RE CITIC INTERNATIONAL FINANCIAL HOLDINGS LTD

HCMP 685/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 685 OF 2009

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REASONS  FOR  JUDGMENT

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1.  This is a petition presented by CITIC International Financial Holdings Limited 中信國際金融控股有限公司for the confirmation of a reduction of its share capital and of the share premium account, pursuant to section 59 of the Companies Ordinance, Cap. 32.

2.  The Company is one of the oldest companies in Hong Kong, having been incorporated in 1924 as a public company limited by shares under its former name.  In the course of its long history, its controlling shareholder was changed on a few occasions.  Its name was changed to its present name on 25 November 2002.  By a special resolution on 13 February 2009, the Company adopted new articles of association in compliance with Cap. 32 and was converted into a private company as a result.

3.  The Company is an investment holding company with interests mainly in the commercial banking business.  Its main operating business is conducted through its wholly-owned subsidiary, CITIC Ka Wah Bank Limited, a company incorporated in Hong Kong and an authorised institution under the Banking Ordinance, Cap. 155.

4.  By an order of this court made on 4 November 2008 in HCMP No. 1686 of 2008, a reduction of the share capital of the Company was confirmed.  This was part of a scheme of arrangement for the privatisation of the Company sanctioned by the court the same day.  The Registrar of Companies issued a certificate on 10 November 2008 and certified the registration of the court order and the minute.  The present capital of the Company is HK$8,000,000,000 divided into 8,000,000,000 ordinary shares of HK$1 each, of which 5,759,172,916 ordinary shares have been issued and are fully paid or credited as fully paid.  After the company was privatised, Gloryshare Investments Limited (“GIL”) and Banco Bilbao Vizcaya Argentaria, S.A. (“BBVA”) became, and have since remained, the only two shareholders of the Company.

5.  There is at present standing to the credit of the share premium account of the Company the sum of HK$9,923,763,000, which has arisen as a result of various issues of shares by the Company at a premium.

6.  There is provision in the articles of association that the Company may by special resolution reduce its share capital, any capital redemption reserve fund or any share premium account in any manner and with, and subject to, any incident authorised and consent required by law.

7.  The proposed reduction of the capital and of the share premium account is part of the reorganisation of the Company following its privatisation which became effective on 5 November 2008.  The primary purpose is to extinguish the indebtedness of GIL and BBVA evidenced by their two promissory notes in the sums of HK$17,400,503,779.65 and HK$7,343,784,165.53 issued by GIL and BBVA respectively on 17 December 2008 in favour of the Company.  The reorganisation will involve:

(1)  reduction of the share capital of the Company by way of the cancellation of 5,745,749,405 issued and paid-up shares of HK$1 each;

(2)  reduction of the share premium account by HK$9,880,103,874.58;

(3)  application of the credit totalling HK$15,625,853,279.58 arising from these reductions towards setting off part of the indebtedness of GIL and BBVA, as evidenced by their two promissory notes in favour of the Company and in proportion to their respective shareholdings;

(4)  distribution to the shareholders from the general reserves and retained earnings account of the Company totalling HK$4,609,383,000 to be effected by setting off to the same extent the indebtedness of GIL and BBVA in proportion to their respective shareholdings;

(5)  distribution of dividend totalling HK$4,509,051,665.60 out of the profit accruing to the Company during the 15 month period ended 31 March 2009 to be effected, again, by setting off the same amount against the outstanding balances of the same indebtedness of GIL and BBVA in proportion to their respective shareholdings; and

(6)  a pro rata bonus issue of 4,040,485,402 and 1,705,264,003 ordinary shares of the Company to GIL and BBVA respectively by a capitalisation of the profits of the Company to revert to a level of share capital acceptable to the Hong Kong Monetary Authority having supervision over the Company.

8.  By a special resolution of the Company duly resolved upon in writing and signed by all of its members on 6 April 2009 in accordance with section 116B of Cap. 32, it was resolved, among other things, that:

(1)  the capital of the Company be reduced from HK$8,000,000,000 divided into 8,000,000,000 ordinary shares of HK$1 each to HK$2,254,250,595 divided into 2,254,250,595 ordinary shares of HK$1 each and that such reduction be effected by cancelling and extinguishing all of the capital paid up on each of the 4,040,485,402 ordinary shares out of a total of 4,049,924,989 ordinary shares of HK$1 each held and registered in the name of GIL and of the 1,705,264,003 ordinary shares out of a total of 1,709,247,927 ordinary shares of HK$1 each held and registered in the name of BBVA and by applying the credit arising in the books of account of the Company as a result of such reduction of capital towards the payment off of or setting off against part of the indebtedness represented by or pursuant to the two promissory notes issued by GIL and BBVA in favour of the Company and in proportion to their then respective shareholdings;

(2)  subject to and forthwith upon such reduction of capital taking effect, the authorised capital of the Company be increased to its former amount of HK$8,000,000,000 by the creation of 5,745,749, 405 new ordinary shares of HK$1 each, ranking for dividend and in all other respects pari passu with the existing ordinary shares of the Company; and

(3)  the share premium account of the Company be reduced by the sum of HK$9,880,103,874.58 and the credit arising as a result of such reduction of share premium be applied towards the payment off of or set off against part of the indebtedness represented by or pursuant to the two promissory notes referred to in (1) above and in proportion to their then respective shareholdings.

9.  On completion of the privatisation proposal, with a view to enabling the Company to repay bank loans and achieving strategic objectives, GIL and BBVA purchased the Company's 15% interest in China CITIC Bank Corporation Ltd for a consideration of HK$29,860,511,220.  As the proceeds of HK$29,860,511,220 would be far in excess of the cash requirements of the Company for the discharge of bank loans and interest payments, it was agreed between the Company and its shareholders that the amount of the consideration in excess of the amount required to pay the banks would be settled by the shareholders by way of the two promissory notes.  Following the disposal of the Company's investment in China CITIC Bank Corporation Ltd to its shareholders, the operation of the Company has been curtailed.

10.  The sum of HK $5,745,749,405 arising from the reduction of capital and HK$9,880,103,874.58 and arising from the reduction of the share premium account proposed to be repaid to the shareholders by way of set off against part of their indebtedness to the Company are in excess of the wants of the Company and cannot in the opinion of the directors be usefully employed in its business.  The total credit arising from the proposed reductions amounting to HK $15,625,853,279.58 to be returned to the shareholders will be applied in full towards setting off part of their indebtedness to the Company as embodied in the two promissory notes.  The balance of the indebtedness will be set off against the distributions to be made to them as mentioned earlier.

11.  The Company is financially strong and is highly liquid.  As shown in the balance sheet of the Company as at 31 March 2009, the current assets amounting to HK$25,962,459,000 as at that date far exceeded its liabilities of HK$14,689,000.  Of the current assets, the most significant item is cash and bank balances in the total amount of HK$462,117,000.  Deducting the total current liabilities of HK$14,689,000 from the total amount of the bank balances of HK$462,187,696.27 as at 6 April 2009, there remains an excess of liquid assets of HK$447,498,696.27.  This excess amount is equal to 30.46% of the liabilities of the Company, way above the normal rule of providing 10% as a margin of safety to cover oversights or contingencies.

12.  Further, to ensure that no cash will be returned to the two shareholders so as to protect the interests of its creditors, the Company has offered an undertaking that the total credit of HK$15,625,853,279.58 arising from the proposed reduction of capital and of the share premium account will be applied for the discharge of part of the indebtedness of the shareholders embodied in the two promissory notes and in proportion to their respective shareholdings so that no cash or any other form of liquid assets will be returned to them.

13.  In the light of the surplus liquid assets of the Company and the undertaking to the court, I am satisfied that the interests of the creditors would be adequately protected and will not be prejudiced by the proposed reductions.  At the hearing of the summons for directions on 15 April 2009, I have made an order under section 59(3) of Cap. 32 that section 59(2) shall not apply as regards to any class of the creditors of the Company.  Directions given for the advertisement of a notice of the presentation of the petition have been complied with.

14.  The shareholders are treated equitably in that the proposed reduction would affect both shareholders in proportion to their respective shareholdings.  Both had signed the special resolution for this purpose and they must have understood the rationale for this exercise.  As explained earlier, I am satisfied that the interests of the creditors would be adequately protected and that the proposed reduction is for a discernible purpose.  I have therefore made an order in terms of the draft submitted.