SEMICONDUCTOR MANUFACTURING INTERNATIONAL CORPORATION
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(Name of Issuer)
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Common Shares, par value US$0.0004 Per Share
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(Title of Class of Securities)
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81663 N206
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(CUSIP Number)
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Zheng Jinliang
Legal Counsel
Datang Telecom Technology & Industry Holdings Co., Ltd.
No. 40 Xueyuan Road
Beijing 100191, China
Telephone: +86 10 62301914
With a copy to:
Shuang Zhao, Esq.
Shearman & Sterling LLP
c/o 12th Floor, Gloucester Tower
15 Queen’s Road
Central, Hong Kong
(852) 2978-8000
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
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August 27, 2014
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(Date of Event which Requires Filing of this Statement)
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CUSIP No. 81663 N206
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Page 2 of 10
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1
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NAME OF REPORTING PERSONS
Datang Telecom Technology & Industry Holdings Co., Ltd.
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) x
(b) o
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (See Instructions)
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|||
5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
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o
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
People’s Republic of China
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7
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SOLE VOTING POWER
None
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||
8
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SHARED VOTING POWER
6,650,764,7891
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|||
9
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SOLE DISPOSITIVE POWER
None
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10
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SHARED DISPOSITIVE POWER
6,650,764,789
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,650,764,789
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)
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o
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||
13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
18.8%2
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14
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TYPE OF REPORTING PERSON (See Instructions)
CO
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CUSIP No. 81663 N206
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Page 3 of 10
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1
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NAME OF REPORTING PERSONS
Datang Holdings (Hongkong) Investment Company Limited
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|||
2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) x
(b) o
|
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||
3
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SEC USE ONLY
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|||
4
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SOURCE OF FUNDS (See Instructions)
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|||
5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
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o
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
Hong Kong
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|||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
None
|
||
8
|
SHARED VOTING POWER
6,650,764,7893
|
|||
9
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SOLE DISPOSITIVE POWER
None
|
|||
10
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SHARED DISPOSITIVE POWER
6,650,764,789
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|||
11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,650,764,789
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|||
12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)
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o
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||
13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
18.8%4
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|||
14
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TYPE OF REPORTING PERSON (See Instructions)
CO
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CUSIP No. 81663 N206
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Page 4 of 10
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Item 1.
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Security and Issuer
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Item 2.
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Identity and Background
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Name
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Citizenship
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Present Principal Occupation or Employment
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Business Address
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|||
Zhen Caiji
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Chinese
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Executive Director & President
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No. 40 Xueyuan Road,
100191, Beijing, China
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Yang Yigang
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Chinese
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Senior Vice President
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No. 40 Xueyuan Road,
100191, Beijing, China
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Huang Zhiqin
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Chinese
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Senior Vice President
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No. 40 Xueyuan Road,
100191, Beijing, China
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Chen Shanzhi
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Chinese
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Senior Vice President
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No. 40 Xueyuan Road,
100191, Beijing, China
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Zhou Desheng
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Chinese
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Vice President
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No. 40 Xueyuan Road,
100191, Beijing, China
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Li Yonghua
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Chinese
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Vice President
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No. 40 Xueyuan Road,
100191, Beijing, China
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CUSIP No. 81663 N206
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Page 5 of 10
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Name
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Citizenship
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Present Principal Occupation or Employment
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Business Address
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|||
Zhen Caiji
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Chinese
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Director—HKCo
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No. 40 Xueyuan Road,
100191, Beijing, China
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Item 3.
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Source and Amount of Funds or Other Consideration
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CUSIP No. 81663 N206
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Page 6 of 10
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CUSIP No. 81663 N206
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Page 7 of 10
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Item 4.
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Purpose of Transaction
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CUSIP No. 81663 N206
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Page 8 of 10
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Item 5.
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Interest in Securities of the Issuer
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Item 6.
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Contracts, Arrangements, Understandings or Relationships with Respect to Securities
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CUSIP No. 81663 N206
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Page 9 of 10
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Item 7.
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Material to be Filed as Exhibits
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Exh. No.
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Document
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A
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Share Purchase Agreement, dated November 6, 2008, by and between Semiconductor Manufacturing International Corporation and Datang Telecom Technology & Industry Holdings Co., Ltd. with respect to the acquisition of 3,699,094,300 shares of Common Stock (incorporated by reference to Exhibit 99.1 to the Issuer’s current report on Form 6-K filed on November 17, 2008).
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B
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Subscription Agreement, dated August 16, 2010, by and between Semiconductor Manufacturing International Corporation and Datang Telecom Technology & Industry Holdings Co., Ltd. with respect to the acquisition of 1,528,038,461 shares of Common Stock (incorporated by reference to Exhibit B to Datang’s Schedule 13D filed on November 26, 2010).
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C
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Share Subscription Agreement, dated May 5, 2011, by and between Semiconductor Manufacturing International Corporation and Datang Holdings (Hongkong) Investment Company Limited with respect to the acquisition of 84,956,858 Convertible Preferred Shares and a warrant to purchase 16,991,371 Convertible Preferred Shares (incorporated by reference to Exhibit C to Datang’s Amendment No. 2 to Schedule 13D filed on January 20, 2012).
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D
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Warrant Agreement, dated September 16, 2011, by and between Semiconductor Manufacturing International Corporation and Datang Holdings (Hongkong) Investment Company Limited with respect to the issuance of a warrant to purchase 16,991,371 Convertible Preferred Shares (incorporated by reference to Exhibit D to Datang’s Amendment No. 2 to Schedule 13D filed on January 20, 2012).
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E
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Joint Filing Agreement, dated January 20, 2012, by and between Datang Telecom Technology & Industry Holdings Co., Ltd. and Datang Holdings (Hongkong) Investment Company Limited with respect to the joint filing of Schedule 13D/A (incorporated by reference to Exhibit E to Datang’s Amendment No. 2 to Schedule 13D filed on January 20, 2012).
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F
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Subscription Agreement, dated December 18, 2013, by and between Semiconductor Manufacturing International Corporation and Datang Holdings (Hongkong) Investment Company Limited with respect to subscription of US$54,600,000 principal amount of Convertible Bonds (incorporated by reference to Exhibit F to Datang’s Amendment No. 4 to Schedule 13D filed on December 20, 2013).
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G
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Placing and Subscription Agreement, dated June 4, 2014, by and among Semiconductor Manufacturing International Corporation, Datang Holdings (Hongkong) Investment Company Limited, Deutsche Bank AG, Hong Kong Branch and J.P. Morgan Securities (Asia Pacific) Limited with respect to the sale of 2,590,000,000 shares of Common Stock and the subscription of 2,590,000,000 shares of Common Stock (incorporated by reference to Exhibit G to Datang’s Amendment No. 6 to Schedule 13D filed on June 6, 2014).
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H
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Subscription Agreement, dated August 22, 2014, by and between Semiconductor Manufacturing International Corporation and Datang Holdings (Hongkong) Investment Company Limited with respect to subscription of 669,468,952 shares of Common Stock
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I
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Subscription Agreement, dated August 22, 2014, by and between Semiconductor Manufacturing International Corporation and Datang Holdings (Hongkong) Investment Company Limited with respect to subscription of US$22,200,000 principal amount of Convertible Bonds
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J
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Supplemental Agreement to the Datang Share Purchase Agreement dated 6 November 2008, dated August 22, 2014, by and among Semiconductor Manufacturing International Corporation, Datang Telecom Technology & Industry Holdings Co., Ltd. and Datang Holdings (Hongkong) Investment Company Limited
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CUSIP No. 81663 N206
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Page 10 of 10
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Date: August 27, 2014
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Datang Telecom Technology & Industry Holdings Co., Ltd.
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By: | /s/ Guo Guangli | ||||
Name: |
Guo Guangli
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Title: |
Authorized Representative
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Datang Holdings (Hongkong) Investment Company Limited
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By: | /s/ Guo Guangli | ||||
Name: | Guo Guangli | ||||
Title: |
Authorized Representative
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Page
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1
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DEFINITIONS AND INTERPRETATION
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1
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2
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SUBSCRIPTION
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4
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3
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CONDITIONS OF SUBSCRIPTION
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4
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4
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COMPLETION OF THE SUBSCRIPTION
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5
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5
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UNDERTAKINGS OF THE SUBSCRIBER AND THE COMPANY
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5
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6
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REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
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7
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7
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INDEMNITY
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14
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8
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TERMINATION
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15
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9
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ANNOUNCEMENT
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16
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10
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TIME OF THE ESSENCE
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17
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11
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NOTICES
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17
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12
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MISCELLANEOUS
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17
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13
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APPLICABLE LAW AND JURISDICTION
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18
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(1)
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SEMICONDUCTOR MANUFACTURING INTERNATIONAL CORPORATION, a company duly incorporated in the Cayman Islands whose principal place of business in Hong Kong is at Suite 3003, 30th Floor, 9 Queen’s Road Central, Hong Kong (the “Company”); and
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(2)
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DATANG HOLDINGS (HONGKONG) INVESTMENT COMPANY LIMITED, a company duly incorporated in Hong Kong whose principal place of business is 18/F Edinburgh Tower, The Landmark, 15 Queen’s Road, Central, Hong Kong (the “Subscriber”).
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(A)
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The Company, the Subscriber and Deutsche Bank AG, Hong Kong Branch and J.P. Morgan Securities (Asia Pacific) Limited (as Joint Placing Agents) entered into a placing and subscription agreement (the “Placing and Subscription Agreement”) dated 4 June 2014 in relation to the placing and subscription (the “Top-up Placing”) of 2,590,000,000 Shares (the “Marketed Shares”).
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(B)
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Pursuant to the Datang share purchase agreement (the “Datang Share Purchase Agreement”) dated 6 November 2008 entered into between the Company and Datang Telecom, if the Company proposes to issue new Shares or securities convertible into Shares, the Subscriber has a pre-emptive right to subscribe for a pro rata portion of such new securities issued which is equivalent to the percentage of the issued share capital of the Company then owned by the Subscriber prior to the issue of such securities. In connection with the placing and subscription of the Marketed Shares, the Company notified the Subscriber in writing on 5 June 2014 specifying the numbers and type of securities to be offered and the subscription price of the proposed offer. The Subscriber delivered an irrevocable notice to the Company to exercise its pre-emptive right to subscribe for the Subscription Shares on 18 June 2014 .
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(C)
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The Subscriber and the Company have agreed that the Company shall issue and the Subscriber shall subscribe for the Subscription Shares on and subject to the terms and conditions of this Agreement and on and subject to substantially the same terms as that of the Placing and Subscription Agreement.
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1
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DEFINITIONS AND INTERPRETATION
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1.1
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In this Agreement (including the recitals), the following expressions shall, unless the context requires otherwise, have the following meanings:
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1.2
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In this Agreement, references to any statute, statutory provision, Listing Rule or a rule of the Takeovers Code include a reference to that statute, statutory provision, Listing Rule or a rule of the Takeovers Code as from time to time amended, extended or re-enacted.
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1.3
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In this Agreement, references to persons include references to bodies corporate, references to singular include references to the plural and vice versa; and words denoting one gender only shall include other genders.
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1.4
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Headings are inserted for convenience only and shall not affect the interpretation of this Agreement.
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1.5
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All references in this Agreement in relation to any time, date or period shall mean Hong Kong time.
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1.6
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References to Clauses, Sub-clauses and the Schedule are references to clauses and sub-clauses of and schedules to this Agreement.
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2
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SUBSCRIPTION
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2.1
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The Subscriber agrees to subscribe as principal for, and the Company agrees to issue, the Subscription Shares at the Subscription Price (approximately HK$401,681,371.20 in aggregate), free from all liens, charges, security interests, encumbrances and adverse claims on the terms and subject to the conditions set out in this Agreement.
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2.2
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The Company agrees that the Subscription Shares shall, when fully paid, rank pari passu in all respects with the other Shares in issue or to be issued by the Company on or prior to the date of completion of the Subscription including the rights to all dividends and other distributions declared, made or paid at any time after the date of allotment.
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3
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CONDITIONS OF SUBSCRIPTION
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3.1
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Completion of the Subscription is conditional upon the fulfilment of the following conditions:
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3.1.1
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the Listing Committee of the Stock Exchange granting listing of and permission to deal in the Subscription Shares (and such listing and permission not subsequently revoked prior to the delivery of definitive share certificate(s) representing the Subscription Shares under Clause 4.3 hereof);
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3.1.2
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the Company having obtained the approval of the shareholders of the Company (other than the Subscriber or its associates (as defined in the Listing Rules) at the Shareholders’ Meeting of:
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(i)
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the Share Subscription; and
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(ii)
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a special mandate for the issue of the Subscription Shares pursuant to this Agreement;
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3.1.3
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the issue of the Subscription Shares by the Company and the subscription of the Subscription Shares by the Subscriber shall not be prohibited by any law or governmental order or regulation and the Subscriber shall have obtained necessary government approvals or consent for subscription of the Subscription Shares; and
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3.1.4
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the Company shall, as soon as is reasonably practicable (1) take such steps as are necessary to hold the Shareholders’ Meeting with a view to obtain the approvals required under Condition 3.1.2; and (2) apply to the Stock Exchange for the granting of listing of, and permission to deal in, the Subscription Shares after the signing of this Agreement and the Company shall use all reasonable endeavours to obtain the granting of such listing and permission to deal by the Listing Committee of the Stock Exchange as soon as is reasonably practicable and will inform the Subscriber promptly following the granting of the same. The Company shall furnish such information, supply such documents, pay such fees and do all such acts and things as may reasonably be required by the Subscriber, SFC and/or the Stock Exchange in connection with the fulfilment of the Conditions in clauses 3.1.1 and 3.1.2 and the Subscriber shall do all such acts and things as may reasonably be required for the satisfaction of the Condition in clause 3.1.3. The Subscriber shall provide the Company with such necessary assistance as may be reasonably requested by the Company in connection with the fulfilment of the Conditions set out in clauses 3.1.1 and 3.1.2 and the Company shall provide such necessary assistance as may be reasonably requested by the Subscriber in connection with the fulfilment of the Condition set out in clause 3.1.3.
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4
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COMPLETION OF THE SUBSCRIPTION
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4.1
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Completion of the Subscription shall take place on the Closing Date.
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4.2
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At completion of the Subscription, the Subscriber shall pay or shall procure the payment of the Subscription Monies by electronic funds transfer in the amount thereof.
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4.3
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Against compliance with the provisions of Clause 4.2, the Company shall:
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4.3.1
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forthwith duly allot and issue to the Subscriber (or as it may direct) the Subscription Shares and shall promptly register without registration fee the Subscriber and/or its nominees as members in respect of the Subscription Shares; and
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4.3.2
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at the option of the Subscriber, either (i) deliver to the Subscriber (or as it may direct) the definitive certificates in respect of the Subscription Shares in favour of the Subscriber and/or its nominees or (ii) deposit the same into the account of the relevant Participant with whom the Subscriber has accounts in accordance with the Subscriber’s instructions.
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5
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UNDERTAKINGS OF THE SUBSCRIBER AND THE COMPANY
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5.1
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The Company shall promptly make all notifications, registrations and filings as may from time to time be required in relation to the Subscription Shares and the transactions contemplated under this Agreement including, without prejudice to the generality of the foregoing, the filings with the Stock Exchange.
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5.2
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The Subscriber and the Company shall make all appropriate disclosures pursuant to, and will comply in all respects with all applicable laws, regulations and directions (including without limitation the Listing Rules, the Takeovers Code and the SFO) and all requirements of the Stock Exchange, the SFC or any other applicable regulatory body in connection with the Subscription.
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5.3
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The Company undertakes and agrees that up to the Closing Date it will forthwith notify the Subscriber of any change affecting, or if at any time anything has occurred which would or would be likely to render untrue, inaccurate, misleading or breached in any respect, any of the representations, warranties and undertakings referred to in Clause 10. The Company shall procure that particulars of every significant new factor known to it which is capable of materially and adversely affecting the Subscription and which arises between the date hereof and the Closing Date shall be promptly provided to the Subscriber.
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5.4
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The Company undertakes with the Subscriber that it shall use reasonable endeavours to do all such other acts and things as may be reasonably required to be done by it to carry into effect the Placing in accordance with the terms of this Agreement.
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5.5
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The Company undertakes to the Subscriber that for a period commencing on the date of this Agreement and ending on the date falling on 90 days after the date hereof (inclusive), the Company will not, except for the issue of (1) the Relevant Securities; (2) any Shares issuable under the Original Bonds, the Original Pre-emptive Bonds and the Further Bonds; (3) securities under the terms of any employee share scheme of the Company or any other scheme that has been publicly announced or disclosed by the Company as of the date of this Agreement; (4) bonus or scrip dividend or similar arrangements which provide for the allotment of Shares in lieu of the whole or part of a dividend on Shares of the Company in accordance with its articles of association; and (5) Shares or any securities convertible into or exercisable or exchangeable for or substantially similar to Shares which are issued as consideration for any merger or acquisition provided that (A) the aggregate value of the Shares issued (as calculated by the Current Market Price (as defined in the Terms & Conditions of the Bonds) is less than US$100,000,000 and (B) the Company procures that the person receiving such Shares executes a shareholder lock-up undertaking on substantially the same terms as provided in this Clause prior to any such issue:
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5.5.1
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allot or issue or offer to allot or issue or grant any option, right or warrant to subscribe for (either conditionally or unconditionally, or directly or indirectly, or otherwise) any Share(s) or any interests in Shares or any securities convertible into or exercisable or exchangeable for or substantially similar to Shares or interest in Shares; or
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5.5.2
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agree (conditionally or unconditionally) to enter into or effect any such transaction with the same economic effect as any of the transactions described in Clause 5.5.1 above; or
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5.5.3
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announce any intention to enter into or effect any such transaction described in Clauses 5.5.1 or 5.5.2 above,
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6
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REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
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6.1
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In consideration of the Company entering into this Agreement and agreeing to perform its obligations hereunder, the Subscriber hereby represents, warrants and undertakes to the Company as follows:
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6.1.1
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Consents: all regulatory and judicial consents, approvals, orders or qualifications required to be obtained or made under all relevant jurisdictions for the Share Subscription or the consummation of the transactions contemplated by this Agreement will be duly obtained and in full force and effect on the Closing Date;
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6.1.2
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Incorporation: the Subscriber is duly incorporated and validly existing under the laws of the place of its incorporation and the Subscriber has the power under its constitutional documents to enter into this Agreement and this Agreement (and its performance) has been duly authorised (such authorisation remaining in full force and effect) and executed by, and constitutes valid and legally binding and enforceable obligations of the Subscriber in accordance with its terms;
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6.1.3
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Non-public information: save for the matters set out in the Announcement, the Subscriber is not in possession of any non-public information relating to the Company, any other member of the Group or their respective businesses the release of which would materially affect the trading price of the Shares;
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6.1.4
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Insider Dealing: the Subscriber has not been, is not and will not be at any time engaged in insider dealing for the purposes of the SFO in connection with the Share Subscription and the related transactions entered into or to be entered into pursuant to this Agreement;
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6.1.5
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No Unlawful Payments: none of the Subscriber nor any director, officer or employee of, and to the best knowledge of the Subscriber (after due and careful enquiry), any agent, affiliate of or other person acting on behalf of the Subscriber, is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), or any other applicable anti-bribery or anti-corruption law or regulation similar to the FCPA (including but not limited to, the UK Bribery Act of 2010), in any other jurisdiction in which the Subscriber operates including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorisation of the payment of any money, or other property, gift, promise to give, or authorisation of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA or any other similar applicable anti-bribery or anti-corruption law or regulation of any such other jurisdiction; the Subscriber and its Affiliates has conducted their businesses in compliance with the FCPA and any other similar applicable anti-bribery or anti-corruption law or regulation of any such other jurisdiction and have instituted and maintain policies and procedures designed to ensure continued compliance with, and prevent violation of, such laws, rules and regulations;
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6.1.6
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Sanctions: none of the Subscriber and its Affiliates, nor any director, officer or employee of, and to the best knowledge of the Subscriber (after due and careful enquiry), any agent, affiliate of or other person acting on behalf of the Subscriber:
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(i)
|
is an individual or entity (a “Person”) currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Government (including but not limited to the designation as a “specially designated national” or “blocked person” thereunder) or any sanctions or requirements imposed by, or based upon the obligations or authorisations set forth in, the U.S. Trading With The Enemy Act, the U.S. International Emergency Economic Powers Act, the U.S. United Nations Participation Act, the Iran Sanctions Act, the Comprehensive Iran Sanctions Accountability and Divestment Act and Section 1245 of the National Defense Authorization Act for Fiscal Year 2012, the U.S. Syria Accountability and Lebanese Sovereignty Act, or the Iran Threat Reduction and Syria Human Rights Act of 2012, all as amended, or any Executive Orders issued in relation to the imposition of sanctions, or any sanctions or measures imposed by the United Nations Security Council, the European Union or Her Majesty’s Treasury (“HMT”) (collectively, the “Sanctions”);
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(ii)
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is located, organised or operating in a country or territory that is the subject of Sanctions;
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(iii)
|
has for the past five years engaged in, and is now engaged in any dealings or transactions with any government, person, entity or project targeted by, or located in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions;
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(iv)
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is or has been in violation of or subject to an investigation relating to any Sanctions; and
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6.1.7
|
Anti-money Laundering: the operations of the Subscriber and its Affiliates are and have been conducted at all times in compliance with all applicable anti-money laundering laws, regulations, rules and guidelines in its jurisdiction and in each other jurisdiction in which such entity, as the case may be, conducts business (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Subscriber or its Affiliates with respect to the Money Laundering Laws is pending or, to the best knowledge of the Subscriber (after due and careful enquiry), threatened.
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6.2
|
The Company warrants and undertakes to the Subscriber as follows:
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6.2.1
|
Announcement: all statements of fact contained in the Announcement (including but not limited to the disclosure on the use of proceeds) are true and accurate in all material respects as at the date of its publication and all statements of opinion, intention, expectation or estimates of the Directors in relation to the Company and/or any other member(s) of the Group contained therein (if any) are truly and honestly held and have been made on reasonable grounds after due and careful consideration, and the Announcement do not include an untrue statement of a material fact or omit to state a fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading in any material respect;
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6.2.2
|
No non-public information: save for the matters set out in the Announcement, the Company is not in possession of any non-public information relating to the Company, any other member of the Group or their respective businesses the release of which would materially affect the trading price of the Shares and there is not in existence any material or information relating to the Company which will be required to be but has not been disclosed by the Company under the Listing Rules or the Exchange Act. Without prejudice to the generality of the foregoing, there is no material information (including, without limitation, any information regarding any material adverse change or prospective material adverse change in the condition of, or any actual, pending or threatened litigation, arbitration or similar proceeding involving, the Group) that is not described in the Company’s most recent annual report or subsequent public information releases (the “Company Information”) which information is necessary to enable investors to make an informed assessment of the assets and liabilities, financial position, profits and losses and prospects of the Group; the Company Information does not include any untrue statement of a material fact or omit to state any fact necessary in order to make the statements therein not misleading in any material respect;
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6.2.3
|
Information: all information (whether oral, written, electronic or in any other form) supplied by or on behalf of the Company, any other member of the Group or any of their respective officers, directors, employees or advisers, for the purpose of or in connection with the Share Subscription, the Company and all publicly available information and records of the Company (including information contained in annual reports, statutory filings and registrations) is and was, when supplied or published, true and accurate in all material respects and not misleading in any material respect;
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|
6.2.4
|
Litigation: save as disclosed in the Company Information, there is no claim, litigation, arbitration, prosecution or other legal proceedings or investigation or enquiry in progress or pending or threatened against any member of the Group or any of its properties or (as far as the Company is aware) the Company’s executive directors, officers or employees nor, so far as the Company is aware, is there any claim or any facts or circumstances of a material nature which would give rise to a claim against any member of the Group or any of its properties or the Company’s executive director, which in any such case would have or have had a material adverse effect on the condition, financial, trading or otherwise, or the earnings or business affairs (whether or not arising in the ordinary course of business) of the Company and the Group as a whole or which is material for disclosure in the context of the Share Subscription;
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|
6.2.5
|
No material adverse change: save as disclosed in the Company Information, there has been no material adverse change, or any development involving or reasonably likely to involve a prospective material adverse change, in the condition, financial or otherwise, or the earnings, net assets, business affairs or business prospects (whether or not arising in the ordinary course of business) of the Company or the Group as a whole since 31 December 2013;
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|
6.2.6
|
Incorporation: each member of the Group is duly incorporated and validly existing under the laws of the place of its incorporation and each member of the Group has power to own its assets and to conduct its business in the manner presently conducted and there has been no petition filed, order made or effective resolution passed for the liquidation or winding up of the Company or any member of the Group;
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|
6.2.7
|
Approvals: each member of the Group has obtained such authorisations and licences (if any) as are required under the provisions of any applicable law in connection with the operation of its business and there is no breach by any member of the Group of the provisions of any ordinance, statute or regulation governing such authorisations or licences nor is there any reason why any such authorisation or licence should be withdrawn or cancelled, in each case other than any authorisation and licence the lack of which would not have a material adverse effect on the condition, earnings or business affairs of the Group as a whole;
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|
6.2.8
|
Laws and Listing Rules: the Company is not in breach of any rules, regulations or requirements of the Stock Exchange and, in particular, the Company has complied at all times with the disclosure requirements under the Listing Rules, save for any breach or non-compliance which is not material in the context of the Share Subscription, and, other than the Conditions, all necessary consents (if any) have been obtained from the Stock Exchange and other authorities to complete the Subscription in the manner contemplated. The Subscription will not trigger a general offer under the Takeovers Code;
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|
6.2.9
|
No order or judgment: save as disclosed in the Company Information, there is no order, decree or judgement of any court or governmental agency or regulatory body outstanding or anticipated against any member of the Group which may have or has had a material adverse effect upon the condition, financial or otherwise or the earnings or business affairs (whether or not arising in the ordinary course of business) of the Group (taken as a whole) or which is material in the context of the Share Subscription;
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|
6.2.10
|
No default:
|
|
(i)
|
save as disclosed in the Company Information, no outstanding indebtedness of any member of the Group has become payable or repayable by reason of any default of any member of the Group and no event has occurred or is impending which may result in such indebtedness becoming payable or repayable prior to its maturity date, in a demand being made for such indebtedness to be paid or repaid or in any step being taken to enforce any security for any such indebtedness of any member of the Group, in each case which is material in the context of the Share Subscription;
|
|
(ii)
|
save as disclosed in the Company Information, no member of the Group is a party to or under any obligation which is material and which is of an unusual or unduly onerous nature; no member of the Group is in breach of or in default of its constitutional documents or any contract or agreement which may have or has had a material adverse effect upon the condition, financial or otherwise or the earnings or business affairs (whether or not arising in the ordinary course of business) of the Company or of the Group (taken as a whole) or which is material in the context of the Share Subscription; neither this Agreement nor the Share Subscription will constitute or give rise to a breach of or default under the constitutional documents or any agreement or other arrangement to which any member of the Group is party or give rise to any rights of any third party in respect of any assets of the Company or of the Group, in each case which is material in the context of the Share Subscription;
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|
6.2.11
|
Financial Statements: the audited consolidated accounts for the Group for the financial year ended on 31 December 2013 and the unaudited consolidated financial statements of the Group as at and for the three months ended 31 March 2014, a copy of which has been provided to the Subscriber prior to the execution of this Agreement:
|
|
(i)
|
have been prepared on a recognised and consistent basis and in accordance with International Financial Reporting Standards; and
|
|
(ii)
|
comply with applicable ordinances, statutes and regulations and show a true and fair view of the state of affairs of the Group and of its results for the period in question;
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|
6.2.12
|
Validity of Contracts: the Company has power under its constitutional documents to permit its entry into, and perform its obligations under, this Agreement in the manner set out herein and this Agreement (and its performance) has been duly authorised (such authorisation remaining in full force and effect) and executed by, and constitutes legally binding and enforceable obligations of the Company in accordance with its terms, subject to the laws relating to bankruptcy, insolvency, liquidation, possessory liens, rights of set off, reorganisation, amalgamation, merger, consolidation, moratorium or any other laws or legal procedures, whether of a similar nature or otherwise, generally affecting the rights of creditors, and general principles of equity; there is no authorisation, consent, approval, licence or notification required for the Share Subscription either from governmental, regulatory or other public bodies (including, without limitation, the Stock Exchange except for the approval for the listing of and permission to deal in the Sale Shares by the Stock Exchange) or authorities or courts or from any third party pursuant to any contractual or other arrangement to which the Company or any other member of the Group is a party, except for those which have been, or will on or prior to the Closing Date be, obtained;
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|
6.2.13
|
Compliance: the compliance by the Company with all of the provisions of this Agreement, as well as the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of, or result in any third party consent (other than the approval of the Stock Exchange as set out in the Conditions) being required under, any of the terms or provisions of any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument, decree, regulation or law to or by which any member of the Group is a party or to which any of the property or assets of any member of the Group is subject, or any statute or any order, rule or regulation, including, without limitation, to the extent applicable, the Companies Ordinance, the Listing Rules, the Takeovers Code or any judgment, decree or order of any court or governmental agency or body having jurisdiction over any member of the Group or the property or assets of any member of the Group, in each case where such breach, violation would have a material adverse effect on the conditions, earnings or business affairs of the Group as a whole;
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|
6.2.14
|
Pre-emptive Rights and Options: except for the Relevant Securities, any Shares issuable under the Original Bonds, the Original Pre-emptive Bonds and the Further Bonds, the employee share options and restricted share units and restricted shares of the Company in issue as at the date of this Agreement, no unissued share capital of any member of the Group is under any option or agreed conditionally or unconditionally to be put under any option and, other than the Subscriber and Country Hill, no person has an outstanding warrant, pre-emptive right or any other right of any description to require Shares to be allotted or issued by any member of the Group;
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|
6.2.15
|
No insider dealing: the Company has not been, is not and will not be at any time engaged in insider dealing for the purposes of the SFO in connection with the Share Subscription and the related transactions entered into or to be entered into pursuant to this Agreement; neither the Company nor any person acting on behalf of the Company or under the control of the Company has taken or will take, directly or indirectly, any action designed or which was designed, or which constitutes or has constituted or might reasonably be or have been expected to cause or result in, stabilisation or manipulation of the price of any Shares or other securities of the Company to facilitate the Share Subscription;
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|
6.2.16
|
Anti-Money Laundering: the operations of the Company and each member of the Group (excluding Brite Semiconductor, Inc) and, to the best of the knowledge of the Company and after due and careful enquiry, Brite Semiconductor, Inc and any of the Company’s jointly controlled entities are and have been conducted at all times in compliance with all applicable anti-money laundering laws, regulations, rules and guidelines in its jurisdiction and in each other jurisdiction in which such entity, as the case may be, conducts business (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any member of the Group and any of their jointly controlled entities of the Company with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company (after due and careful enquiry), threatened;
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|
6.2.17
|
No Unlawful Payments: none of the Company, any member of the Group, any director, officer or employee of, and to the best knowledge of the Company (after due and careful enquiry), any agent, affiliate of or other person acting on behalf of the Company or any member of the Group, is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), or any other applicable anti-bribery or anti-corruption law or regulation similar to the FCPA (including but not limited to, the UK Bribery Act of 2010), in any other jurisdiction in which the Company or any member of the Group operates including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorisation of the payment of any money, or other property, gift, promise to give, or authorisation of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA or any other similar applicable anti-bribery or anti-corruption law or regulation of any such other jurisdiction; the Company, its affiliates and every member of the Group has conducted their businesses in compliance with the FCPA and any other similar applicable anti-bribery or anti-corruption law or regulation of any such other jurisdiction and have instituted and maintain policies and procedures designed to ensure continued compliance with, and prevent violation of, such laws, rules and regulations;
|
|
6.2.18
|
Sanctions: none of the Company, the members of the Group, any director, officer or employee of, and to the best knowledge of the Company (after due and careful enquiry), any agent, affiliate of or other person acting on behalf of the Company or any member of the Group:
|
|
(i)
|
is an individual or entity (a “Person”) currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Government (including but not limited to the designation as a “specially designated national” or “blocked person” thereunder) or any sanctions or requirements imposed by, or based upon the obligations or authorisations set forth in, the U.S. Trading With The Enemy Act, the U.S. International Emergency Economic Powers Act, the U.S. United Nations Participation Act, the Iran Sanctions Act, the Comprehensive Iran Sanctions Accountability and Divestment Act and Section 1245 of the National Defense Authorization Act for Fiscal Year 2012, the U.S. Syria Accountability and Lebanese Sovereignty Act, or the Iran Threat Reduction and Syria Human Rights Act of 2012, all as amended, or any Executive Orders issued in relation to the imposition of sanctions, or any sanctions or measures imposed by the United Nations Security Council, the European Union or Her Majesty’s Treasury (“HMT”) (collectively, the “Sanctions”);
|
|
(ii)
|
is located, organised or operating in a country or territory that is the subject of Sanctions;
|
|
(iii)
|
has for the past five years engaged in, and is now engaged in any dealings or transactions with any government, person, entity or project targeted by, or located in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions;
|
|
(iv)
|
is or has been in violation of or subject to an investigation relating to any Sanctions;
|
|
6.2.19
|
Use of Proceeds: neither the Company nor any member of the Group will directly or indirectly use the proceeds of the Subscription hereunder, or lend, contribute or otherwise make available all or part of such proceeds to any subsidiary, joint venture partner or other Person, for the purpose of financing the activities of or business with any Person currently subject to any Sanctions or operating in any country or territory that is the subject of Sanctions where such operations are in violation of such Sanctions or in any other manner that would result in a violation by any Person (including any Person participating in the offering, whether as underwriter, adviser, investor or otherwise) of Sanctions; and
|
|
6.2.20
|
Environmental Laws: each member of the Group has complied in all respects with all applicable Environmental Laws, save where any non-compliance would not have a material adverse effect. For the purpose of this Clause 6.2.26, “Environmental Laws” means any and all supra-national, national, state, local and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licences, agreements or other governmental restrictions relating to the protection of the environment (including, without limitation, human, animal and plant life, ambient air, surface water, ground water, or land), the protection of property and proprietary rights or for the compensation of harm to the environment whether by clean-up, remediation, containment or other treatment or the payment of monies to any competent authority.
|
6.3
|
The Subscriber hereby undertakes to the Company to subscribe for the Subscription Shares subject to the Memorandum and Articles of Association of the Company and the terms of this Agreement.
|
6.4
|
The representations, warranties and undertakings set out in this Clause 6 are given as at the date hereof and repeated on the Closing Date, with reference in each case to the facts and circumstances then subsisting. Each of the Subscriber and the Company undertakes to notify each other of any matter or event coming to its attention prior to the completion of the Subscription which shows or may show any of the representations, warranties and undertakings set out in Clause 6 to be or to have been untrue, inaccurate or misleading.
|
6.5
|
The rights and remedies of each Party in respect of the representations, warranties and undertakings referred to in this Clause 6 shall not be affected by:
|
|
6.5.1
|
completion of the Subscription;
|
|
6.5.2
|
any investigation made into the affairs of any Party or any knowledge held or gained of any such affairs by or on behalf of the other Parties; or
|
|
6.5.3
|
termination of this Agreement or any event or matter whatsoever, other than a specific and duly authorised written waiver or release by the other Parties.
|
7
|
INDEMNITY
|
7.1
|
The Company undertakes to indemnify and hold harmless the Subscriber and each of its respective agents, subsidiaries, affiliates or associated companies, their respective directors, officers, employees and agents including, but not limited to, the directors, officers, employees and controlling persons within the meaning of the Securities Act, as the case may be, of the Subscriber and each of its respective affiliates within the meaning of the Securities Act or the U.S. Securities Exchange Act of 1934 (and shall include the partners of any such affiliates) (the “Indemnified Parties”) against all or any costs, expenses (including legal fees), fees, claims, claims, actions, liabilities, demands, proceedings or judgments (including, but not limited to, all such losses, costs, charges or expenses suffered or incurred in disputing or defending any costs, fees, claims, actions, liabilities, demands, proceedings or judgments (the “Proceedings”) and/or in establishing its rights to be indemnified pursuant to this Clause 7 and/or in seeking advice in relation to any Proceedings brought or established or threatened to be brought or established against any of the Indemnified Parties by any governmental agency, regulatory body or other person (the “Losses”)) directly or indirectly arising out of or in connection with or based on any breach or alleged breach of any of the representations, warranties and undertakings contained in this Agreement.
|
7.2
|
The indemnities contained in Clause 7.1 shall remain in full force and effect notwithstanding completion of each of the Subscription in accordance with the terms and conditions herein contained, shall be in addition to any liability which the Company may have and shall extend to include all costs, charges and expenses which the Subscriber and/or any of the Indemnified Parties may reasonably incur or pay in disputing, settling or compromising any matter to which the indemnity might relate and in establishing the right to indemnification pursuant to this Clause 7 in respect of any matter. The Company shall not, without the prior written consent of the Subscriber, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnified Parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each Indemnified Party from all liability arising out of such claim, action, suit or proceeding.
|
7.3
|
If the Subscriber becomes aware of any claim which is relevant for the purposes of Clause 7.1, it will as soon as reasonably practicable give notice in writing thereof to the Company and will consult with the Company and, subject to being indemnified against any additional or increased expenses it may suffer or incur as a result of so doing, give full consideration to the views of the Company in relation to the manner in which the Subscriber shall conduct such claim.
|
7.4
|
The Company shall not, and shall procure that no member of the Group shall, at any time prior to or on the Closing Date do or omit to do anything which would cause any of the representations, warranties and undertakings set out in Clause 6 to be untrue.
|
8
|
TERMINATION
|
8.1
|
Notwithstanding anything contained in this Agreement, if at any time prior to 9:00 a.m. (Hong Kong time) on the Closing Date:
|
|
8.1.1
|
there develops, occurs or comes into force:
|
|
(i)
|
any new law or regulation or any change or development involving a prospective change in existing laws or regulations in any relevant jurisdiction which in the opinion of the Subscriber has or is likely to have a material adverse effect on the financial position of the Group as a whole; or
|
|
(ii)
|
any significant change (whether or not permanent) in local, national or international monetary, economic, financial or political conditions which in the opinion of the Subscriber is or would be materially adverse to the success of the Subscription; or
|
|
(iii)
|
any significant change (whether or not permanent) in local, national or international securities market conditions or currency exchange rates or foreign exchange rates or foreign exchange controls which in the reasonable opinion of the Subscriber is or would be materially adverse to the success of the Subscriber or make it impracticable or inexpedient to proceed therewith; or
|
|
(iv)
|
a general moratorium on commercial banking activities in Hong Kong, the PRC, London or New York declared by the relevant authorities or a material disruption in commercial banking or securities settlement or clearance services in Hong Kong, the PRC, Singapore, the United Kingdom or the United States; or
|
|
(v)
|
a change or development involving a prospective change in Taxation which materially adversely affects the Group as a whole or the Subscription Shares; or
|
|
(vi)
|
any outbreak or escalation of hostilities or act of terrorism involving Hong Kong, the PRC, Singapore, the United Kingdom or the United States or the declaration by Hong Kong, the PRC, Singapore, the United Kingdom or the United States of a national emergency or war; or
|
|
(vii)
|
any suspension of dealings in the Shares on the Stock Exchange or American Depository Shares over the Shares on the New York Stock Exchange for any period whatsoever (other than a voluntary suspension or as a result of the Subscription, the Announcement or in connection with the issuance of the Relevant Securities); or
|
|
(viii)
|
any moratorium, suspension or material restriction on trading in shares or securities generally on the Stock Exchange, the Shanghai Stock Exchange, the London Stock Exchange or the New York Stock Exchange due to exceptional financial circumstances or otherwise at any time prior to the Closing Date; or
|
|
8.1.2
|
any breach of any of the representations, warranties and undertakings set out in Clause 5 or Clause 6 comes to the knowledge of the Subscriber or any event occurs or any matter arises on or after the date hereof and prior to the Closing Date which if it had occurred or arisen before the date hereof would have rendered any of such representations, warranties and undertakings untrue or incorrect in any respect, or there has been a breach of, or failure to perform, any other provision of this Agreement on the part of the Company; or
|
|
8.1.3
|
there is any such adverse change, or development involving a prospective adverse change in the general affairs, condition, results of operations or prospects, management, business or in the financial or trading position of the Group as a whole which in the opinion of the Subscriber is materially adverse to the success of the Subscription,
|
8.2
|
In the event that the Subscriber agree to terminate this Agreement in accordance with Clause 8.1, all obligations of each of the Parties under this Agreement shall cease and no Party shall have any claim against any other Party in respect of any matter arising out of or in connection with this Agreement except for:
|
|
8.2.1
|
any antecedent breach of any obligation under this Agreement; and
|
|
8.2.2
|
liabilities under Clause 7.
|
9
|
ANNOUNCEMENT
|
10
|
TIME OF THE ESSENCE
|
11
|
NOTICES
|
11.1
|
All notices delivered hereunder shall be in writing in English and shall be communicated to the following addresses:
|
11.2
|
Any such notice shall be served either by hand or by facsimile. Any notice shall be deemed to have been served, if served by hand, when delivered and if sent by facsimile, on receipt of confirmation of transmission. Any notice received on a Saturday, Sunday or public holiday shall be deemed to be received on the next Business Day.
|
12
|
MISCELLANEOUS
|
12.1
|
Each Party undertakes with the other Parties that it shall execute and perform and procure that there are executed and performed such further documents and acts as any other Party may reasonably require to give effect to the provisions of this Agreement.
|
12.2
|
This Agreement constitute the entire agreement and understanding between the Parties in connection with the Subscription. This Agreement supersede all previous agreements or understandings which shall cease to have any further force or effect and no Party has entered into this Agreement in reliance upon any representation, warranty or undertaking which is not set out or referred to in this Agreement.
|
12.3
|
No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the Subscriber and the Company. The expression “variation” shall include any variation, supplement, deletion or replacement however effected.
|
12.4
|
This Agreement may be executed in any number of counterparts and by the Parties on separate counterparts, each of which is an original but all of which together constitute one and the same instrument.
|
12.5
|
No failure or delay by any Party in exercising any right or remedy provided by law under or pursuant to this Agreement shall impair such right or remedy or operate or be construed as a waiver or variation of it or preclude its exercise at any subsequent time and no single or partial exercise of any such right or remedy shall preclude any other or further exercise of it or the exercise of any other right or remedy.
|
12.6
|
This Agreement shall be binding upon, and inure solely to the benefit of, each Party and, to the extent provided herein, any directors, officers, employees and controlling persons of each Party, and their heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement.
|
13
|
APPLICABLE LAW AND JURISDICTION
|
13.1
|
This Agreement is governed by and shall be construed in accordance with the laws of Hong Kong for the time being in force and each of the Parties hereby irrevocably submits to the non-exclusive jurisdictions of the courts of Hong Kong in any legal suit, action or proceeding arising out of or based upon this Agreement. Each of the Subscriber and the Company hereby irrevocably waives any objection which it may now or hereafter have to the service of process or the laying of venue in connection with any such proceedings.
|
13.2
|
The Company agrees that the process by which any legal proceedings in Hong Kong are begun may be served on it by being delivered to the Company it at its principal place of business in Hong Kong. If the Company ceases to have a place of business in Hong Kong, the Company shall forthwith appoint a further person in Hong Kong to accept service of process on its behalf in Hong Kong and notify the Subscriber of such appointment, and, failing such appointment within fifteen days, the Subscriber shall be entitled to appoint such a person by notice to the Company. Nothing contained herein shall affect the right to serve process in any other manner permitted by law.
|
SIGNED by /s/ Gareth Kung
for and on behalf of
SEMICONDUCTOR MANUFACTURING INTERNATIONAL CORPORATION
in the presence of:
|
SIGNED by /s/ Guo Guangli
for and on behalf of
DATANG HOLDINGS (HONGKONG) INVESTMENT COMPANY LIMITED
in the presence of:
|
Clause
|
Heading
|
Page
|
1
|
Issue of the Subscription Bonds and Publicity
|
1
|
2
|
Agreement by the Subscriber
|
3
|
3
|
Listing
|
3
|
4
|
Representations, Warranties and Indemnity
|
3
|
5
|
Undertakings of the Issuer
|
13
|
6
|
Conditions Precedent
|
15
|
7
|
Closing
|
17
|
8
|
Expenses
|
17
|
9
|
Termination
|
18
|
10
|
Survival of Representations and Obligations
|
19
|
11
|
Communications
|
19
|
12
|
Currency Indemnity
|
20
|
13
|
Contracts (Rights of Third Parties) Act 1999
|
20
|
14
|
Governing Law and Jurisdiction
|
20
|
15
|
Counterparts
|
21
|
1
|
SEMICONDUCTOR MANUFACTURING INTERNATIONAL CORPORATION (the “Issuer” or the “Company”); and
|
2
|
DATANG HOLDINGS (HONGKONG) INVESTMENT COMPANY LIMITED (the “Subscriber”).
|
(A)
|
The Issuer and Deutsche Bank AG, Hong Kong Branch and J.P. Morgan Securities Plc entered into a subscription agreement (the “Bond Subscription Agreement”) for in relation to an issue of US$95,000,000 Zero Coupon Convertible Bonds due 2018 (the “Further Bonds”), which is consolidated and from the date of issue of the Further Bonds form a single series with (i) the US$200,000,000 Zero Coupon Convertible Bonds due 2018 issued on 7 November 2013 (the “Original Bonds”) (ii) the US$54,600,000 Zero Coupon Convertible Bonds due 2018 issued to Datang pursuant to a subscription agreement dated 18 December 2013 between Datang and the Issuer and the US$32,200,000 Zero Coupon Convertible Bonds due 2018 issued to Country Hill Limited (“CHL”) pursuant to a subscription agreement dated 18 December 2013 between CHL and the Issuer (the “Original Pre-emptive Bonds” and, together with the Original Bonds and the Further Bonds, the “Bonds”). The Bonds shall, where the context so admits, include Bonds evidenced by a global certificate (the “Global Certificate”) representing the Bonds). Definitive Certificates, if required to be issued, will be in registered form in amounts of US$200,000 and integral multiples of US$100,000 thereof.
|
(B)
|
Pursuant to the Datang share purchase agreement (the “Datang Share Purchase Agreement”) dated 6 November 2008 entered into between the Company and Datang Telecom, if the Company proposes to issue new Shares or securities convertible into Shares, the Subscriber has a pre-emptive right to subscribe for a pro rata portion of such new securities issued which is equivalent to the percentage of the issued share capital of the Company then owned by the Subscriber prior to the issue of such securities. In connection with the offering of the Further Bonds, the Company has notified the Subscriber in writing on 5 June 2014 specifying the numbers and type of securities to be offered and the subscription price of the proposed offer. The Subscriber delivered an irrevocable notice to the Company to exercise its pre-emptive right to subscribe for the Subscription Bonds on 18 June 2014
|
(C)
|
The Subscriber and the Company have agreed that the Company shall issue and the Subscriber shall subscribe for the Subscription Bonds on and subject to the terms and conditions of this Agreement and on and subject to substantially the same terms as that of the Bond Subscription Agreement.
|
1
|
Issue of the Subscription Bonds and Publicity
|
1.1
|
Agreement to Issue the Subscription Bonds: The Issuer agrees to issue the Subscription Bonds on the Closing Date. The Subscription Bonds will be subscribed at a price equal to 101.50 per cent. of the principal amount of the Subscription Bonds being an amount equivalent to US$22,533,000 (the “Issue Price”).
|
1.2
|
The Contracts: The Issuer will, not later than the Closing Date, enter into (and provide the Subscriber with a copy of) (1) a supplemental trust deed (the “Supplemental Trust Deed”) with such amendments as approved by the Subscriber of the trust deed dated 7 November 2013 (as so amended, the “Trust Deed”) with The Bank of New York Mellon, London Branch as Trustee (the “Trustee”) and (2) a supplemental agency agreement (the “Supplemental Agency Agreement”) as approved by the Subscriber of the paying, conversion and transfer agency agreement dated 7 November 2013 (as so amended, the “Agency Agreement”) with The Bank of New York Mellon, London Branch (the “Principal Paying Agent”), the Trustee and the agents named in it. This Agreement, the Supplemental Trust Deed and the Supplemental Agency Agreement are together referred to as the “Contracts”.
|
1.3
|
Offering Circular: The Issuer prepared an offering circular (the “Offering Circular”) dated 20 June 2014 (the “Publication Date”) for use in connection with the offering of the Further Bonds and the listing of the Further Bonds on the Singapore Exchange Securities Trading Limited (the “Singapore Stock Exchange”)
|
1.4
|
Conditions: The terms and conditions of the Bonds (the “Terms and Conditions”) are as set out in Schedule 1 of the Trust Deed and are summarised in the Offering Circular and attach to this Agreement as Schedule 1 for reference.
|
1.5
|
Definitions: In this Agreement (including the recitals), the following expressions shall, unless the context requires otherwise, have the following meanings:
|
2
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Agreement by the Subscriber
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2.1
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Subscription: The Subscriber agrees to subscribe and pay for the Subscription Bonds at the Issue Price on the Closing Date on the terms of this Agreement.
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3
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Listing
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3.1
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Application for Listing: The Issuer confirms that it has made or caused to be made an application for the Subscription Bonds to be listed on the Singapore Stock Exchange and that it will, in accordance with the terms of this Agreement, make or cause to be made an application for the Shares to be issued on conversion of the Subscription Bonds (the “New Shares”) to be listed on The Stock Exchange of Hong Kong Limited (the “Hong Kong Stock Exchange”).
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3.2
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Supply of Information: The Issuer agrees to deliver to the Singapore Stock Exchange copies of the Offering Circular and to take such other steps as may be required for the purpose of obtaining such listing, provided that if such listing has not been obtained by the Closing Date, the Issuer agrees that it shall use reasonable endeavours to obtain a listing of the Subscription Bonds on the Singapore Stock Exchange or such other stock exchange mutually acceptable to the Subscriber and the Issuer as soon as practicable following the Closing Date, which shall include the preparation of listing particulars based on the Offering Circular and containing the relevant information required by the relevant stock exchange to obtain such listing.
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3.3
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Maintenance of Subscription Bond Listing: The Issuer will use reasonable endeavours to obtain and maintain such listing for as long as any Subscription Bond is outstanding and pay all fees and supply any and all documents, information and undertakings and publish all announcements as required by the Singapore Stock Exchange for such purpose. If, however, they are unable to maintain such listing, having used such endeavours, or if the maintenance of such listing is unduly onerous, the Issuer will instead use reasonable endeavours as soon as reasonably practicable to obtain and thereafter to maintain a listing for the Bonds on such other stock exchange, as is commonly used for the quotation or listing of debt securities, prior to the Closing Date as it may (with the approval of the Subscriber) decide or, failing such decision, as the Subscriber may reasonably determine and after the Closing Date in accordance with the terms of the Trust Deed.
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3.4
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Share Listing: The Issuer will use reasonable endeavours to maintain the listing of the Shares on the Hong Kong Stock Exchange, and to pay all fees and supply any and all documents, information and undertakings and publish all announcements as required by the Hong Kong Stock Exchange for such purpose. If, however, it is unable to maintain such listing, having used such endeavours, the Issuer will instead use reasonable endeavours to obtain and thereafter to maintain a listing for the New Shares on such other stock exchange as it may decide.
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4
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Representations, Warranties and Indemnity
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4.1
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The Issuer represents and warrants to and (where applicable) agree with, the Subscriber that:
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4.1.1
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Validity of the Subscription Bonds: the Subscription Bonds have been duly authorised by the Issuer and, when duly executed, authenticated, issued and delivered in accordance with the other Contracts, the Subscription Bonds will constitute valid and legally binding obligations of the Issuer;
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4.1.2
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Status: the Subscription Bonds (when issued) will constitute direct, unconditional, unsecured and unsubordinated obligations of the Issuer and will at all times rank pari passu without any preference among themselves and with all other present and future direct, unconditional, unsecured and unsubordinated obligations of the Issuer other than those preferred by statute or applicable law and subject to the Terms and Conditions;
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4.1.3
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Authorised Share Capital: the Issuer has or, prior to the Closing Date will have, sufficient authorised but unissued share capital to satisfy the issue of such number of New Shares as would be required to be issued on conversion of all the Subscription Bonds at the initial conversion price and shall maintain at all times sufficient authorised but unissued share capital to satisfy the issue of sufficient New Shares at the prevailing conversion price of the Subscription Bonds;
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4.1.4
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New Shares: the New Shares, when issued and delivered in the manner contemplated by the Subscription Bonds and the Trust Deed:
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(i)
|
will be duly and validly issued, fully-paid and non-assessable;
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(ii)
|
will conform in all material respects to the description thereof contained in the Offering Circular;
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(iii)
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will rank pari passu and carry the same rights and privileges in all respects as any other class of ordinary share capital of the Issuer and shall be entitled to all dividends and other distributions declared, paid or made thereon save as provided for in the Terms and Conditions; and
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(iv)
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will be freely transferable, free and clear of all liens, charges, encumbrances, security interests or claims of third parties; and will not be subject to calls for further funds;
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4.1.5
|
Restrictions: there are no restrictions on transfers of the Subscription Bonds or the voting or transfer of any of the Shares or payments of dividends with respect to the Shares under laws or regulations of the Cayman Islands or Hong Kong, or pursuant to the Issuer’s constitutional documents, or pursuant to any agreement or other instrument to which the Issuer is a party or by which it may be bound;
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4.1.6
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Capitalisation: the Issuer has an authorised capitalisation as set forth in the Offering Circular under the heading “Capitalisation”; and all the outstanding shares of capital stock or other equity interests of each subsidiary of the Issuer have been duly and validly authorised and issued, are fully paid and non-assessable, and all such equity interests are owned directly or indirectly by the Issuer, free and clear of all liens, charges, encumbrances, security interests, restrictions on voting or transfer or claims of any third party;
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4.1.7
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Listing: all of the currently issued Shares have been duly listed on the Hong Kong Stock Exchange;
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4.1.8
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Announcement: all statements of fact contained in the Announcement (including but not limited to the disclosure on the use of proceeds) are true and accurate in all material respects as at the date of its publication and all statements of opinion, intention, expectation or estimates of the Directors in relation to the Company and/or any of the Company’s subsidiaries (together with the Company, the “Group”) contained therein (if any) are truly and honestly held and have been made on reasonable grounds after due and careful consideration, and the Announcement does not include an untrue statement of a material fact or omit to state a fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading in any material respect;
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4.1.9
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No non-public information: save for the matters set out in the Announcement, the Company is not in possession of any non-public information relating to the Company, any other member of the Group or their respective businesses the release of which could materially affect the trading price of the Shares and there is not in existence any material or information relating to the Company which will be required to be but has not been disclosed by the Company under the HK Listing Rules or the Exchange Act. Without prejudice to the generality of the foregoing, there is no material information (including, without limitation, any information regarding any material adverse change or prospective material adverse change in the condition of, or any actual, pending or threatened litigation, arbitration or similar proceeding involving, the Group) that is not described in the Company’s most recent annual report or subsequent public information releases (the “Company Information”) which information is necessary to enable investors to make an informed assessment of the assets and liabilities, financial position, profits and losses and prospects of the Group; the Company Information does not include any untrue statement of a material fact or omit to state any fact necessary in order to make the statements therein not misleading in any material respect;
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4.1.10
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Information: all information (whether oral, written, electronic or in any other form) supplied by or on behalf of the Company, any other member of the Group or any of their respective officers, directors, employees or advisers, for the purpose of or in connection with the issue of the Subscription Bonds or the Company and all publicly available information and records of the Company since 1 January 2012 (including information contained in annual reports, statutory filings and registrations) is and was, when supplied or published, true and accurate in all material respects and not misleading in any material respect;
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4.1.11
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Litigation: save as disclosed in the Company Information, there is no claim, litigation, arbitration, prosecution or other legal proceedings or police, legal or regulatory investigation or enquiry in progress or pending or threatened against any member of the Group or any of its properties or (as far as the Company is aware) the Company’s executive directors, officers, properties or employees nor, so far as the Company is aware, is there any claim or any facts or circumstances of a material nature which would give rise to a claim against any member of the Group or any of its properties or the Company’s executive directors, which in any such case would result in a Material Adverse Effect;
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4.1.12
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No Material Adverse Change: save as disclosed in the Company Information, there has been no material adverse change, or any development involving or reasonably likely to involve a prospective material adverse change, in the condition, financial or otherwise, or the earnings, net assets, business affairs or business prospects (whether or not arising in the ordinary course of business) of the Company or the Group as a whole since 31 December 2013;
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4.1.13
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Incorporation: each member of the Group is duly incorporated and validly existing under the laws of the place of its incorporation and each member of the Group has power to own its assets and to conduct its business in the manner presently conducted and there has been no petition filed, order made or effective resolution passed for the liquidation or winding up of any member of the Group;
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4.1.14
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Approvals:
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(i)
|
each member of the Group has obtained such certificates, authorisations, licences, orders, consents, approvals or permits (“Approvals”) issued by, and has made all declarations and filings with, all appropriate national, state, local and other governmental agencies or bodies, all exchanges and all courts and other tribunals, domestic or foreign, as are required under the provisions of any applicable law in connection with the operation of its business;
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(ii)
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there is no breach by any member of the Group of the Approvals or provisions of any ordinance, statute or regulation governing such authorisations or licences which would result in a Material Adverse Effect nor is there any reason why any such Approvals should be withdrawn, revoked, modified or cancelled;
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4.1.15
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Laws and Listing Rules: the Company is not in breach of any rules, regulations or requirements of the Hong Kong Stock Exchange or any applicable laws and, in particular, the Company has complied at all times with the applicable rules and requirements under the Listing Rules and all applicable laws, save for any breach or non-compliance which is not material in the context of the issue of the Subscription Bonds;
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4.1.16
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No order or judgment: save as disclosed in the Company Information, there is no order, decree or judgement of any court or governmental agency or regulatory body outstanding or anticipated against any member of the Group which would result in a Material Adverse Effect;
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4.1.17
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Contingent Liabilities: no material outstanding indebtedness of any member of the Group has become payable or repayable by reason of any default of any member of the Group and no event has occurred or is impending which may result in such indebtedness becoming payable or repayable prior to its maturity date, in a demand being made for such indebtedness to be paid or repaid or in any step being taken to enforce any security for any such indebtedness of any member of the Group which would result in a Material Adverse Effect;
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4.1.18
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No default: save as disclosed in the Company Information, no member of the Group is a party to or under any obligation which is material and which is of an unusual or unduly onerous nature; no member of the Group is in breach of or in default (nor has event occurred which, with the giving of notice and/or lapse of time and/or fulfillment of any other requirement would result in a default by the Issuer or any member of the Group) of its constitutional documents or any contract or agreement which, individually or in the aggregate may have or has had a material adverse effect upon the condition, financial or otherwise or the earnings, business affairs or business prospects (whether or not arising in the ordinary course of business) or properties of the Company or of the Group (taken as a whole) or would adversely affect the ability of the Issuer to perform its obligations under the Contracts or which is material in the context of the issue of the Subscription Bonds (“Material Adverse Effect”);
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4.1.19
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Offering Circular: on the Publication Date:
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|
(i)
|
the Offering Circular contains all information with respect to the Issuer, the Group, the New Shares and the Bonds which is material in the context of the issue of the Subscription Bonds (including the information which, is required by applicable laws of Cayman Islands and according to the particular nature of the Issuer, the Shares and the Subscription Bonds, is necessary to enable investors and their investment advisers to make an informed assessment of the assets and liabilities, financial position, profits and losses, and prospects of the Issuer and of the rights attaching to the Shares and the Bonds);
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(ii)
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the statements contained in the Offering Circular relating to the Issuer and to the Group, are be true and accurate in all material respects and not misleading;
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(iii)
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the opinions and intentions expressed in the Offering Circular with regard to the Issuer and to the Group are honestly held, have been reached after considering all relevant circumstances and based on reasonable assumptions;
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(iv)
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there are no other facts in relation to the Issuer, the Group, the New Shares or the Further Bonds the omission of which would, in the context of the issue and offering of the Further Bonds make any statement in the Offering Circular misleading in any material respect;
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(v)
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all reasonable enquiries have been made by the Issuer to ascertain such facts and to verify the accuracy of all such information and statements; and
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(vi)
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the Offering Circular does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
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4.1.20
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Financial Statements: the consolidated audited financial statements of the Issuer and its consolidated subsidiaries taken as a whole (the “Consolidated Group”) as at and for the three years ended 31 December 2011, 2012 and 2013 and the consolidated financial statements of the Consolidated Group as at and for the three months ended 31 March 2014 provided to the Subscriber and included in the Offering Circular were prepared in accordance with International Financial Reporting Standards (“IFRS”), and pursuant to the relevant laws of, Hong Kong consistently applied and present a true and fair view of the financial position of the Issuer and of the Consolidated Group as at the dates, and the results of operations and changes in financial position of the Issuer and of the Consolidated Group for the periods in respect of which they have been prepared;
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4.1.21
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Title:
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|
(i)
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the Issuer and each member of the Group has good and marketable title to all real property, personal property and any other assets owned by it (including such property or assets as described in the Offering Circular) or any rights or interests thereto, in each case as is necessary to conduct the business now operated by it (“Assets”);
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(ii)
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the Issuer and each member of the Group has received all necessary approvals in order to have good and marketable title to its Assets, including without limitation approvals relating to the evaluation, acquisition and perfection of such title; and
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(iii)
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there are no charges, liens, encumbrances or other security interests or third party rights or interests, conditions, planning consents, orders, regulations, defects or other restrictions affecting any of such Assets which could have a material adverse effect on the value of such Assets, or limit, restrict or otherwise have a material adverse effect on the ability of the relevant member of the Group to utilise or develop any such Assets and, where any such Assets are held under lease, each lease is a legal, valid, subsisting and enforceable lease,
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4.1.22
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Validity of Contracts: (i) the Company has power under its constitutional documents to permit its entry into, and perform its obligations under, this Agreement in the manner set out herein and the other Contracts, and (ii) this Agreement (and its performance) has been duly authorised (such authorisation remaining in full force and effect) and executed by and constitutes, and the other Contracts (and their performance) will be duly authorised by the Company prior to the Closing Date and upon execution and delivery prior to or on the Closing Date will constitute, legally binding and enforceable obligations of the Company in accordance with their respective terms, subject to the laws relating to bankruptcy, insolvency, liquidation, possessory liens, rights of set off, reorganisation, amalgamation, merger, consolidation, moratorium or any other laws or legal procedures, whether of a similar nature or otherwise, generally affecting the rights of creditors, and general principles of equity;
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4.1.23
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Consents: there is no authorisation, consent, approval, licence or notification required for the purposes of or as a consequence of the issue of the Subscription Bonds, the issue of the New Shares on conversion of the Subscription Bonds, the carrying out of the other transactions contemplated by the Contracts and the Subscription Bonds, or the compliance by the Issuer with the terms of the Bonds or the Contracts, either from governmental, regulatory or other public bodies or authorities or courts or from any third party pursuant to any contractual or other arrangement to which the Company or any other member of the Group is a party, except for those which have been, or will on or prior to the Closing Date be, obtained (including but not limited to the approval for the listing of the Subscription Bonds on the Singapore Stock Exchange and the approval for the listing of and permission to deal in the New Shares by the Hong Kong Stock Exchange);
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4.1.24
|
Compliance: the execution and delivery of the Contracts, the issue of the Subscription Bonds, the compliance by the Company with all of the provisions of the Contracts, the issue of the New Shares on conversion of the Subscription Bonds as well as the consummation of the transactions contemplated in the Contracts do not and will not:
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|
(i)
|
conflict with or result in a breach of any of the provisions of or under, the documents constituting the Issuer or its subsidiaries;
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|
(ii)
|
conflict with or result in a breach or violation of, or result in any third party consent being required under, or constitute a default (nor has any event occurred which, with the giving of notice and/or the lapse of time and/or the fulfillment of any other requirement would result in a default) by the Issuer or any member of the Group under any of the terms or provisions of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant, instrument, to which any member of the Group is a party or by which any of the property or assets of any member of the Group is subject; or
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(iii)
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infringe any existing applicable law, order, rule or regulation, including, without limitation, to the extent applicable, the Companies Ordinance, the Listing Rules, the Takeovers Code or any judgment, authorization decree or order of any court or governmental agency or body or court, domestic or foreign, having jurisdiction over any member of the Group or the property or assets of any member of the Group;
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4.1.25
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Pre-emptive Rights and Options: except for (i) the issue of Shares under the Placing Agreement (ii) the issue of any Bonds or Shares to be issued upon conversion of Bonds pursuant to any pre-emptive rights arising from the share subscription agreement entered into between the Issuer and CHL dated 18 April 2011 (including without limitation the Country Hill Pre-emptive Securities); and (iii) the issue of Shares upon conversion of the Bonds (including the Subscription Bonds); and (iv) the issue of any share options and restricted share units pursuant to any share option schemes adopted in compliance with the Hong Kong Listing Rules and any publicly disclosed equity incentive plans of the Issuer:
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(i)
|
there are no outstanding securities issued by the Issuer or its subsidiaries convertible into or exchangeable for, or warrants, rights or options, or agreements to grant warrants, rights or options, to purchase or to subscribe for Shares from the Issuer or its subsidiaries; and
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(ii)
|
there are no other or similar arrangements approved by the Board of Directors of the Issuer or a general meeting of shareholders of the Issuer providing for the issue or purchase of Shares or the subscription for Shares;
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4.1.26
|
No Repurchases: the Issuer has not made any repurchases of shares (as defined in the Hong Kong Stock Exchange listing rule 10.06(6)(c))in the 30 day period prior to the date of this Agreement;
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4.1.27
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Anti-Money Laundering: the operations of the Issuer and each member of the Group (except for Brite Semiconductor, Inc) and, to the best of the knowledge of the Issuer (after due and careful enquiry), Brite Semiconductor, Inc and any of the Issuer’s jointly controlled entities are and have been conducted at all times in compliance with all applicable anti-money laundering laws, regulations, rules and guidelines in its jurisdiction and in each other jurisdiction in which such entity, as the case may be, conducts business (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any member of the Group and any of their jointly controlled entities with respect to the Money Laundering Laws is pending or, to the best knowledge of the Issuer (after due and careful enquiry), threatened;
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4.1.28
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No Unlawful Payments: neither the Issuer nor any member of the Group nor any director, officer or employee of, nor, to the best of the knowledge of the Issuer (after due and careful enquiry), any agent, affiliate of or other person acting on behalf of the Issuer or any member of the Group, is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), or any other applicable anti-bribery or anti-corruption law or regulation similar to the FCPA (including but not limited to, the UK Bribery Act of 2010), in any other jurisdiction in which the Issuer or any member of the Group operates including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorisation of the payment of any money, or other property, gift, promise to give, or authorisation of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA or any other similar applicable anti-bribery or anti-corruption law or regulation of any such other jurisdiction; and the Issuer and every member of the Group has conducted their businesses in compliance with the FCPA and any other similar applicable anti-bribery or anti-corruption law or regulation of any such other jurisdiction and have instituted and maintain policies and procedures designed to ensure continued compliance with, and prevent violation of, such laws, rules and regulations;
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4.1.29
|
Sanctions: neither the Issuer nor any member of the Group nor any director, officer, or employee of, nor, to the best of the knowledge of the Issuer (after due and careful enquiry), any agent, affiliate of or other person acting on behalf of the Issuer or any member of the Group:
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(i)
|
is an individual or entity (a “Person”) currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Government (including but not limited to the designation as a “specially designated national” or “blocked person” thereunder) or any sanctions or requirements imposed by, or based upon the obligations or authorisations set forth in, the U.S. Trading With The Enemy Act, the U.S. International Emergency Economic Powers Act, the U.S. United Nations Participation Act, the Iran Sanctions Act, the Comprehensive Iran Sanctions Accountability and Divestment Act and Section 1245 of the National Defense Authorization Act for Fiscal Year 2012, the U.S. Syria Accountability and Lebanese Sovereignty Act, or the Iran Threat Reduction and Syria Human Rights Act of 2012, all as amended, or any Executive Orders issued in relation to the imposition of sanctions, or any sanctions or measures imposed by the United Nations Security Council, the European Union or Her Majesty’s Treasury (“HMT”) (collectively, the “Sanctions”);
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(ii)
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is located, organised or operating in a country or territory that is the subject of Sanctions;
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(iii)
|
has for the past five years engaged in, and is now engaged in any dealings or transactions with any government, person, entity or project targeted by, or located in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions;
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(iv)
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is or has been in violation of or subject to an investigation relating to any Sanctions; and neither the Issuer, the Guarantor nor any member of the Group will directly or indirectly use the proceeds of the offering of the Further Bonds hereunder, or lend, contribute or otherwise make available all or part of such proceeds to any subsidiary, joint venture partner or other Person, for the purpose of financing the activities of or business with any Person currently subject to any Sanctions or operating in any country or territory that is the subject of Sanctions where such operations are in violation of such Sanctions or in any other manner that would result in a violation by any Person (including any Person participating in the offering, whether as underwriter, adviser, investor or otherwise) of Sanctions;
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4.1.30
|
Environmental Laws: each member of the Group has complied in all respects with all applicable Environmental Laws, save where any non-compliance would not have a Material Adverse Effect. For the purpose of this Clause 4.1.35, “Environmental Laws” means any and all supra-national, national, state, local and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licences, agreements or other governmental restrictions relating to the protection of the environment (including, without limitation, human, animal and plant life, ambient air, surface water, ground water, or land), the protection of property and proprietary rights or for the compensation of harm to the environment whether by clean-up, remediation, containment or other treatment or the payment of monies to any competent authority;
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4.1.31
|
Insurance: the Issuer and each member of the Group has in place all insurance policies necessary and customary for the conduct of their businesses as currently operated and for compliance with all requirements of law, such policies are in full force and effect, and all premiums with respect thereto have been paid, and no notice of cancellation or termination has been received with respect to any such policy, and each member of the Group has complied in all material respects with the terms and conditions of such policies, except where breach of this provision would not have a Material Adverse Effect;
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4.1.32
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Intellectual Property: the Issuer and each member of the Group owns or possesses, or can acquire on reasonable terms, adequate patents, patent rights, licences, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual Property”) necessary to carry on the business now operated by it in each country in which it operates as described in the Offering Circular, and neither the Issuer nor any member of the Group has received any notice or is otherwise aware of any infringement of or conflict in any jurisdiction with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Issuer or any member of the Group therein, and which infringement or conflict (if the subject of any unfavourable decision, ruling or finding) or invalidity or inadequacy, individually or in the aggregate, would have a Material Adverse Effect; and
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4.1.33
|
Events of Default or Relevant Event: no event has occurred or circumstance arisen which, had the Subscription Bonds already been issued, could reasonably be expected to (whether or not with the giving of notice and/or the passage of time and/or the fulfilment of any other requirement): (i) constitute an event described under “Events of Default” in the Terms and Conditions; (ii) a Relevant Event (as defined in the Terms and Conditions) resulting in the entitlement of the Bondholders to exercise the put option under the Subscription Bonds; or (iii) require an adjustment of the initial conversion price of the Subscription Bonds.
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4.2
|
Repetition: Subject to Clause 9, the representations and warranties contained in, or given pursuant to, Clause 4.1 shall be deemed to have been repeated on the Closing Date taking into account facts and circumstances subsisting at such date.
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4.3
|
Indemnity:
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|
4.3.1
|
The commitment of the Subscriber under this Agreement being made on the basis of the foregoing representations and warranties and agreements of the Issuer with the intention that such representations and warranties shall remain true and accurate in all respects up to and including the Closing Date and that the agreements shall have been performed on or before the Closing Date and the Issuer undertakes to pay the Subscriber on demand an amount which on an after tax basis is equal to any liability, damages, cost, claim, loss or expense (including, without limitation, legal fees, costs and expenses) (a “Loss”) incurred by it, its respective subsidiaries, affiliates or any person who controls any of them or any of their respective directors, officers, employees or agents (each an “Indemnified Person”) in respect of or in connection with:
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|
(i)
|
any breach or alleged breach of any of the representations, warranties, undertakings or agreements contained in, or deemed to be made pursuant to, this Agreement or any certificate issued by the Issuer, including (without limitation) the failure by the Issuer to issue the Subscription Bonds;
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(ii)
|
any untrue statement or alleged untrue statement of a material fact contained in the Offering Circular (or any supplement to it), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading;or
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|
(iii)
|
the failure or alleged failure by the Issuer or any member of the Group or any of their respective directors or officers to comply with any requirements of statute or regulation in relation to the issue of the Subscription Bonds.
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4.3.2
|
The Subscriber shall not have any duty or obligation, whether as fiduciary or trustee for any Indemnified Person or otherwise, to recover any such payment or to account to any other person for any amounts paid to it under this Clause 4.3 and save to the extent notified in writing to an Indemnified Person by the Subscriber, the Subscriber (without obligation) will have the sole conduct of any action to enforce such rights on behalf of the Indemnified Person. This Agreement may be terminated, amended or varied in any way and at any time by the parties hereto without the consent of any Indemnified Person.
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4.3.3
|
For the avoidance of doubt, the amount of any claim by the Subscriber against the Issuer pursuant to Clause 4.3.1 shall be reduced by any amount recovered by an Indemnified Person pursuant to Clause 4.3.2 and vice versa, in respect of the same Loss where it has recovered such Loss from the Issuer under any such Clause.
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5
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Undertakings of the Issuer
|
5.1
|
Taxes: the Issuer will pay:
|
|
(i)
|
any stamp, issue, registration, documentary or other taxes and duties, including interest and penalties in the Cayman Islands, the United Kingdom, Singapore, Hong Kong, the Grand Duchy of Luxembourg or Belgium and all other relevant jurisdictions payable on or in connection with the creation, issue and offering of the Subscription Bonds or the execution or delivery of the Contracts; and
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(ii)
|
in addition to any amount payable by it under this Agreement, any value added, service, turnover or similar tax payable in respect thereof (and references in this Agreement to such amount shall be deemed to include any such taxes so payable in addition to it);
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5.2
|
Delivery of Offering Circular: the Issuer will deliver to the Subscriber, without charge, from time to time as reasonably requested, such number of copies of the Offering Circular and all amendments and supplements thereto as the Subscriber may reasonably request;
|
5.3
|
Amendment: if at any time prior to the Closing Date any event shall have occurred as a result of which the Offering Circular, as then amended or supplemented, would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they are made when such Offering Circular is delivered, not misleading, or if for any other reason it shall be necessary to amend or supplement the Offering Circular, the Issuer will notify the Subscriber, and, upon reasonable request from the Subscriber, will prepare and furnish without charge to the Subscriber as many copies as the Subscriber may from time to time reasonably request of such amendment or a supplement to the Offering Circular which will correct such statement or omission and the representations and warranties contained in, or given pursuant to, Clause 4.1 will be true and accurate with respect to such amendment or supplement to the Offering Circular as if repeated as at its date;
|
5.4
|
Warranties: the Issuer will as soon as reasonably practicable, notify the Subscriber if at any time prior to payment of the subscription moneys to the Issuer on the Closing Date anything occurs which renders or may render untrue or incorrect in any respect any of its representations, warranties, agreements and indemnities herein and will as soon as reasonably practicable, take such steps as the Subscriber may reasonably require to remedy and/or publicise the fact;
|
5.5
|
Lock-up: neither the Issuer nor any person acting on its or their behalf will (a) issue, offer, sell, pledge, contract to sell or otherwise dispose of or grant options, issue warrants or offer rights entitling persons to subscribe or purchase any interest in any Shares or securities of the same class as the Bonds or the Shares or any securities convertible into, exchangeable for or which carry rights to subscribe or purchase the Bonds, the Shares or securities of the same class as the Bonds, the Shares or other instruments representing interests in the Bonds, the Shares or other securities of the same class as them, (b) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of the ownership of the Shares, (c) enter into any transaction with the same economic effect as, or which is designed to, or which may reasonably be expected to result in, or agree to do, any of the foregoing, whether any such transaction of the kind described in (a), (b) or (c) is to be settled by delivery of Shares or other securities, in cash or otherwise or (d) announce or otherwise make public an intention to do any of the foregoing, in any such case without the prior written consent of the Subscriber between the date hereof and the date which is 90 days after the date hereof (both dates inclusive); except for (i) the issue of any Shares under the Placing Agreement and (ii) the issue of any Bonds or Shares to be issued upon conversion of Bonds pursuant to any pre-emptive rights arising from the share subscription agreement entered into between the Issuer and CHL dated 18 April 2011 (including but not limited to the Country Hill Pre-emptive Securities); and (iii) the issue of any Shares to be issued upon conversion of the Bonds (including the Subscription Bonds); and (iv) the issue of any share options and restricted share units pursuant to any share option schemes adopted in compliance with the Hong Kong Listing Rules and any publicly disclosed equity incentive plans of the Issuer, and (v) the issue of any Shares which are issued as consideration for any merger or acquisition provided that (1) the aggregate value of the Shares issued (as calculated by the Current Market Price (as defined in the Terms and Conditions) is less than US$100,000,000 and (2) the Issuer procures that the person receiving such Shares executes a shareholder lock-up undertaking on substantially the same terms as provided in this Clause prior to any such issue. For the avoidance of doubt, any additional lock-up undertaking entered into pursuant to the above shall only be for a period of 90 days from the date of this Agreement;
|
5.6
|
Conversion: the Issuer will issue, in accordance with the Terms and Conditions, New Shares (which rank pari passu with the other Shares then outstanding) free and clear of all liens, claims, charges, security, encumbrances or like interests upon conversion of Subscription Bonds pursuant to the Terms and Conditions;
|
5.7
|
Conversion Price: Except for the issue of any Shares under the Placing Agreement, the issue of Shares under the Original Pre-emptive Bonds, the Further Bonds, the Subscription Bonds or Shares to be issued upon conversion of the Bonds as described in the Announcement (including any potential exercise of pre-emptive rights by CHL), the issue of the Country Hill Pre-emptive Securities, or the issue of share options and restricted share units issued pursuant to any share option schemes adopted in compliance with the Hong Kong Listing Rules and any publicly disclosed equity incentive plans of the Issuer, (i) between the date hereof and the Closing Date (both dates inclusive), neither the Issuer nor any person acting on its or their behalf will take, directly or indirectly, any action designed to or which constitutes or which might reasonably be expected to cause or result in an adjustment of the initial conversion price of the Bonds and (ii) the Issuer will not take any action that would reduce the conversion price of the Bonds below a level that may be prescribed by applicable laws and regulations from time to time (if any);
|
5.8
|
Approvals and Filing: the Issuer will use reasonable endeavours to obtain all approvals and consents and as soon as reasonably practicable make all notifications, registrations and filings as may from time to time be required in relation to the Subscription Bonds and/or the New Shares;
|
5.9
|
Clearing Systems: the Issuer shall use reasonable endeavours to permit the Subscription Bonds to be eligible for clearance and settlement through the facilities of Euroclear and Clearstream, Luxembourg;
|
5.10
|
Use of Proceeds: the Issuer shall use the net proceeds from the issue of the Subscription Bonds in the manner specified in the Announcement;
|
5.11
|
Sanctions: Neither the Issuer nor any member of the Group will directly or indirectly use the proceeds of the offering of the Subscription Bonds hereunder, or lend, contribute or otherwise make available all or part of such proceeds to any subsidiary, joint venture partner or other Person, for the purpose of financing the activities of or business with any Person currently subject to any Sanctions or operating in any country or territory that is the subject of Sanctions where such operations are in violation of such Sanctions or in any other manner that would result in a violation by any Person (including any Person participating in the offering, whether as underwriter, adviser, investor or otherwise) of Sanctions;
|
5.12
|
Announcement: between the date hereof and a period of 40 days after the Closing Date (both dates inclusive), the Issuer will, and will cause its subsidiaries and affiliates and all other parties acting on its or their behalf to, without the prior consent of the Subscriber (unless prevented by applicable law or regulations), not issue any announcement concerning, or which could be material in the context of, the issue of the Subscription Bonds except as required by applicable law, regulations or rules (including the HK Listing Rules and Securities and Futures Ordinance (Chapter 571 of the Laws of Hong Kong));
|
5.13
|
Financial Information: so long as any of the Bonds remains outstanding the Issuer will furnish to the Subscriber, copies of financial statements and other periodic reports that the Issuer may furnish generally to holders of its debt securities;
|
6
|
Conditions Precedent
|
6.1
|
The obligations of the Subscriber to subscribe and pay for the Subscription Bonds are conditional on:
|
|
6.1.1
|
Other Contracts: the execution and delivery (on or before the Closing Date) of the other Contracts, each in a form reasonably satisfactory to the Subscriber, by the respective parties;
|
|
6.1.2
|
Compliance: at the Closing Date:
|
|
(i)
|
the representations and warranties of the Issuer in this Agreement being true, accurate and correct at, and as if made on such date;
|
|
(ii)
|
the Issuer having performed all of its obligations under this Agreement to be performed on or before such date; and
|
|
(iii)
|
there having been delivered to the Subscriber a certificate in the form attached in Schedule 2, dated as of such date, of a duly authorised officer of the Issuer to such effect;
|
|
6.1.3
|
Material adverse change: after the date hereof up to and at the Closing Date, there not having occurred any change (nor any development or event reasonably likely to involve a prospective change), in the condition (financial or other), prospects, results of operations or general affairs of the Issuer or of the Group, which, in the opinion of the Subscriber, is material and adverse in the context of the issue of the Subscription Bonds;
|
|
6.1.4
|
Other consents: on or prior to the Closing Date there shall have been obtained by the Issuer all resolutions, consents, authorities and approvals required in relation to the issue of the Subscription Bonds and the performance of its obligations under the Trust Deed, the Agency Agreement and the Subscription Bonds (including the consents and approvals required from all lenders);
|
|
6.1.5
|
Listing: the Hong Kong Stock Exchange having agreed to list the New Shares upon conversion of the Subscription Bonds and the Singapore Stock Exchange having agreed, subject to any conditions reasonably satisfactory to the Subscriber, to list the Subscription Bonds (or, in each case, the Subscriber being reasonably satisfied that such listing will be granted); and
|
|
6.1.6
|
Legal Opinions: on or before the Closing Date, there having been delivered to the Subscriber a true and correct copy of each of the opinions dated 24 June 2014:
|
|
(i)
|
Slaughter and May, legal advisers to the Issuer as to English law; and
|
|
(ii)
|
Conyers Dill & Pearman (Cayman) Limited, legal advisers to the Issuer as to Cayman Islands law.
|
6.2
|
Waiver: The Subscriber may, at its discretion and upon such terms as it thinks fit, waive compliance with the whole or any part of this Clause 6 (other than 6.1.2).
|
6.3
|
The obligations of the Issuer to issue the Subscription Bonds are conditional on:
|
|
6.3.1
|
Shareholders’ approval: the Issuer having obtained the approval of the shareholders of the Issuer (other than the Subscriber or its associates (as defined in the HK Listing Rules) in general meeting of a special mandate for the issue of the Subscription Bond pursuant to this Agreement and the Shares upon conversion of the Subscription Bond (including those Shares issuable as a result of any adjustment to the conversion price pursuant to the terms and conditions of the Bonds as set out in the Offering Circular);
|
|
6.3.2
|
Listing: the Hong Kong Stock Exchange having agreed to list the New Shares upon conversion of the Subscription Bonds and the Singapore Stock Exchange having agreed, subject to any conditions reasonably satisfactory to the Issuer, to list the Subscription Bonds (or, in each case, the Issuer being reasonably satisfied that such listing will be granted); and
|
|
6.3.3
|
No governmental prohibition: the issue of the Subscription Bond by the Issuer and the subscription of the Subscription Bond by the Subscriber shall not be prohibited by any law or governmental order or regulation and the Subscriber shall have obtained government approvals or consent for subscription of the Subscription Bond from the Ministry of Commerce, the National Development and Reform Commission, and the State Administration of Foreign Exchange.
|
7
|
Closing
|
7.1
|
Issue of the Further Bonds: At 3:00 pm (Hong Kong time) (or such other time as may be agreed by the Subscriber and the Issuer) on the Closing Date, the Issuer will issue the Subscription Bonds and procure the entry in the register of Bondholders of the name of The Bank of New York Mellon Depository (Nominee) Limited to be the holder of the Subscription Bonds and will deliver to the Subscriber or its order in such place as the Subscriber may require the Global Certificate duly executed and authenticated representing the aggregate principal amount of the Subscription Bonds. Delivery of the Global Certificate and completion of the register of Bondholders shall constitute the issue and delivery of the Subscription Bonds; and
|
7.2
|
Payment: Against such delivery the Subscriber will pay to the Issuer the subscription moneys for the Subscription Bonds (being the aggregate amount payable for the Subscription Bonds calculated at the Issue Price). Such payment shall be made by a depositary (the “Common Depositary”) common to Euroclear Bank S.A./N.V. and Clearstream Banking, société anonyme, on behalf of the Subscriber in U.S. dollars in same day settlement funds for value on the Closing Date to such US dollar account in New York City as shall be notified by the Issuer to the Subscriber not later than five days prior to the Closing Date, evidence of such payment taking the form of a confirmation by the Common Depositary that it has made such payment.
|
8
|
Expenses
|
8.1
|
General Expenses: For the avoidance of doubt, in connection with the issue of the Subscription Bonds the Issuer agrees to pay:
|
|
(i)
|
all reasonable costs and expenses in connection with (a) the preparation and production of any supplement or amendment to the Offering Circular (in proof and definitive form) and the listing particulars (if any), the Contracts and all other documents relating to the issue of the Subscription Bonds, (b) the initial delivery of the Subscription Bonds, and (c) the listing of the Subscription Bonds on the Stock Exchange and the listing of the New Shares; and
|
|
(ii)
|
the documented fees and expenses of the Principal Paying Agent, the Trustee and the other agents appointed under the Agency Agreement in relation to the preparation and execution of the Contracts (including, without limitation, the fees and expenses of the Trustee’s legal advisers), the issue and authentication of the Subscription Bonds and the performance of their duties under the Contracts.
|
8.2
|
Payment: All payments due under this Agreement are to be made in U.S. dollars and are stated exclusive of any applicable tax whether income taxes, withholding taxes, value added taxes, goods and services taxes, business or services taxes or similar taxes other than taxes imposed in respect of net income by a taxing jurisdiction wherein the recipient is incorporated or resident for tax purposes (“Taxes”). If any deduction or withholding for or on account of Taxes is required to be made from any payment to the Subscriber, then the Issuer shall pay an additional amount so that the Subscriber receive, free from any such withholding, deduction, assessment or levy, the full amount of the payments set out herein. The Issuer shall make appropriate payments and returns in respect of such Taxes and provide the Subscriber with an original or authenticated copy of the tax receipt.
|
9
|
Termination
|
9.1
|
Ability to Terminate: Notwithstanding anything contained in this Agreement, the Subscriber may, by written notice to the Issuer given at any time prior to payment of the net subscription monies for the Subscription Bonds to the Issuer, terminate this Agreement in any of the following circumstances:
|
|
9.1.1
|
if there shall have come to the notice of the Subscriber any breach of, or any event rendering untrue or incorrect in any respect, any of the warranties and representations contained in this Agreement or any failure to perform any of the Issuer’s undertakings or agreements in this Agreement;
|
|
9.1.2
|
if any of the conditions specified in Clause 6 have not been satisfied or (if capable of being waived) waived by the Subscriber on or prior to the Closing Date;
|
|
9.1.3
|
if there shall have been, since the date of this Agreement, any change, or any development involving a prospective change, in national or international monetary, financial, political or economic conditions (including any disruption to trading generally, or trading in any securities of the Issuer on any stock exchange or in any over-the-counter market) or currency exchange rates or foreign exchange controls such as would in the opinion of the Subscriber, be likely to prejudice materially the success of the Offering issue of the Subscription Bonds or dealings in the Bonds in the secondary market;
|
|
9.1.4
|
if, in the opinion of the Subscriber, there shall have occurred any of the following events: (i) a suspension or a material limitation in trading in securities generally on the New York Stock Exchange, the London Stock Exchange plc, the Singapore Stock Exchange and/or the Hong Kong Stock Exchange and/or any other stock exchange on which the Issuer’s securities are traded; (ii) a suspension in trading in the Issuer’s securities on the Hong Kong Stock Exchange or the Issuer’s American Depositary Receipts on the New York Stock Exchange and/or any other stock exchange on which any of the Issuer’s securities are traded (other than any suspension in connection with the issue of the Subscription Bonds, or in respect of the transactions described in the Announcement (including any exercise by CHL of its pre-emptive rights)); (iii) a general moratorium on commercial banking activities in the United States, Singapore, Hong Kong and/or the United Kingdom declared by the relevant authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, Hong Kong, Singapore or the United Kingdom; or (iv) a change or development involving a prospective change in taxation affecting the Issuer, the Bonds and the Shares to be issued upon conversion of the Bonds or the transfer thereof;
|
|
9.1.5
|
if there shall have occurred any event or series of events (including the occurrence of any local, national or international outbreak or escalation of disaster, hostility, insurrection, armed conflict, act of terrorism, act of God or epidemic) as would in the opinion of the Subscriber, be likely to prejudice materially the success of the issue of the Subscription Bonds or dealings in the Bonds in the secondary market.
|
9.2
|
Consequences of Termination: Upon such written notice being given this Agreement shall terminate and be of no further effect and no party shall be under any liability to any other in respect of this Agreement, except for any antecedent breach and that the Issuer shall remain liable under Clause 4.3 and the respective obligations of the parties under Clause 10 which would have continued had the arrangements for the subscription and issue of the Subscription Bonds been completed, shall continue.
|
10
|
Survival of Representations and Obligations
|
11
|
Communications
|
11.1
|
Effectiveness: Any such communication shall take effect, in the case of a letter, at the time of delivery, in the case of fax, at the time of despatch or, in the case of telephone, when made.
|
11.2
|
Confirmations: Any communication not by letter shall be confirmed by letter but failure to send or receive the letter of confirmation shall not invalidate the original communication.
|
12
|
Currency Indemnity
|
12.1
|
Currency of Account and Payment: U.S. dollars (the “Contractual Currency”) is the sole currency of account and payment for all sums payable by a party under or in connection with this Agreement, including damages.
|
12.2
|
Extent of discharge: An amount received or recovered in a currency other than the Contractual Currency (whether as a result of, or of the enforcement of, a judgment or order of a court of any jurisdiction, in the insolvency, winding-up or dissolution of the Issuer or otherwise), by a party hereto in respect of any sum expressed to be due to it from another party will only discharge that party to the extent of the Contractual Currency amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable to do so).
|
12.3
|
Indemnity: If that Contractual Currency amount is less than the Contractual Currency amount expressed to be due to the recipient under this Agreement, the relevant party will indemnify the recipient against any loss sustained by it as a result. In any event, the relevant party will indemnify the recipient against the cost of making any such purchase.
|
12.4
|
Indemnity separate: The indemnities in this Clause 12 and in Clause 4.3 constitute separate and independent obligations from the other obligations in this Agreement, will give rise to a separate and independent cause of action, will apply irrespective of any indulgence granted by either party hereto and will continue in full force and effect despite any judgment, order, claim or proof for a liquidated amount in respect of any sum due under this Agreement or any other judgment or order.
|
13
|
Contracts (Rights of Third Parties) Act 1999
|
14
|
Governing Law and Jurisdiction
|
14.1
|
Governing law: This Agreement, as to which time shall be of the essence, and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
|
14.2
|
Jurisdiction: Any dispute, controversy or claim arising out of or relating to this Agreement, or the interpretation, breach, termination or validity hereof, shall be submitted to arbitration upon the request of any party with notice to the other parties. The arbitration shall be conducted in Hong Kong under the auspices of the Hong Kong International Arbitration Centre (the “HKIAC”) in accordance with the UNCITRAL Arbitration Rules (“UNCITRAL Rules”) in effect, which rules are deemed to be incorporated by reference into this Clause 14.2 There shall be three (3) arbitrators. The complainant and the respondent to such dispute shall each select one arbitrator within thirty (30) days after giving or receiving the demand for arbitration. The Chairman of the HKIAC shall select the third arbitrator, who shall be qualified to practice law in Hong Kong. If either party to the arbitration does not appoint an arbitrator who has consented to participate within thirty (30) days after selection of the first arbitrator, the relevant appointment shall be made by the Chairman of the HKIAC. The arbitration proceedings shall be conducted in English. Neither party shall be required to give general discovery of documents, but may be required to produce specific, identified documents that are relevant to the dispute. Each party irrevocably waives, to the fullest extent it may effectively do so, any objection which it may now or hereafter have to the laying of venue of any such arbitration in Hong Kong and the HKIAC, and hereby submits to the exclusive jurisdiction of HKIAC in any such arbitration. The award of the arbitration tribunal shall be conclusive and binding upon the disputing parties, and any party to the dispute may apply to a court of competent jurisdiction for enforcement of such award. Any party to the dispute shall be entitled to seek preliminary injunctive relief in aid of arbitration, if possible, from any court of competent jurisdiction pending the constitution of the arbitral tribunal.
|
15
|
Counterparts
|
1
|
Form, Denomination and Title
|
|
(A)
|
Form and Denomination
|
|
(B)
|
Title
|
2
|
Status
|
3
|
Transfers of Bonds; Issue of Certificates
|
|
(A)
|
Register
|
|
(B)
|
Transfer
|
|
(C)
|
Delivery of New Certificates
|
|
(D)
|
Formalities Free of Charge
|
|
(E)
|
Restricted Transfer Periods
|
|
(F)
|
Regulations
|
4
|
Negative Pledge
|
|
(a)
|
the same security as is created or subsisting to secure any such Relevant Indebtedness, guarantee or indemnity; or
|
|
(b)
|
such other security as either (x) the Trustee shall in its absolute discretion deem not materially less beneficial to the interests of the Bondholders or (y) shall be approved by an Extraordinary Resolution (as defined in the Trust Deed) of the Bondholders.
|
|
(i)
|
any Charge over any assets (or related documents of title) purchased by the Issuer or any of its Subsidiaries as security for all or part of the purchase price of such assets and any substitute security created on those assets in connection with the refinancing (together with interest, fees and other charges attributable to such refinancing) of the indebtedness secured on those assets; or
|
|
(ii)
|
any Charge over any assets (or related documents of title) purchased by the Issuer or any of its Subsidiaries subject to such Charge and any substitute security created on those assets in connection with the refinancing (together with the interest, fees and other charges attributable to such refinancing) of the indebtedness secured on those assets;
|
|
(a)
|
whose gross revenues (consolidated in the case of a Subsidiary which has Subsidiaries) attributable to the Issuer, as shown by its latest audited profit and loss account are at least 10 per cent. of the consolidated gross revenues as shown by the latest published audited profit and loss account of the Issuer and its consolidated Subsidiaries, including, for the avoidance of doubt, the Issuer and its consolidated Subsidiaries’ share of revenues of Subsidiaries not consolidated and of associated entities and after adjustments for minority interests; or
|
|
(b)
|
whose gross assets (consolidated in the case of a Subsidiary which itself has Subsidiaries) attributable to the Issuer, as shown by its latest audited balance sheet, are at least 10 per cent. of the consolidated gross assets of the Issuer and its Subsidiaries as shown by the latest published audited consolidated balance sheet of the Issuer and its Subsidiaries, including the investment of the Issuer and its consolidated Subsidiaries in each Subsidiary whose accounts are not consolidated with the consolidated audited accounts of the Issuer and of associated companies and after adjustment for minority interests;
|
|
(i)
|
in the case of a corporation or other business entity becoming a Subsidiary after the end of the financial period to which the latest consolidated audited accounts of the Issuer relate, the reference to the then latest consolidated audited accounts of the Issuer and its Subsidiaries for the purposes of the calculation above shall, until consolidated audited accounts of the Issuer for the financial period in which the relevant corporation or other business entity becomes a Subsidiary are published be deemed to be a reference to the then latest consolidated audited accounts of the Issuer and its Subsidiaries adjusted to consolidate the latest audited accounts (consolidated in the case of a Subsidiary which itself has Subsidiaries) of such Subsidiary in such accounts;
|
|
(ii)
|
if at any relevant time in relation to the Issuer or any Subsidiary which itself has Subsidiaries no consolidated accounts are prepared and audited, gross revenue or gross assets of the Issuer and/or any such Subsidiary shall be determined on the basis of pro forma consolidated accounts prepared for this purpose by the Issuer for the purposes of preparing a certificate thereon to the Trustee;
|
|
(iii)
|
if at any relevant time in relation to any Subsidiary, no accounts are audited, its gross revenue or gross assets (consolidated, if appropriate) shall be determined on the basis of pro forma accounts (consolidated, if appropriate) of the relevant Subsidiary prepared for this purpose by the Issuer for the purposes of preparing a certificate thereon to the Trustee; and
|
|
(iv)
|
if the accounts of any subsidiary (not being a Subsidiary referred to in proviso (i) above) are not consolidated with those of the Issuer, then the determination of whether or not such subsidiary is a Principal Subsidiary shall be based on a pro forma consolidation of its accounts (consolidated, if appropriate) with the consolidated accounts (determined on the basis of the foregoing) of the Issuer; or
|
|
(c)
|
to which is transferred all or substantially all of the business, undertaking and assets of another Subsidiary which immediately prior to such transfer is a Principal Subsidiary, whereupon (A) in the case of a transfer by a Principal Subsidiary, the transferor Principal Subsidiary shall immediately cease to be a Principal Subsidiary and (B) the transferee Subsidiary shall immediately become a Principal Subsidiary, provided that on or after the date on which the relevant financial statements for the financial period current at the date of such transfer are published, whether such transferor Subsidiary or such transferee Subsidiary is or is not a Principal Subsidiary shall be determined pursuant to the provisions of the sub-paragraphs above.
|
5
|
Interest
|
6
|
Conversion
|
|
(A)
|
Conversion Right
|
|
(i)
|
Conversion Period: Subject as provided in these Conditions, each Bond shall entitle the holder to convert such Bond into Shares (as defined in Condition 6(A)(iv)) credited as fully paid at any time during the Conversion Period referred to below (the “Conversion Right”).
|
|
(ii)
|
Fractions of Shares: Fractions of Shares will not be issued on conversion and no cash payment or other adjustment will be made in lieu thereof. However, if the Conversion Right in respect of more than one Bond is exercised at any one time such that Shares to be issued on conversion are to be registered in the same name, the number of such Shares to be issued in respect thereof shall be calculated on the basis of the aggregate principal amount of such Bonds being so converted and rounded down to the nearest whole number of Shares. Notwithstanding the foregoing, in the event of a consolidation or re-classification of Shares by operation of law or otherwise occurring after 24 October 2013 which reduces the number of Shares outstanding, the Issuer will upon conversion of Bonds pay in cash (in US dollars) a sum equal to such portion of the principal amount of the Bond or Bonds evidenced by the Certificate deposited in connection with the exercise of Conversion Rights, aggregated as provided in Condition 6(A)(i), as corresponds to any fraction of a Share not issued as a result of such consolidation or re-classification aforesaid if such sum exceeds US$10. Any such sum shall be paid not later than five Stock Exchange Business Days (as defined in Condition 6(B)(i)) after the relevant Conversion Date by a US dollar denominated cheque drawn on, or by transfer to a US dollar account maintained by the payee with, a bank in New York City, in accordance with instructions given by the relevant Bondholder in the Conversion Notice.
|
|
(iii)
|
Revival and/or survival after Default: Notwithstanding the provisions of Condition 6(A)(i), if (a) the Issuer shall default in making payment in full in respect of any Bond which shall have been called or put for redemption on the date fixed for redemption thereof; (b) any Bond has become due and payable prior to the Maturity Date by reason of the occurrence of any of the events under Condition 10; or (c) any Bond is not redeemed on the Maturity Date in accordance with Condition 8(A), the Conversion Right attaching to such Bond will revive and/or will continue to be exercisable up to, and including, the close of business (at the place where the Certificate evidencing such Bond is deposited for conversion) on the date upon which the full amount of the moneys payable in respect of such Bond has been duly received by the Principal Agent or the Trustee and notice of such receipt has been duly given to the Bondholders in accordance with Condition 11 and notwithstanding the provisions of Condition 6(A)(i), any Bond in respect of which the Certificate and Conversion Notice (as defined in Condition 6(B)(i)) are deposited for conversion prior to such date shall be converted on the relevant Conversion Date (as defined in Condition 6(B)(i)) notwithstanding that the full amount of the moneys payable in respect of such Bond shall have been received by the Principal Agent or the Trustee before such Conversion Date or that the Conversion Period may have expired before such Conversion Date.
|
|
(iv)
|
Meaning of “Shares”: As used in these Conditions, the expression “Shares” means ordinary shares of par value US$0.0004 each of the Issuer or shares of any class or classes resulting from any subdivision, consolidation or re-classification of those shares, which as between themselves have no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation or dissolution of the Issuer.
|
|
(B)
|
Conversion Procedure
|
|
(i)
|
Conversion Notice: To exercise the Conversion Right attaching to any Bond, the holder thereof must complete, execute and deposit at his own expense during the Conversion Period at the specified office of any Conversion Agent during its usual business hours a duly completed and signed notice of conversion (a “Conversion Notice”) in the form (for the time being current) obtainable from the specified office of each Agent, together with the relevant Certificate and confirmation that any amounts required to be paid by the Bondholder under Condition 6(B)(ii) have been so paid. Conversion Rights shall be exercised subject in each case to any applicable fiscal or other laws or regulations applicable in the jurisdiction in which the specified office of the Conversion Agent to whom the relevant Conversion Notice is delivered is located.
|
|
(ii)
|
Stamp Duty etc.: A Bondholder exercising Conversion Rights must pay directly to the relevant authorities any taxes or capital, stamp, issue and registration and transfer taxes and duties (“Duties”) arising on such exercise (other than any Duties payable in Cayman Islands and Hong Kong and, if relevant, in the place of the Alternative Stock Exchange, by the Issuer in respect of the allotment and issue of Shares and listing of the Shares on the Relevant Stock Exchange on conversion) (the “Taxes”). The Issuer will pay all other expenses arising on the issue of Shares on conversion of Bonds. The Bondholder (and, if different, the person to whom the Shares are to be issued) must declare in the relevant Conversion Notice that any amounts payable to the relevant tax authorities in settlement of Taxes payable pursuant to this Condition 6(B)(ii) have been paid.
|
|
(iii)
|
Registration: Upon exercise by a Bondholder of its Conversion Right and compliance with Conditions 6(B)(i) and 6(B)(ii), the Issuer will, as soon as practicable, and in any event not later than five days after the Conversion Date, register the person or persons designated for the purpose in the Conversion Notice as holder(s) of the relevant number of Shares in the Issuer’s share register in Hong Kong and will, if the Bondholder has also requested in the Conversion Notice and to the extent permitted under applicable law and the rules and procedures of the Central Clearing and Settlement System of Hong Kong (“CCASS”) effective from time to time, take all necessary action to procure that Shares are delivered through CCASS for so long as the Shares are listed on the HKSE; or will make such certificate or certificates available for collection at the office of the Issuer’s share registrar in Hong Kong (currently Computershare Hong Kong Investor Services Limited at 17M Floor, Hopewell Centre, 183 Queen’s Road East, Wanchai, Hong Kong) notified to Bondholders in accordance with Condition 11 or, if so requested in the relevant Conversion Notice, will cause its share registrar to mail (at the risk, and, if sent at the request of such person otherwise than by ordinary mail, at the expense, of the person to whom such certificate or certificates are sent) such certificate or certificates to the person and at the place specified in the Conversion Notice, together (in either case) with any other securities, property or cash required to be delivered upon conversion of the Bonds and such assignments and other documents (if any) as may be required by law to effect the transfer thereof, in which case a single share certificate will be issued in respect of all Shares issued on conversion of Bonds subject to the same Conversion Notice and which are to be registered in the same name.
|
|
(iv)
|
No Issue of Shares if in breach of the rules of a Relevant Stock Exchange: The Issuer is not obliged to issue Shares in satisfaction of the Conversion Right if by doing so it will be in breach of its obligations under any rules of a Relevant Stock Exchange.
|
|
(C)
|
Adjustments to Conversion Price
|
|
(1)
|
Consolidation, Reclassification or Subdivision:
|
A
|
B
|
A
|
is the nominal amount of one Share immediately after such alteration; and
|
B
|
is the nominal amount of one Share in issue immediately before such alteration.
|
|
(2)
|
Capitalisation of Profits or Reserves:
|
|
(i)
|
Adjustment: If and whenever the Issuer shall issue any Shares credited as fully paid to the holders of Shares (the “Shareholders”) by way of capitalisation of profits or reserves (including, Shares paid up out of distributable profits or reserves and/or share premium account) (except any Scrip Dividend) and which would not have constituted a Distribution (as defined in Condition 6(F)), the Conversion Price shall be adjusted by multiplying the Conversion Price in force immediately prior to such issue by the following fraction:
|
A
|
B
|
A
|
is the aggregate nominal amount of the issued Shares immediately before such issue; and
|
|
B
|
is the aggregate nominal amount of the issued Shares immediately after such issue.
|
|
(ii)
|
Adjustment: In the case of an issue of Shares by way of a Scrip Dividend where the Current Market Price (as defined in Condition 6(F)) on the date of announcement of the terms of the issue of such Shares multiplied by the number of such Shares issued exceeds the amount of the Relevant Cash Dividend (as defined in Condition 6(F)) or the relevant part thereof and which would not have constituted a Distribution, the Conversion Price shall be adjusted by multiplying the Conversion Price in force immediately before the issue of such Shares by the following fraction:
|
A + B
|
A + C
|
A
|
is the aggregate number of Shares in issue immediately before such Scrip Dividend;
|
B
|
is the aggregate number of Shares which the Relevant Cash Dividend would purchase at such Current Market Price; and
|
C
|
is the aggregate number of Shares issued pursuant to such Scrip Dividend;
|
|
(3)
|
Distributions:
|
A – B
|
A
|
A
|
is the Current Market Price of one Share on the date on which the Distribution is publicly announced; and
|
|
B
|
is the Fair Market Value on the date of such announcement of the portion of the Distribution in Hong Kong dollars attributable to one Share.
|
|
(4)
|
Rights Issues of Shares or Options over Shares:
|
A + B
|
A + C
|
A
|
is the aggregate number of Shares in issue immediately before such announcement;
|
B
|
is the number of Shares which the aggregate consideration (if any) receivable for the Shares issued by way of rights, or for the securities issued by way of rights, or for the options or warrants or other rights issued by way of rights and for the total number of Shares deliverable on the exercise thereof would purchase at such Current Market Price per Share; and
|
C
|
is the aggregate number of Shares to be issued or, as the case may be, the maximum number of Shares which may be issued upon exercise of such options, warrants or rights calculated as at the date of issue of such options, warrants or rights or upon conversion or exchange or exercise of rights of subscription or purchase in respect thereof at the initial conversion, exchange, subscription or purchase price or rate.
|
|
(5)
|
Rights Issues of Other Securities:
|
A – B
|
A
|
A
|
is the Current Market Price of one Share on the date on which such issue or grant is publicly announced; and
|
B
|
is the Fair Market Value on the date of such announcement of the portion of the rights attributable to one Share.
|
|
(6)
|
Issues at less than Current Market Price:
|
A + B
|
A + C
|
A
|
is the aggregate number of Shares in issue immediately before the issue of such additional Shares or the issue or grant of such options, warrants or other rights to subscribe for, purchase or otherwise acquire any Shares;
|
B
|
is the number of Shares which the aggregate consideration (if any) receivable for the issue of such additional Shares or, as the case may be, for the Shares to be issued or otherwise made available upon the exercise of any such options, warrants or rights, would purchase at such Current Market Price per Share; and
|
C
|
is the number of Shares to be issued pursuant to such issue of Shares or, as the case may be, the maximum number of Shares which may be issued upon exercise of such options, warrants or rights calculated as at the date of issue of such options, warrants or rights.
|
|
(7)
|
Other Issues at less than Current Market Price:
|
A + B
|
A + C
|
A
|
is the aggregate number of Shares in issue immediately before such issue or grant;
|
B
|
is the number of Shares which the aggregate consideration (if any) receivable for the Shares to be issued or otherwise made available upon conversion or exchange or up on exercise of the right of subscription attached to such securities or, as the case may be, for the Shares to be issued or to arise from any such redesignation would purchase at such Current Market Price per Share; and
|
C
|
is the maximum number of Shares to be issued or otherwise made available on conversion or exchange of such securities up or on the exercise of such right of subscription attached thereto at the initial conversion, exchange or subscription price or rate or, as the case may be, the maximum number of Shares which may be issued or arise from any such redesignation.
|
|
(8)
|
Modification of Rights of Conversion etc.:
|
A + B
|
A + C
|
A
|
is the aggregate number of Shares in issue immediately before such modification (but where the relevant securities carry rights of conversion into or rights of exchange or subscription for, or purchase or acquisition of, Shares which have been issued, purchased or acquired by the Issuer or any of its Subsidiaries (or at the direction or request or pursuant to any arrangements with the Issuer or any of its Subsidiaries) for the purposes of or in connection with such Securities, less the number of such Shares so issued, purchased or acquired);
|
B
|
is the number of Shares which the aggregate consideration (if any) receivable for the Shares to be issued or otherwise made available upon conversion or exchange or upon exercise of the right of subscription, purchase or acquisition attached to the securities so modified would purchase at such Current Market Price per Share or, if lower, the existing conversion, exchange, subscription, purchase or acquisition price or rate of such Securities; and
|
C
|
is the maximum number of Shares which may be issued or otherwise made available upon conversion or exchange of such securities or upon the exercise of such rights of subscription, purchase or acquisition attached thereto at the modified conversion, exchange, subscription, purchase or acquisition price or rate but giving credit in such manner as an Independent Investment Bank shall consider appropriate (if at all) for any previous adjustment under this Condition 6(C)(8) or Condition 6(C)(7).
|
|
(9)
|
Other Offers to Shareholders:
|
A – B
|
A
|
A
|
is the Current Market Price of one Share on the date on which such issue is first publicly announced; and
|
B
|
is the Fair Market Value on the date of such announcement of the portion of the rights attributable to one Share.
|
|
(10)
|
Other Events:
|
|
(11)
|
Exclusion:
|
|
(D)
|
Undertakings
|
|
(i)
|
it will use its best endeavours (a) to maintain a listing for all the issued Shares on the HKSE, and (b) to obtain and maintain a listing for all the Shares issued on the exercise of the Conversion Rights attaching to the Bonds on the HKSE, and (c) if the Issuer is unable to obtain or maintain such listing, to use its best endeavours to obtain and maintain a listing for all the issued Shares on an Alternative Stock Exchange as the Issuer may from time to time determine (and notify in writing to the Trustee) and will forthwith give notice to the Bondholders in accordance with Condition 11 of the listing or delisting of the Shares (as a class) by any of such stock exchange;
|
|
(ii)
|
it will use its best endeavours to maintain the listing of the Bonds on the SGX-ST and if the Issuer is unable to maintain such listing or such listing is unduly onerous, to use its best endeavours to obtain and maintain a listing on another internationally recognised stock exchange as the Issuer may from time to time determine (with the prior written consent of the Trustee) and will forthwith give notice to the Bondholders in accordance with Condition 11 of the listing or delisting of the Bonds by any such stock exchange;
|
|
(iii)
|
it will pay the expenses of the issue of, and all expenses of obtaining listing for, Shares arising on conversion of the Bonds (save for any Taxes specified in Condition 6(B)(ii));
|
|
(iv)
|
it will not make any reduction of its ordinary share capital or any uncalled liability in respect thereof except:
|
(a)
|
in the event of a reduction in the share premium account, capital redemption reserve fund or any other part of its share capital for the purposes of offsetting any accumulated loss or any deficit in retained earnings, where such reduction is permitted by applicable law so long as there is no change to the number of Shares in issue as a result of such reduction; or
|
(b)
|
in all other capital reductions, where the reduction is permitted by applicable law and results in (or would, but for the provision of these Conditions relating to rounding or the carry forward of adjustments, result in) an adjustment to the Conversion Price or is otherwise taken into account for the purposes of determining whether such an adjustment should be made.
|
|
(i)
|
it will reserve, free from any other pre-emptive or other similar rights, out of its authorised but unissued ordinary share capital the full number of Shares liable to be issued on conversion of the Bonds from time to time remaining outstanding and shall ensure that all Shares delivered on conversion of the Bonds will be duly and validly issued as fully-paid; and
|
|
(ii)
|
it will not make any offer, issue, grant or distribute or take any action the effect of which would be to reduce the Conversion Price below the par value of the Shares, provided always that the Issuer shall not be prohibited from purchasing its Shares to the extent permitted by law.
|
|
(E)
|
Provisions Relating to Changes in Conversion Price
|
|
(i)
|
Minor adjustments: On any adjustment, the resultant Conversion Price, if not an integral multiple of one Hong Kong cent, shall be rounded down to the nearest Hong Kong cent. No adjustment shall be made to the Conversion Price if such adjustment (rounded down if applicable) would be less than one per cent. of the Conversion Price then in effect. Any adjustment not required to be made, and/or any amount by which the Conversion Price has been rounded down, shall be carried forward and taken into account in any subsequent adjustment, and such subsequent adjustment shall be made on the basis that the adjustment not required to be made had been made at the relevant time and/or, as the case may be, that the relevant rounding down had not been made. Notice of any adjustment shall be given by the Issuer to Bondholders in accordance with Condition 11 and to the Trustee promptly after the determination thereof.
|
|
(ii)
|
Decision of an Independent Investment Bank: If any doubt shall arise as to whether an adjustment falls to be made to the Conversion Price or as to the appropriate adjustment to the Conversion Price, and following consultation between the Issuer and an Independent Investment Bank, a written opinion of such Independent Investment Bank in respect thereof shall be conclusive and binding on the Issuer, the Bondholders and the Trustee, save in the case of manifest error.
|
|
(iii)
|
Minimum Conversion Price: Notwithstanding the provisions of this Condition 6 the Conversion Price shall not in any event be reduced to below the nominal or par value of the Shares as a result of any adjustment hereunder unless under applicable law then in effect the Bonds may be converted at such reduced Conversion Price into legally issued, fully paid and non-assessable Shares.
|
|
(iv)
|
Reference to “fixed”: Any references herein to the date on which a consideration is “fixed” shall, where the consideration is originally expressed by reference to a formula which cannot be expressed as an actual cash amount until a later date, be construed as a reference to the first day on which such actual cash amount can be ascertained.
|
|
(v)
|
Share Option Schemes: No adjustment will be made to the Conversion Price when Shares or other securities (including rights or options) are issued, offered, exercised, allotted, appropriated, modified or granted to, or for the benefit of, employees (including directors) of the Issuer or any of its Subsidiaries pursuant to any employee share scheme or plan (and which employee share scheme or plan is in compliance with the listing rules of the Relevant Stock Exchange).
|
|
(vi)
|
Upward/downward adjustment: No adjustment involving an increase in the Conversion Price will be made, except in the case of a consolidation or re-classification of the Shares as referred to in Condition 6(C)(1) above. The Issuer may at any time and for a specified period of time only, following notice being given to the Trustee and the Bondholders in accordance with Condition 11, reduce the Conversion Price, subject to Condition 6(E)(iii).
|
|
(vii)
|
Trustee not obliged to Monitor: Neither the Trustee nor any Agent shall be under any duty to monitor whether any event or circumstance has happened or exists which may require an adjustment to be made to the Conversion Price or to make any calculation (or verification thereof) in connection with the Conversion Price and will not be responsible to Bondholders for any loss arising from any failure by it to do so or for any delay by the Issuer in making a determination or any erroneous determination in connection with the Conversion Price, without prejudice to its duties owed to the Issuer.
|
|
(viii)
|
Notice of Change in Conversion Price: The Issuer shall give notice to the Bondholders in accordance with Condition 11 and, for so long as the Bonds are listed on the Singapore Stock Exchange and the rules of the Singapore Stock Exchange so require, the Issuer shall also give notice to the Singapore Stock Exchange, of any change in the Conversion Price. Any such notice relating to a change in the Conversion Price shall set forth the event giving rise to the adjustment, the Conversion Price prior to such adjustment, the adjusted Conversion Price and the effective date of such adjustment.
|
(F)
|
Definitions
|
|
(a)
|
if the Shares to be issued or transferred and delivered do not rank for the dividend (or entitlement) in question, the Closing Price on the dates on which the Shares shall have been based on a price cum-dividend (or cum- any other entitlement) shall for the purpose of this definition be deemed to be the amount thereof reduced by an amount equal to the Fair Market Value of any such dividend or entitlement per Share; or
|
|
(b)
|
if the Shares to be issued or transferred and delivered rank for the dividend or entitlement in question, the Closing Price on the dates on which the Shares shall have been based on a price ex-dividend (or ex- any other entitlement) shall for the purpose of this definition be deemed to be the amount thereof increased by the Fair Market Value of any such dividend or entitlement per Share;
|
|
and provided that:
|
|
(i)
|
if on each of the said 10 Trading Days the Shares have been quoted a price cum-dividend (or cum- any other entitlement) in respect of a dividend (or other entitlement) which has been declared or announced but the Shares to be issued or transferred and delivered do not rank for that dividend (or other entitlement), the Closing Price on each of such dates shall for the purposes of this definition be deemed to be the amount thereof reduced by an amount equal to the Fair Market Value of any such dividend or entitlement per Share in any such case determined on a gross basis and disregarding any withholding or deduction required to be made on account of tax, and disregarding any associated tax credit;
|
|
(ii)
|
if the Closing Price of a Share is not available on one or more of the said 10 Trading Days (disregarding for this purpose the proviso to the definition of Closing Price), then the average of such Closing Prices which are available in that 10 Trading Day period shall be used (subject to a minimum of two such prices) and if only one, or no, such Closing Price is available in the relevant period the Current Market Price shall be determined by an Independent Investment Bank; and
|
|
(iii)
|
in making any calculation or determination of Current Market Price in relation to an issue of Shares, other securities or options, rights or warrants for shares or other securities which are issued offered, allotted, appropriated, modified or granted in connection (partly or fully) with any merger or acquisition, each reference above to 10 consecutive Trading Days shall be to 30 consecutive Trading Days.
|
7
|
Payments
|
|
(A)
|
Method of Payment
|
|
(B)
|
Registered Accounts
|
|
(C)
|
Fiscal Laws
|
|
(D)
|
Payment Initiation
|
|
(E)
|
Delay In Payment
|
|
(F)
|
Business Day
|
|
(G)
|
Agents
|
8
|
Redemption, Purchase and Cancellation
|
(A)
|
Maturity
|
(B)
|
Redemption for Taxation Reasons
|
|
(i)
|
The Issuer may redeem all and not some only of the Bonds, at its option, at any time, on giving not less than 30 nor more than 60 days’ notice (a “Tax Redemption Notice”) to the Bondholders in accordance with Condition 11 (which notice shall be irrevocable), on the date specified in the Tax Redemption Notice for redemption (the “Tax Redemption Date”) at their principal amount, if (a) the Issuer satisfies the Trustee immediately prior to the giving of such notice that it has or will become obliged to pay Additional Tax Amounts as provided or referred to in Condition 9 as a result of any change in, or amendment to, the laws or regulations of the Cayman Islands or Hong Kong or, in each case, any political subdivision or any authority thereof or therein having power to tax, or any change in the general application or official interpretation of such laws or regulations, which change or amendment becomes effective on or after 24 October 2013, and (b) such obligation cannot be avoided by the Issuer taking commercially reasonable measures available to it, provided that no Tax Redemption Notice shall be given earlier than 90 days prior to the earliest date on which the Issuer would be obliged to pay such Additional Tax Amounts were a payment in respect of the Bonds then due. Prior to the publication of any Tax Redemption Notice pursuant to this Condition, the Issuer shall deliver to the Trustee a certificate signed by two directors of the Issuer stating that the obligation referred to in (a) above cannot be avoided by the Issuer taking reasonable measures available to it and the Trustee shall be entitled to accept such certificate as sufficient evidence of the satisfaction of the condition precedent set out in (b) above of this Condition 8(B)(i), in which event it shall be conclusive and binding on the Bondholders.
|
|
(ii)
|
If the Issuer gives a Tax Redemption Notice pursuant to Condition 8(B)(i), each Bondholder will have the right to elect that his Bond(s) shall not be redeemed and that the provisions of Condition 9 shall not apply in respect of any payment of principal, premium or default interest (if any) to be made in respect of such Bond(s) which falls due after the relevant Tax Redemption Date, whereupon no additional amounts shall be payable by the Issuer in respect thereof pursuant to Condition 9 and payment of all amounts by the Issuer to such holder in respect of such Bond(s) shall be made subject to the deduction or withholding of any tax required to be deducted or withheld. To exercise a right pursuant to this Condition 8(B)(ii), the holder of the relevant Bond must complete, sign and deposit at the specified office of any Paying Agent a duly completed and signed notice of exercise, in the form for the time being current, obtainable from the specified office of any Paying Agent together with the Certificate evidencing the relevant Bond(s) on or before the day falling 10 days prior to the Tax Redemption Date.
|
(C)
|
Redemption at the Option of the Issuer
|
|
(i)
|
at any time after 7 November 2015, provided that the Closing Price of a Share (translated into US dollars at the Prevailing Rate), for each of 20 consecutive Trading Days, the last of which occurs not more than 10 days prior to the date of the Optional Redemption Notice was at least 120 per cent. of the Conversion Price then in effect immediately prior to the date upon which notice of such redemption is given; or
|
|
(ii)
|
at any time if, prior to the date the relevant Optional Redemption Notice is given, Conversion Rights shall have been exercised and/or purchases (and corresponding cancellations) and/or redemptions effected in respect of 90 per cent. or more in principal amount of the Bonds originally issued (which shall for this purpose include any further Bonds issued pursuant to Condition 17).
|
(D)
|
Redemption for Delisting or Change of Control
|
|
(i)
|
any person or persons acting together acquires Control of the Issuer provided that such person or persons does not or do not have, and would not be deemed to have, Control of the Issuer on the Issue Date; or
|
|
(ii)
|
the Issuer consolidates with or merges into or sells or transfers all or substantially all of the assets of the Issuer to any other person or persons acting together unless the consolidation, merger, sale or transfer will not result in the other person or persons acquiring Control over the Issuer or successor entity.
|
|
(i)
|
when the Shares cease to be listed or admitted to trading or suspended for a period equal to or exceeding 45 consecutive Trading Days; or
|
|
(ii)
|
when there is a Change of Control.
|
(E)
|
Redemption at the option of the Bondholders
|
(G)
|
Purchase
|
(H)
|
Cancellation
|
(I)
|
Redemption Notices
|
9
|
Taxation
|
(i)
|
Other connection: to a holder (or to a third party on behalf of a holder) who is liable to such taxes, duties, assessments or governmental charges in respect of such Bond by reason of his having some connection with the Cayman Islands or Hong Kong, other than the mere holding of the Bond or by the receipt of amounts in respect of the Bond;
|
(ii)
|
Presentation more than 30 days after the relevant date: (in the case of a payment of principal) if the Certificate in respect of such Bond is surrendered more than 30 days after the Relevant Date except to the extent that the holder of it would have been entitled to such additional amounts on surrendering the relevant Certificate for payment on the last day of such period of 30 days;
|
(iii)
|
Payment to individuals: where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to any law implementing European Union Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive; or
|
|
(iv)
|
Payment by another Paying and Conversion Agent: presented for payment by or on behalf of a Bondholder who would have been able to avoid such withholding or deduction by presenting the relevant Bond to another Paying Agent in a Member State of the European Union.
|
10
|
Events of Default
|
|
(i)
|
Non-Payment: the Issuer fails to pay the principal, premium or default interest (if any) on any of the Bonds when due and the default continues for a period of 10 days; or
|
|
(ii)
|
Breach of Other Obligations: the Issuer does not perform or comply with any one or more of its other obligations in the Bonds or the Trust Deed which default is incapable of remedy or, if in the opinion of the Trustee capable of remedy, is not remedied within 30 days after notice of such default shall have been given to the Issuer by the Trustee; or
|
|
(iii)
|
Failure to deliver Shares: any failure by the Issuer to deliver any Shares as and when the Shares are required to be delivered following Conversion of Bonds; or
|
|
(iv)
|
Cross-Default: (a) any other present or future indebtedness of the Issuer or any of its Subsidiaries for or in respect of moneys borrowed or raised becomes (or becomes capable of being declared) due and payable prior to its stated maturity by reason of any actual or potential default, event of default or the like (howsoever described), or (b) any such indebtedness is not paid when due or, as the case may be, within any applicable grace period, or (c) the Issuer or any of its Subsidiaries fails to pay when due any amount payable by it under any present or future guarantee for, or indemnity in respect of, any moneys borrowed or raised, provided that the aggregate amount of the relevant indebtedness, guarantees and indemnities in respect of which one or more of the events mentioned above in this Condition 10(A)(iv) have occurred equals or exceeds US$50,000,000 or its equivalent (as determined on the basis of the middle spot rate for the relevant currency against the US dollar as quoted by any leading bank on the day on which such indebtedness becomes due and payable or is not paid or any such amount becomes due and payable or is not paid under any such guarantee or indemnity); or
|
|
(v)
|
Enforcement Proceedings: a distress, attachment, execution or other legal process is levied, enforced or sued out on or against any material part of the property, assets or revenues of the Issuer or any of its Principal Subsidiaries and is not discharged or stayed within 30 days; or
|
|
(vi)
|
Security Enforced: any mortgage, charge, pledge, lien or other encumbrance, present or future, created or assumed by the Issuer or any of its Principal Subsidiaries on material property or assets becomes enforceable and any step is taken to enforce it (including the taking of possession or the appointment of a receiver, manager or other similar person) and is not discharged or stayed within 30 days, except where any such event will not have a material adverse effect on the ability of the Issuer to fulfil its obligations under the Bonds; or
|
|
(vii)
|
Winding-up: an order is made or an effective resolution passed for the winding-up or dissolution, judicial management or administration of the Issuer or any of its Principal Subsidiaries (except for a members’ voluntary solvent winding up of a Subsidiary), or the Issuer or any of its Principal Subsidiaries ceases or threatens to cease to carry on all or a material part of its business or operations, except for the purpose of and followed by a reconstruction, amalgamation, reorganisation, merger or consolidation (a) on terms approved by the Trustee or by an Extraordinary Resolution of the Bondholders, or (b) in the case of a Principal Subsidiary, whereby the undertaking and assets of such Principal Subsidiary are transferred to or otherwise vested in the Issuer or another of its Principal Subsidiaries, or (c) where such event will not have a material adverse effect on the ability of the Issuer to fulfil its obligations under the Bonds; or
|
|
(viii)
|
Insolvency: the Issuer or any of its Principal Subsidiaries is (or is, or could be, deemed by law or a court to be) insolvent or bankrupt or unable to pay its debts, stops, suspends or threatens to stop or suspend payment of all or a material part of (or of a particular type of) its debts, proposes or makes any agreement for the deferral, rescheduling or other readjustment of all of (or all of a particular type of) its debts (or of any part which it will or might otherwise be unable to pay when due), proposes or makes a general assignment or an arrangement or composition with or for the benefit of the relevant creditors in respect of any of such debts or a moratorium is agreed or declared in respect of or affecting all or any part of (or of a particular type of) the debts of the Issuer or any of its Principal Subsidiaries; an administrator or liquidator of the Issuer or any of its Principal Subsidiaries or the whole or any material part of the assets and turnover of the Issuer or any of its Principal Subsidiaries is appointed (or application for any such appointment is made), except where any such events will not have a material adverse effect on the ability of the Issuer to fulfil its obligations under the Bond; or
|
|
(ix)
|
Nationalisation: any step is taken by a competent governmental authority with a view to the seizure, compulsory acquisition, expropriation or nationalisation of all or a material part of the assets of the Issuer or any of its Principal Subsidiaries, except where any such events will not have a material adverse effect on the ability of the Issuer to fulfil its obligations under the Bond; or
|
|
(x)
|
Authorisation and Consents: any action, condition or thing (including the obtaining or effecting of any necessary consent, approval, authorisation, exemption, filing, licence, order, recording or registration) at any time required to be taken, fulfilled or done in order (a) to enable the Issuer lawfully to enter into, exercise their respective rights and perform and comply with its obligations under the Bonds and the Trust Deed, (b) to ensure that those obligations are legally binding and enforceable, and (c) to make the Bonds and the Trust Deed admissible in evidence in the courts of the Cayman Islands or Hong Kong is not taken, fulfilled or done; or
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(xi)
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Illegality: it is or will become unlawful for the Issuer to perform or comply with any one or more of its obligations under any of the Bonds or the Trust Deed, except where such event will not have a material effect on the ability of the Issuer to fulfil its obligations under the Bond; or
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(xii)
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Analogous Events: any event occurs which under the laws of any relevant jurisdiction has an analogous effect to any of the events referred to in any of Conditions 10(i) to 10(xi).
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11
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Notices
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12
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Prescription
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13
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Replacement of Certificates
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14
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Meetings of Bondholders, Modification, Waiver and Substitution
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(A)
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Meetings of Bondholders
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(B)
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Modification and Waiver
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(C)
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Substitution
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(D)
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Entitlement of the Trustee
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15
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Enforcement
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16
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Indemnification of the Trustee
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17
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Further Issues
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18
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Contracts (Rights of Third Parties) Act 1999
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19
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Governing Law and Submission to Jurisdiction
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(A)
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Governing Law
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(B)
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Jurisdiction
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(C)
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Agent for Service of Process
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(1)
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SEMICONDUCTOR MANUFACTURING INTERNATIONAL CORPORATION, a company duly incorporated in the Cayman Islands whose principal place of business in Hong Kong is at Suite 3003, 30th Floor, 9 Queen’s Road Central, Hong Kong (the “Company”); and
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(2)
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DATANG TELECOM TECHNOLOGY & INDUSTRY HOLDINGS CO., LTD, a company duly incorporated in People’s Republic of China whose principal place of business is No. 40 Xueyuan Road, 100083, Beijing, China (“Datang”).
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(3)
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DATANG HOLDINGS (HONGKONG) INVESTMENT COMPANY LIMITED, a company duly incorporated in Hong Kong whose principal place of business is 18/F Edinburgh Tower, The Landmark, 15 Queen’s Road, Central, Hong Kong (“Datang Hong Kong”).
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(A)
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The Company and Datang entered into the Datang Share Purchase Agreement in 2008, under which Datang, was given certain pre-emptive rights in relation to subsequent issue of securities by the Company which may be acquired by Datang directly or through its wholly-owned subsidiary Datang Hong Kong. Datang Hong Kong has entered into a supplemental deed with the Company and Datang to comply with all obligations under the Datang Share Purchase Agreement applicable to the securities and to give certain representations and warranties to the Company.
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(B)
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The parties have agreed to enter into this Supplemental Agreement to amend the Datang Share Purchase Agreement in order to clarify certain ambiguities relating to Datang’s pre-emptive right under the Datang Share Purchase Agreement.
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1
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INTERPRETATION
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1.1
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Clause 1 of the Datang Share Purchase Agreement applies for the purpose of interpreting this Supplemental Agreement.
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1.2
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In this Supplemental Agreement:
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2
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AMENDMENT
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“(B)
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a pro rata portion of the Relevant Securities equal to the percentage of the issued share capital of the Company then beneficially owned by the Buyer (together with the HKCo) immediately prior to the Company’s entry into the agreement or agreements for the transaction involving the issuance of the Relevant Securities including without limitation an agreement for a “top-up and subscription” where new securities are issued to a connected person of the Company after a reduction by the connected person of its holding in the Company and the placing of such a reduction in securities to third parties , provided that the Buyer and HKCo maintains an ownership interest equal to at least 1,849,547,150 shares (as appropriately adjusted for stock splits, stock consolidation, stock dividends, recapitalizations and the like) of the total nominal share capital of the Company,”
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3
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Conditions
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3.1
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the Company having obtained the approval of the shareholders of the Company (other than Datang, Datang Hong Kong and their respective associates (as defined in the Listing Rules) of this Supplemental Agreement.
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4
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GENERAL
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4.1
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The Datang Share Purchase Agreement shall, except as amended by this Supplemental Agreement, remain in full force and effect. The Datang Share Purchase Agreement and this Supplemental Agreement shall be read and construed as one document. All references in the Datang Share Purchase Agreement to “this Agreement” shall be read and construed as references to the Datang Share Purchase Agreement as amended by this Supplemental Agreement.
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4.2
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There may be several signed copies of this Supplemental Agreement. There is intended to be a single Supplemental Agreement and each signed copy is a counterpart of that Supplemental Agreement.
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5
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APPLICABLE LAW AND JURISDICTION
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5.1
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This Agreement is governed by and shall be construed in accordance with the laws of Hong Kong for the time being in force and each of the Parties hereby irrevocably submits to the non-exclusive jurisdictions of the courts of Hong Kong in any legal suit, action or proceeding arising out of or based upon this Agreement. Each of Datang and the Company hereby irrevocably waives any objection which it may now or hereafter have to the service of process or the laying of venue in connection with any such proceedings.
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5.2
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The Company agrees that the process by which any legal proceedings in Hong Kong are begun may be served on it by being delivered to the Company it at its principal place of business in Hong Kong. If the Company ceases to have a place of business in Hong Kong, the Company shall forthwith appoint a further person in Hong Kong to accept service of process on its behalf in Hong Kong and notify Datang of such appointment, and, failing such appointment within fifteen days, Datang shall be entitled to appoint such a person by notice to the Company. Nothing contained herein shall affect the right to serve process in any other manner permitted by law.
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5.3
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Datang agrees that the process by which any legal proceedings in Hong Kong are begun may be served on it by being delivered to Datang Hong Kong. Nothing contained herein shall affect the right to serve process in any other manner permitted by law.
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SIGNED by /s/ Gareth Kung
for and on behalf of
SEMICONDUCTOR MANUFACTURING
INTERNATIONAL CORPORATION in the presence of:
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SIGNED by /s/ Guo Guangli
for and on behalf of
DATANG TELECOM TECHNOLOGY &
INDUSTRY HOLDINGS CO., LTD
in the presence of:
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SIGNED by /s/ Guo Guangli
for and on behalf of
DATANG HOLDINGS (HONGKONG)
INVESTMENT COMPANY LIMITED in the presence of:
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