Share Subscription Agreement Between China Eastern Airlines Corporation Limited and CES Global Holdings (Hong Kong) Limited
Exhibit 4.19
Between
China
Eastern Airlines Corporation Limited
and
CES
Global Holdings (Hong Kong) Limited
In
relation to the subscription of additional H shares issued by
China
Eastern Airlines
Corporation
Limited
10
July 2009
CONTENT
|
ARTICLE
1
|
DEFINITIONS
|
1
|
|
1.1
|
Definitions
|
1
|
|
1.2
|
Interpretations
|
3
|
|
ARTICLE
2
|
SUBSCRIPTION
OF SHARES
|
3
|
|
2.1
|
Subscription
of Shares and Price
|
3
|
|
2.2
|
Methods
of Subscription and Payment
|
3
|
|
2.3
|
Completion
of the Transaction
|
3
|
|
ARTICLE
3
|
COMMENCEMENT
AND TERMINATION OF THE AGREEMENT
|
3
|
|
3.1
|
Commencement
|
3
|
|
3.2
|
Termination
|
4
|
|
ARTICLE
4
|
REPRESENTATIONS
AND WARRANTIES BY THE COMPANY
|
4
|
|
4.1
|
Organization
and Credit
|
5
|
|
4.2
|
Authorization
and Validity
|
5
|
|
4.3
|
No
Conflict
|
5
|
|
4.4
|
No
Insolvency
|
5
|
|
4.5
|
Legal
Proceedings
|
5
|
|
4.6
|
Genuiness
of Disclosure
|
5
|
|
ARTICLE
5
|
REPRESENTATIONS
AND WARRANTIES BY CES GLOBAL
|
6
|
|
5.1
|
Organization
and Credit
|
6
|
|
5.2
|
Authorization
and Validity
|
6
|
|
5.3
|
No
Conflict
|
6
|
|
5.4
|
Sufficient
Funds
|
6
|
|
5.5
|
Genuiness
of Disclosure
|
7
|
|
ARTICLE
6
|
FURTHER
UNDERTAKINGS
|
7
|
|
6.1
|
Further
Undertakings by the Company
|
7
|
|
6.2
|
Further
Undertakings by CES Global
|
7
|
|
6.3
|
Charges
|
7
|
|
ARTICLE
7
|
CONFIDENTIALITY
AND MAKING PUBLIC
|
7
|
|
7.1
|
Confidentiality
|
7
|
|
7.2
|
Making
Public
|
8
|
|
ARTICLE
8
|
RESPONSIBILITIES
FOR BREACH OF THE AGREEMENT
|
8
|
|
ARTICLE
9
|
SETTLEMENT
OF DISPUTES
|
8
|
|
ARTICLE
10
|
MISCELLANEOUS
|
9
|
|
10.1
|
Notice
|
9
|
|
10.2
|
Governing
Law
|
9
|
|
10.3
|
Divisibility
|
9
|
|
10.4
|
Amendments
|
10
|
|
10.5
|
Waiver
|
10
|
|
10.6
|
The
Integral Agreement
|
10
|
|
10.7
|
Copies
|
10
|
This
share subscription agreement (the “Agreement”) was made as of
this 10th day of
July 2009 in Shanghai by and between:
China
Eastern Airlines Corporation Limited, a joint stock limited company incorporated
and existing under the laws of the PRC, whose H shares, A shares and American
Depositary Receipts (“ADR”) are listed on The Stock Exchange of Hong Kong
Limited (“Hong
Kong Stock Exchange”), the Shanghai Stock Exchange (“SHSE”) and the New York Stock
Exchange, Inc. respectively, with its registered office at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ International Airport, Shanghai, China, postal code: 201202 (the “Company”); and
CES
Global Holdings (Hong Kong) Limited, a wholly PRC state-owned company
incorporated and existing under the laws of the Hong Kong Special Administrative
Region and a Related Party of the Company, with its registered office at ▇▇▇▇
▇▇▇▇▇ ▇▇/▇，▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Tower, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (“CES Global”), the beneficial
controller of which is China Eastern Air Holding Company (“CEA Holding”), the controlling
shareholder of the Company.
Each of
the Company and CES Global is hereinafter referred to as the “Party” and together as the
“Parties”.
Whereas:
(1) the
Company is a joint stock limited company established in the PRC whose H shares,
A shares and ADRs are listed on the Hong Kong Stock Exchange, SHSE and the New
York Stock Exchange, Inc. respectively;
(2) As
the Related Party of the Company, CES Global has agreed to subscribe
for 490,000,000 New H Shares of the Company pursuant to the terms and
conditions of the Agreement;
Based on
the principle of equality, willingness and mutual cooperation, the Parties
hereby enter into and sign an agreement as follows:
ARTICLE
1
DEFINITIONS
|
1.1
|
Definitions
|
| In the Agreement, unless the text otherwise requires, the following expressions have the following meanings: |
|
“Related
Party”
|
For
any party herein, means any other person who controls it, or is controlled
by or under the common control together with it, whether directly or
indirectly through one or more intermediaries.
|
1
|
“CES
Global”
|
means东航国际控股（香港）有限公司
(CES Global Holdings (Hong Kong) Limited).
|
|
“CEA
Holding”
|
means中国东方航空集团公司
(China Eastern Air Holding Company).
|
|
“Hong Kong Stock
Exchange”
|
means
The Stock Exchange of Hong Kong Limited.
|
|
“CSRC”
|
means
the China Securities Regulatory Commission.
|
|
“Shanghai
Administration”
|
means
the Administration for Industry and Commerce of Shanghai.
|
|
“SHSE”
|
means
the Shanghai Stock Exchange.
|
|
“Company”
|
means
中國東方航空股份有限公司(China
Eastern Airlines Corporation Limited).
|
|
“Completion of the
Transaction”
|
has
the meaning as defined in Paragraph 2.3 hereof.
|
|
“Confidential
Information”
|
has
the meaning as defined in Paragraph 6.1 hereof.
|
|
“New H
Shares”
|
means the
new H shares to be
issued by the Company to CES Global for its subscription pursuant to the
terms and conditions of the Agreement.
|
|
“New A
Shares”
|
means
the new A shares
to be issued by the Company to CEA Holding for its subscription pursuant
to the Share Subscription Agreement entered into between the Company and
CEA Holding on 10 July 2009.
|
|
“Party” or “Parties”
|
has
the meaning as defined in the introduction hereof.
|
|
“PRC”
|
means
the People’s Republic of China, and for the purpose of the Agreement,
excluding Hong Kong Special Administrative Region, Macau Special
Administrative Region and Taiwan region.
|
|
“Renminbi” or “RMB”
|
means
Renminbi, the lawful currency of the PRC.
|
|
“Subscription
Consideration”
|
means
the total consideration for the subscription of New H Shares by CES
Global ,
the amount of which shall be the subscription price multiplied by the
number of New H Shares subscribed pursuant to Article 2.1 of the
Agreement.
|
|
“Transaction” under the
Agreement
|
means
the issue of New H Shares by the Company to CES Global and the
subscription thereof by CES Global pursuant to the terms and conditions of
the Agreement.
|
2
|
1.2
|
Interpretations
|
|
|
(a)
|
Unless
otherwise stated, all the references to the sections, articles and
paragraphs, lists or annexes herein are those in the
Agreement.
|
|
|
(b)
|
The
terms such as “including” and other equivalents do not represent any
restriction and should be construed as “including but not limited
to”.
|
ARTICLE
2
SUBSCRIPTION
OF SHARES
|
2.1
|
Subscription
of Shares and Price
|
|
|
(a)
|
Pursuant
to the terms and conditions of the Agreement, the Company shall
issue to CES Global, and CES Global shall subscribe for, not more than
490,000,000 New H Shares of the Company. The
maximum subscription number of shares shall be adjusted if there is any
ex-rights or
ex-dividend
arrangement during the period from the pricing date to the issuance
date.
|
|
|
(b)
|
Such
New H Shares shall be subscribed for by CES Global at the price of not
less than 90% of the average trading price for the H shares during the 20
trading days prior to the pricing date of the Company (i.e. the
announcement date of the resolution passed by the Board of Directors
regarding the Transaction). The minimum subscription price of shares shall
be adjusted if there is any ex-rights or ex-dividend arrangement
during the period from the pricing date to the issuance
date.
|
|
(c)
|
Subject
to the two preceding paragraphs hereof, the subscription price and the
number of New H Shares subscribed shall be otherwise determined through
negotiation by the Board of Directors of the Company and CES Global before
the issuance.
|
|
2.2
|
Methods
of Subscription and Payment
|
| CES Global shall pay and deposit the Subscription Consideration into the account for which the Company shall have designated and given at least 5 business days’ prior written notice, within 5 business days after the Agreement has come into effect or such other date as the Parties may agree. |
|
2.3
|
Completion
of the Transaction
|
| Subject to the payment of Subscription Consideration by CES Global to the Company according to Paragraph 2.2 above and receipt of the updated share register of the Company which demonstrates the capacity of CES Global as the shareholder of the Company, the Transaction under the Agreement shall be deemed as completed (“Completion of the Transaction”). |
ARTICLE
3
COMMENCEMENT
AND TERMINATION OF
THE
AGREEMENT
|
3.1
|
Commencement
|
| The Parties have agreed that the Agreement will be established upon at least one copy of the Agreement signed by the authorized representatives of the Parties and affixed with that Party’s common seal, whether separately or jointly, and will take effect immediately after the following conditions are fully satisfied: |
3
|
|
(a)
|
Obtaining
the approvals by the shareholders of the Company by way of special
resolutions at a general meeting and class meetings of holders of A shares
and H shares for the issue of New H Shares and the approvals for
amendments, where necessary, to the articles of association of the Company
in respect thereof;
|
|
|
(b)
|
Obtaining
the waiver by the shareholders of the Company at a general meeting in
relation to the requirement of a general offer by CEA Holding in accordance with
the Administrative
Measures in relation to the Acquisition of Listed Companies《上市公司收購管理辦法》or related
regulations;
|
|
|
(c)
|
Obtaining
the waiver from CSRC in relation to the requirement of a general offer of
the issue of New A Shares and New H Shares by CEA Holding (if
necessary);
|
|
(d)
|
Obtaining
the approval from CSRC for the issue of the New H Shares;
and
|
|
|
|
(e)
|
Obtaining the approvals
by
the shareholders of the Company at a general meeting and class meetings of
holders of A shares and H shares for the issue of New A Shares
and the approval from
CSRC.
|
|
3.2
|
Termination
|
| The Parties have agreed that the Agreement shall automatically be terminated without prejudice to the effect of Paragraph 6.3 and Article 7 upon the happening of the followings: |
|
|
(a)
|
If
the above conditions set out in Paragraph 3.1 hereof have not been fully
satisfied within 12 months days from signing of the
Agreement;
|
|
|
(b)
|
CSRC
has clearly, either in writing or in oral, replied that it will not grant
the approval in respect of the formal application submitted by the Company
to CSRC for the issue of New H Shares;
or
|
|
|
(c)
|
CSRC
has clearly, either in writing or in oral, replied that it will not grant
the approval in respect of the formal application submitted by the Company
to CSRC for the issue of New A
Shares.
|
ARTICLE
4
REPRESENTATIONS
AND WARRANTIES BY THE COMPANY
| The Company hereby makes the following representations and warranties to CES Global: |
4
|
4.1
|
Organization
and Credit
|
|
|
The
Company, an airline company headquartered in the PRC, is established as a
joint stock limited company under the laws of the PRC and has been legally
existing since its incorporation.
|
|
4.2
|
Authorization
and Validity
|
|
|
Save
as the conditions set out in sub-paragraph (a), Paragraph 3.1 yet to be
satisfied, the Company has all power and authority necessary to sign the
Agreement and perform its obligations thereunder. The execution, delivery
and performance of the Agreement by the Company have been authorized by
all necessary legal persons. The Agreement constitutes a legal, valid and
binding obligation of the Company, and the performance of obligations
hereunder by the Company shall be enforceable according to their
terms.
|
|
4.3
|
No
Conflict
|
|
|
The
execution and delivery of the Agreement, to which the Company is a party,
and the performance of the obligations hereunder by the Company will not
constitute any conflict with or breach of the following documents or
result in termination or withdrawal of any obligation of any third party
or expediting the exercise of any third party’s rights: (1) constitutional
documents of the Company, (2) any agreement(s) or government approval(s)
signed by or bound by the Company, or any agreement(s) or government
approval(s) with any assets of the Company as its subject, or (3) any PRC
laws applicable to the Company.
|
|
4.4
|
No
Insolvency
|
|
|
(a)
|
There
is no request, decision or court judgments or rulings that require the
Company to commence liquidation
process.
|
|
|
(b)
|
There
is neither circumstance under which the Company is unable to repay its
debts nor orders or court judgments or rulings relating to its bankruptcy
outstanding against the Company.
|
|
4.5
|
Legal
Proceedings
|
|
|
Save
as those disclosed to CES Global, there is no pending legal proceedings
that have already existed or may be raised as far as the Company is aware
of, against the Company or having significant impact on its property,
assets, rights, licences, operations, businesses or rights thereof, nor
any events, circumstances or situations that may cause, directly or
indirectly, the commencement of such legal proceedings or provide
foundations therefor, except for those that separately or jointly would
have no significant adverse impact on or would not cease, delay or
otherwise intervene the Transaction
hereunder.
|
|
4.6
|
Genuiness
of Disclosure
|
|
|
As
far as the Company is aware of, all information in written provided by the
Company or its representatives to CES Global or its representatives is
true and accurate in all material aspects. There is no omission of any
important facts which are required to be included or explained therein,
and it is not misleading taken into account the specific circumstances
under which it was made.
|
5
ARTICLE
5
REPRESENTATIONS
AND WARRANTIES BY
CES
GLOBAL
| CES Global hereby makes the following representations and warranties to the Company: | |
|
5.1
|
Organization
and Credit
|
|
|
CES
Global is a limited company that is established and exists in accordance
with the laws of Hong Kong Special Administrative Region, and is in good
credit standing.
|
|
5.2
|
Authorization
and Validity
|
|
|
CES
Global has all power and authority necessary to sign the Agreement and
perform its obligations hereunder. The execution, delivery and performance
of the Agreement by CES Global have been officially authorized by all
necessary competent authorities. The Agreement constitutes a legal, valid
and binding obligation of CES Global, and the performance of obligations
hereunder by CES Global shall be enforceable according to their
terms.
|
|
5.3
|
No
Conflict
|
|
|
The
execution and delivery of the Agreement and the performance of the
obligations hereunder by CES Global will not constitute any conflict with
or breach of the following documents or result in termination or
withdrawal of any obligation of any third party or expediting the exercise
of any third party’s rights: (1) constitutional documents of CES Global,
(2) any agreement(s) or government approval(s) signed by or bound by CES
Global, or any agreement(s) or government approval(s) with any assets of
CES Global as its subject, or (3) any Hong Kong laws applicable to CES
Global.
|
|
5.4
|
Sufficient
Funds
|
|
|
CES
Global has sufficient financial resources to fulfill its payment
obligations in respect of the subscription of New H Shares provided under
Paragraphs 2.1 and 2.2 of the
Agreement.
|
6
|
5.5
|
Genuiness
of Disclosure
|
|
|
As
far as CES Global is aware of, all information in written provided by CES
Global or its representatives to the Company or its representatives is
true and accurate in all material aspects. There is no omission of any
important facts which are required to be included or explained therein,
and it is not misleading taken into account the specific circumstances
under which it was made.
|
ARTICLE
6
FURTHER
UNDERTAKINGS
| 6.1 | Further Undertakings by the Company |
| The Company undertakes that it will get prepared as soon as possible for (i) appointing a professional institution(s) to conduct capital verification on the Subscription Consideration payable by CES Global; (ii) submitting an application and other necessary documents, including the capital verification report and amended articles of association as required by the PRC laws, to Shanghai Administration so as to register for the increased registered capital and obtain the renewed business license; (iii) submitting an application and other necessary documents as required by the relevant regulations for approval of listing of New H Shares from the Listing Committee of Hong Kong Stock Exchange; (iv) applying for modifications of any relevant necessary certificates and licenses from the taxation, customs, commerce and other relevant authorities; and (v) conducting or ensuring to conduct all necessary further activities and matters, and execute all further documents, contracts or enter into further agreements to assure the performance of the obligations under the Agreement upon Completion of the Transaction. | |
|
6.2
|
Further
Undertakings by CES Global
|
| CES Global undertakes that it will conduct or ensure to conduct all necessary further activities and matters, and execute all further documents, contracts or enter into further agreements to assure the performance of the obligations under the Agreement upon Completion of the Transaction. |
|
6.3
|
Charges
|
|
|
Whether
the Transaction under the Agreement is completed or not, all the relevant
expenses and charges arising in respect of it, including the relevant
legal, accounting and investment bank fees, and other charges payable to
the consultants or advisers shall be borne by the Party so incurred. Each
of the Parties of the Agreement shall respectively be responsible for all
of its relevant taxes incurred in respect of the Transaction under the
Agreement.
|
ARTICLE
7
CONFIDENTIALITY
AND MAKING PUBLIC
| 7.1 | Confidentiality |
|
|
Each
of the Parties shall procure its agents, employees and representatives
(“Representatives”) to
treat the other Party's Confidential Information as strictly confidential,
and shall not disclose the following Confidential Information (including
but not limited to the forms such as interviews, responses to queries or
investigations, press releases or otherwise) without specific written
consent from the disclosing Party. In the Agreement, “Confidential
Information” refers to the terms of the Agreement and other formal
agreements, and any information disclosed by the Party or its
representatives regarding the Party's business, future plan, financial
position, expectations and clients etc.; Confidential Information
particularly includes the existence of the Agreement and other formal
agreements and their contents, the transaction(s) contemplated under the
Agreement and the negotiations between the Parties in respect of it;
Confidential Information excludes (a) information that is already obtained
by the recipient when disclosed by the disclosing Party, (b) information
accessible by the public of which the access can not be attributable to
the disclosing Party’s misconducts, (c) information that is obtained by
the recipient properly through a third party, or (d) information that is
independently and solely explored by the
recipient.
|
7
|
7.2
|
Making
Public
|
|
|
Under
the principle of compliance with the provisions of laws, or the rules and
regulations of any stock exchange on which securities of either Party or
any of its Related Party are listed and traded, either Party shall not
make or allow any of their Related Parties to make any press release,
public statement or other public disclosure in relation to the Transaction
under the Agreement or the Agreement without prior notice to, negotiation
with and consent by the other
Party.
|
ARTICLE
8
RESPONSIBILITIES
FOR BREACH OF
THE
AGREEMENT
|
|
Any
Party who breaches the Agreement shall assume liabilities in accordance
with the relevant laws. Except as otherwise required by the Agreement or
laws, any Party of the Agreement who fails to perform its obligations
hereunder or whose performance of its obligations constitutes a breach of
provisions of the Agreement, the Party complying with the Agreement shall
be entitled to require the defaulting Party to continue to perform its
obligations or implement measures to remedy the contraventions, as well as
to require the defaulting Party to compensate the actual loss arisen from
it.
|
ARTICLE
9
SETTLEMENT
OF DISPUTES
|
9.1
|
Any
dispute to the effect, interpretation or performance of the Agreement
between the Parties shall in the first instance be settled through
negotiation in a friendly manner. If it fails to settle the dispute
through negotiation within thirty (30) days from the date the dispute
arises, any Party is entitled to apply to the China International
Economic and Trade Arbitration Commission, Shanghai Commission for
arbitration of the dispute based on the arbitration rules of the
commission then in force pursuant to the Agreement. The arbitration award
shall be final and binding on the
Parties.
|
|
9.2
|
Save
as the provisions relating to disputes hereunder, the Agreement shall
continue to be performed by the Parties in the same manner during the
settlement of disputes.
|
8
ARTICLE
10
MISCELLANEOUS
|
10.1
|
Notice
|
|
|
In
order to be deemed as duly received, any or all notices, requests,
demands, approvals and other communications required by or related to the
Agreement shall be in writing and served by one or more of the following
ways: (a) if sent by hand, deemed to be served on the date of receipt; (b)
if sent by fax, deemed to be served on the date of confirmation of receipt
of the transmission; or (c) if sent by International Express, deemed to be
served on the 4th business day from the date of posting (i.e. the postmark
date). All these notices, requests, demands, approvals and other
communications shall be delivered to the following addresses or such other
address or fax number indicated by the Party in
writing.
|
|
To the
Company:
Address:
Postal Code:
Tel:
Fax:
|
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
200335
021
2233 0920
021
6268 6116
|
|
|
To
CES Global:
Address:
Postal
Code:
Tel:
Fax:
|
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
021 2233 4170
021 6268 3873
|
|
10.2
|
Governing
Law
|
| The Agreement shall be governed by and construed and performed in accordance with the PRC laws. |
|
10.3
|
Divisibility
|
| All the provisions of the Agreement shall be deemed divisible, and any invalid or unenforceable provision shall not have impact on the validity or enforceability of other provisions hereof. Where any provisions or the provisions applicable to any person or any situation are invalid or unenforceable, (a) the Parties shall try their best to negotiate to establish appropriate and fair terms instead of those invalid or unenforceable, so as to accomplish the intent and purpose thereof; and (b) other provisions under the Agreement and the effect of those provisions applicable to other persons, entities or situation shall not be prejudiced by such invalidity or unenforceability. In such circumstances, the Party who fails to perform its obligations due to the invalidity or unenforceability of the provisions shall not be deemed to be in breach of the Agreement or shall not assume the responsibilities for the loss of the other Party. |
9
|
10.4
|
Amendments
|
| The Agreement shall only be amended or revised by a written document signed by each Party. |
|
10.5
|
Waiver
|
| Any Party who waives the responsibility of the other Party for breach of any obligations or duties hereunder shall give and sign a written statement, and this waiver shall not be deemed as a waiver from any other future default responsibilities of the other Party under the Agreement. |
|
10.6
|
The
Integral Agreement
|
| The Agreement constitutes all the agreements and understandings between the Parties in respect of the underlying matters hereof, and supersedes all the previous written and oral agreements in respect thereof between the Parties and all other previous communications. |
|
10.7
|
Copies
|
| The Agreement shall have ten (10) copies in duplication and each Party holds one. The remaining copies shall be submitted to the relevant authorities for approval and filing. Each copy shall have the same effect. |
In view of the above, the
Agreement shall be signed by the Parties as of the date shown at the beginning
hereof and be established on the date of signing.
10
[No text
in this page]
|
China Eastern Airlines
Corporation Limited
(Seal to be affixed)
|
|||
|
|
Signature:
|
||
| Name: | |||
| Title: | |||
|
CES Global Holdings (Hong Kong)
Limited
(Seal to be affixed)
|
|||
|
|
Signature:
|
||
| Name: | |||
| Title: | |||