exv10w1



 




[Form of Registration Rights Agreement]



Exhibit 10.1














REGISTRATION RIGHTS AGREEMENT




among




DESARROLLADORA HOMEX, S.A. DE C.V.,

BANCO SANTANDER MEXICANO, S.A.,

as trustee of TRUST NO. F/10289, FOR THE BENEFIT OF

THE DE NICOLÁS FAMILY,




BERMUDA TRUST COMPANY LIMITED,

as trustee of ZN MEXICO TRUST,




and




EIP INVESTMENT HOLDINGS, LLC




Dated as of June [•], 2004


















 









 




TABLE OF CONTENTS



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	ARTICLE I DEFINITIONS	 	 	1	 
	 
	 	Section 1.1	 	Defined Terms	 	 	1	 
	ARTICLE II DEMAND REGISTRATION	 	 	2	 
	 
	 	Section 2.1	 	Demand Registrations	 	 	2	 
	 
	 	Section 2.2	 	Notice of Demand Registration	 	 	2	 
	 
	 	Section 2.3	 	Selection of Underwriters	 	 	2	 
	 
	 	Section 2.4	 	Priority on Registrations	 	 	2	 
	 
	 	Section 2.5	 	Restrictions on Registration	 	 	3	 
	ARTICLE III PIGGYBACK REGISTRATION	 	 	3	 
	 
	 	Section 3.1	 	Piggyback Rights	 	 	3	 
	 
	 	Section 3.2	 	Priority on Primary Registrations	 	 	3	 
	 
	 	Section 3.3	 	Other Registrations	 	 	4	 
	ARTICLE IV REGISTRATION ON FORM F-3	 	 	4	 
	ARTICLE V HOLDBACK AGREEMENTS	 	 	4	 
	 
	 	Section 5.1	 	Limitations on the Company	 	 	4	 
	 
	 	Section 5.2	 	Limitations on Holders	 	 	4	 
	ARTICLE VI REGISTRATION	 	 	5	 
	 
	 	Section 6.1	 	Registration Procedures	 	 	5	 
	 
	 	Section 6.2	 	Obligations of Holders	 	 	8	 
	 
	 	Section 6.3	 	Adjustments Affecting Registrable Shares	 	 	8	 
	 
	 	Section 6.4	 	Compliance with Rule 144A	 	 	8	 
	ARTICLE VII REGISTRATION EXPENSES	 	 	8	 
	 
	 	Section 7.1	 	Incidental Expenses	 	 	8	 
	 
	 	Section 7.2	 	Internal Expenses	 	 	8	 
	 
	 	Section 7.3	 	Legal Expenses of Holders	 	 	9	 
	ARTICLE VIII INDEMNIFICATION	 	 	9	 
	 
	 	Section 8.1	 	Indemnification of Selling Holders and Underwriters	 	 	9	 
	 
	 	Section 8.2	 	Indemnification Notices and Expenses	 	 	10	 
	 
	 	Section 8.3	 	Contribution	 	 	11	 
	 
	 	Section 8.4	 	Conflict with Underwriting Agreement	 	 	11	 
	 
	 	Section 8.5	 	Survival of Obligation to Indemnify	 	 	11	 







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TABLE OF CONTENTS

(continued)



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	ARTICLE IX MISCELLANEOUS	 	 	11	 
	 
	 	Section 9.1	 	Remedies	 	 	11	 
	 
	 	Section 9.2	 	Amendments and Waivers	 	 	11	 
	 
	 	Section 9.3	 	Successors and Assigns	 	 	12	 
	 
	 	Section 9.4	 	Termination	 	 	12	 
	 
	 	Section 9.5	 	Integration	 	 	12	 
	 
	 	Section 9.6	 	Severability	 	 	12	 
	 
	 	Section 9.7	 	Headings	 	 	12	 
	 
	 	Section 9.8	 	Communications	 	 	12	 
	 
	 	Section 9.9	 	Governing Law	 	 	13	 
	 
	 	Section 9.10	 	Submission to Jurisdiction and Agent for Service of Process	 	 	13	 
	 
	 	Section 9.11	 	Waiver of Jury Trial	 	 	14	 
	 
	 	Section 9.12	 	Counterparts	 	 	14	 







-ii-









 





REGISTRATION RIGHTS AGREEMENT








     REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of June [•],
2004, among Desarrolladora Homex S.A. de C.V., a sociedad anónima de capital
variable organized under the laws of Mexico (the “Company”), Banco Santander
Mexicano, S.A., as trustee of Trust No. F/10289, for the benefit of the de
Nicolás family, a trust organized under the laws of Mexico (the “De Nicolás
Family Trust”), Bermuda Trust Company Limited, as trustee of ZN Mexico Trust, a
trust organized under the laws of Bermuda (“ZN Mexico Trust”), and EIP
Investment Holdings, LLC, a limited liability corporation organized under the
laws of Delaware (“EIP”).











     WHEREAS, the De Nicolás Family Trust, ZN Mexico Trust, and EIP are the
beneficial owners of all the outstanding common shares of the Company (the
“Common Shares”);











     WHEREAS, the Company will effect an initial public offering in the United
States of certain of the Common Shares (the “Public Offering”) pursuant to a
Registration Statement on Form F-1 under the U.S. Securities Act of 1933 (the
“Registration Statement”);







     WHEREAS, the Company has agreed to provide the registration rights
described herein to the De Nicolás Family Trust, ZN Mexico Trust, and EIP,
following the Public Offering, and the Company, the De Nicolás Family Trust, ZN
Mexico Trust, and EIP are entering into this Agreement to set forth the terms
and conditions applicable to the grant and exercise of the registration rights;



     NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements contained herein, the parties hereto agree as follows:



ARTICLE I

DEFINITIONS








     Section 1.1 Defined Terms. Capitalized terms used herein and not
otherwise defined shall have the following meanings:











     “Commission” means the U.S. Securities and Exchange Commission.











     “Effective Date” means the date that the Registration Statement is
declared effective by the Commission.











     “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.











     “Holder” means each of the De Nicolás Family Trust, ZN Mexico Trust, and
EIP, and their respective successors and assigns, as contemplated by Section
9.3 hereof.











     “Person” means a natural person, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or other entity, or a governmental
entity or any department, agency or political subdivision thereof, each as may
be organized, where applicable, under the laws of a State of the United States
or another jurisdiction.







1









 









     “Registrable Shares” means, at any time, the Common Shares now or
hereinafter held or acquired by the De Nicolás Family Trust, ZN Mexico Trust,
and EIP, including by way of a stock dividend or a stock split or in connection
with a combination of shares, recapitalization, merger, consolidation, or other
reorganization, and Common Shares transferred by each of the De Nicolás Family
Trust, ZN Mexico Trust, and EIP in accordance with Section 9.3 hereof.











     “Securities Act” means the U.S. Securities Act of 1933, as amended.











     “Subsidiary” of any Person means any other Person of which securities or
other ownership interests representing 50% or more of the ordinary voting power
are, at the time as of which any determination is being made, owned or
controlled by such Person or one or more Subsidiaries of such Person, or by
such Person and one or more Subsidiaries of such Person.







ARTICLE II

DEMAND REGISTRATION








     Section 2.1 Demand Registrations. Subject to the terms of this Agreement,
the Holders of Registrable Shares may, at any time beginning 180 days after the
Effective Date, request registration under the Securities Act on Form F-1 or
any similar long-form registration statement, of Registrable Shares with an
expected aggregate price to the public of at least U.S.$5.0 million. A
registration requested pursuant to this Section 2.1 is referred to as a “Demand
Registration.” The Company is required to effect no more than two Demand
Registrations for each of the Holders (including the successors and assigns of
such Holders), counting for these purposes only registrations which have been
declared or ordered effective and pursuant to which securities have been sold
and registrations which have been withdrawn by the Holders.











     Section 2.2 Notice of Demand Registration. In the event that securities
of the Company are to be registered under the Securities Act pursuant to a
Demand Registration, the Company will give written notice to the Holders
(within five business days after its receipt of notice of any exercise of the
demand registration rights pursuant to this Article II and at least 20 days
prior to the filing of any registration statement) of its intention to effect
such a registration, and will include in such registration all Registrable
Shares with respect to which the Company has received written requests for
inclusion therein within 10 days after the Company’s notice has been given,
subject to Section 2.4 hereof.











     Section 2.3 Selection of Underwriters. In the event that the Holders so
elect, the offering of Registrable Shares pursuant to a Demand Registration
shall be in the form of an underwritten offering. The Company shall select one
or more internationally recognized firms of investment bankers reasonably
satisfactory to the Holders participating in such Demand Registration to act as
the book-running managing underwriter or underwriters in connection with the
offering and shall select any additional investment bankers and managers
reasonably satisfactory to such Holders to be used in connection with the
offering.











     Section 2.4 Priority on Registrations. In the event that a Demand
Registration is to be an underwritten offering and the managing underwriters of
such Demand Registration advise the Company that, in their opinion, the
inclusion of the number of securities requested to be included







2









 











in such offering creates a substantial risk that the price per share of
the Common Shares will be reduced as a result of such offering, the Company
shall include Common Shares in such registration in the following order of
priority: (i) first, Registrable Shares requested to be included in such
registration pursuant to Sections 2.1 and 2.2, allocated pro rata among the
participating Holders; and (ii) other securities requested to be included in
such registration.











     Section 2.5 Restrictions on Registration. In the event that the Company
furnishes to the Holders of Registrable Shares to be included in such Demand
Registration a certificate signed by the Company’s Chief Executive Officer
stating that the Board of Directors of the Company has determined reasonably
and in good faith that such filing would require disclosure of a material fact
concerning the Company (which the Company is not otherwise required to
disclose) that would have a material adverse effect on the Company or adversely
affect any plan by the Company or any of its Subsidiaries to engage in any
acquisition of assets (other than in the ordinary course of business) or
capital stock or other securities of any other entity, or any financing,
acquisition, reorganization, merger, consolidation, tender offer or other
significant transaction, the Company may postpone the filing or the
effectiveness of a registration statement for a Demand Registration for a
reasonable period not to exceed 90 days; provided that the right to postpone
may not be exercised for a period in excess of 120 days within any 12-month
period. The Company will not include in any Demand Registration that is an
underwritten offering any securities which are not Registrable Shares without
the written consent of the Holders of a majority of the Registrable Shares to
be included in such registration.







ARTICLE III

PIGGYBACK REGISTRATION








     Section 3.1 Piggyback Rights. In the event that Common Shares of the
Company are to be registered under the Securities Act (other than pursuant to a
Demand Registration) and the registration form to be used may be used for the
registration of Registrable Shares (a “Piggyback Registration”), the Company
will give written notice to the Holders (within five business days after its
receipt of notice of any exercise of demand registration rights by holders of
the Company’s securities other than the Registrable Shares and at least 20 days
prior to the filing of any registration statement) of its intention to effect
such a registration and will include in such registration all Registrable
Shares with respect to which the Company has received written requests for
inclusion therein within 10 days after the Company’s notice has been given,
subject to Sections 3.2 and 3.3 hereof. The Company will have the right to
select the managing underwriters in any underwritten Piggyback Registration in
which the Company is selling Common Shares. If a Holder desires to include
such Holder’s Registrable Shares in a Piggyback Registration that is an
underwritten offering, such Holder shall, as a condition to including such
Holder’s Registrable Shares, enter into an underwriting agreement reasonably
satisfactory to the Company containing customary terms and conditions,
including customary representations and indemnities.











     Section 3.2 Priority on Primary Registrations. In the event that a
Piggyback Registration is to be an underwritten primary registration on behalf
of the Company and the managing underwriters in connection with the Piggyback
Registration advise the Company that, in their opinion, the number of
securities requested to be included in such offering creates a substantial risk
that the price per share of the Common Shares will be reduced as a result of
such







3









 







offering, the Company shall include Common Shares in such registration in
the following order of priority: (i) first, securities the Company proposes to
sell; (ii) second, Registrable Shares requested to be included in such
registration, allocated pro rata among the participating Holders; and (iii)
third, other securities requested to be included in such registration.







     Section 3.3 Other Registrations. If the Company has previously filed a
registration statement which includes Registrable Shares pursuant to Section
2.1 or pursuant to Section 3.1, and if such previous registration has not
been withdrawn or abandoned, the Company will not file or cause to be effected
any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act, whether on its own behalf or at the request of any holder
or holders of such securities, until a period of 90 days has elapsed from the
date that the registration statement in connection with such previous
registration becomes effective, without the prior consent of the Holders of a
majority of the Registrable Shares covered by such previous registration
statement.







ARTICLE IV

REGISTRATION ON FORM F-3








     After its initial public offering, the Company shall use its best efforts
to qualify for registration on Form F-3 or any comparable or successor form or
forms. After the Company has qualified for the use of Form F-3, in addition to
the rights contained in Articles II and III, the Holders of Registrable Shares
shall have the right to request registrations on Form F-3 (such requests shall
be in writing and shall state the number of Registrable Shares to be disposed
of and the intended methods of disposition of such shares by such Holder or
Holders); provided, however, that the Company shall not be obligated to effect
any such registration (i) if the Holders, together with the holders of any
other securities of the Company entitled to inclusion in such registration,
propose to sell Registrable Shares and such other securities (if any) on Form
F-3 at an aggregate price to the public of less than $5,000,000, (ii) if the
Company shall furnish the certification described in Section 2.5 (but subject
to the limitations set forth therein), (iii) if, in a given twelve-month
period, the Company has effected one such registration in such period or (iv)
if such registration is to be effected more than five years after the Company’s
initial public offering.







ARTICLE V

HOLDBACK AGREEMENTS








     Section 5.1 Limitations on the Company. Unless the underwriters managing
the registered public offering otherwise agree, the Company will not effect any
public sale or distribution of its equity securities or any securities
convertible into or exchangeable or exercisable for such securities during the
seven days prior to and during the 90-day period beginning on the date that the
underwriting agreement relating to any underwritten Demand Registration or any
underwritten Piggyback Registration becomes effective (the “Holdback Period”).











     Section 5.2 Limitations on Holders. Unless the underwriters managing the
registered public offering otherwise agree, no Holder will effect any public
sale or distribution of the equity securities of the Company held by such
Holder (including sales pursuant to Rule 144), or any







4









 







securities convertible into or exchangeable or exercisable for such
securities, or engage in any hedging transactions relating to the same, during
the Holdback Period relating to an underwritten Demand Registration or an
underwritten Piggyback Registration.



ARTICLE VI

REGISTRATION








     Section 6.1 Registration Procedures. In the event that a Holder requests
that Registrable Shares be registered pursuant to the terms of this Agreement,
the Company will use its best efforts to effect the registration and the sale
of such Registrable Shares in accordance with the intended method of
disposition thereof, as determined pursuant to this Agreement, and shall, as
promptly as practicable:











         (a) prepare and file with the Commission a registration statement on the
appropriate form with respect to such Registrable Shares, and if appropriate, a
registration statement on Form F-6 for the registration of American Depositary
Shares (“ADSs”) to represent such Registrable Shares, and use its best efforts
to cause such registration statement(s) to become effective as soon as
practicable after such filing;











         (b) prepare and file with the Commission amendments and supplements to the
registration statement and the prospectus used in connection therewith as may
be necessary to maintain the effectiveness of the registration statement and
the compliance of the prospectus with the Securities Act and to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by the registration statement until such time as the
Registrable Shares registered thereunder have been disposed of in accordance
with the intended methods of disposition by the sellers thereof set forth in
such registration statement, subject to the following conditions:












         (i) at least five business days prior to filing a registration
statement or prospectus or any amendments or supplements thereto,
excluding documents incorporated by reference after the initial filing of
the registration statement, the Company shall furnish draft copies of all
such documents proposed to be filed to the Holders of the Registrable
Shares covered by such registration statement (the “Selling Holders”), to
counsel to the Selling Holders, and to the underwriters, if any, which
documents will be subject to the review of counsel to the Selling Holders
and the underwriters, if any;












         (ii) unless required by applicable law, the Company shall not file
any registration statement or amendment thereto or any prospectus or any
supplement thereto to which Holders of at least a majority of the
Registrable Shares covered by such registration statement shall
reasonably object (the “Objecting Party”) pursuant to notice given to the
Company (the “Objection Notice”), which Objection Notice shall be
delivered prior to the filing of such amendment or supplement and no
later than five business days after receipt of the documents to which the
Objection Notice relates and shall set forth the objections and the
specific areas in the draft documents where such objections arise, and in
accordance with the Objection Notice, the Company shall address







5









 






the objections set forth therein to the satisfaction of the
Objecting Party within a period not to exceed five business days
following receipt of the Objection Notice; and




         (iii) the Company shall further notify each Selling Holder of any
stop order issued or threatened by the Commission in connection with the
registration statement and shall use its best efforts to prevent the
entry of any stop order or to obtain the withdrawal of any stop order, if
entered, as promptly as possible;



         (c) furnish to each Selling Holder and the underwriters of the securities
in connection with the proposed registration such number of copies of the
registration statement, each amendment and supplement thereto, the prospectus
included in the registration statement (including each preliminary prospectus
and prospectus supplement) and such other documents as each Selling Holder or
underwriter may reasonably request in order to facilitate the disposition of
the Registrable Shares beneficially owned by such Selling Holder or the sale of
such securities by the underwriters;



         (d) use its reasonable best efforts to comply with all applicable rules
and regulations of the Commission;



         (e) use its reasonable best efforts to register or qualify the Registrable
Shares under such other securities or “blue sky” laws of such jurisdictions as
any Selling Holder reasonably requests and do any and all other acts and things
which may be necessary or advisable to enable such seller to consummate the
public sale or other disposition of the Registrable Shares beneficially owned
by such Selling Holder in such jurisdictions; provided, however, that the
Company shall not for any such purpose be required to qualify generally to do
business as a corporation in any jurisdiction where it is not so qualified or
to consent to general service of process in any such jurisdiction;



         (f) cause all Registrable Shares and any ADSs representing such shares to
be listed on each securities exchange on which similar securities issued by the
Company are then listed;



         (g) enter into customary agreements (including underwriting agreements)
and take all such other actions as a Selling Holder or the underwriters, if
any, reasonably request in order to expedite or facilitate the disposition of
such Registrable Shares;







         (h) make available for inspection by the Selling Holders, any underwriter
participating in any disposition pursuant to a registration statement, and any
attorney, accountant or other agent designated by any such Selling Holder or
underwriter, all financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company’s officers, directors,
employees, and independent accountants to supply all information reasonably
requested by any such Selling Holder, underwriter, attorney, accountant, or
agent in connection with the preparation of a registration statement; provided,
however, that any such records, documents, properties, and information provided
by the Company that is designated in writing by the Company in good faith as
confidential at the time of delivery of such records, documents, properties, or
information, as applicable, shall be kept confidential by all such Persons
unless (i) disclosure thereof is made in connection with a court proceeding or
required by applicable law







6









 







(provided, however that each such Person shall, upon learning that
disclosure of such records, documents, properties, or information, as
applicable, is sought in a court proceeding or required by applicable law, give
notice to the Company to allow the Company to undertake appropriate action to
prevent disclosure at the Company’s sole expense), or (ii) such records,
documents, properties, or information, as applicable, has previously been made
or becomes available to the public generally through the Company or through a
third party without an accompanying obligation of confidentiality;







         (i) cause the Company’s officers, directors and employees to participate
in marketing efforts as reasonably requested by the underwriters, including
participating in “roadshow” meetings with potential investors;



         (j) notify each Selling Holder, promptly after it shall receive notice
thereof, of the time when the registration statement has become effective or a
supplement to any prospectus forming apart of such registration statement has
been filed;



         (k) notify each Selling Holder of any request by the Commission for the
amending or supplementing of the registration statement or prospectus or for
additional information;



         (l) prepare and file with the Commission, promptly upon the request of any
Selling Holder, any amendments or supplements to the registration statement or
prospectus which, in the reasonable opinion of counsel selected by the Selling
Holder, is required under the Securities Act or Exchange Act or the rules and
regulations promulgated thereunder in connection with the distribution of
Registrable Shares by the Selling Holder;



         (m) prepare and promptly file with the Commission and promptly notify each
Selling Holder of the filing of an amendment or supplement to the registration
statement or prospectus as may be necessary to correct any statements or
omissions if, at the time when a prospectus relating to the securities to be
disposed is required to be delivered under the Securities Act, any event shall
have occurred as the result of which the prospectus would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances in which they
were made, not misleading;



         (n) if the offering is to be an underwritten offering, furnish at the
request of any Selling Holder, on the date or dates provided for in the
underwriting agreement, a customary opinion of counsel, addressed to the
underwriters and the Holders, covering such matters as such underwriters and
Holders may reasonably request;







         (o) obtain “cold comfort” letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any Subsidiary of the Company or of
any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the registration
statement), addressed to each Selling Holder (provided such Selling Holder
furnishes the accountants with such representations as the accountants
customarily require) and the underwriters, if any, in customary form and
covering matters of the type customarily covered in “cold comfort” letters in
connection with underwritten offerings of securities; and







7









 





         (p) deliver such documents and certificates as may be reasonably requested
by the Selling Holders and the underwriters, including those to evidence
compliance with any customary conditions contained in the underwriting
agreement.








     Section 6.2 Obligations of Holders. Each Holder shall:







         (a) agree to furnish to the Company such information regarding the
distribution of the securities to be distributed and such other information
relating to the Holders participating in such distribution and the ownership by
the Holders of Registrable Shares as the Company may from time to time
reasonably request in writing and each Holder shall furnish such information to
the Company and cooperate with the Company as reasonably necessary to enable
the Company to comply with the provisions of this Agreement;



         (b) sell its Registrable Shares on the basis provided in any underwriting
arrangements governing any underwritten offering and shall complete and execute
all questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents required under the terms of such underwriting arrangements.







     Section 6.3 Adjustments Affecting Registrable Shares. The Company shall
not knowingly take any action, or knowingly permit any change to occur, with
respect to its securities which would materially adversely affect the ability
of the Holders to include Registrable Shares in a registration undertaken
pursuant to this Agreement or which would materially adversely affect the
marketability of such Registrable Shares in any such registration.











     Section 6.4 Compliance with Rule 144. At any time and from time to time
after the Company has a class of securities registered under Section 12 of the
Exchange Act, the Company will (i) make available to the public and the Holders
such information as will enable the Holders to make sales pursuant to Rule 144
promulgated under the Securities Act, and (ii) file with the Commission in a
timely manner all reports and other documents required of the Company under the
Exchange Act.







ARTICLE VII

REGISTRATION EXPENSES








     Section 7.1 Incidental Expenses. All expenses incidental to the Company’s
performance of or compliance with this Agreement, including, but not limited
to, all registration and filing fees, fees and expenses of compliance with
federal, state and foreign securities laws, printing expenses, messenger and
delivery expenses, and fees and disbursements of counsel for the Company and
its independent certified public accountants, underwriters (excluding discounts
and commissions attributable to the Registrable Shares included in such
registration) and other Persons retained by the Company (all such expenses
being herein called “Registration Expenses”), shall be borne by the Company.











     Section 7.2 Internal Expenses. The Company shall pay all internal
expenses (including, but not limited to, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the expense of any liability insurance
obtained by the Company and the expenses and fees for listing the securities to
be registered on each securities exchange.







8









 









     Section 7.3
Legal Expenses of Holders. The Company shall reimburse the
Holders for the reasonable and documented fees and disbursements of one firm of
legal counsel in connection with any registration to which such Holders are
entitled under this Agreement.







ARTICLE VIII

INDEMNIFICATION








     Section 8.1 Indemnification of Selling Holders and Underwriters.











         (a) In the event of any registration of Registrable Shares pursuant to
this Agreement, the Company will enter into customary indemnification
agreements to indemnify and hold harmless, to the fullest extent permitted by
applicable law, each Selling Holder, its officers and directors, and each
Person who controls such Selling Holder (within the meaning of the Securities
Act or the Exchange Act) and, in the event that a disposition is to be an
underwritten offering, the underwriters, their officers and directors and each
Person who controls such underwriters (within the meaning of the Securities Act
or the Exchange Act) from and against all losses, claims, damages, liabilities
and expenses (including, but not limited to, reasonable and documented
attorneys’ fees except as limited by Section 8.3) arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained
in any registration statement, preliminary prospectus or prospectus, or any
amendment thereof or supplement thereto, or any omission or alleged omission of
a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or any violation by
the Company of any United States federal or state securities laws; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) arises out of or is based upon (i) an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus or final prospectus,
amendment, or supplement in reliance upon and in conformity with written
information furnished to the Company by a Selling Holder or underwriter
expressly for use therein or (ii) such Selling Holder’s or underwriter’s
failure to deliver a copy of the prospectus or any amendments or supplements
thereto after the Company has furnished such Selling Holder with a sufficient
number of copies of the prospectus.







         (b) No reimbursements required by this Section 8.1 will be made by
periodic payments during the course of the investigation or defense, promptly
after bills are received or expenses incurred.



         (c) In connection with any registration statement in which a Selling
Holder is participating, each Selling Holder shall, to the fullest extent
permitted by law, indemnify the Company, its directors and officers and each
Person who controls the Company (within the meaning of the Securities Act or
the Exchange Act) from and against any losses, claims, damages, liabilities and
expenses (including, but not limited to, reasonable and documented attorneys’
fees except as limited by Section 8.3) resulting from any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement, preliminary prospectus or prospectus, or any amendment thereof or
supplement thereto, or any omission or alleged omission of a material fact
required to be stated in the registration statement, preliminary prospectus or
prospectus, or any amendment thereof or supplement thereto necessary to make
the



9









 








statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that such Selling Holder shall be
liable only in the event that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) arises out of or is based upon (i) an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, any such preliminary prospectus or final
prospectus, amendment, or supplement in reliance upon and in conformity with
written information furnished to the Company by such Selling Holder expressly
for use therein or (ii) such Selling Holder’s failure to deliver a copy of the
prospectus or any amendments or supplements thereto after the Company has
furnished such Selling Holder with a sufficient number of copies of the
prospectus;






The obligation to indemnify pursuant to this Section 8.1(c) will be several,
not joint and several, among such Selling Holders, and the liability of each
such Selling Holder will be in proportion to the number of Registrable Shares
sold by each such Selling Holder divided by the total number of Registrable
Shares to be sold pursuant to such registration statement. Any liability of a
Selling Holder arising pursuant to this Section 8.1(c) will be limited to, in
any event, the net amount received by such Selling Holder from the sale of
Registrable Shares pursuant to such registration statement.







     Section 8.2 Indemnification Notices and Expenses. If any action is
brought in respect of which indemnity may be sought pursuant to this Agreement,
the Person seeking indemnification (the “Indemnified Party”) shall promptly
notify the Person against whom indemnification is sought (the “Indemnifying
Party”) in writing of the institution of such action; provided, however, that
the failure so to notify will not relieve the Indemnifying Party from any
liability that it may have to the Indemnified Party under this Article VII to
the extent the Indemnifying Party is not materially prejudiced as a result
thereof, and in no event shall it relieve the Indemnifying Party from any
liability it may have otherwise than pursuant to this Article VII. The
Indemnifying Party shall assume the defense of such action, including the
employment of counsel reasonably satisfactory to the Indemnified Party or
parties and payment of expenses. The Indemnified Party or parties shall have
the right to employ its or their own counsel in any such case, which fees and
expenses of such counsel shall be at the expense of Indemnified Party or
parties, unless (i) the employment of such counsel shall have been authorized
in writing by the Indemnifying Party, (ii) the Indemnifying Party shall not
have employed counsel reasonably satisfactory to the Indemnified Party or
parties within a reasonable time or (iii) such Indemnified Party or parties
shall have reasonably concluded (based on the advice of counsel) that there may
be defenses available to it or them that are different from or additional to
those available to the Indemnifying Party and may present a conflict for
counsel representing the Indemnified Party or parties and the Indemnifying
Party (in which case the Indemnifying Party shall not have the right to direct
the defense of such action on behalf of the Indemnified Party or parties), in
any of which events such fees and expenses shall be borne by the Indemnifying
Party and paid as incurred (it being understood, however, that the Indemnifying
Party shall not be liable for the fees and expenses of more than one separate
counsel (in addition to local counsel) for the Indemnified Parties in any one
action or series of related actions in the same jurisdiction representing the
Indemnified Parties who are parties to such action). Anything in this
paragraph to the contrary notwithstanding, the Indemnifying Party shall not be
liable for any settlement effected without its written consent unless the
Indemnifying Party shall have failed to assume the defense of such action or
reimburse the Indemnified Party for fees and expenses of counsel as
contemplated by this Section 8.2 within 30 days after receipt by the
Indemnifying Party of the







10









 







request therefor. An Indemnifying Party will not, without the prior
written consent of the Indemnified Parties, settle or compromise or consent to
the entry of any judgment in any action in respect of which indemnification may
be sought hereunder unless such settlement, compromise or consent includes an
unconditional release of the indemnified parties from all liability arising out
of the action.







     Section 8.3
Contribution. If the indemnification provided for in this
Article VII is held by a court of competent jurisdiction to be unavailable to
an Indemnified Party with respect to any losses, claims, damages or liabilities
referred to herein, the Indemnifying Party, in lieu of indemnifying such
Indemnified Party thereunder, shall to the fullest extent permitted by
applicable law contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, claim, damage or liability in such proportion
as is appropriate to reflect the relative fault of the Indemnifying Party on
the one hand and of the Indemnified Party on the other in connection with the
matters that resulted in such loss, claim, damage or liability, as well as any
other relevant equitable considerations. The relative fault of the Indemnifying
Party and of the Indemnified Party shall be determined by a court of law by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact related to information supplied by the Indemnifying Party or by
the Indemnified Party and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement of omission;
provided, that in no event shall the amounts payable in indemnity by a Holder
under Article VII exceed the net proceeds received by such Holder in the
registered offering out of which such indemnification arises. No party guilty
of fraudulent misrepresentation under Section 11(f) of the Securities Act shall
be entitled to contribution under this Section 8.3.











     Section 8.4 Conflict with Underwriting Agreement. Notwithstanding the
foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection
with the underwritten public offering are in conflict with the foregoing
provisions, the provisions in the underwriting agreement shall control.











     Section 8.5 Survival of Obligation to Indemnify. The indemnification
provided for under this Agreement will remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnified Party
or any officer, director or controlling Person of such Indemnified Party and
will survive the transfer of securities.







ARTICLE IX

MISCELLANEOUS








     Section 9.1 Remedies. Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and
to exercise all other rights granted by applicable law.











     Section 9.2 Amendments and Waivers. Except as otherwise expressly
provided herein, the provisions of this Agreement may be amended or waived at
any time only by the written agreement of the Company and each of the Holders. Any waiver, permit, consent or approval
of any kind or character on the part of any Holders of







11









 







any provision or condition of this Agreement must be made in writing and
shall be effective only to the extent specifically set forth in writing.







     Section 9.3 Successors and Assigns. The rights to cause the Company to
register Registrable Shares granted pursuant to this Agreement may be
transferred or assigned by any Holder to a transferee or assignee; provided,
however, that the transferee or assignee of such rights assumes the obligations
of such transferor or assignor, as the case may be, under this Agreement and
that such transferee or assignee executes and delivers a copy of this Agreement
to the Company.











     Section 9.4 Termination. Except as otherwise provided in this Agreement
and except for the provisions of Article VII, the rights of a Holder under this
Agreement shall remain in effect with respect to the Registrable Shares of such
Holder until such Registrable Shares (i) have been disposed under an effective
registration statement; (ii) have been disposed to the public pursuant to Rule
144 under the Securities Act; or (iii) may be resold, without regard to the
volume limitations, under Rule 144 under the Securities Act.











     Section 9.5 Integration. This Agreement constitutes the entire agreement
of the parties concerning the subject matter hereof, and supersedes all prior
agreements, promises, undertakings, representations, or warranties relative to
the subject matter hereof not expressly set forth or referred to in this
Agreement.











     Section 9.6 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of the prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.











     Section 9.7 Headings. The descriptive headings contained in this
Agreement are for convenience of reference only and do not constitute a part of
and shall not be utilized in interpreting or construing the meaning of this
Agreement.











     Section 9.8 Communications. Any communications required or permitted to be
sent hereunder shall be delivered personally, mailed, certified mail, return
receipt requested, delivered by overnight courier service, or transmitted via
facsimile. Each communication shall be made to the relevant party at the
address or facsimile number set forth below, or such other addresses as shall
be given by communication delivered hereunder, and marked for the attention of
the person(s) named below or from time to time specified in a written
communication by that party to the other parties for such purpose.







         (a) The initial information for the parties is as follows:




         (i) if to the Company, to:



Andador Javier Mina 891-B

Colonia Centro Sinaloa

80200 Culiacán, Sinaloa, México



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     Attention: Chief Financial Officer




         (ii) if to the De Nicolás Family Trust:



     [•]



     Attention:




         (iii) if to ZN Mexico Trust:



6 Front Street

Hamilton HM DX

Bermuda



     Attention: Luis Alberto Harvey McKissack




         (iv) if to EIP:



Two North Riverside Plaza

Chicago, IL 60606



     Attention: General Counsel




         (v) if to any other Holder, to the address specified in writing by
such Holder.



         (b) A communication shall be deemed received (if by facsimile
transmission) when an acknowledgment of receipt is received or (if by letter)
when delivered, in each case in the manner required by this Section 9.8.



         (c) Any notice, request, or demand pursuant to this Agreement shall not be
effective until received.







     Section 9.9 Governing Law. This Agreement is governed by and shall be
construed in accordance with the laws of the State of New York.











     Section 9.10 Submission to Jurisdiction and Agent for Service of Process.
Each of the Company, the De Nicolás Family Trust, ZN Mexico Trust, and EIP
agrees that any suit, action or proceeding against such person brought by any
other such person, the directors, officers, employees and agents of such
person, or by any person who controls such person, arising out of or based upon
this Agreement or the transactions contemplated hereby may be instituted in any
court located in New York or in the courts of Mexico, and waives any objection
which it may now or hereafter have to the laying of venue of any such
proceeding and any right to which it may be entitled on account of place of
residence or domicile, and irrevocably submits to the jurisdiction of such
courts in any suit, action or proceeding. Each of the Company, the De Nicolás
Family Trust, and ZN Mexico Trust hereby irrevocably designate CT Corporation,
with offices located at present at 111 Eighth Avenue, New York, New York 10011
as its authorized agent to accept and acknowledge on its behalf service of any
process that may be served in any







13









 







proceeding in New York. The provisions of this Section 9.10 shall survive
any termination of this Agreement, in whole or in part.







     Section 9.11 Waiver of Jury Trial. Each of the parties hereto irrevocably
and unconditionally waives trial by jury in any legal action or proceeding
relating to this Agreement or the transactions contemplated hereby and for any
counterclaim therein.











     Section 9.12 Counterparts. This Agreement may be executed by one or more
of the parties hereto in any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.







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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.



	 	 	 	 	 	 	 
	DESARROLLADORA HOMEX, S.A. DE C.V.
	

	 	 	 	 	 	 
	

	 	By:	 	 	 	 
	

	 	 	 	
 	 	 
	Name:
	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	BANCO SANTANDER MEXICANO, S.A., AS TRUSTEE OF THE DE NICOLAS FAMILY TRUST
	

	 	 	 	 	 	 
	

	 	By:	 	 	 	 
	

	 	 	 	
 	 	 
	Name:
	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	BERMUDA TRUST COMPANY LIMITED, AS TRUSTEE OF ZN MEXICO TRUST
	

	 	 	 	 	 	 
	

	 	By:	 	 	 	 
	

	 	 	 	
 	 	 
	Name:
	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	EIP INVESTMENT HOLDINGS, LLP
	

	 	 	 	 	 	 
	

	 	By:	 	 	 	 
	

	 	 	 	
 	 	 
	Name:
	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 








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