AGREEMENT ON SUBSCRIPTION OF H SHARES TO BE ISSUED BY CHINA SOUTHERN AIRLINES COMPANY LIMITED BY WAY OF NON-PUBLIC ISSUE
Exhibit
4.9
This
English version is a translation of the original Chinese version of the
agreement.
The
English translation shall have no legal effect.
AGREEMENT
ON SUBSCRIPTION OF H SHARES TO BE ISSUED BY
CHINA
SOUTHERN AIRLINES COMPANY LIMITED BY WAY OF
NON-PUBLIC
ISSUE
Dated:
December 10, 2008
This
subscription agreement (hereinafter referred to as the “Agreement”) is entered into by
and between the following parties in Guangzhou, Guangdong province, the PRC on
December 10, 2008:
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Party A:
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China
Southern Airlines Company Limited
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Address:
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Guangzhou
Economic & Technology Development Zone, Gangdong Province, the
PRC
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Legal
representative: ▇▇▇ ▇▇▇▇▇▇▇▇
Party B:
Nan Lung Holding Limited
Address:
▇▇▇▇ ▇▇, ▇/▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
Directors:
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇
(Both
parties are hereinafter referred to as the “Parties” collectively, or the
“Party”
respectively.)
Whereas:
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1.
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Party
A is a joint stock limited company duly organized and validly existing
under the laws of the PRC with a registered capital of RMB6,561,267,000.
Its shares are listed on the Shanghai Stock Exchange and the Stock
Exchange of Hong Kong Limited. Its total share capital comprises
6,561,267,000 shares, among which 3,300,000,000 A shares are held by the
promoter China Southern Air Holding Company, 1,500,000,000 A shares are
held by domestic public investors and 1,761,267,000 H shares are held by
overseas investors.
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2.
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Party
B is a limited liability company duly organized and validly existing under
the laws of Hong Kong;
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3.
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Party
A intends to increase its registered capital by way of a non-public issue
of H shares, while Party B intends to subscribe for all the H shares to be
issued by Party A by way of a non-public issue in order to increase the
registered capital of Party A.
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1
The
Agreement is entered into between the Parties after friendly negotiation to
specify the rights and obligations of both Parties in the subscription of H
shares to be issued by way of a non-public issue.
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1.
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Definitions
and Interpretation
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1.1
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In
the Agreement, unless the context requires otherwise, the following
expressions shall have the following
meanings:
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1.1.1.
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“Agreement” refers
to the Agreement dated December 10, 2008 on subscription of
H Shares to be issued by China Southern Airlines Company Limited
by way of non-public issue.
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1.1.2.
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“Non-public Issued Shares” refers to
the 721,150,000 new H Shares to be issued by Party A to Party B
by way of non-public issue in accordance with the Agreement. Pursuant to
the requirements of the Agreement, the par value of each Share is
HK$ equivalent of RMB
1.00.
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1.1.3.
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“Non-public Issue” refers
to the subscription in cash in HK$ by Party B of the
Non-public Issued Shares to be issued by Party
A.
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1.1.4.
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“Completion of the Non-public
Issue” refers to the date on which the shares to be
issued under the Non-public Issue are registered under the name of Party B
in the Securities Depository and Clearing
Corporation.
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1.1.5.
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“CSRC” refers to China
Securities Regulatory Committee.
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1.1.6.
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“SHSE” refers to the
Shanghai Stock Exchange.
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1.1.7.
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“Securities Depository and
Clearing Corporation” refers to Hong Kong Registrars Limited., the
registrar of H Shares of Party A in Hong
Kong.
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1.1.8.
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“SEHK” refers to Stock Exchange
of Hong Kong Limited.
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1.1.9.
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“Public Disclosure”
refers to the disclosure on the media of information disclosure designated
by SEHK or CSRC．
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2
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1.2
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Interpretation
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1.2.1.
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Headings
used herein are for easy reference purpose only, and shall not be used to
construe the Agreement.
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1.2.2.
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Any
reference to an article, a clause, a paragraph, an annex or an appendix
shall mean the article, clause, paragraph, annex or appendix in the
Agreement.
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1.2.3.
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Any
reference to “including” herein, whether or not followed by “but not
limited to”, shall mean “including but not limited
to”.
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2.
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Consideration
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2.1
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Both
Parties agree that the price of the Non-public Issued Shares shall be HK$
equivalent of RMB1.00 per share, and the exchange rate between HK$ and RMB
shall be determined by the middle exchange rate on the date of Party B’s
payment.
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2.2
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Based
on the issue price specified in Article 2.1 above, Party A shall issue
721,150,000 Non-public Issued Shares to Party B by way of a Non-public
Issue. Party B agrees to subscribe for the aforesaid number of Non-public
Issued Shares in cash. In the event of ex-rights or ex-dividend of the
Non-public Issued Shares during the period between the price determination
date and the issue date, the number of Shares to be issued and the issue
price shall be adjusted
accordingly.
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2.3
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Party
A shall notify Party B as soon as the “Conditions Precedent” as set out in
Article 3 are all satisfied. Both Parties agree that the Non-public Issue
shall take place within 10 working days from the date Party B is notified
by Party A that the “Conditions Precedent” are all satisfied. Party B
shall make one lump-sum payment of the consideration for the Non-public
Issued Shares in cash to the bank account designated by Party A in
writing.
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2.4
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Both
Parties confirm that after Completion of both A share non-public issue and
H share non-public issue, Party B shall hold 9.01% of the enlarged share
capital of Party A, and shall enjoy corresponding rights (including the
rights over the retained profit) and undertake corresponding
obligations.
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3
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3.
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Conditions
Precedent
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3.1
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The
Agreement shall become effective upon fulfillment of all the conditions
set out below:
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3.1.1.
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The
implementation of the Non-public Issue under the Agreement being approved
at the board meeting, shareholders’ general meeting and class meeting of
Party A;
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3.1.2.
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The
subscription of the Non-public Issued Shares of Party A under the
Agreement being approved at the board of Party
B;
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3.1.3.
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The
receipt of all the licenses, authorizations, permits, consents and
approvals from the relevant approval authorities and other relevant
approvals for the implementation of the Non-public Issue under the
Agreement by Party A; and
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3.1.4.
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The
approval of the Listing Committee of SEHK for the listing and trading of
Non-public Issued Shares.
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3.2
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Party
A and Party B shall do or procure to be done with their best efforts all
such acts and things necessary to fulfill the above-mentioned conditions
precedent and for the implementation of the Non-public Issue pursuant to
the applicable laws and
regulations.
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3.3
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If
the above-mentioned conditions precedent cannot be fulfilled within twelve
months from the date of approval of the Agreement by shareholders of Party
A in a general meeting, the Agreement shall cease to be effective, and
neither Party A nor Party B shall lodge any claim against the other party
(except for any claim against any previous breach of the
Agreement).
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4.
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Change
Registration for the Non-public
Issue
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After the
Completion of the Non-public Issue, both Party A and Party B shall register
relevant changes with Administration of Commerce and Industry on a timely
basis.
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5.
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Undertakings
and Guarantees Given by Party A
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4
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5.1
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Party
A guarantees to Party B that:
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5.1.1.
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Party
A is a corporate legal person legally incorporated under the PRC laws with
valid existence;
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5.1.2.
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Party
A will enter into and execute the
Agreement:
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5.1.2.1.
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The
requirements of its Articles of Association have been
met;
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5.1.2.2.
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It
has taken or will take necessary corporate actions to obtain all necessary
authorisation and approvals;
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5.1.2.3.
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It
will not breach any laws or restrictions imposed by any contracts which
are binding or have effect on Party
A.
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5.2
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Party
A guarantees that in the process of bargaining and negotiation for the
signing of the Agreement, all the information provided by Party A to Party
B is true, accurate and complete.
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5.3
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Party
A undertakes that it will comply with all the terms of the
Agreement.
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5.4
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Party
A undertakes that it will assume economic obligation and legal obligation
for breach of any of these guarantees and undertakings mentioned above,
and compensate Party B for the actual loss and expenses so
incurred.
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6.
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Undertakings
and Guarantees Given by Party
B
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6.1
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Party
B guarantees to Party A that:
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6.1.1.
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Party
B is a limited liability company duly organized and validly existing under
the laws of Hong Kong;
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6.1.2.
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Party
B will enter into and execute the
Agreement:
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6.1.2.1.
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The
requirements of its Articles of Association have been
met;
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6.1.2.2.
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It
has taken or will take necessary corporate actions to obtain all necessary
authorisation and approvals;
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6.1.2.3.
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It
will not breach any laws or restrictions imposed by any contracts which
are binding or have effect on Party
B.
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6.1.2.4.
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Party
B will comply with the regulations promulgated by PRC and Hong Kong in
connection with the prohibition of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and market
misconduct;
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5
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6.2
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Party
B guarantees that in the process of bargaining and negotiating for the
signing of the Agreement, all the information provided by Party B to Party
A is true, accurate and complete.
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6.3
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Party
B undertakes that it will comply with all the terms of the
Agreement.
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6.4
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Party
B undertakes that it will assume economic obligation and legal obligation
for breach of any of these guarantees and undertakings mentioned above,
and compensate Party A for the actual loss and expenses so
incurred.
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7.
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Liability
for Breach of the Agreement
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A party
under the Agreement is deemed to be a party in default if it breaches any
obligation, undertaking, statement and guarantee stipulated in the Agreement.
The party in default shall assume the relevant compensation liability if its
breach lead to the failure in fulfilling the Agreement in full, in part or on a
timely basis, which in turn results in losses to the other party.
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8.
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Alterations,
Amendments and Assignment of the
Agreement
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8.1
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Alterations
and amendments of the Agreement shall be subject to negotiation between
the Parties and made in writing.
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8.2
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Alterations
and amendments of the Agreement form an integral part of the
Agreement.
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8.3
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Neither
Party shall have the right to assign in whole or in part their rights or
obligations under the Agreement without the written consent of the other
party.
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9.
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The
Entire Agreement
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9.1
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The
Agreement shall constitute the entire agreement in connection with the
subject matter of the Agreement between the Parties hereto and shall
supersede any and all previous oral and written proposals, statements,
guarantees, commitments, letters of intention, Memorandums of
understanding, agreements and contracts between the Parties. The Parties
shall not and have no right to rely on those proposals, statements,
guarantees, commitments, letters of intention, Memorandums of
understanding, agreements and
contracts.
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6
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10.
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Sharing
of Taxes and Expenses
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10.1
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Save
as otherwise agreed between the Parties, tax and Expenses incurred in
connection with the Non-pubic Issue shall be shared by the Parties in
accordance with the relevant regulations of the
state.
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11.
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Notice
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11.1
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Relevant
notices under or relating to the Agreement shall be dispatched in written
form. A notice shall be deemed effectively received if delivered by hand
or registered post to the Parties at the following addresses, or other
addresses as instructed by the recipients in ten days prior written
notice:
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Party A:
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China
Southern Airlines Company Limited
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Address:
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278
▇▇ ▇▇▇▇▇ Road, Guangzhou
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Post code:
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510406
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Recipient:
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Qin
Haifeng
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Party B:
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Nan
Lung Holding Company Limited
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Address:
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▇▇▇▇
▇▇, ▇/▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇
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Recipient:
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▇▇▇▇
▇▇▇▇▇▇▇
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11.2
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A
notice if delivered by hand shall be deemed effectively received upon the
recipient’s signature. A notice, when delivered by registered post, shall
be deemed received seven days after the dispatch of the same at the
address of the recipient.
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7
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12.
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Discharge
of the Agreement
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12.1
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The
Agreement may be discharged upon the occurrence of one or more of the
circumstances as follows:
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12.1.1.
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Both
Parties to the Agreement have unanimously agreed through
consultation;
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12.1.2.
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Should
the Agreement fail to meet the conditions precedent prescribed in Article
3 or cannot be performed under the laws, orders, government bans or
judicial rulings, either party shall be entitled to discharge the
Agreement unilaterally by a written
notice.
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12.2
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Should
any circumstance mentioned above occur owing to the fault of either party
or both Parties, each party shall assume its respective liability for
breach of the Agreement as prescribed in Article 7
hereof.
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13.
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Settlement
of Disputes
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13.1
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The
Agreement is subject to the laws of the People’s Republic of
China.
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13.2
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All
disputes arising from the implementation of the Agreement shall be settled
through friendly negotiation between the Parties. Where negotiation is not
successful, any Party may refer the dispute to the people’s court with
competent jurisdiction in Guangzhou for legal
proceedings.
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13.3
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Except
for the disputes submitted for legal proceedings, each Party shall
continue to perform other provisions of the
Agreement.
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14.
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Confidentiality
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14.1
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After
the signing of the Agreement, unless prior written consent of the other
party has been obtained, each party shall, regardless whether the
Non-public Issue under the Agreement is completed or not, or whether the
Agreement is terminated, rescinded, revoked, deemed to be void, or
fulfilled, undertake the following obligations of
confidentiality:
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14.1.1.
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The
Parties shall not disclose to any third party the Agreement and the
transaction contemplated hereunder and any other documents related to the
transaction (hereinafter referred to as “Confidential
Documents”);
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8
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14.1.2.
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The
Parties shall use the Confidential Documents and their contents only for
the purpose of the transaction contemplated hereunder, but not for any
other purpose.
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14.2
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The
Parties to the Agreement shall not be subject to the restrictions of
Article 14.1 if they disclose the Confidential Documents for the following
reasons:
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14.2.1.
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Disclosure
to the Parties to the Agreement and any of the intermediaries including
sponsors, independent financial advisors for H shares, accountants, and
lawyers engaged by such Party;
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14.2.2.
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Disclosure
made according to the mandatory requirements of laws and
regulations;
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14.2.3.
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Disclosure
made according to the mandatory requirements of the competent government
authorities.
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15.
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Other
Provisions
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15.1
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The
Agreement shall be formed from the date of signing by the legal
representatives of the Parties or their duly authorized representatives,
and shall come into force pursuant to the provisions of Article 3 of the
Agreement.
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15.2
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The
Parties can, through negotiation, sign a separate written supplementary
agreement on any matter not covered by the Agreement. The supplementary
agreement shall have the same legal effect as the
Agreement.
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15.3
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The
Agreement shall be signed in 20 copies. Party A and Party B shall hold one
copy each, and the other 18 copies shall be filed with the relevant
authorities.
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9
(This
page does not carry any text, and is designated for signing and sealing of the
Agreement)
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China
Southern Airlines Company Limited
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By:
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/s/
▇▇▇ ▇▇▇▇▇▇▇▇ (Company Seal)
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Name:
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▇▇▇
▇▇▇▇▇▇▇▇
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Title:
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Legal
representative
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Nan
Lung Holding Limited
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By:
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/s/
▇▇▇▇ ▇▇▇▇▇▇▇ (Company Seal)
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Name:
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▇▇▇▇
▇▇▇▇▇▇▇
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Title:
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Authorized
representative
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10