UNOFFICIAL ENGLISH TRANSLATION
Exhibit F
UNOFFICIAL
ENGLISH TRANSLATION
Annex Q
SIDE LETTER FORMAT
SIDE LETTER FORMAT
SIDE LETTER DATED [•], 2011, ENTERED BY AND BETWEEN XXXXXXXX XXXXXXX XXXXX XXXXX (“FCP”),
CORPORATIVO GALAJAFE, S.A. DE C.V. (“CORPORATIVO”) AND INVERSIONES Y TÉCNICAS
AEROPORTUARIAS, S.A. DE C.V. (“ITA”, AND JOINTLY WITH FCP AND CORPORATIVO, THE
“PARTIES”)
We make reference to: (i) the stock purchase agreement subject to a precedent condition (the
“SPA”) entered as of November 7, 2011, by and between FCP and Promecap, S.A. de C.V., in
their capacity as sellers, and Grupo ADO, S.A. de C.V. (“ADO”) in its capacity as
purchaser, regarding the 100% (one hundred percent) of the stock capital of Corporativo, directly,
and 49% (forty nine percent) of the representative shares of the capital stock of ITA, indirectly;
and (ii) the shareholders agreement (the “Shareholders Agreement of ITA”) entered as of the
abovementioned date, by and between FCP, Corporativo and ITA, regarding certain agreements over the
corporate government of ITA, as well as the future option for the acquisition by Corporativo of 1%
(one percent) of ITA.
In connection with ITA’s participation in the capital stock of Grupo Aeroportuario del
Sureste, S.A.B., de C.V. (“ASUR”), and the special corporate rights to which pursuant to
ASUR’s by-laws ITA is entitled to, FCP and Corporativo passed the following agreements which
indirectly refer to ASUR and, therefore, the parties hereby are obliged to comply with the
following obligations:
| 1. | Relevant Matters. To resolve any of the following matters, the
unanimous affirmative vote of each of the directors of ITA in a duly installed board
of directors meeting pursuant to ITA’s by-laws, or the assistance and affirmative vote
of the 100% (one hundred percent) of the representative shares of the capital stock of
ITA in a general shareholders meeting, duly installed pursuant to ITA’s by-laws,
within the competence of each of the abovementioned corporate bodies: |
| (i) | Any mergers or splits of ITA; |
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| (ii) | The adoption of any resolution to dissolve and liquidate ITA
or other procedure of insolvency, or for the judicial administration of ITA; |
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| (iii) | Amendments or termination, for any reason, of (a) the
Technical Assistance Agreement, entered as of December 19, 1998 by and between
ITA, ASUR, Servicios Aeroportuarios del Sureste, S.A. de C.V. and Aeropuerto
de Cancún, S.A. de C.V., Aeropuerto de Cozumel, S.A. de C.V., Aeropuerto de
Huatulco, S.A. de C.V., Aeropuerto xx Xxxxxx, X.X. de C.V., Aeropuerto de
Minatitlán, S.A. |
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de C.V., Aeropuerto de Oaxaca, S.A. de C.V., Aeropuerto de Tapachula, S.A.
de C.V., Aeropuerto de Veracruz, S.A. de C.V., y Aeropuerto de
Villahermosa, S.A. de C.V. (jointly, the abovementioned companies and ASUR,
the “Airport Group”); (b) the Participation Agreement, entered as
of December 18, 1998, by and between the Federal Government of the United
Mexican States, through the Ministry of Transportation and Communications,
the Airport Group and ITA; (c) the Trust Agreement entered as of December
18, 1998, by and between ITA in its capacity as settlor-beneficiary, ASUR
in its character as second place beneficiary and Banco Nacional de Comercio
Exterior, S.N.C. División Fiduciaria in its capacity as trustee; (d) the
General Guidelines for the Investment in the Mexican Airports System,
published as of February 9, 1998, in the Official Federal Gazette; (e) the
announcement for the acquisition of the share certificates representative
of the capital stock of ASUR, Aeropuerto de Cancún, S.A. de C.V.,
Aeropuerto de Cozumel, S.A. de C.V., Aeropuerto de Huatulco, S.A. de C.V.,
Aeropuerto xx Xxxxxx, X.X. de C.V., Aeropuerto de Minatitlán, S.A. de C.V.,
Aeropuerto de Oaxaca, S.A. de C.V., Aeropuerto de Tapachula, S.A. de C.V.,
Aeropuerto de Veracruz, S.A. de C.V., and Aeropuerto de Villahermosa, S.A.
de C.V.; and (f) the Rating Formulary for the interested people to
participate in the announcement for the acquisition of the share
certificates representative of the capital stock of ASUR dated June 29,
1998, as well as any other document related to the privatization of the
Mexican airport system and with the acquisition of the share certificates
representative of the capital stock of ASUR or other document of the
abovementioned privatization in which ITA is a party; |
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| (iv) | The exercise the right of veto of ITA in the General
Shareholders Meetings of ASUR pursuant to the by-laws of the latter; |
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| (v) | Instruction to the members of the Board of Directors of ASUR
appointed by ITA in regards to the appointment or removal of (i) the CEO of
ASUR, (ii) half of the first level officials of ASUR, and (iii) any member of
the Comité Operativo, of the Comité de Nominaciones y Compensaciones and of
the Comité de Adquisiciones y Contratos and the alternates to such members
which the directors appointed by ITA are entitled to appoint or remove; |
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| (vi) | Appointment or removal of the CEO of ITA and the
determination of its annual salary, in the event, the shareholders meeting of
ITA unanimously resolved to create the position of CEO for ITA; |
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| (vii) | Appointment or removal of the statutory examiner and of the
auditors of ITA; |
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| (viii) | Any type of transfer of the (alienate, sell, transfer, assign, donate or any
other way to dispose of) Shares different from the allowed transfers to an
affiliate. Affiliate shall be understood as: (a) in connection to any person,
which is not an individual, this is any other company, association, firm,
trust, organization without legal capacity, Authority or other entity, which
controls, is controlled or which is under the joint control, of the
controlling companies of such Person. In connection with individuals, it means
the spouse, the ascendants, descendants in direct line and the consanguinity
and affinity relatives up to the second degree and the heirs of such Persons,
or any other Person under the guardianship of any of the latter. Likewise,
“Control” means the direct or indirect possession, or the authority to
determinate or cause to determinate, the administration and policies of an
entity, whether it is through the possession o property of securities, quotas
or participation with voting rights, by means of an agreement or in any other
manner, and to be “Control”, to “Controlled” or being
“Controlled” have the same meanings; |
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| (ix) | Sell or alienation of Shares of ASUR property of ITA; |
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| (x) | The way in which the voting rights of the shares of ASUR
property of ITA will be exercised in connection with the approval of the
development master program, the business plan and the investments plan for
ASUR and any amendments to the latter, in the event such points are mentioned
in the general shareholders meeting of ASUR; |
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| (xi) | Approval and modification of the financial budgets,
investments and plans, and of the audited annual financial information of ITA; |
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| (xii) | Proposals for the amendment of the by-laws of ITA including
any increase or decrease of capital stock, contributions for future capital
stock increases or modifications, of any type, to the capital stock; |
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| (xiii) | Investments made by ITA which amounts exceeds $500,000.00 (Five hundred
thousand dollars 0/100) in other companies or business including ITA’s; |
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| (xiv) | Any agreements entered by and between ITA and any party
and/or any Affiliate of the parties; |
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| (xv) | Execution, amendment and termination of any services
agreement which amount exceeds $500,000.00 (Five hundred thousand dollars
0/100) or its equivalent in any other currency which were not provided in the
agreed business plan or budget or if the latter are amended; |
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| (xvi) | The execution of loans or funding agreements by ITA for an
amout equal or superior to $500,000.00 (Five hundred thousand dollars 0/100)
or its equivalent in any other currency or granting guaranties under those
agreements. |
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| (xvii) | Granting loans to third parties or granting guaranties, endorsments or other
similar in regards to obligations of third parties, including, but not limited
to, ASUR, Aeropuerto de Cancún, S.A. de C.V., Aeropuerto de Cozumel, S.A. de
C.V., Aeropuerto de Huatulco, S.A. de C.V., Aeropuerto xx Xxxxxx, X.X. de
C.V., Aeropuerto de Minatitlán, S.A. de C.V., Aeropuerto de Oaxaca, S.A. de
C.V., Aeropuerto de Tapachula, S.A. de C.V., Aeropuerto de Veracruz, S.A. de
C.V., y Aeropuerto de Villahermosa, S.A. de C.V., Caribbean Logistics, S.A. de
C.V., Cargo RF, S.A. de C.V. y Cancún Airport Services, S.A. de C.V., and
Servicios Aeroportuarios del Sureste, S.A. de C.V. |
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| (xviii) | The beginning or ratification of any relevant legal proceeding by ITA,
including the filing of any lawsuit before Mexican or foreign authorities. |
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| (xix) | The way in which the shares property of ITA will be voted in
the following companies ASUR, Aeropuerto de Cancún, S.A. de C.V., Aeropuerto
de Cozumel, S.A. de C.V., Aeropuerto de Huatulco, S.A. de C.V., Aeropuerto xx
Xxxxxx, X.X. de C.V., Aeropuerto de Minatitlán, S.A. de C.V., Aeropuerto de
Oaxaca, S.A. de C.V., Aeropuerto de Tapachula, S.A. de C.V., Aeropuerto de
Veracruz, S.A. de C.V., y Aeropuerto de Villahermosa, S.A. de C.V., Caribbean
Logistics, S.A. de C.V., Cargo RF, S.A. de C.V. y Cancún Airport Services,
S.A. de C.V., and Servicios Aeroportuarios del Sureste, S.A. de C.V., in which
ITA haves a participation and that were adjourned as applicable pursuant to
their by-laws or the Applicable Law, to vote any of the issues mentioned in
sections (i) through (xviii) of this side letter. |
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The Shareholders of ITA recognize and agree that this Side Letter is a “shareholders
agreement” under, and for, the purposes set forth in section VI of Article 16 of the Stock market
Mexican Law.
The validity, interpretation and performance of this Agreement will be subject to the Mexican
laws.
The Parties agree that any dispute arising from this Agreement, whether it is in regards to
its validity, interpretation, meaning, performance, effect, enforcement or termination, will be
subject in first place to a negotiation procedure between the Parties, whom for such purposes will
appoint a first level officer of their business group with the authority to take decisions, which
represent their interests during the negotiation. The officers appointed by each Party will have a
term of 15 (fifteen) days to try to solve the dispute, such term can by extended by mutual
agreement between the Parties. The term shall start from the moment in which a Party notifies in
written to the other Party its intention to submit a dispute to the negotiation process, in such
notification it will be notified the name of the officer which will be representing the interests
of the latter. Within such 15 (fifteen) days the notified party shall appoint its officer and
communicate such appointment in writing to the other party. The representative officers of each
party can have the counsel of advisors and/or consultants.
If, after the 15 (fifteen) days term, or its extension as set forth in the paragraph above,
expires, and the dispute between the Parties has not been resolved, including the term in which the
required Party has not appoint its officer, the dispute shall be resolved by means of an
arbitration, pursuant to the Arbitration Provisions of the National Chamber of Commerce of Mexico
City as applicable in such date (“Canaco Provisions”).
The arbitration tribunal will be integrated by 3 (three) arbitrators. One arbitrator shall be
appointed by the Sellers, the other arbitrator by the Purchaser and the third arbitrator shall be
appointed by the 2 (two) previously appointed arbitrators. If within a term of 15 (fifteen)
Business Days from the appointment of the last of the 2 (two) first arbitrators, the third
arbitrator has not been appointed by the 2 (two) first arbitrators, then the third arbitrator shall
be appointed by the National Chamber of Commerce of Mexico City pursuant to the Canaco Provisions.
The arbitration will take place in Mexico City, Federal District, Mexico. The arbitration
procedures will be carried out in Spanish language and all the writes and documents, whether proofs
or not, shall be filed in Spanish language.
The arbitration procedure set forth in this Clause will be the only way to solve any disputes
between the Parties. The arbitration award will be definitive, it shall not be appealed and it will
be enforceable to the Parties, and it can be filed, by any Party, before any competent court for
its execution and the Parties hereby expressly submit to the jurisdiction of such court solely for
the purposes of having the arbitration award executed and any other award issued pursuant to this
letter. In such execution action, notwithstanding where it was initiated, non of the Parties shall
seek to invalidate or modified the decision of the arbitrators or invalidate or avoid in any other
way the procedures set forth in this Clause. The arbitration fees and the expenses related to the
arbitration procedure will be paid by the Parties in the proportions set forth in the applicable
award.
The parties hereby agree with the terms and conditions set forth in this side letter, and
therefore the parties execute this letter as a signal of their approval and agreement.
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| Xxxxxxxx Xxxxxxx Xxxxx Xxxxx |
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| Corporativo Galajafe, S.A. de C.V. |
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| Name: | [•] | |||
| Position: Attorney-in-fact | ||||
| Inversiones y Técnicas Aeroportuarias, S.A. de C.V. |
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| Name: | Xxxxxxxx Xxxxxxx Xxxxx Xxxxx | |||
| Position: Attorney-in-fact | ||||
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