HFTP INVESTMENTS v. GRUPO TMM (2005)

Order and judgment (one paper), Supreme Court, New York County (Ira Gammerman, J.H.O.), entered June 28, 2004, upon the parties' respective motions for summary judgment, insofar as appealed from, declaring in plaintiffs investors' favor that, as provided in section 8(f) of certain note linked securities (NLS) sold to plaintiffs by defendant company, defendant publicly announced pending, proposed or intended sales of “all or substantially all” of its assets, and thereby triggered plaintiffs' right to an adjustment in the NLS Exercise Price and in the number of American Depository Shares of defendant acquirable upon exercise of the NLS, unanimously affirmed, without costs.

Defendant's argument that the proposed sales involved its subsidiaries' assets, not its own assets, and are therefore excluded from the operation of section 8(f), is belied by defendant's repeated references, in SEC filings and elsewhere, to the proposed sales as involving its own “indirect assets”;  defendant's loss of effective operational control over those assets that would result from the proposed sales without an exchange of like assets;  and section 8(g) of the NLS, the evident purpose of which is to protect plaintiffs against all manner of events that would dilute their interest in defendant or fundamentally change defendant's nature.

We have considered defendant's other arguments and find them unpersuasive.