FILED NEW YORK COUNTY CLERK 11/18/2016 0700 PM INDEX NO. 650587/2011 NYSCEF DOC. NO. 461 RECEIVED NYSCEF 11/18/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------x China Privatization Fund (Del), L.P., Plaintiff, v. Galaxy Entertainment Group Limited, Defendant. --------------------------------------------------------------------x Index No. 650587/2011 I.A.S. Part 48 Jeffrey K. Oing, J. LETTERS ROGATORY The Supreme Court of the State of New York, in and for the County of New York, United States of America, presents its compliments to the appropriate judicial authority of Hong Kong, Special Administrative Region (SAR) of the People s Republic of China, and requests international judicial assistance to obtain evidence to be used in a civil proceeding pending before this Court in the above-captioned matter 1. a. Sender/Requesting Judicial Authority The Honorable Jeffrey K. Oing Justice of the Supreme Court of the State of New York County of New York 60 Centre Street New York, New York 10007 b. To the Appropriate Judicial Authority in Hong Kong Registrar of the High Court of Hong Kong G/F, High Court Building 38 Queensway, Hong Kong WEIL\95925676\3\35310.0003 1 of 8
2. Names and Addresses of the Parties and their Representatives a. Plaintiff China Privatization Fund (Del), L.P. c/o Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, New York 10153 Plaintiff s Representatives Irwin H. Warren Richard L. Levine Amy M. Suehnholz Larkin Kuplic WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 b. Defendant Galaxy Entertainment Group Limited 1606 Hutchison House 10 Harcourt Road, Central Hong Kong Defendant s Representatives S. Robert Schrager HODGSON RUSS LLP 1540 Broadway, 24th Floor New York, New York 10036 Daniel F. Katz Edward C. Barnidge Luba Shur David S. Kurtzer-Ellenbogen WILLIAMS & CONNOLLY LLP 725 Twelfth St. NW Washington, DC 20005 3. Person to Whom the Executed Request Is To Be Returned Amy M. Suehnholz Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, New York 10153 WEIL\95925676\3\35310.0003 2 2 of 8
4. Nature and Purpose of the Proceedings and Summary of the Facts China Privatization Fund (Del), L.P. ( CPF or Plaintiff ) commenced this action on March 4, 2011, against Galaxy Entertainment Group Limited ( Galaxy or Defendant ) seeking to compel Galaxy to issue additional shares of Galaxy common stock to CPF, as allegedly required under CPF s interpretation of an indenture agreement dated December 14, 2006 (the Indenture ) (attached as Exhibit A) as a consequence of CPF s conversion of a zero-coupon note issued by Galaxy. CPF also alleges that Galaxy failed to provide notice of certain events that impact conversion rights, as required under CPF s interpretation of the Indenture, and seeks to compel Galaxy to provide such notices. It is undisputed that under the Indenture certain zero coupon convertible notes issued by Galaxy, $50 million of which were purchased by CPF (the Notes ), were convertible into shares of Galaxy common stock upon demand until December 14, 2011. The specific number of shares to be issued by Galaxy upon conversion was determined by a formula set forth in Section 13 of the Indenture. It is undisputed that on February 18, 2011, CPF exercised its right to convert the Notes into shares of Galaxy common stock. CPF asserts that the number of shares of Galaxy common stock issued by Galaxy to CPF upon the conversion was not calculated in accordance with the formula found in the Indenture and that CPF is entitled to millions of additional shares. Galaxy denies CPF s allegations. Specifically, Galaxy contends that it is not obligated under the Indenture to issue additional shares of Galaxy common stock to CPF because Galaxy correctly calculated the number of shares in accordance with the formula found in the Indenture. Further, Galaxy contends that its obligation to provide notice under the Indenture was never triggered. WEIL\95925676\3\35310.0003 3 3 of 8
At the outset of the case, pursuant to procedural rules, Galaxy moved to dismiss the complaint on grounds that the complaint failed on its face to state a claim. This Court denied Galaxy s motion, which ruling was affirmed by the New York Supreme Court, Appellate Division, First Department, on the basis that the conversion formula in the Indenture is susceptible to more than one reasonable interpretation. As a result, information relating to the proper interpretation of the conversion provisions of the Indenture, including of the conversion formula and the definition of the conversion price and any relevant extrinsic evidence regarding the meaning of the conversion provisions of the Indenture, as well as concerning any relevant course of performance under the Indenture, will be relevant to the determination of this case. 5. Evidence to be Obtained or Other Judicial Act to be Performed It has been submitted to this Court by CPF that justice cannot be completely done in this action without testimony from Betty Chiu, a witness who resides and is located in Hong Kong. CPF asserts that the testimony requested is necessary for use in preparation for trial in this action. This Court therefore requests that, in the interest of justice, you issue an order by your proper and usual process summoning Ms. Chiu, described more fully below, to appear before a duly appointed official in Hong Kong to give testimony under oath by questions and answers on oral deposition respecting the topics described in Exhibit B. 6. Identity and Address of Person Requested to Provide Testimony Betty Chiu Galaxy Entertainment Group Limited 1606 Hutchison House 10 Harcourt Road, Central Hong Kong Nothing herein shall eliminate or impair any rights or obligations Ms. Chiu may hold under the New York Civil Practice Law and Rules ( CPLR ) or other applicable law. WEIL\95925676\3\35310.0003 4 4 of 8
7. Statement of the Subject Matter about Which Testimony Is Requested CPF asserts upon information and belief that, at times relevant to this action (i) Ms. Chiu was Vice President, Finance at Galaxy; and (ii) was involved in, among other things, structuring the Notes transaction, the drafting and negotiation of the Indenture, and the drafting of the Hong Kong Stock Exchange Notice, which was entitled Resumption of Trading and Issue of Zero Coupon Convertible Notes Due 2011 and posted on the Hong Kong Stock Exchange website at or about the time the Notes were issued, and communications with other Galaxy employees, as well as third parties, regarding the same. 8. Documents or Other Property to be Inspected Not applicable. 9. Special Methods or Procedures to be Followed This Court requests that the deposition of Ms. Chiu take place by a date to be determined by you, or agreed to by Ms. Chiu and the parties, at the Hong Kong office of Weil, Gotshal & Manges, 29/F Alexandra House, 18 Chater Road, Central, Hong Kong. 1 It is further requested that Ms. Chiu be required to testify orally under oath or solemn affirmation. It is further requested that you cause the deposition to be committed to writing stenographically and videotaped, that you cause Ms. Chiu to sign the transcript of her testimony after a reasonable opportunity to review and correct it, and that you cause the original transcript and videorecording to be returned by registered or certified mail, under cover duly sealed and addressed, and bearing the caption of this case, to Weil, Gotshal & Manges LLP, attention of Irwin H. Warren, Richard L. Levine, and Amy M. Suehnholz, 767 Fifth Avenue, New York, NY 10153, with a copy to Williams & Connolly LLP, attention of Daniel F. Katz, Edward C. Barnidge, and 1 We hope that the parties and Ms. Chiu will be able to agree upon a mutually convenient date but ask that the High Court of Hong Kong order that Ms. Chiu submit to deposition no later than by February 28, 2017. WEIL\95925676\3\35310.0003 5 5 of 8
David S. Kurtzer-Ellenbogen, 725 Twelfth St. NW, Washington, DC 20005. The Court further requests that you cause the deposition to proceed in the following order (i) examination by the attorneys for the requesting party (CPF); (ii) examination by the attorneys for Galaxy; (iii) reexamination by the attorneys for CPF; and (iv) re-examination by the attorneys for Galaxy. 10. Request for Notification of the Time and Place for the Execution of the Request It is further requested that notification of the deadline for the deposition be given directly to Ms. Chiu and to the Plaintiff s Representative and Defendant s Representative identified above. 11. Request for Attendance or Participation of Judicial Personnel of the Requesting Authority at the Execution of the Request It is further requested that the deposition of Ms. Chiu be taken in accordance with New York CPLR 3113 and 3116, copies of which are attached hereto as Exhibit C, and that the United States counsel of record herein as of the date of the deposition, including, but not limited to, (i) Irwin H. Warren, Esq., Richard L. Levine, Esq., Amy Suehnholz, Esq., Larkin Kuplic, Esq., of Weil, Gotshal & Manges LLP (New York) and Henry Ong and Soo-Jin Shim of such firm (Hong Kong), attorneys for CPF; and (ii) Daniel F. Katz, Esq., Edward C. Barnidge, Esq., Luba Shur, Esq., and David S. Kurtzer-Ellenbogen, Esq., of Williams & Connolly LLP, and Hong Kong counsel Melvin Sng, Esq. of Linklaters LLP (Hong Kong), attorneys for Galaxy, as well as other attorneys who may appear for the parties, and counsel for the witness, be permitted to attend the deposition and administer questions to the witness, in person and/or by video conference. 12. Specification of Privilege or Duty to Refuse to Give Evidence Under the Law of the State of Origin Under the laws of New York and of the United States, a testifying witness may refuse to provide any testimony that would result in disclosure of any communication between a WEIL\95925676\3\35310.0003 6 6 of 8
client and its counsel made and maintained in confidence in the course of a request for legal advice. This privilege belongs to the client and is known as the attorney/client privilege. When the witness is an attorney, the witness may not provide testimony that would reveal privileged communications with a current or former client unless the client has waived the privilege or in certain enumerated circumstances where the lawyer is allowed to make disclosure because the lawyer reasonably believes disclosure is necessary. In addition, materials prepared in anticipation of litigation or for trial by or for a party to a pending or potential litigation or by or for the party s representative are protected from disclosure to an adversary, unless the requesting party can show, as to facts set forth therein (as opposed to views, opinions, or analysis of counsel), both a substantial need for the information and an inability to obtain the substantial equivalent by other means without undue hardship. Finally, materials prepared by an attorney, acting as an attorney, which contain the attorney s analysis and trial strategy, shall not be obtainable in discovery. This protection is known as the attorney work product doctrine. If any testimony is withheld on any of these grounds, this must be stated at the time of withholding the testimony. The above summary of the attorney-client privilege, litigation or trial preparation protection, and attorney work product protection is not intended to modify the scope of those protections under the laws of New York and of the United States. 13. Reciprocity. This Court is ready and willing to do the same for you in a similar case when required. WITNESS, the Honorable Jeffrey K. Oing, Justice of the Supreme Court of the State of New York, held in and for the County of New York, and the seal thereof, this day of November, 2016. WEIL\95925676\3\35310.0003 7 7 of 8
J.S.C. WEIL\95925676\3\35310.0003 8 8 of 8