Share Issue and Subscription Agreement Between China Eastern Airlines Corporation Limited and China Eastern Air Holding Company
Exhibit
4.17
Between
China
Eastern Airlines Corporation Limited
and
China
Eastern Air Holding Company
In
relation to the placing of 1,437,375,000 new A shares to China
Eastern
Air Holding Company by
China
Eastern Airlines Corporation
Limited
29
December 2008
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 CEA HOLDING
|
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
|
Restrictions
on Transfer
|
6
|
|
5.6
|
Genuiness
of Disclosure
|
7
|
|
ARTICLE
6
|
FURTHER
UNDERTAKINGS
|
7
|
|
6.1
|
Further
Undertakings by the Company
|
7
|
|
6.2
|
Further
Undertakings by CEA Holding
|
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 Issue and Subscription Agreement (the “Agreement”) was made as of
this 29th day of
December 2008 in Shanghai by and between:
China
Eastern Airlines Corporation Limited, a joint stock limited company incorporated
and existing under the PRC laws, whose A shares, H shares and American
Depositary Receipts (“ADR”) are listed on the Shanghai Stock Exchange (“SHSE”), the Stock Exchange of
Hong Kong Limited (“Hong
Kong Stock Exchange”) and the New York Stock Exchange, Inc. respectively,
with its registered office at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ International Airport,
Shanghai, China , postal code:201202 (the “Company”); and
China
Eastern Air Holding Company, a wholly PRC state-owned enterprise incorporated
and existing under the PRC laws and the controlling shareholder of the Company
holding approximately 59.67% of the equity interests in the Company as at the
date of signing the Agreement, with its registered office at 2550 Hongqiao Road,
Shanghai (“CEA
Holding”).
Each of
the Company and CEA Holding 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, with the total share capital of RMB
4,866,950,000;
(2) As
the controlling shareholder of the Company, CEA Holding has agreed to subscribe
for 1,437,375,000 New A 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.
|
|
“Business
Day”
|
means
a day (excluding Saturday and Sunday) on which the banks are generally
open for business in the PRC.
|
1
|
“CEA
Holding”
|
means
中國東方航空集團公司(China
Eastern Air Holding Company).
|
|
“CES
Global”
|
means
東航國際控股（香港）有限公司(CES
Global Holdings (Hong Kong) Limited).
|
|
“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 A
Shares”
|
means
1,437,375,000 new A shares to be issued by the Company to CEA Holding for
its subscription pursuant to the terms and conditions of the
Agreement.
|
|
“New H
Shares”
|
means
1,437,375,000 new H shares to be issued by the Company to CES Global for
its subscription pursuant to the Share Issue and Subscription Agreement
entered into between the Company and CES Global.
|
|
“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.
|
|
“Renminbi” or “RMB”
|
means
Renminbi, the lawful currency of the PRC.
|
|
“Subscription
Consideration”
|
means
the total consideration of RMB 5,562,641,250 for subscription of New A
Shares by CEA Holding.
|
|
“Transaction” under the
Agreement
|
means
the issue of New A Shares by the Company to CEA Holding and the
subscription thereof by CEA Holding 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 CEA Holding, and CEA Holding shall subscribe for, 1,437,375,000
New A Shares of the Company.
|
|
(b)
|
Such
New A Shares shall be subscribed for by CEA Holding at the price of RMB
3.87 per share with a total subscription price of RMB
5,562,641,250.
|
|
2.2
|
Methods
of Subscription and Payment
|
| CEA Holding shall deposit the Subscription Consideration into the sponsor’s designated account opened for the sole purpose of this share issue within 5 Business Days upon after the Agreement has come into effect or such other date as the Parties may agree. The deposited amount, upon verification, shall be transferred to the special savings account designated by the Company for fund-raising after deduction of relevant expenses. |
|
2.3
|
Completion
of the Transaction
|
| Subject to the payment of Subscription Consideration by CEA Holding to the Company according to Paragraph 2.2 above and the issuance of a written confirmation by China Securities Depository and Clearing Corporation Limited, Shanghai Branch in respect of the registration and custody of New A Shares, 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 A Shares respectively and the approvals
for amendments, where necessary, to the articles of association of the
Company in respect thereof;
|
|
(b)
|
obtaining
the approvals by the shareholders of the Company at the same time 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;
|
|
(c)
|
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《上市公司收購管理辦法》(Administrative
Measures in relation to the Acquisition of the Listed Companies) or
related regulations;
|
|
(d)
|
Obtaining
the waiver from CSRC in relation to the requirement of a general offer by
CEA Holding; and
|
|
(e)
|
Obtaining
all necessary consents, approvals or authorizations from the governmental
authorities or other third parties for the issue of New A Shares and New H
Shares, including but not limited to 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 270 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 A 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 H
Shares.
|
ARTICLE
4
REPRESENTATIONS
AND WARRANTIES BY THE COMPANY
| The Company hereby makes the following representations and warranties to CEA Holding: |
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 there under. 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: (i) constitutional
documents of the Company, (ii) 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 (iii) any
PRC laws applicable to the
Company.
|
|
4.4
|
No
Insolvency
|
|
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: (i) constitutional
documents of the Company, (ii) 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 (iii) any
PRC laws applicable to the
Company.
|
|
(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 CEA Holding, 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 CEA Holding 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
CEA
HOLDING
| CEA Holding hereby makes the following representations and warranties to the Company: | |
|
5.1
|
Organization
and Credit
|
|
|
CEA
Holding is a legal entity that is established and exists in accordance
with the PRC laws, and is in good credit standing. CEA Holding is entitled
to engage in its businesses in accordance with the PRC
laws.
|
|
5.2
|
Authorization
and Validity
|
|
|
CEA
Holding has all power and authority necessary to sign the Agreement and
perform its obligations hereunder. The execution, delivery and performance
of the Agreement by CEA Holding have been officially authorized by all
necessary competent authorities. The Agreement constitutes a legal, valid
and binding obligation of CEA Holding, and the performance of obligations
hereunder by CEA Holding 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 CEA Holding 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: (i) constitutional documents of CEA Holding,
(ii) any agreement(s) or government approval(s) signed by or bound by CEA
Holding, or any agreement(s) or government approval(s) with any assets of
CEA Holding as its subject, or (iii) any PRC laws applicable to CEA
Holding.
|
|
5.4
|
Sufficient
Funds
|
|
|
CEA
Holding has sufficient financial resources to fulfill its payment
obligations in respect of the subscription of New A Shares provided under
Paragraphs 2.1 and 2.2 of the
Agreement.
|
|
5.5
|
Restrictions
on Transfer
|
|
|
CEA
Holding confirmed and agreed that it will not transfer any of the New A
Shares it would obtain within 36 months from the date of Completion of the
Transaction.
|
6
|
5.6
|
Genuiness
of Disclosure
|
|
|
As
far as CEA Holding is aware of, all information in written provided by CEA
Holding 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 CEA Holding; (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 A Shares from SHSE;
(iv) applying for modifications of any relevant necessary certificates and
licenses from the taxation, customs 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 CEA
Holding
|
|
CEA
Holding 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 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 recipient’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 this 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 as before 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
5113 0920
021
6268 6116
|
|
|
To
CES Global:
Address:
Postal
Code:
Tel:
Fax:
|
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
021 5113 4150
021 6269 0233
|
|
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, and shall supersede The Share Issue and Subscription
Agreement in Relation to the Placing of 652,180,000 New A Shares to China
Eastern Air Holding Company by China Eastern Airlines Corporation Limited
entered into between the Parties on 10 December 2008.
10
[No text
in this page]
|
China Eastern Airlines
Corporation Limited
(Seal to be affixed)
|
|||
|
|
Signature:
|
||
| Name: | |||
| Title: | |||
|
China Eastern Air Holding
Company
(Seal to be affixed)
|
|||
|
|
Signature:
|
||
| Name: | |||
| Title: | |||