The Foreign Policy Association’s Mexico blog, written by Alejandro Quiroz Flores, reported today that in the first of three unofficial referendums relating to reform of Mexico’s energy laws:

“More than 83% of citizens of Mexico City said no to the questions: ‘With the whole cycle of oil production under state auspices, do you agree that the private sector should play a role?’ and ‘In general, are you in agreement with the proposed energy reforms in Congress?’”

Flores believes, and MLB agrees, that the results of the first referendum “will pose a serious annoyance to the Calderón administration’s proposed reforms to keep Pemex in the black”.  The other two referendums will take place on August 10th and 24th. 

The bidding terms for the Punta Colonet port concession near Ensenada will be released at the end of August, according to a report in today’s El Financiero.  José Rubio Soto, coordinator of the project for the Ministry of Communications and Transportation (Secretaria de Comunicacion y Transporte - SCT) said that the competition will be open to both Mexican and foreign companies. 

Once constructed, the port is initially expected to receive approximately 2 million containers of goods per year, with the capacity to receive up to 9 million containers per year.  Some analysts have projected that the port will be the third-largest in the world, after Singapore and Hong Kong.

Companies expected to submit bids for the concession include APM Terminal/Maersk Lines, Dubai Ports World, Ferromex, Hutchison Port Holdings, MTC Holdings, Pacer Stacktrain México, and Union Pacific México.  The bidding companies will likely form consortiums, given the project’s magnitude.

Business News Americas reported today that Pemex executives have met in Ciudad Juárez with federal, state, and city officials and industry groups to find ways to deal with the boom in gasoline and diesel demand at the border.  Mexican fuel subsidies keep prices lower in Mexico than the U.S.  Crossing the border for cheaper gas is, of course, perfectly rationale arbitrage by saavy consumers.

LyondellBasell Industries AF S.C.A. announced plans to open a new polypropelyne (PP) compounding facility in Altamira (Tamaulipas), Mexico, according to a report in The Earth Times today.  LyondellBasell is one of the leading global producers of PP compounded products and supplies for the automotive, appliance, electrical and electronics industries. The Altamira plant will supply PP to automotive and appliance manufacturing plants near Altamira.

LyondellBasell is headquarted in The Netherlands and is privately held by Access Industries, a conglomerate with holdings in the natural resources, chemicals, media and telecommunications, and real estate sectors.  Access Industries was founded by Len Blavatnik, a Russian-born Jewish-American industrialist, who is currently its Chairman and President. 

Mexican supermarket operator Grupo Gigante, S.A. de C.V. has offered to buy out its Mexican joint venture partner Office Depot for US$430 million, as reported in today’s El Financiero.  The acquisition would give Gigante 100% control of the Mexican joint venture entity, which runs Office Depot stores in Mexico.  Gigante’s offer is subject to approval of its board of directors and to obtaining Latin American expansion rights from Office Depot.

The U.S. Food and Drug Administration (FDA) is still advising consumers to avoid raw jalapeño peppers and foods that contain them if they were grown, harvested, or packed in Mexico because of the threat of the rare Saintpaul type of Salmonella enterica.  Jalapeño and serrano peppers grown in the United States are not the culprit, according to the FDA.

To date, 1,307 people in the U.S. have been infected as a result of the outbreak.  The largest number of cases are in New Mexico and Texas, with 56.9 and 20.8 reported cases per million people, respectively. 

Jim Prevor of PerishablePundit.com argues that the FDA’s find of Salmonella in a single jalapeño pepper at McAllen, Texas produce importer Agricola Zaragoza, Inc. does not mean that the pepper or Agricola Zaragoza has anything to do with the outbreak.  The rationale: an Agricola Zaragoza worker could have become infected by an external source brought the contamination to the pepper at work.  Mr. Prevor believes “that the risk for healthy people of eating fresh jalapeños was always inconsequential and, at this date, is de minimus.”

As MLB reported in a July 26, 2008 post, Mexico has objected to the FDA’s labeling of Mexico as the source of the outbreak.

Grupo Modelo CEO Carlos Fernandez was reported today to have said that “Grupo Modelo is reserving its contractual rights” under the 1993 Investment Agreement between Grupo Modelo and Anheuser-Busch, as amended by the First Amendment and Second Amendment thereto (MLB could not locate a copy of the First Amendment).  This was a follow-up to Grupo Modelo’s mid-July statement proclaiming, “our agreement with Anheuser-Busch was carefully constructed to ensure we have a definitive say in who our partner is”.  Grupo Modelo’s rights under the Investment Agreement are not as clear as its statements might lead one to believe.

What are Grupo Modelo’s rights under the Investment Agreement?

Several provisions of the Investment Agreement might give Grupo Modelo certain rights in relation to the InBev/Anheuser-Busch transaction, but no provision of the Investment Agreement clearly indicates the parties’ rights and obligations in the event of a change in control of Anheuser-Busch. 

Section 6.6, for example, prohibits Anheuser-Busch and Grupo Modelo from selling or offering to sell their Grupo Modelo shares to “any [person or entity] or its controlling shareholders engaged, directly, or indirectly, in the production, distribution, or sale of beer in or to the United States or Mexico”.  This clause prohibits sales of Grupo Modelo shares to competitors of Anheuser-Busch and Grupo Modelo.  Since Anheuser-Busch is not selling its Grupo Modelo shares (because InBev is acquiring Anheuser-Busch), the best Grupo Modelo could argue under Section 6.6 is that InBev’s acquisition of Anheuser-Busch should be construed as a de facto sale of Grupo Modelo shares to a competitor.  However, even if that argument is successful (which is unlikely), the Investment Agreement does not specify Grupo Modelo’s remedies in such a situation.

The buy-sell provisions in Section 6.2 of the Investment Agreement might be applicable if Grupo Modelo’s de facto sale argument in the above paragraph prevails, but Section 6.2 was clearly intended to prohibit transfers of Grupo Modelo shares by Anheuser-Busch, not to prohibit Anheuser-Busch from transfering Anheuser-Busch shares to a third party.  For the record, Section 6.2 prohibits Anheuser-Busch from disposing of any of its shares in Grupo without first offering those shares to Messrs. Antonino Fernandez R., Pablo Aramburuzabala, Nemesio Diez R., Juan Sanchez-Navarro y P., Valentin Diez M., and the other Grupo Modelo shareholders (collectively, the “Controlling Shareholders“).  After Anheuser-Busch offers its Grupo shares to the Controlling Shareholders, the Controlling Shareholders and Anheuser-Busch must enter into good faith negotiations regarding the purchase price to be paid for such shares by the Controlling Shareholders. 

What if InBev/Anheuser-Busch and Grupo Modelo fail to agree on their rights and obligations under the Investment Agreement?

If there is a dispute between InBev/Anheuser-Busch and Grupo Modelo regarding “the validity, intent, interpretation, performance, enforcement or arbitrability” of any terms of the Investment Agreement, it is to be decided by majority vote of Grupo’s board of directors, provided that at least 2 board members appointed by Anheuser-Busch are included in such majority.  (The Second Amendment to the Investment Agreement gives Anheuser-Busch the right to appoint 9 board members and gives the Controlling Shareholders the right to appoint 10 board members.) 

If the Grupo’s board of directors is unable to resolve the dispute by obtaining such a majority vote within 30 days, then Anheuser-Busch and the Controlling Shareholders are to each appoint one nominee to a special committee, which must attempt to resolve the dispute amicably.  If the special committee fails to resolve the dispute within 30 days, then the dispute is to be resolved by an international arbitration panel consisting of 3 arbitrators: one appointed by the chairman of Anheuser-Busch, one appointed by the Controlling Shareholders, and one appointed by the two arbitrators appointed by Anheuser-Busch and the Controlling Shareholders.  Arbitration is to take place in New York City under the UNCITRAL Arbitration Rules.

In the event that Anheuser-Busch and Grupo Modelo have a “fundamental business disagreement” (e.g., after the close of the InBev/Anheuser Busch transaction, there is a dispute regarding a change in the charter or by-laws, a change in dividend policy, corporate objectives, etc.), then the above-mentioned dispute settlement provisions do not apply.  Rather, Section 12.2 of the Investment Agreement allows Anheuser-Busch to require Grupo Modelo to purchase all of the Grupo Modelo shares held by Anheuser-Busch at the price paid by Anheuser-Busch for its Grupo shares.  This may be the least favorable outcome for InBev, particularly because analysts have estimated that Anheuser-Busch’s Grupo Modelo shares are worth approximately $10 billion, which is probably considerably more than Anheuser-Busch paid for the shares starting in 1993 under the Investment Agreement.

Grupo Modelo, S.A.B. produces something very near and dear to my heart: many of Mexico’s finest beers, including Corona (the top U.S. export), Modelo Especial, Negra Modelo, Victoria, and Pacifico.  Grupo Modelo’s brands represent approximately 56% of the Mexican beer market. 

InBev, NV’s $52 billion acquisition of Anheuser-Busch raises the question of what will become of the 50% non-controlling stake in Grupo Modelo owned by Anheuser-Busch.  A July 17, 2008 article in The Wall Street Journal reported that the agreement between Anheuser-Busch and Grupo Modelo gives Anheuser-Busch the right to fill 9 seats on Grupo Modelo’s 19-member board of directors and certain rights regarding areas such as capital expenditures.  (MLB has located a copy of the Investment Agreement governing the relationship between Anheuser-Busch and Grupo and the Second Amendment thereto, but MLB could not find the First Amendment anywhere.)   

The July 17, 2008 Wall Street Journal article also speculated that Grupo Modelo and its key competitor, Fomento Economico Mexicano, S.A.B. (FEMSA), might be sold as part of global consolidation in the beer industry, starting with the sale of Grupo Modelo to InBev.  FEMSA’s brands, including Sol, Tecate, Dos Equis, Bohemia, and Indio, account for approximately 42% of the Mexican beer market.  FEMSA is also the largest Coca-Cola bottler outside of the U.S.

It should be interesting to watch the InBev/Anheuser-Busch/Grupo Modelo relationship evolve.  The possibility that Grupo Modelo may engage in some posturing concerning its intent to purchase Anheuser-Busch’s 50% Grupo Modelo ownership interest should not be ruled out.  The Brazilian/Belgian-Mexican companies could be a powerful combination.

The Mexican government, through its National Service of Food and Agriculture Health and Quality (Servicio Nacional de Sanidad e Inocuidad y Calidad Agroalimentaria - SENASICA), sent a letter to the U.S. Food and Drug Administration (FDA) objecting to the FDA’s allegations that Mexican jalapenos are source of the U.S. salmonella outbreak, according to today’s El Financiero.  the Director of SENASICA, said that the U.S. has not shared evidence with Mexico proving Mexico is to blame for the outbreak.  If such evidence exists, which Mr. Cruz doubted, he that the FDA should specifically identify the source of the outbreak rather than pasting blame on the country of Mexico.  Lastly, he added that the source of the salmonella is probably somewhere in the U.S. distribution chain for the peppers.

Enrique Sánchez Cruz,

Mr. Cruz’s request for information sharing by the FDA seem reasonable.  However, the FDA was correct in first identifying the general source of the outbreak as Mexico if it did not have sufficient information to pinpoint the specific source.  As Mr. Cruz indicates, the FDA should now quickly attempt to identify the specific source.  U.S. and Mexican tomato producers would probably agree.

The PRD announced that it would not release the terms of its energy law reform plan until August, according to a report in today’s El Financiero.  It was originally anticipated that the plan would be released next Wednesday, July 30, 2008.