecom Financiere Internationale mediante su deposito con
S.D. Indeval, S.A. de C.V., Institucion para el Deposito de Valores, al xxxxxx
del contrato de intermediacion bursatil que France Telecom Financiere
Internationale celebro con Inversora Bursatil, S.A. de C.V., Casa de Bolsa,
Grupo Financiero Inbursa. Finalmente y en relacion con la asamblea anual
ordinaria de accionistas de Telefonos de Mexico, S.A. de C.V. que habra de
celebrarse el 28 de abril de 2000 a las 12:00 horas, se acuerda instruir al
Fiduciario a que asista a dicha asamblea y vote la totalidad de las acciones
"AA" afectas al Fideicomiso en los terminos que se establece en el Anexo "A" de
la presente Sesion.
II. En relacion con el punto II del Orden del Dia, se acuerda designar como
delegados de la presente Sesion a los senores Ing. Xxxxx Xxxxx Xxxxx, Lic.
Xxxxxx Xxxxxx Noregia, Ing. Xxxxxx Xxxxxx Xxxxx, Lic. Xxxxxx Xxxxxx Miaja y Lic.
Xxxxxxx Xxxxxxxxx Xxxxx, para que cualquiera de ellos en lo individual formalice
y de cumplimiento a las resoluciones adoptadas por la presente Sesion.
III. En relacion con el III punto del Orden del Dia, se resuelve aprobar la
presente acta de la Sesion del Comite Tecnico en sus terminos, cuyo original,
que consta de una hoja utilizada por anverso y reverso, se xxxxxx entregar al
Banco Internacional, S.A., Grupo Financiero Bital, Departamento Fiduciario para
todos los efectos a que xxxx xxxxx, el cual xxxxxx expedir copia de la misma a
cualquiera de los miembros del Comite Tecnico que lo soliciten, documento que
proceden a firmar todos los miembros del Comite Tecnico.
MIEMBROS DEL COMITE TECNICO
Del Segundo Fideicomisario "A"
/s/ Xxxxxx Xxxx Xxxx /s/ Xxxxxx Slim Domit
-------------------- ---------------------
Xxxxxx Xxxx Xxxx Xxxxxx Slim Domit
/s/ Xxxxx Xxxxx Xxxxx /s/ Xxxxxx Xxxxxx Xxxxxxx
--------------------- -------------------------
Xxxxx Xxxxx Xxxxx Xxxxxx Xxxxxx Xxxxxxx
/s/ Xxxx Xxxxxxx Xxxxx Simon
----------------------------
Xxxx Xxxxxxx Xxxxx Xxxxx
Del Segundo Fideicomisario "B-I"
/s/ Xxxxxxxx Xxxxxx Fano /s/ Xxxxxx Xxxxxx Verea
------------------------ -----------------------
Xxxxxxxx Xxxxxx Xxxx Xxxxxx Xxxxxx Xxxxx
Del Segundo Fideicomisario "B-II"
/s/ Xxxx Xxxxx Xxxxxxxx /s/ Xxxx Xxxxxxx
----------------------- ----------------
Xxxx Xxxxx Xxxxxxxx Xxxx Xxxxxxx
Exhibit A
ACT No. 18
Minutes of the Meeting of the Technical Committee of the Trust 2226-5 regarding
the Series "AA" shares of Telefonos de Mexico, S.A. de C.V., of which Banco
Internacional, S.A., Grupo Financiero Bital, Trustee Department are Trustees,
executed on the 27th day of April of 2000, at which time all members of the
aforementioned Committee that signed these Minutes were present.
Xx. Xxxxx Xxxxx Xxxxx, Ing. acted as President and Xx. Xxxxxx X. Xxxxxx Xxxxxxx,
Lic. acted as Secretary of the Meeting.
After having fulfilled the requirements provided for in sub-section 5.3.4 of the
Trust Agreement 2226-5 regarding Series "AA" shares of Telefonos de Mexico, S.A.
de C.V., of which Banco Internacional, S.A., Grupo Financiero Bital, Trustee
Department are Trustees, and once all those present made record of the fact that
the meeting was legally established, they proceeded to discuss the following
matters: I. Agreement and instructions to Banco Internacional, S.A., Grupo
Financiero Bital, Trustee Department to convert 1,059,890,076 Series "AA" shares
that correspond to the trust rights of France Telecom Financiere Internationale,
to 1,059,890,076 shares Series L; II. Selecting the Meetings delegates; III.
Approving the Minutes of the Meeting. The Committee accepted, by a unanimous
vote of its members present, the following resolutions:
I. Regarding point I Order of Business, it is resolved, and these Minutes
institute that, Banco Internacional, S.A., Grupo Financiero Bital, Trustee
Department, in its role as trustee of the Trust 2226-5, request Telefonos de
Mexico, S.A. de C.V. to convert 1,059,890,076 Series "AA" shares, that
correspond to the trust rights of France Telecom Financiere Internationale in
terms of the Trust contract, to 1,059,890,076 shares Series L, and that
Telefonos de Mexico, S.A. de C.V. will immediately transfer them to France
Telecom Financiere Internationale by means of its deposit with S.D. Indeval,
S.A. de C.V., Institution for Security Deposit, to safeguard the contract of
stock market intermediary that France Telecom Financiere Internationale executed
with Iversora Bursatil, S.A. de C.V., Casa de Bolsa, Grupo Financiero Inbursa.
Finally, and in relation to the annual stockholders meeting of Telefonos de
Mexico, S.A. de C.V. shareholders that is to be held on the 28th day of April of
2000 at 1200 hours, its noted to instruct the Trustee to attend the
aforementioned meeting and vote the total number of shares "AA" effective to the
Trust under the terms that are established in Annex A of this Meeting.
II. Regarding point II Order of Business, the following are noted as delegates
of the present Meeting: Xx. Xxxxx Xxxxx Xxxxx, Ing., Mr. Xxxxxx Xxxxxx Xxxxxxx,
Lic., Xxxxxx Xxxxxx Xxxxx, Xx. Xxxxxx Xxxxxx Miaja, Lic., and Xx. Xxxxxxx
Xxxxxxxxx Xxxxx, Lic., so that any of them individually formalize and execute
the resolutions adopted in this Meeting.
III. Regarding point III Order of Business, it is resolved that the original of
these Minutes of the Meeting of the Technical Committee under its terms, which
consists of one page front and back sides, should be delivered to Banco
Internacional, S.A., Grupo Financiero Bital, Trustee Department for all the acts
which are in place, should be delivered to members of the Technical Committee
that request a copy, and will now be signed by all members of the Technical
Committee.
MEMBERS OF THE TECHNICAL COMMITTEE
From the Second Beneficiary "A"
/s/ Xxxxxx Xxxx Xxxx /s/ Xxxxxx Slim Domit
-------------------- ---------------------
Xxxxxx Xxxx Xxxx Xxxxxx Slim Domit
/s/ Xxxxx Xxxxx Xxxxx /s/ Xxxxxx Xxxxxx Xxxxxxx
--------------------- -------------------------
Xxxxx Xxxxx Xxxxx Xxxxxx Xxxxxx Xxxxxxx
/s/ Xxxx Xxxxxxx Xxxxx Simon
----------------------------
Xxxx Xxxxxxx Xxxxx Xxxxx
From the Second Beneficiary "B-I"
/s/ Xxxxxxxx Xxxxxx Fano /s/ Xxxxxx Xxxxxx Xxxxx
------------------------ -----------------------
Xxxxxxxx Xxxxxx Xxxx Xxxxxx Xxxxxx Xxxxx
From the Second Beneficiary "B-II"
/s/ Xxxx Xxxxx Xxxxxxxx /s/ Xxxx Xxxxxxx
----------------------- ----------------
Xxxx Xxxxx Xxxxxxxx Xxxx Xxxxxxx
EXHIBIT B
COMUNICADO DE PRENSA
FRANCE TELECOM CONVIERTE SUS ACCIONES DE LA SERIE AA EN ACCIONES
DE LA SERIE L DE TELEFONOS DE MEXICO, S.A. DE C.V.
Xxxxxx, Xxxxxxxx Xxxxxxx, 00 de abril de 2000. France Telecom (NYSE:
"FTE"), Telefonos de Mexico, S.A. de C.V. (BMV: "Telmex") (NYSE: "TMX") (en lo
sucesivo "Telmex") y sus otros accionistas principales, Carso Global Telecom,
S.A. de C.V. (BMV: "Telecom") y SBC Communications, Inc. (NYSE: "SBC"),
informaron el dia xx xxx que acordaron que France Telecom, tenedor de
aproximadamente 1,060 millones de acciones (aproximadamente 7%) del capital
social de Telmex, convierta a la par sus acciones comunes con pleno a derecho a
voto de la Serie "AA" en acciones de la Serie "L" de voto limitado con efectos
inmediatos.
Como resultado de la conversion, el numero de acciones en circulacion
no se modifica y el capital social de Telmex quedo representado aproximadamente
en un 22% por acciones de la Serie "AA", en un 2% por acciones de la Serie "A" y
en un 76% por acciones de la Serie "L".
France Telecom solicito la conversion para establecer una posicion
liquida en acciones de la Serie "L" de Telmex que le permita, eventualmente,
disponer en forma ordenada de su posicion accionaria. Para lograr este objetivo,
Telmex y sus socios principales colaboraran con France Telecom, la cual
utilizara medios de desinversion que consideren los intereses de los
inversionistas de Telmex.
France Telecom ha participado en y apoyado el desarrollo de Telmex
durante los ultimos diez anos. Ahora requiere enfocarse en nuevos retos de su
propio desarrollo. France Telecom confia que el desarrollo y exito futuros de
Telmex se mantienen sin cambio.
France Telecom y Telmex continuaran su cooperacion respecto a la
busqueda de oportunidades futuras en los mercados internacionales para
desarrollar inversiones conjuntas. En este contexto, Telmex ha decidido invitar
a un alto funcionario de France Telecom como miembro de su Consejo de
Administracion.
SBC Communications, Inc., ha manifestado su intencion de mantener su
posicion accionaria en Telmex durante un periodo de tiempo indefinido,
fortaleciendo la serie de relaciones estrategicas e inversiones conjuntas con
Telmex.
Al referirse a la conversion de acciones por France Telecom, el Ing.
Xxxxxx Xxxx Xxxx, Presidente del Consejo de Administracion de Telmex manifesto:
"Desde hace casi 10 anos hemos contado con la activa y valiosa participacion de
nuestros socios franceses en el desarrollo nacional de Telmex y buscaremos
continuar compartiendo oportunidades en el xxxxxxx global con ellos,
independientemente del nivel de su participacion en el capital social de nuestra
empresa".
Carso Global Telecom, S.A. de C.V. controla a Telmex y el propietaria
de mas de una cuarta parte del capital social de Telmex en circulacion.
Actualmente, tanto Carso Global Telecom, S.A. de C.V. como SBC Communications,
Inc. son tenedoras de poco mas del 84% de las acciones comunes con pleno derecho
de voto del capital social de Telmex.
******
EXHIBIT B
PRESS RELEASE
FRANCE TELECOM CONVERTS ITS TELMEX SERIES AA SHARES INTO SERIES L SHARES
MEXICO CITY, April 28, 2000. France Telecom (NYSE. "FTE"), Telefonos de
Mexico, S.A. de C.V. (NYSE: "TMX") ("Telmex") and its main shareholders, Carso
Global Telecom, S.A. de C.V. and SBC Communications, Inc. (NYSE: "SBC") today
announced an agreement whereby France Telecom, holder of approximately 1,060
million shares (approximately 7% of Telmex), immediately converts its Telmex
full voting stock Series "AA" shares into limited voting Series "L" shares.
As a result of the conversion, the number of Telmex shares outstanding
will not change. The share capital of Telmex will consist of approximately 22%
of Series "AA" stock, 2% of Series "A" stock and 76% of Series "L" Stock.
France Telecom has requested this conversion in order to establish a
liquid position in Series "L" stock of Telmex, in anticipation of a future
possible orderly disposal of the stock. Telmex and its main shareholders will
cooperate with France Telecom in any future disposal and France Telecom, in
turn, will consider the interests of Telmex and its shareholders in disposing of
its share position.
France Telecom has participated in and supported the development of
Telmex for the past ten years. It now needs to focus on new challenges in its
own development. France Telecom's confidence in Telmex's future development and
success remains unchanged.
France Telecom and Telmex will continue their cooperation towards
seeking future opportunities for joint investments in international
telecommunications markets. In that context, Telmex will ask a member of France
Telecom's senior management team to retain a seat on its Board of Directors.
SBC Communications, Inc. has expressed its intention to maintain its
position as a Telmex shareholder for an indefinite period of time and to
strengthen relations and joint investments with Telmex.
In discussing the share conversion by France Telecom, Xxxxxx Slim,
chairman of the Board of Directors of Telmex, said: "For almost 10 years, we
have counted on the active and productive participation of our French partners
in the national development of Telmex, and we will seek to continue sharing
opportunities with them in the global markets, notwithstanding the level of
their participation in the share capital of our company".
Carso Global Telecom, S.A. de C.V. controls Telmex and owns more than a
quarter of its outstanding share capital. As of today, Carso Global Telecom,
S.A. de C.V. and SBC Communications, Inc. hold together more than 84% of the
Telmex common stock with full voting rights.
******
