exv10w1



 




Exhibit 10.1

SETTLEMENT AGREEMENT 




     THIS SETTLEMENT AGREEMENT (this “Agreement”) is dated and effective as of September
21, 2007 (the “Effective Date”), and is made and entered into by and among Kansas City
Southern, Grupo TMM, S.A.B., TMM Logistics, S.A. de C.V., and Vex Asesores Corporativos, S.A. de
C.V. (the “Parties”).



     WHEREAS, Kansas City Southern (“KCS”) has filed a Demand for Arbitration asserting claims
under Article 10 of the Parties’ Amended and Restated Acquisition Agreement, dated December 15,
2004 (“AAA”); and



     WHEREAS, Grupo TMM, S.A.B and TMM Logistics, S.A. de C.V. (“TMML”) (collectively “TMM”) have
filed a Demand for Arbitration asserting claims under Article 10 of the AAA; and



     WHEREAS, the Parties are currently pursuing these claims in Grupo TMM, S.A.B. and TMM
Logistics, S.A. de C.V. v. Kansas City Southern, Case No. 50 180 T 00158 07, American Arbitration
Association, International Centre for Dispute Resolution (the “Arbitration”); and



     WHEREAS, the Parties wish to settle and release all the claims asserted against each other in
the Arbitration; and



     WHEREAS, the Parties wish to terminate all relationships among them, including, without
limitation, the Consulting Agreement between Kansas City Southern and Vex Asesores Corporativos,
S.A. de C.V. (formerly, Jose F. Serrano International Business, S.A. de C.V.);



     NOW THEREFORE, in consideration of the premises and the mutual covenants and agreements herein
contained, the Parties agree as follows:



VAT Escrow and Indemnity Escrow:





	 	1.	 	This Agreement and the documents contemplated by this Agreement are being
executed by each Party at their respective company headquarters in Kansas City,
Missouri and Mexico City on this date of September 21, 2007. At the signing of this
Agreement, TMM and KCS are executing all documents required under the VAT Escrow
Agreement entered into pursuant to the AAA (the “VAT Escrow”) to cause the Escrow
Agent to terminate the VAT Escrow, returning the VAT Escrow Note to KCS and making no
payment or other distribution therefrom to any other Party thereto. At the signing of
the Agreement, TMM and KCS are also executing all documents, required under the
Indemnity Escrow Agreement entered into pursuant to the AAA (the “Indemnity Escrow”)
to cause the Escrow Agent to terminate the Indemnity Escrow, returning the Indemnity
Escrow Notes to KCS and making no payment or other distribution therefrom to any other
Party thereto.





 









 





	 	2.	 	Following execution of this Agreement and other documents as set forth in
this Agreement, TMM and KCS shall take all action (including, without limitation,
payment of the Escrow Agent’s fees), and execute any additional necessary documents
later deemed necessary or required under the VAT Escrow and the Indemnity Escrow to
carry out the purposes of this Agreement.
	 
	 	3.	 	Upon the execution of this Agreement and other documents as set forth in this
Agreement, KCS shall pay TMM the sum of $54,137,000, without fees or deductions of any
kind, by wire transfer to Grupo TMM S.A.B. on or before October 1, 2007.





Claims in the Arbitration:





	 	4.	 	The Parties hereby release each other from all the claims that have been
asserted in the Arbitration and agree to take all action necessary or required to
dismiss the Arbitration.





Marketing and Services Agreement:





	 	5.	 	TMM consents and TMML and KCS agree to terminate and cause their respective
subsidiaries and affiliates and joint venture companies to terminate the Marketing and
Services Agreement entered into pursuant to the AAA.





Consulting Agreement and Consulting Escrow:





	 	6.	 	Vex Asesores Corporativos, S.A. de C.V. (“VAC”) and KCS agree to terminate
the Consulting Agreement between KCS and VAC entered into pursuant to the AAA. VAC
and KCS further agree to take all action (including without limitation payment of the
Escrow Agent’s fees) and execute all additional documents later deemed necessary or
required under the Consulting Compensation Escrow Agreement to terminate the
Consulting Compensation Escrow Agreement, and cause the Escrow Agent named therein to
return all funds retained therein to KCS, making no payment or other distribution
therefrom to any other party thereto.
	 
	 	7.	 	Upon the execution of this Agreement and other documents as set forth in this
Agreement, KCS shall pay the sum of $3,000,000, without fees or deductions of any
kind, by wire transfer to José F. Serrano International Business, S.A. de C.V.
(presently Vex Asesores Corporativos, S.A. de C.V.)) on or before October 1, 2007.




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General Release:





	 	8.	 	In consideration of the agreements set forth herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the KCS and TMM and TMML each forever release and discharge each other and each of
their respective parents, subsidiaries, affiliates, directors, stockholders, officers,
employees, agents and attorneys (collectively, the “Released Persons”) and the heirs,
executors, administrators, successors and assigns of the Released Persons from any and
all charges, complaints, claims, promises, suits, debts, sums of money, accounts,
covenants, contracts, controversies, damages, judgments, rights, obligations,
agreements and causes of action, whether known or unknown, whether contingent or
liquidated, of every kind, nature or description arising by reason of any matter,
cause or thing whatsoever at any time to the date of this Release. This Release
includes, but is not limited to, any claim related to the AAA or any agreement,
schedule, exhibit or other document related to the AAA, including the agreements
designated in Section 12.2 of AAA, and any claim that was or could have been raised
in the Arbitration and including any rights arising out of alleged violations or
breaches of any express or implied agreement; breach of the implied covenant of good
faith and fair dealing (other than for breach of this Agreement, which is expressly
excluded from this Release); any tort; negligent or intentional misrepresentation;
intentional or negligent interference with contractual relations. The Parties promise
not to initiate a lawsuit or an arbitration or bring a claim against any of the other
Released Persons in any court or otherwise relating to any action released under this
provision, under any common law claim, whether in law or equity, or any federal, state
or local statute, ordinance or rule of law.
	 
	 	9.	 	In consideration of the agreements set forth herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
KCS and VAC each forever release and discharge each other and each of their respective
parents, subsidiaries, affiliates, directors, stockholders, officers, employees,
agents and attorneys (collectively, the “Released Persons”) and the heirs, executors,
administrators, successors and assigns of the Released Persons from any and all
charges, complaints, claims, promises, suits, debts, sums of money, accounts,
covenants, contracts, controversies, damages, judgments, rights, obligations,
agreements and causes of action, whether known or unknown, whether contingent or
liquidated, of every kind, nature or description arising by reason of any matter,
cause or thing whatsoever at any time to the date of this Release. This Release
includes, but is not limited to, any claim related to the Consulting Compensation
Escrow and the Consulting Agreement, the AAA or any agreement, schedule, exhibit or
other document related to the AAA, including the agreements designated in Section 12.2
of AAA, and any claim that was or could have been raised in the Arbitration and




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	 	 	 	including any rights arising out of alleged violations or breaches of any express
or implied agreement; breach of the implied covenant of good faith and fair dealing
(other than for breach of this Agreement, which is expressly excluded from this
Release); any tort; negligent or intentional misrepresentation; intentional or
negligent interference with contractual relations. The Parties promise not to
initiate a lawsuit or an arbitration or bring a claim against any of the other
Released Persons in any court or otherwise relating to any action released under
this provision, under any common law claim, whether in law or equity, or any
federal, state or local statute, ordinance or rule of law.
	 
	 	10.	 	The General Releases in paragraphs 8 and 9 of this Agreement do not apply to
any action initiated pursuant to paragraph 12 of this Agreement.





Miscellaneous Provisions:





	 	11.	 	This Agreement shall be governed by, construed, applied and enforced in
accordance with the internal laws of the State of Delaware and no doctrine or choice
of law shall be used to apply any law other than that of Delaware and no defense,
counterclaim or right of setoff given or allowed by the laws of any other state or
jurisdiction, arising out of the enactment, modification or repeal of any law,
regulation, ordinance or decree of any foreign jurisdiction shall be interposed in any
action hereon.
	 
	 	12.	 	Any disputes arising under, or relating to, this Agreement shall be brought
by either Party, to a court of competent jurisdiction in the State of Delaware. Both
Parties waive their right to a trial by jury. Each Party hereby consents to personal
jurisdiction in any such action brought in any Delaware court and waives any objection
to venue in any Delaware court and any claim that Delaware is an inconvenient forum.
	 
	 	13.	 	This Agreement is binding upon and inures to the benefit of the Parties, and
their partners, directors, officers, employees, agents, heirs, successors, assigns,
and representatives, and anyone claiming through them, and as part of the
consideration therefore, the Parties expressly represent and warrant for themselves,
their partners, directors, officers, employees, agents, heirs, successors, assigns,
and representatives, and to each other, that: (a) they are legally competent and
authorized to execute this Agreement, and (b) they have not assigned, pledged, or
otherwise, in any manner whatsoever, sold or transferred, either by assignment in
writing or otherwise, any right, title, interest or claim which they may have in
claims, causes of actions, demands, contracts, promises, and obligations hereby
released.




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	 	14.	 	This Agreement and the documents contemplated by this Agreement constitutes
the final and complete expression of all the terms of the agreement between the
Parties with respect to the subject matter hereof. It supersedes all understandings
and negotiations concerning the matters specified herein. Any representation, oral
statement, promise, or warranty made by any Party that differs in any way from the
terms of this Agreement shall not be binding unless made in writing and signed by a
duly authorized representative of all Parties.
	 
	 	15.	 	Any invalidity, in whole or in part, of any provision of this Agreement shall
not affect the validity of any other of its provisions.
	 
	 	16.	 	This Agreement is executed by the Parties in four originals, one for each
Party and each of which is deemed an original for all purposes.
	 
	 	17.	 	Given that the Parties have had the opportunity to draft, review, and edit
the language of this Agreement, no presumption for or against any Party arising out of
drafting all or any part of this Agreement will be applied in any action relevant to,
connected to, or involving this Agreement.





     EXECUTED for all purposes as of the Effective Date September 21, 2007:



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	 	KANSAS
	 	CITY SOUTHERN	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:

Title:
	 	/s/ Michael R. Haverty
 

Michael R. Haverty

Chairman and Chief Executive

Office
	 	 
	 
	 	 	 	 	 	 
	 	 	GRUPO TMM, S.A.B.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Javier Segovia Serrano	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:

Title:
	 	Javier Segovia Serrano

 Attorney-in-Fact	 	 
	 
	 	 	 	 	 	 
	 	 	TMM LOGISTICS, S.A. DE C.V.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Javier Segovia Serrano	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:

Title:
	 	Javier Segovia Serrano

Attorney-in-Fact	 	 
	 
	 	 	 	 	 	 
	 	 	VEX ASESORES	 	 
	 	 	CORPORATIVOS, S.A.DE C.V.	 	 
	 	 	(Formerly: JOSE F.
	 	 
	 	 	SERRANO INTERNATIONAL BUSINESS,

S.A. de C.V.)	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ José F. Serrano Segovia	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:

Title:
	 	José F. Serrano Segovia

 Attorney-in-Fact	 	 







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