China Resources Power

Court to hear case against CRP bosses

Minority shareholders accuse 20 existing and former directors of failing in their fiduciary duties over deal to buy Shanxi mining assets

PUBLISHED : Tuesday, 08 October, 2013, 12:00am
UPDATED : Tuesday, 08 October, 2013, 3:28am

The Hong Kong High Court will today hear a petition by six minority shareholders of China Resources Power demanding the company sue its directors for alleged breach of fiduciary duties.

The petition relates to an ill-fated acquisition of assets connected to coal production in Shanxi province.

The shareholders have accused 20 existing and former directors of hurting shareholders' interest by failing to take action to cancel the deal and recover amounts that had been paid after the assets' seller was unable to obtain and transfer valid exploration and mining permits to Taiyuan China Resources Coal, a joint venture led by CRP.

According to the asset transfer agreement signed in May 2010, seller Shanxi Jinye was to obtain and transfer the permits within three months.

If any pre-condition is unfulfilled, the agreement allows the buyer to recover the amounts paid to the seller and claim compensation equivalent to 20 per cent of the acquisition price.

The permits, granted to three mines, expired between 2007 and 2009.

CRP said a mining permit was transferred to the joint venture in July while the exploration permits for the other two mines were secured last month.

A source said in August that the joint-venture company had made part-payments totalling 4.2 billion yuan (HK$5.3 billion) for the assets, despite the permits not being obtained and transferred by Shanxi Jinye at the time.

They consist of an 80 per cent stake in 10 entities engaged in coal mining and processing owned by Shanxi Jinye.

The joint venture was formed under a corporate restructuring agreement signed in February 2010.

An indirect non-wholly owned unit of CRP owns 49 per cent of the venture, while Citic Trust - a unit of state-owned Citic Group - owns 31 per cent and Shanxi Jinye holds 20 per cent.

The joint-venture company agreed to pay Shanxi Jinye up to 7.9 billion yuan for 80 per cent of the 10 entities. It also agreed to assume 1.37 billion yuan of bank loans held by them.

The entities operate three coal mines, a coal washing plant, two coke production facilities and other logistics facilities.

Shanxi Jinye injected the remaining 20 per cent stake in the entities into the joint venture to fulfil its obligation of contributing 800 million yuan of assets towards the joint venture's registered capital.

In March 2011, it pledged its 20 per cent stake in the joint venture to China Resources Trust, a financial services arm of CRP's parent company China Resources (Holdings), to obtain a 2.63 billion yuan loan. The loan had not been repaid as of April.

The 4.2 billion yuan paid by the joint venture for the assets consists of two billion yuan of "ernest money" to show good faith in the deal, 1.9 billion yuan as follow-on payment, and 300 million yuan to state-owned Datong Coal Group.

Datong Coal had agreed in 2009 to acquire the 10 entities from Shanxi Jinye and had paid one billion yuan. It subsequently called off the deal and CRP agreed to buy into the entities a few months later.

It was agreed among Datong Coal, Shanxi Jinye and CRP that Datong Coal would be repaid the one billion yuan before Shanxi Jinye was paid for the assets.

Datong Coal received 300 million yuan from the joint venture, but it was alleged that it did not receive the remainder and some other related expenses.

In March, it filed a suit in Shanxi demanding payment of 892 million yuan owed by the joint venture.

The lawyer for CRP's minority shareholders is expected to argue in court that CRP had suffered economic losses from the directors' failure to recover payments made to Shanxi Jinye and cancel the deal struck at an inflated price, and they ought to be compensated by the directors.

CRP chairman Zhou Junqing said in August the renewal of mining permits had been delayed by the Shanxi government's efforts to ensure safe production.

In August, CRP appointed Johnny Mok as an independent "special adviser" to deal with the court proceedings in the "best interest" of the company.

A spokesman for the company said Mok had been busy working.

CRP has not made any announcement about his work so far.