Exhibit 4.5
[English Translation]
ASSET INJECTION AGREEMENT
This Asset Injection Agreement (the "Agreement") is executed by the
following three parties on May 15, 2002 in Anhui, the People's Republic of China
(the "PRC"):
(1) China Mobile Communications Corporation, a wholly state-owned
enterprise duly established and in good standing under the laws of the
PRC, with its legal address at 53 A, Xi Bian Men Nei Da Jie, Xuanwu
District, Beijing, the PRC ("CMCC");
(2) ANHUI COMMUNICATION SERVICE COMPANY, a wholly state-owned enterprise
duly established and in good standing under the laws of the PRC, with
its legal address at Post and Xxxxxxxxxxxxxxxxx Xxxxxxxx, 000 Xxxx Xx
Xxxx, Xxxxx, Xxxxx Xxxxxxxx, the PRC (the "Service Company"); and
(3) ANHUI MOBILE COMMUNICATION COMPANY LIMITED, a limited liability company
duly established and in good standing under the laws of the PRC, with
its legal address at Post and Xxxxxxxxxxxxxxxxx Xxxxxxxx, 000 Xxxx Xx
Xxxx, Xxxxx, Xxxxx Xxxxxxxx, the PRC ("Anhui Mobile").
WHEREAS:
1. Both Anhui Mobile and the Service Company are enterprise legal persons
wholly owned by CMCC;
2. Pursuant to the relevant laws and regulations, the "Articles of
Association of CMCC" agreed in principle by the State Council and
published by the Ministry of Information Industry and the State Economy
& Trade Commission, and approvals from relevant government authorities,
CMCC has decided to, in the name of CMCC, inject and contribute the
mobile communication businesses and related assets operated and managed
by the Service Company in Anhui Province into Anhui Mobile, which will
be operated and managed by Anhui Mobile.
NOW, THEREFORE, the three parties, namely CMCC, the Service Company and Anhui
Mobile, have reached the following agreement:
ARTICLE ONE DEFINITIONS
1.1 Unless the context indicates otherwise, the following terms shall have
the meanings as defined below:
"ASSET APPRAISAL REPORT" shall mean the asset appraisal report, with
the Base Date being December 31, 2001, prepared by Zhong Qi Hua Asset
Appraisal Company Limited and approved by the Ministry of Finance with
regard to the assets and liabilities of the mobile communication
businesses in Anhui Province (see Appendix A of the Agreement).
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"RELATED ASSETS" shall mean all assets, the contracts, agreements,
certificates, business and operational data, documents and files in
relation to the said assets and all rights and interests under the
above said documentation, as well as any profits and benefits from such
rights, interest and assets accrued thereon after December 31, 2001.
"RELATED LIABILITIES" shall mean all liabilities set out in the
Liability List in Appendix A of the Agreement and the contracts,
agreements, certificates, business and operational data, documents and
files in connection with such liabilities.
"RELATED PERSONNEL" shall mean 2,094 employees engaged in mobile
communication services and employed by the Anhui Mobile Communication
Company (the predecessor of the Service Company).
"RELATED SERVICES" shall mean the mobile communication businesses (and
other telecommunication businesses) operated by Anhui Mobile
Communication Company (the predecessor of the Service Company) in Anhui
and all the telecommunication business licenses, spectrum use permits,
telecommunication networks number resources use approvals, mobile
telecommunication base station licenses and all other related
authorizations held by it.
"EFFECTIVE DATE" shall mean the date when the Agreement is executed.
1.2 Unless the Agreement specifies otherwise, the articles and appendixes
mentioned herein shall mean the articles and appendixes of the
Agreement. All appendixes constitute an integral part of the Agreement.
ARTICLE TWO INJECTION OF ASSETS AND SERVICES
2.1 CMCC shall, on the Effective Date, inject all the Related Assets, the
Related Liabilities and the Related Services into Anhui Mobile.
2.2 Upon the Effective Date, Anhui Mobile shall own the Related Assets and
the Related Services, clear and free of any encumbrance, pledge or any
other third-party interests, and shall assume the Related Liabilities.
2.3 Pursuant to the Asset Appraisal Report, the total value of such Related
Asset, Related Liabilities and Related Services is RMB4,089,495,497.
2.4 The Base Date of the Asset Appraisal Report is December 31, 2001.
During the period from the Base Date to the Effective Date, Anhui
Mobile shall enjoy and assume any and all assets, interests, rights and
liabilities arising from the Related Assets, the Related Liabilities
and Related Services.
2.5 The Service Company should notify the other party to any relevant
contract regarding the transfer of the Related Asset, the Related
Liabilities and the Related Services, and obtain such party's consent
to such transfer.
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ARTICLE THREE EQUITY INTERESTS AFTER CAPITAL CONTRIBUTION
3.1 After the capital contribution, CMCC will still hold 100% of the equity
interests in Anhui Mobile.
ARTICLE FOUR RELATED PERSONNEL
4.1 From the Effective Date, the Related Personnel shall be employed by
Anhui Mobile.
ARTICLE FIVE REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
5.1 Each party hereto represents, warrants and undertakes to the other
parties that:
(1) it is an independent legal person duly established and in good
standing under the laws of China;
(2) it has all requisite right, authority and power to execute the
Agreement and perform the responsibilities and obligations under
the Agreement;
(3) Any and all terms and conditions under the Agreement comply with
its incorporation and charter documents, laws and regulations of
China, and any agreement entered into with any third party;
(4) The representative to sign the Agreement has been duly
authorized. The Agreement, upon execution, will constitute legal,
valid, binding and enforceable obligations of each of CMCC, the
Service Company and Anhui Mobile.
5.2 Each of CMCC and the Service Company hereby represents and warrants to
Anhui Mobile that, as of the Effective Date, Anhui Mobile will own the
Related Assets and the Related Services, clear and free of any
encumbrance, pledge or any other third-party interests.
5.3 Anhui Mobile hereby represents and warrants to CMCC and the Service
Company that, as of the Effective Date, Anhui Mobile will undertake the
Related Liabilities, including payment of construction in progress due
after the Effective Date.
ARTICLE SIX LIABILITIES ARISING FROM BREACH OF CONTRACT
6.1 In case of any breach of the provisions or representations, warranties
and undertakings under the Agreement, the party that breaches the
Agreement shall compensate the other parties to the Agreement or
undertake any and all losses, expenses and liabilities arising from the
breach of contract of the other parties, including, but not limited to,
the relevant litigation or arbitration costs and attorney fees.
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ARTICLE SEVEN CONFIDENTIALITY
7.1 Unless stipulated or required by the law or relevant regulatory body,
any party to the Agreement shall not provide or disclose any
information in relation to the business and finance of the other
parties to any institute or individual without the prior written
consent of the other parties.
ARTICLE EIGHT FORCE MAJEURE
8.1 In any event of force majeure which is unforeseeable, unavoidable and
insurmountable to its happening and consequences, resulting in any
inability on any party to perform the related obligations hereunder,
the affected party shall immediately notify the other parties of such
event, and provide the other parties within fifteen (15) days valid
documents of proof evidencing the detailed occurrence of such event,
and reasons for its inability or delay to perform all or part of such
obligations under the Agreement. Upon the extent to which an event of
force majeure affects the performance of such obligations, the parties
hereto shall consult each other so as to work out fair and reasonable
remedies and endeavour to solve the matter.
ARTICLE NINE SETTLEMENT OF DISPUTES
9.1 Any dispute arising from or in connection with the interpretation or
performance of this Agreement shall be settled by the parties through
friendly negotiations conducted among representatives appointed by the
parties for this purpose. In the case that no resolution is reached
through consultations within 60 days after the occurrence of such
dispute, any party may bring an action to a competent people's court
for its judgment.
ARTICLE TEN GOVERNING LAW
10.1 The Agreement shall be governed by and interpreted in accordance with
the laws of the PRC.
ARTICLE ELEVEN NO WAIVER
11.1 Unless the law states otherwise, any failure to exercise or delay in
exercising its rights or powers by one party hereunder shall not be
construed as a waiver of such rights or powers. Any one time or partial
exercise of such rights or powers by one party shall not affect any
further or complete exercise of such rights or powers.
ARTICLE TWELVE NOTICES
12.1 Any notice to be given under the Agreement shall be made in writing and
sent by mail, telex, telegraph or facsimile to the other party's
address set out in the front page of the Agreement or to any other
address as such party may designate in writing from time to time.
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12.2 Any notice shall be deemed as having been received at the time of
delivery if delivered in person; if delivered by mail, on the date of
the receipt; if delivered by telex, at the time of taking back the
receipt; if transmitted by facsimile, upon delivery.
ARTICLE THIRTEEN EFFECTIVENESS AND MISCELLANEOUS
13.1 The Agreement shall come into effect upon the date when it is executed
by the legal representatives or authorized representatives of the
parties.
13.2 Upon the unanimous agreement of the parties hereto, the Agreement may
be amended or supplemented and any of such amendment or supplementary
to the Agreement shall be effective only if they are in writing and
executed by the legal representatives or authorized representatives of
the parties.
13.3 The Agreement is severable. Should any provision hereof for any reason
at any time be declared invalid or unenforceable by a competent court,
the validity and enforceability of the remaining provisions herein
shall remain intact. Under such circumstances, the parties hereto
shall, on the principle of honesty and trust, consult each other to
conclude a replacement provision, so as to materialize the purpose of
the severed provision.
13.4 The Agreement is executed in Chinese in four (4) original counterparts,
three of which shall be retained by each party hereto, one shall be
filed with the government authority in administering industry and
commerce. Each counterpart is equally effective.
CHINA MOBILE COMMUNICATIONS CORPORATION
By: /s/XUE Taohai
-------------------------
Legal Representative or Authorized Representative
ANHUI COMMUNICATION SERVICE COMPANY
By: /s/XX Xxxxx'An
-------------------------
Legal Representative or Authorized Representative
ANHUI MOBILE COMMUNICATION COMPANY LIMITED
By: /s/ZHANG Daode
-------------------------
Legal Representative or Authorized Representative
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APPENDIX A URGENT
MINISTRY OF FINANCE DOCUMENT
Cai Qi [2002] No. 153
---------------------------------------
LETTER REGARDING VERIFICATION AND APPROVAL OF ASSET APPRAISAL
OF INCREASE OF CAPITAL IN MOBILE COMMUNICATION COMPANIES LIMITED
IN ANHUI AND OTHER SEVEN MUNICIPALITIES/PROVINCES
AND OF CAPITAL CONTRIBUTION IN CHINA MOBILE (HONG KONG) GROUP LIMITED BY CHINA
MOBILE COMMUNICATIONS CORPORATION
China Mobile Communications Corporation:
We acknowledge receipt from your company of the "Application for
Confirmation of Asset Appraisal Results of Increase of Capital in Mobile
Communication Companies Limited in Anhui and Other Seven
Provinces/Municipalities and of Capital Contribution in China Mobile (Hong Kong)
Group Limited by China Mobile Communications Corporation" (Xxxxx Xx Cai [2002]
No.152), the Asset Appraisal Reports of Increase of Capital in the Mobile
Communication Companies Limited in the Eight Provinces/Municipalities by China
Mobile Communications Corporation, and the Asset Appraisal Reports of China
Mobile Communications Corporation's Contribution of the entire Interests of the
Eight provincial Mobile Operations into China Mobile (Hong Kong) Group Limited
(Zhong Qi Hua Ping Bao Zi [2002] No.018-1-1 to 8 & No.018-2-1 to 8), prepared by
Zhong Qi Hua Asset Appraisal Company Limited. After examination and
verification, we hereby reply as follows:
1. The corresponding economic actions of this project have been approved
by the State Council.
2. Zhong Qi Hua Asset Appraisal Company Limited, the appraisal institution
undertaking the asset appraisal in this project, possesses the
securities business asset appraisal qualifications duly issued by the
relevant department(s) of the State, and that the relevant appraisal
personnel signing all the asset appraisal reports possesses
qualifications required for practicing as certified asset appraisers.
3. The format and content of the asset appraisal report basically comply
with the specified requirements. The base date of such appraisals is
December 31, 2001. The appraisal conclusions in the appraisal reports
are valid only in respect of the increase of capital by China Mobile
Communications Corporation in the Mobile Communications Companies
Limited in Anhui and other seven provinces/municipalities, and of the
asset injection by China Mobile Communications Corporation into China
Mobile (Hong Kong) Group Limited. Such conclusions shall become invalid
from December 31, 2002.
4. Users of such appraisal reports shall pay attention to the special
items disclosed therein and the legal validity of the appraisal
reports, etc.
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5. Legal liabilities of such appraisal reports shall be borne jointly by
the appraisal institution engaged to undertake such appraisals and the
certified asset appraisers signing such appraisal reports, and such
liabilities shall not be displaced by reason of the verification and
approval from the appraisal administrative department.
EXHIBITS:
1. Summary statement of the asset appraisal results issued by Zhong
Qi Hua Asset Appraisal Company Limited regarding the increase of
capital in the eight provincial/municipality Mobile Communication
Companies Limited by China Mobile Communications Corporation.
2. Summary statement of the asset appraisal results issued by Zhong
Qi Hua Asset Appraisal Company Limited regarding the capital
contribution of the entire interests of the eight
provincial/municipality Mobile Communication Companies Limited
into China Mobile (Hong Kong) Group Limited by China Mobile
Communications Corporation.
3. Summary statement of the asset appraisal results issued by Zhong
Qi Hua Asset Appraisal Company Limited regarding the increase of
capital in Anhui Mobile Communication Company Limited by China
Mobile Communications Corporation.
4. Summary statement of the asset appraisal results issued by Zhong
Qi Hua Asset Appraisal Company Limited regarding the capital
contribution of the entire interests of Anhui Mobile
Communication Company Limited into China Mobile (Hong Kong) Group
Limited by China Mobile Communications Corporation.
5. Summary statement of the asset appraisal results issued by Zhong
Qi Hua Asset Appraisal Company Limited regarding the increase of
capital in Jiangxi Mobile Communication Company Limited by China
Mobile Communications Corporation.
6. Summary statement of the asset appraisal results issued by Zhong
Qi Hua Asset Appraisal Company Limited regarding the capital
contribution of the entire interests of Jiangxi Mobile
Communication Company Limited into China Mobile (Hong Kong) Group
Limited by China Mobile Communications Corporation.
7. Summary statement of the asset appraisal results issued by Zhong
Qi Hua Asset Appraisal Company Limited regarding the increase of
capital in Hunan Mobile Communication Company Limited by China
Mobile Communications Corporation.
8. Summary statement of the asset appraisal results issued by Zhong
Qi Hua Asset Appraisal Company Limited regarding the capital
contribution of the entire interests of Hunan Mobile
Communication Company Limited into China Mobile (Hong Kong) Group
Limited by China Mobile Communications Corporation.
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9. Summary statement of the asset appraisal results issued by Zhong
Qi Hua Asset Appraisal Company Limited regarding the increase of
capital in Hubei Mobile Communication Company Limited by China
Mobile Communications Corporation.
10. Summary statement of the asset appraisal results issued by Zhong
Qi Hua Asset Appraisal Company Limited regarding the capital
contribution of the entire interests of Hubei Mobile
Communication Company Limited into China Mobile (Hong Kong) Group
Limited by China Mobile Communications Corporation.
11. Summary statement of the asset appraisal results issued by Zhong
Qi Hua Asset Appraisal Company Limited regarding the increase of
capital in Sichuan Mobile Communication Company Limited by China
Mobile Communications Corporation.
12. Summary statement of the asset appraisal results issued by Zhong
Qi Hua Asset Appraisal Company Limited regarding the capital
contribution of the entire interests of Sichuan Mobile
Communication Company Limited into China Mobile (Hong Kong) Group
Limited by China Mobile Communications Corporation.
13. Summary statement of the asset appraisal results issued by Zhong
Qi Hua Asset Appraisal Company Limited regarding the increase of
capital in Chongqing Mobile Communication Company Limited by
China Mobile Communications Corporation.
14. Summary statement of the asset appraisal results issued by Zhong
Qi Hua Asset Appraisal Company Limited regarding the capital
contribution of the entire interests of Chongqing Mobile
Communication Company Limited into China Mobile (Hong Kong) Group
Limited by China Mobile Communications Corporation.
15. Summary statement of the asset appraisal results issued by Zhong
Qi Hua Asset Appraisal Company Limited regarding the increase of
capital in Shanxi Mobile Communication Company Limited by China
Mobile Communications Corporation.
16. Summary statement of the asset appraisal results issued by Zhong
Qi Hua Asset Appraisal Company Limited regarding the capital
contribution of the entire interests of Shanxi Mobile
Communication Company Limited into China Mobile (Hong Kong) Group
Limited by China Mobile Communications Corporation.
17. Summary statement of the asset appraisal results issued by Zhong
Qi Hua Asset Appraisal Company Limited regarding the increase of
capital in Shaanxi Mobile Communication Company Limited by China
Mobile Communications Corporation.
18. Summary statement of the asset appraisal results issued by Zhong
Qi Hua Asset Appraisal Company Limited regarding the capital
contribution of the entire interests of Shaanxi Mobile
Communication Company Limited into China Mobile (Hong Kong) Group
Limited by China Mobile Communications Corporation.
May 15, 2002
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(official seal of the Ministry of Finance)
Key Terms: Assets, appraisal, Letter
Copy to: Anhui Mobile Communication Company, Jiangxi Mobile Communication
Company, Hunan Mobile Communication Company, Hubei Mobile Communication Company,
Sichuan Mobile Communication Company, Chongqing Mobile Communication Company,
Shanxi Mobile Communication Company, Shaanxi Mobile Communication Company
EXHIBIT 3
SUMMARY STATEMENT OF THE ASSET APPRAISAL RESULTS
ISSUED BY ZHONG QI HUA ASSET APPRAISAL COMPANY LIMITED
REGARDING THE INCREASE OF CAPITAL
IN ANHUI MOBILE COMMUNICATION COMPANY LIMITED BY CHINA MOBILE
COMMUNICATIONS CORPORATION
Appraisal base date: December 31, 2001 in RMB Ten Thousands
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BOOK VALUE INCREASE/
BOOK AFTER APPRAISAL INCREASE/ DECREASE
ITEM VALUE ADJUSTMENT VALUE DECREASE RATIO (%)
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Current assets 116048 116048 114394.19 -1653.80 -1.43
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Fixed Assets 499679.47 499679.47 507694.58 8015.11 1.60
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Including:
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Construction in progress 67448.91 67448.91 67328.19 -120.72 -0.18
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Building 19995.56 19995.56 22740.18 2744.61 13.73
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Machinery 410675.83 410675.83 397952.10 -12723.73 -3.10
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Land 1534.25 1534.25 19534.65 18000.40 1173.24
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Intangible assets 2986.00 2986.00 3043.90 57.90 1.94
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Including:
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Land use rights 66.35 66.35 0 -66.35 -100
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Other assets 107.47 107.47 28.30 -79.17 -73.67
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Total assets 618820.93 618820.93 625160.96 6340.03 1.02
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Current liabilities 216211.41 216211.41 216211.41 - -
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Long-term liabilities - - - - -
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Total liabilities 216211.41 216211.41 216211.41 - -
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Net assets 402609.52 402609.52 408949.55 6340.03 1.57
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