RE CHINA NETCOM GROUP CORPORATION (HONG KONG) LTD

HCMP 1452/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1452 OF 2008

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REASONS   FOR   JUDGMENT

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1.  This is a petition presented on 18 September 2008 by China Netcom Group Corporation (Hong Kong) Limited (“the Company”) seeking (1) sanction of a scheme of arrangement dated 15 August 2008 (“the Scheme”) between the Company and holders of ordinary shares of US$0.04 each in the capital of the Company, pursuant to section 166 of the Companies Ordinance, Cap. 32; and (2) confirmation of the proposed reduction of its share capital involved in the Scheme.  The purpose of the Scheme is to effect a merger of the Company with China Unicom Limited (“Unicom”), whereby the Company will become a wholly-owned subsidiary of Unicom and the shareholders of the Company will become the shareholders of Unicom.

The companies

2.  The Company was incorporated on 22 October 1999 as a private company under its former name.  Its name was changed to its present name on 23 July 2004.  It ceased to be a private company by a special resolution passed on 30 September 2004.

3.  The Company is a leading broadband and fixed-line telecommunications operator in China and, through its subsidiaries, provides fixed-line voice and value-added services, broadband and other Internet-related services, information and communication technologies services, business and data communications services and advertising and media services in regions in the northern part of China.

4.  The present authorised capital of the Company is US$1,000,000,000 divided into 25,000,000,000 ordinary shares of US$0.04 each, of which 6,699,197,200 ordinary shares have been issued and are fully paid or credited as fully paid and the remainder are unissued as at the date of the hearing of the petition.

5.  As at the date hereof, there are 125,836,260 options outstanding convertible into the same number of ordinary shares of US$0.04 each of the Company under the share option scheme adopted by the Company on 30 September 2004 and as amended from time to time.  It is proposed that any options which remain unexercised at the time when the Scheme becomes effective will be cancelled and their holders will be granted options carrying the right to subscribe for the ordinary shares of Unicom.

6.  Further, pursuant to a deposit agreement dated 9 November 2004, Citibank N.A., as the depositary, issued American Depositary Shares of the Company, each representing ownership of 20 ordinary shares of the Company.  It is proposed that conditional upon the Scheme becoming effective, the American Depositary Shares of the Company will be replaced by American Depositary Shares of Unicom, each representing 10 ordinary shares of HK$0.10 each in the capital of Unicom.

7.  The issued ordinary shares of the Company were listed on The Stock Exchange of Hong Kong Limited on 17 November 2004.  The American Depositary Shares of the Company were listed on the New York Stock Exchange on 16 November 2004.  If the Scheme is sanctioned by the court and becomes effective, it is intended that the listings of the ordinary shares of the Company and its American Depositary Shares will be withdrawn.

8.  Unicom was incorporated on 8 February 2000 and its issued ordinary shares and American Depositary Shares are also listed on The Stock Exchange of Hong Kong Limited and the New York Stock Exchange respectively.  Unicom, through its subsidiaries, is principally engaged in mobile communications business in 31 provinces in China, and the provision of international and long distance calls, data and Internet services.

The Scheme

9.  The Scheme essentially involves the following:

(1)   a reduction of the capital of the Company by cancelling and extinguishing all of its ordinary shares of US$0.04 each in issue (“the Scheme shares”);

(2)   the restoration of the authorised capital of the Company to its former amount of US$1,000,000,000 by the creation of such number of new ordinary shares of US$0.04 each as shall be equal to the number of the ordinary shares so cancelled;

(3)   the application by the Company of the credit arising in its books of account as a result of the cancellation in paying up in full at par the new ordinary shares created as aforesaid, which shares shall be allotted and issued, credited as fully paid, to Unicom or its nominee, or both; and

(4)   in consideration of the cancellation of the ordinary shares as described in (1) above, their holders will be allotted and issued 1.508 fully paid ordinary shares of Unicom of HK$0.10 each for every ordinary share of the Company formerly held by them except a fraction of a Unicom share will be aggregated and sold for the benefit of Unicom.

The court meeting

10.  By an order made by the court in these proceedings on 12 August 2008, it was ordered that the Company should convene a meeting of the holders of ordinary shares of US$0.04 each in its capital for the purpose of considering and, if thought fit, approving the Scheme.  Pursuant to the directions given, the court meeting was duly convened on 17 September 2008.  The resolution submitted at the meeting was that the Scheme be approved without modification and this was passed by the majority prescribed by section 166(2) of Cap. 32 (approved by at least 75% of the votes attaching to the disinterested shares that are cast at the meeting) and Rule 2.10 of The Code on Takeovers and Mergers (not be disapproved at the meeting by votes representing more than 10% of the votes attaching to all of the disinterested shares), and the Scheme was approved accordingly.  98 out of 100 shareholders present and voting had voted in favour of the Scheme, and 2 had voted against.  The 100 shareholders hold a total of 6,282,895,229 shares and those voting in favour hold a total of 6,281,649,209 shares (99.98%).

11.  Those ordinary shares of the Company beneficially owned by various members of the group of companies to which J.P. Morgan Securities (Asia Pacific) Limited, one of the financial advisers to Unicom in respect of the Scheme, belongs were not represented at the court meeting, nor had they voted, pursuant to their undertakings to the Company and The Code on Takeovers and Mergers.  Similarly, those ordinary shares of the Company beneficially owned by various members of the group of companies to which Citigroup Global Markets Asia Limited, the exclusive financial adviser to the Company in respect of the Scheme, belongs were not represented at the court meeting and did not vote, pursuant to similar undertakings.

Reasons for the merger

12.  The merger between Netcom and Unicom was undertaken in response to an announcement issued jointly by the Ministry of Industry and Information Technology, the National Development and Reform Commission, and the Ministry of Finance on 24 May 2008, stating that the Chinese Government would deepen the reform of the structure of the telecommunications sector in China, and encourage the formation of three market competitors so as to optimise the allocation of telecommunications resources and improve the competition structure, with a view to the issuance of three 3G licences upon completion of the restructuring.

13.  The management of Unicom and Netcom believed there are strong commercial reasons for the proposed merger.  The enlarged group after the merger is expected to take steps to establish a leading position in the 3G wireless industry, integrate its wireless and fixed-line businesses and build a strong market position in the ten provinces in northern China where the Netcom group has operations, and that is expected to enhance the brand recognition of the enlarged group and increase its overall competitiveness, business scale and shareholder value.

Sanction of the Scheme

14.  The class of members was properly constituted in the Scheme.  The Company has only one class of shares and shares subject to the Scheme are all the Company’s shares without exception.  The rights attached to the shares are identical and treatment under the terms of the Scheme for all Scheme shares is identical.

15.  An explanatory statement required by section 166A was sent to the shareholders pursuant to the directions given on 12 August 2008 as part of the Scheme document.  The shareholders have been given a sufficient explanation of the Scheme and its effects and sufficient information to enable them to make a reasonable judgment how to vote at the court meeting.

16.  As mentioned earlier, the court meeting directed by the order was duly convened and the Scheme was approved by an overwhelming majority.

17.  The statutory requirements have all been complied with.  Counsel for the Company has given the usual undertaking to the court on behalf of Unicom to be bound by the Scheme.

18.  The independent financial adviser and the independent board committee have supported the Scheme.  I am satisfied that the Scheme is such that an intelligent and honest member of the class concerned and acting in respect of his interest might reasonably approve.  I have therefore exercised my discretion to sanction the Scheme.

19.  To qualify for the exemption from onerous registration requirements of section 3(a)(10) of the United States Securities Act 1933 as a result of the issue of new American Depository Shares of Unicom to holders of the American Depository Shares of the Company, counsel for the Company has indicated his reliance on the sanction of the Scheme by this court at the hearing of this petition on the fairness of the terms and conditions of the Scheme, at which hearing all of the shareholders were entitled to attend in person or by counsel to support or oppose the petition.  No shareholder has appeared at the hearing of the petition.

Reduction of capital

20.  There is provision in the articles of association of the Company that it may by special resolution reduce its share capital in any manner allowed by law.

21.  By a special resolution of the Company duly passed in accordance with section 116 of Cap. 32 at an extraordinary general meeting on 17 September 2008 immediately following the conclusion of the court meeting, it was resolved for the purpose of giving effect to the Scheme approved by the Company that on the effective date as defined in the Scheme,

(1) the authorised and issued share capital of the Company be reduced by cancelling and extinguishing the Scheme shares;

(2) subject to and forthwith upon such reduction of share capital taking effect, the authorised share capital of the Company be increased to its former amount of US$1,000,000,000 by the creation of such number of ordinary shares of US$0.04 each in the capital of the Company as shall be equal to the number of the Scheme shares cancelled; and

(3) the Company shall apply the credit arising in its books of account as a result of such reduction of share capital in paying up in full at par the ordinary shares of US$0.04 each in the capital of the Company to be created as aforesaid, which new shares shall be allotted and issued, credited as fully paid, to Unicom and/or its nominees.

22.  The proposed reduction of capital does not involve the diminution of any liability in respect of unpaid share capital or the payment to any shareholder of any paid-up share capital.  The amount of cancelled paid-up capital of US$267,967,888 will remain intact in the Company virtually throughout the whole reduction process so that the same amount may be applied to pay up the new shares in the Company equal to the number of the Scheme shares cancelled.  The proposed form of reduction of capital involved in the Scheme is not uncommon (In re Savoy Hotel Ltd. [1981] 1 Ch 351 at 357A to B; In re National Bank Ltd. [1966] 1 WLR 819 at 823C to F; Re China Light & Power Co. Ltd. & Anr. [1998] 1 HKLRD 158 at 161D to G).  As assets of the Company will not be depleted despite cancellation of all the Scheme shares, no creditors could possibly be adversely affected by the proposed reduction of capital.

23.  At the hearing of the summons for directions on 30 September 2008, it was ordered that the settlement of a list of creditors of the Company be dispensed with.  The direction for advertisement of a notice of presentation of the petition has been complied with.

24.  The shareholders are treated equitably in the proposed reduction of capital.  The proposals have been properly explained to the shareholders in the Scheme document.  The reduction is for a discernible purpose in that it is to give effect to the Scheme.  As mentioned earlier, I have been satisfied that the interests of creditors would not be adversely affected.  This is an appropriate case to exercise my discretion to confirm the proposed reduction of capital.  I have made an order in terms of the draft submitted and approved the draft minute for reduction of capital.