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EXHIBIT 10.13
CAPITAL CONTRIBUTION AGREEMENT
This Capital Contribution Agreement (the "Agreement") is executed by
the following three parties on August 30, 2000 in Beijing:
(1) CHINA MOBILE COMMUNICATIONS CORPORATION, a wholly state-owned limited
liability company duly established and in valid existence under the
laws of the People's Republic of China ("PRC"), with its legal address
at 53 A, Xibianmen Nei Da Jie, Xuanwu District, Beijing, PRC ("China
Mobile Group");
(2) BEIJING COMMUNICATION SERVICE COMPANY, a state-owned enterprise duly
established and in valid existence under the laws of PRC, with its
legal address at 2, Xia Guang Li, Chaoyang District, Beijing, PRC (the
"Service Company"); and
(3) BEIJING MOBILE COMMUNICATION COMPANY LIMITED, a limited liability
company duly established and in valid existence under the laws of PRC,
with its legal address at 58, Dong Zhong Street, Dongcheng District,
Beijing, PRC ("Beijing Mobile").
WHEREAS:
1. China Mobile Group and the Service Company have jointly established
Beijing Mobile, and hold 80% and 20% of its equity interest,
respectively;
2. Pursuant to the "Notice of Guidance Opinions on Establishing China
Mobile Group" (Xin Bu Zheng [1999] No. 360) issued by the Ministry of
Information Industry, the communication businesses and related assets
in Beijing shall be transferred to and managed by China Mobile Group;
3. China Mobile Group has decided to inject and contribute the
communication businesses and related assets in Beijing to Beijing
Mobile;
4. The Board of Beijing Mobile agrees by resolution to China Mobile
Group's injection and contribution of the communication businesses and
related assets in Beijing to Beijing Mobile Company;
THEREFORE, the three Parties, namely China Mobile Group, the Service
Company and Beijing 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:
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"ASSET APPRAISAL REPORT" shall mean the asset appraisal report, with
the Base Date being June 30, 2000, prepared by Zhongzi Asset Appraisal
Company Limited and approved by the Ministry of Finance with regard to
the assets and liabilities of communication businesses of Beijing
Mobile (see Appendix A of the Agreement).
"RELATED INTERESTS AND ASSETS" shall mean all rights, interests and
assets included in the Asset Appraisal Report and the contracts,
agreements, certificates, business operation data, files and documents
in connection with such rights, interests and assets, as well as any
profits and benefits from such rights, interest and assets accrued
thereon after June 30, 2000.
"RELATED LIABILITIES" shall mean all liabilities set out in the
Liability List in Appendix A of the Agreement and the contracts,
agreements, certificates, business operation data, files and documents
in connection with such liabilities.
"RELATED PERSONNEL" shall mean 1,560 employees engaged in mobile
communication services and employed by the Beijing Mobile
Communication Company (the predecessor of the Service Company).
"RELATED SERVICES" shall mean the mobile communication businesses
operated by the Beijing Mobile Communication Company (the predecessor
of the Service Company) in Beijing and all the telecommunication
operating licenses, spectrum use permits, telecommunication networks
number resources use approvals, mobile communication 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 schedules
mentioned herein shall mean the articles and schedules of the
Agreement. All schedules constitute an integral part of the Agreement.
ARTICLE TWO INJECTION OF ASSETS AND SERVICES
2.1 China Mobile Group shall, on the Effective Date, inject all the
Related Interests and Asset, the Related Liabilities and the Related
Services into Beijing Mobile.
2.2 Upon the Effective Date, Beijing Mobile shall beneficially own the
Related Interest and 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 Interests and Asset, the Related Liabilities and the Related
Services is RMB6,114,696,100.
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2.4 The Base Date of the Asset Appraisal Report is June 30, 2000. During
the period from the Base Date to the Effective Date, Beijing Mobile
shall enjoy and assume any and all assets, interests, rights and
liabilities arising from the Related Interests and 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 Interest and Asset, the
Related Liabilities and the Related Businesses, and obtain such
party's consent to such transfer.
ARTICLE THREE EQUITY INTERESTS OF PARTIES AFTER CAPITAL CONTRIBUTION
3.1 After the capital contribution, China Mobile Group and the Service
Company will own 99.97% and 0.03% of the equity interests,
respectively, in Beijing Mobile.
ARTICLE FOUR RELATED PERSONNEL
4.1 From the Effective Date, the Related Personnel shall be employed by
Beijing Mobile.
ARTICLE FIVE REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
1. Each Party hereto warrants that it has all requisite authority, power
and ability to execute and perform the Agreement. The Agreement, upon
execution, will constitute legal, valid and binding obligations of
each of China Mobile Group, the Service Company and Beijing Mobile.
2. Each of China Mobile Group and the Service Company hereby represents
and warrants to Beijing Mobile that, as of the Effective Date, Beijing
Mobile will own the Related Interests and Assets and the Related
Services, clear and free of any encumbrance, pledge or any other
third-party interests, and will assume the Related Liabilities.
ARTICLE SIX SETTLEMENT OF DISPUTES
6.1 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 90 days after the occurrence of any
dispute, any Party may bring an action to a competent people's court
for its judgment.
ARTICLE SEVEN NOTICES
7.1 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
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front page of the Agreement or to any other address as such Party may
designate in writing from time to time.
7.2 Any notice shall be deemed to have been received at the time as
follows:
if delivered in person, at the time of delivery;
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 EIGHT GOVERNING LAW
8.1 The Agreement shall be governed by and interpreted in accordance with
the laws of the PRC.
ARTICLE NINE LANGUAGE
9.1 The Agreement is executed in Chinese.
ARTICLE TEN EFFECTIVE DATE
10.1 The Agreement shall come into effect upon the date when it is executed
by the authorized representatives of the Parties.
PARTY A: CHINA MOBILE COMMUNICATIONS CORPORATION
By: s/Xue Taohai
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Authorized representative
PARTY B: BEIJING COMMUNICATION SERVICE COMPANY
By: s/Luo Yuzhi
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Authorized representative
PARTY C: BEIJING MOBILE COMMUNICATION COMPANY LIMITED
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By: s/Dong Huiyi
Authorized representative
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APPENDIX A
MINISTRY OF FINANCE DOCUMENT
Cai Qi [2000] No. 269
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LETTER REGARDING OPINIONS ON VERIFICATION OF ASSET APPRAISAL OF INCREASE OF
CAPITAL IN MOBILE COMMUNICATION COMPANIES LIMITED IN BEIJING AND OTHER
SIX MUNICIPALITIES, PROVINCES AND AUTONOMOUS REGION AND OF CAPITAL
CONTRIBUTION IN CHINA MOBILE (HONG KONG)
LIMITED BY CHINA MOBILE GROUP
Ministry of Information Industry,
We are in receipt from your Ministry of the "Application for
Confirmation of Asset Appraisal Results of Increase of Capital in Mobile
Communications Companies Limited in Beijing and Other Six Municipalities,
Provinces and Autonomous Region and of Capital Contribution in China Mobile
(Hong Kong) Limited by China Mobile Group" (Xin Bu Qing [2000] No. 780) and the
Asset Appraisal Reports (Zhong Zi Ping Bao Zi [2000] No. 004-017, 14 such
reports in all) prepared by Zhongzi Asset Appraisal Company Limited. We hereby
reply as follows:
1. In connection with China Mobile Group's intention to increase its
investment in the Mobile Communications Companies Limited of seven
provinces/autonomous region/municipalities, including Beijing,
Tianjin, Shanghai, Shandong, Hebei, Liaoning and Guangxi, and to
inject all of its increased interests in the above Mobile
Communications Companies Limited in such seven provinces/autonomous
region/municipalities into China Mobile (Hong Kong) Limited, we have
found, following our verification, that the project proposal regarding
asset appraisal of the above increase of investment in domestic
companies and overseas investment by China Mobile Group has been
approved, that Zhongzi Asset Appraisal Company Limited, the appraisal
institution undertaking asset appraisal in this project, possesses the
asset appraisal credentials duly granted by the Ministry of Finance,
and that the relevant appraisal personnel signing all the asset
appraisal reports are certified for asset appraisal.
2. The replacement cost method has been adopted as the major method of
such appraisals.
3. The base date of such appraisals is June 30, 2000. The appraisal
results in the appraisal reports are valid only in respect of the
assets appraised in this project, the increase of investment by China
Mobile Group in the Mobile Communications Companies Limited in the
above seven
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provinces/autonomous region/cities, and the injection by China Mobile
Group injects of its entire interests of the above Mobile
Communications Companies Limited into China Mobile (Hong Kong)
following such increase of investment. Such result shall become
invalid as of June 30, 2001.
4. Users of such appraisal reports shall focus their attention on the
special items disclosed therein, the items adjusted as of the base
date and the legal validity of the appraisal reports.
5. Legal liabilities of such appraisal reports shall be borne by the
appraisal institution engaged to undertake such appraisals and the
registered asset appraisers signing such appraisal reports, and shall
not be borne by the appraisal administrative department by virtue of
this verification.
EXHIBITS:
1. Summary statement of the asset appraisal results issued by
Zhongzi Asset Appraisal Company Limited regarding the
proposed increase of capital in Beijing Mobile Communications
Company Limited by China Mobile Group.
2. Summary statement of the asset appraisal results issued by
Zhongzi Asset Appraisal Company Limited regarding the
proposed increase of capital in Tianjin Mobile Communications
Company Limited by China Mobile Group.
3. Summary statement of the asset appraisal results issued by
Zhongzi Asset Appraisal Company Limited regarding the
proposed increase of capital in Shanghai Mobile
Communications Company Limited by China Mobile Group.
4. Summary statement of the asset appraisal results issued by
Zhongzi Asset Appraisal Company Limited regarding the
proposed increase of capital in Shandong Mobile
Communications Company Limited by China Mobile Group.
5. Summary statement of the asset appraisal results issued by
Zhongzi Asset Appraisal Company Limited regarding the
proposed increase of capital in Hebei Mobile Communications
Company Limited by China Mobile Group.
6. Summary statement of the asset appraisal results issued by
Zhongzi Asset Appraisal Company Limited regarding the
proposed increase of capital in Liaoning Mobile
Communications Company Limited by China Mobile Group.
7. Summary statement of the asset appraisal results issued by
Zhongzi Asset Appraisal Company Limited regarding the
proposed increase of capital in Guangxi Mobile Communications
Company Limited by China Mobile Group.
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8. Summary statement of the asset appraisal results issued by
Zhongzi Asset Appraisal Company Limited regarding injection
by China Mobile Group of the assets of Beijing Mobile
Communications Company Limited into China Mobile (Hong Kong)
Limited.
9. Summary statement of the asset appraisal results issued by
Zhongzi Asset Appraisal Company Limited regarding injection
by China Mobile Group of the assets of Tianjin Mobile
Communication Company Limited into China Mobile (Hong Kong)
Limited.
10. Summary statement of the asset appraisal results issued by
Zhongzi Asset Appraisal Company Limited regarding injection
by China Mobile Group of the assets of Shanghai Mobile
Communication Company Limited into China Mobile (Hong Kong)
Limited.
11. Summary statement of the asset appraisal results issued by
Zhongzi Asset Appraisal Company Limited regarding injection
by China Mobile Group of the assets of Shandong Mobile
Communication Company Limited into China Mobile (Hong Kong)
Limited.
12. Summary statement of the asset appraisal results issued by
Zhongzi Asset Appraisal Company Limited regarding injection
by China Mobile Group of the assets of Hebei Mobile
Communication Company Limited into China Mobile (Hong Kong)
Limited.
13. Summary statement of the asset appraisal results issued by
Zhongzi Asset Appraisal Company Limited regarding injection
by China Mobile Group of the assets of Liaoning Mobile
Communication Company Limited into China Mobile (Hong Kong)
Limited.
14. Summary statement of the asset appraisal results issued by
Zhongzi Asset Appraisal Company Limited regarding injection
by China Mobile Group of the assets of Guangxi Mobile
Communication Company Limited into China Mobile (Hong Kong)
Limited.
August 28, 2000
(official seal of the
Ministry of Finance)
Key Terms: Assets, Appraisal, Verification, Opinion, Letter
Copy to: China Mobile Group, China Mobile (Hong Kong) Limited
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EXHIBIT 1
SUMMARY STATEMENT OF THE ASSETS APPRAISAL RESULTS
ISSUED BY ZHONGZI ASSETS APPRAISAL COMPANY LIMITED
REGARDING THE PROPOSED INCREASE OF CAPITAL IN BEIJING MOBILE COMMUNICATIONS
COMPANY LIMITED BY CHINA MOBILE GROUP
Appraisal base date: June 30, 2000 in RMB Ten Thousands
- ------------------------- --------------- --------------- --------------- --------------- --------------------
ITEM BOOK VALUE BOOK VALUE APPRAISAL INCREASE/ INCREASE/
AFTER ADJUSTMENT VALUE DECREASE DECREASE
RATIO (%)
- ------------------------- --------------- --------------- --------------- --------------- --------------------
Current assets 349,254.79 349,254.79 348,774.44 -480.35 -0.14
- ------------------------- --------------- --------------- --------------- --------------- --------------------
Fixed assets 522,340.19 522,340.19 535,172.75 12,832.57 2.46
- ------------------------- --------------- --------------- --------------- --------------- --------------------
Including:
Construction
in progress 154,515.18 154,515.18 148,140.76 -6,374.42 -4.13
- ------------------------- --------------- --------------- --------------- --------------- --------------------
Buildings 25,256.25 25,256.25 24,860.06 -396.19 -1.57
- ------------------------- --------------- --------------- --------------- --------------- --------------------
Machinery 342,568.76 342,568.76 362,171.94 19,603.16 5.72
- ------------------------- --------------- --------------- --------------- --------------- --------------------
Intangible assets 376.87 376.87 17,943.56 17,566.69 -
- ------------------------- --------------- --------------- --------------- --------------- --------------------
Including:
Land use rights 376.87 376.87 17,943.56 17,566.69 -
- ------------------------- --------------- --------------- --------------- --------------- --------------------
Other assets 21,512.72 21,512.72 21,512.72 0.00 0.00
- ------------------------- --------------- --------------- --------------- --------------- --------------------
Total assets 893,484.57 893,484.57 923,403.48 29,918.91 3.35
- ------------------------- --------------- --------------- --------------- --------------- --------------------
Current liabilities 160,449.16 160,449.16 160,449.16 0.00 0.00
- ------------------------- --------------- --------------- --------------- --------------- --------------------
Long-term liabilities 151,484.71 151,484.71 151,484.71 0.00 0.00
- ------------------------- --------------- --------------- --------------- --------------- --------------------
Total liabilities 311,933.87 311,933.87 311,933.87 0.00 0.00
- ------------------------- --------------- --------------- --------------- --------------- --------------------
Net assets 551,550.70 581,550.70 611,469.61 29,918.91 5.14
- ------------------------- --------------- --------------- --------------- --------------- --------------------