UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
October 22, 2012
Commission File Number: 000-30134
CDC CORPORATION
(Translation of Registrant’s name into English)
Cayman Islands
(Jurisdiction of incorporation or organization)
11/F, ING Tower
308 Des Voeux Road Central
Hong Kong
(Address of Principal Executive Offices)
Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F:x Form 20-F ¨ Form 40-F
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1):¨
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7):¨
Indicate by check mark whether the registrant by furnishing the information contained in this Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934: ¨ Yes x No
If “Yes” is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b):n/a
Update on Chapter 11 and Related Court Proceedings
Order Establishing Reserve Amounts for the Disputed Claim of Evolution Capital Management, LLC and Related Indemnity Claims.
As previously disclosed, on September 6, 2012, the U.S. Bankruptcy Court for the Northern District of Georgia (the “Court”) in the Chapter 11 bankruptcy proceeding (the “Bankruptcy Proceeding”) of CDC Corporation (the “Company” or “Debtor”) entered its Findings of Fact, Conclusions of Law, and Order Under 11 U.S.C. § 1129(a) and (b) and Fed.R.Bankr.P. 3020 Confirming the Second Amended Joint Plan of Reorganization of CDC Corporation (the “Plan”).
Section 8.2 of the Plan requires the maintenance of distribution reserves for disputed claims in the amount filed for those disputed claims, plus interest, unless a different reserve amount is ordered by the Court or agreed to by the parties. Pursuant to Paragraph MM of the September 6, 2012 Bankruptcy Court confirmation order, no distribution can be made to holders of equity interests or holders of beneficial interests in the liquidation trust to be established under the Plan unless and until appropriate reserves are established in accordance with Section 8.2 of the Plan.
On September 24, 2012, the Company filed a motion with the Court to establish the appropriate reserve for: (i) the New York litigation involving Evolution Capital Management, LLC (“ECM”), along with certain Evolution Funds, in the Supreme Court of the State of New York, New York County, styled:Evolution Capital Management, LLC, Evolution CDC SPV Ltd., Global Opportunities Fund Ltd., SPV, Segregated Portfolio M (f.k.a. “Evolution Master Fund Ltd., SPC, Segregated Portfolio M”), Evo China Fund and El Fund Ltd. v. CDC Software Corporation, Wong Chung Kiu (a.k.a. “C.K. Wong”), Yip Hak Yung (a.k.a. “Peter Yip”), Asia Pacific Online Limited (a.k.a. “Asia Pacific On-line Limited”), Ch’ien Kuo Fung (a.k.a. “Raymond Ch’ien”), Francis Kwok-Yu Au, Donald L. Novajosky, Monish Bahl, Thomas M. Britt III, Wong Kwong Chi (a.k.a. “Simon Wong”), and Wang Cheung Yue (a.k.a. “Fred Wang”), hereinafter (the “Second Evolution Action”); (ii) the related proof of claim filed in the Company’s Bankruptcy Proceeding by ECM (ther “ECM Proof of Claim”); and (iii) related indemnification demands asserted by CDC Software Corporation (“CDC Software”), the Company’s former indirect subsidiary, and certain former directors and officers of the Company and/or CDC Software (the “ECM Reserve Motion”).
With the ECM Reserve Motion, the Company requested the Court enter an order establishing: (a) The Evolution Reserve in the amount of $32.5 million; and (b) aLitigation Expense Reserve in the amount of $5 million. As a result of ongoing discussions among the interested parties, the Company agreed to increase the Litigation Expense Reserve to $10 million. The ECM Reserve Motion was heard by the Court on October 16, 2012.
On October 18, 2012, the Court entered an order establishing: (a) The Evolution Reserve in the amount of $32.5 million; and (b) aLitigation Expense Reserve in the amount of $10 million.
In addition, the Court’s order also provides that if and when the Company’s insurers agree to make advancement and/or reimbursement of fees and expenses related to the Second Evolution Action, even if under a reservation of rights, theLitigation Expense Reserve shall be reduced to the extent of any payments actually made by the insurers to or on behalf the defendants in the Second Evolution Action until such time as the reserve equals $5 million.
The Court’s order also requires the Company to provide, within 10 days, notice to the defendants in the Second Evolution Action of all payments that the Company has made to date to or on behalf of any of the defendants in the Second Evolution Action. The Company is further required to provide 10 days prior written notice to the defendants in the Second Evolution Action before making any future payments to or on behalf of any of the defendants in the Second Evolution Action.
The Court’s reserve order also provides that either the Company or the defendants in the Second Evolution Action may by motion ask the Court to modify theEvolution Reserve and/or theLitigation Expense Reserve upon cause shown. Any such motion will require 14 days notice, and such notice must include the plaintiffs in the Second Evolution Action if the request is to modify theEvolution Reserve.
Finally, except for the cash from prior sale transactions currently held by the Company at the time of the Court’s order, any additional proposed distributions of proceeds resulting from any subsequent transactions to beneficiaries of the Liquidation Trust to be formed under the Company’s Plan will require 21 days prior written notice to the defendants in the Second Evolution Action in order to provide them with the opportunity to exercise their rights to file a motion to modify theEvolution Reserve and/or theLitigation Expense Reserve.
Order Establishing Reserve Amounts for the Disputed Claim of Rajan Vaz
As previously disclosed, on September 25, 2012, the Company also filed another motion with the Court seeking to establish an additional reserve in the amount of $10.0 million for the disputed claim of Rajan Vaz (the “Vaz Reserve Motion”).
The Vaz Reserve Motion was also heard by the Court on October 16, 2012. On October 18, 2012, the Court entered an order establishing a $10 million reserve for the disputed claim of Rajan Vaz. The Court’s order, however, was entered without prejudice to Mr. Vaz’s right to assert that he is entitled to post-petition interest under the confirmed Plan in connection with his claim.
The foregoing descriptions of the Court’s “Order Establishing Reserve Amounts For Disputed Claims of Evolution Capital Management LLC and Related Indemnity Claims” and “Order Establishing Reserve Amount For Disputed Claims of Rajan Vaz” are qualified in their entirety by the full text of such documents which are attached hereto as Exhibit 99.1 and Exhibit 99.2, respectively, and incorporated herein by reference. Terms not specifically defined herein shall have the meaning ascribed therein.
Forward-looking Statements
This Form 6-K includes “forward-looking statements” within the meaning of the United States Private Securities Litigation Reform Act of 1995. These forward-looking statements may be identified by words such as “may,” “could,” “should,” “would,” “believe,” “anticipate,” “estimate,” “expect,” “intend,” “plan,” “projects,” “outlook,” or similar expressions. Additionally, forward-looking statements may include statements regarding: (i) any course of dealing with ECM and the Second Evolution Action; (ii) any course of action the Company may take in the future with respect to the Bankruptcy Proceeding, including, without limitation, any considerations, procedures, or timelines relating to the Plan and/or any additional proposed distributions of proceeds resulting from any subsequent transactions to beneficiaries of the Liquidation Trust to be formed under the Company’s Plan; and (iii) other matters or events that are not historical fact, the achievement of which involve risks, uncertainties and assumptions, many of which are beyond the Company’s control. These statements are based on management’s current expectations and are subject to risks and uncertainties and changes in circumstances. If any such risks or uncertainties materialize or if any of the assumptions prove incorrect, the Company’s results could differ materially from the results expressed or implied by the forward-looking statements contained herein. All forward-looking statements included in this Form 6-K are based upon information available to management as of the date of this Form 6-K, and you are cautioned not to place undue reliance on any forward-looking statements, which speak only as of the date of this Form 6-K. The Company assumes no obligation to update or alter the forward-looking statements whether as a result of new information, future events or otherwise. For these and other reasons, investors are cautioned not to place undue reliance upon any forward-looking statement in this Form 6-K.
EXHIBIT INDEX
Exhibit | Description of Exhibit | |
| 99.1 | Order Establishing Reserve Amounts For Disputed Claims of Evolution Capital Management LLC and Related Indemnity Claims | |
| 99.2 | Order Establishing Reserve Amount For Disputed Claims of Rajan Vaz | |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Date: October 22, 2012
| CDC CORPORATION | ||
| By: | /s/ Marcus A. Watson | |
| Name: | Marcus A. Watson | |
| Title: | Chief Restructuring Officer | |
EXHIBIT INDEX
Exhibit | Description of Exhibit | |
| 99.1 | Order Establishing Reserve Amounts For Disputed Claims of Evolution Capital Management LLC and Related Indemnity Claims | |
| 99.2 | Order Establishing Reserve Amount For Disputed Claims of Rajan Vaz | |
