1E9Ct5D

320C H A P T E R X I Xc) With regard to the regulation of liability of the managers of the SAB, which is providedfor in the new law, it should be mentioned that the principle governing suchliability is summarized in the obligation that they have to perform their postprocuring the creation of value in benefit of the company, without favoring a particularshareholder or group of shareholders, for which they must act diligently,adopting reasoned decisions, in good faith and based on the information they haveand/or that is provided to them for such purposes.The above-noted principle is complemented by the duty to abstain from actingin case of a conflict of interest, thus avoiding the obtaining, for him/herself or forothers, by virtue of the position he/she holds, economic benefits illegitimately andin prejudice to the SAB.The above can be summarized as the concepts of duty of care and duty of loyaltytaken from U.S. law and adapted to the Mexican legal system.On this point it should be mentioned that notwithstanding the negative impactthat the above-mentioned regulation of the liability of board members and secretarieshas had, we believe that the situation is not so serious as some have suggested,since the liability arising from the duty of care can be limited in the by-lawsand, in addition, the new law incorporates as an exclusion from liability the socalled“business judgment rule” from common law.Moreover, with respect to the duty of loyalty, it will be necessary for a boardmember or secretary of a SAB, without legitimate cause and by virtue of his/herposition, to obtain a profit for him/herself or a third party in order for there to beliability for the damages and losses caused to the company, which, even if it had notbeen included in the new law, would constitute a form of unjust enrichment underthe Federal Civil Code and the civil codes of the states and the Federal District;d) Another innovation of the Securities Market Law published on December 30, 2005is the suppression of the right of withdrawal that was previously granted to theshareholders of the variable portion of the capital stock, who, as of the entranceinto force of the new law, ceased to enjoy such withdrawal right.