|
|
Exhibit 4.21
| |
Dated 2018 | |
(1) SEMICONDUCTOR MANUFACTURING INTERNATIONAL CORPORATION and (2) China Integrated Circuit Industry Investment Fund Co., Ltd. and Xinxin (Hongkong) Capital Co., Ltd.
| |
SUBSCRIPTION AGREEMENT relating to the exercise of pre-emptive right in connection with the issue of 57,054,901 Shares in the share capital of |
|
|
|
Clause |
| Page |
1 | DEFINITIONS AND INTERPRETATION | 1 |
2 | SUBSCRIPTION | 4 |
3 | CONDITIONS OF SUBSCRIPTION | 4 |
4 | COMPLETION OF THE SUBSCRIPTION | 5 |
5 | UNDERTAKINGS OF THE SUBSCRIBER AND THE COMPANY | 6 |
6 | REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS | 7 |
7 | INDEMNITY | 17 |
8 | TERMINATION | 17 |
9 | PUBLIC COMMUNICATION | 19 |
10 | TIME OF THE ESSENCE | 19 |
11 | NOTICES | 19 |
12 | MISCELLANEOUS | 20 |
13 | APPLICABLE LAW AND JURISDICTION | 21 |
THIS SUBSCRIPTION AGREEMENT is made on 2018
(3) | XINXIN (HONGKONG) CAPITAL CO., LTD., a company duly incorporated in Room A 20/F, Kiufu Commercial Building, 300 Lockhart Road, Wan Chai, Hong Kong (the “Subscriber”). |
(D) | China IC Fund, the Subscriber and the Company have agreed that the Company shall issue and China IC Fund, through 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 Agreement. |
NOW IT IS HEREBY AGREED as follows:
1.1 | In this Agreement (including the recitals), the following expressions shall, unless the context requires otherwise, have the following meanings: |
“2016 Bonds” means the US$450,000,000 zero coupon convertible bonds due 2022 issued on July 7, 2016 by the Company;
“Affiliate” means any person that directly or indirectly controls or is controlled by the Subscriber;
1
“Agreement” means this subscription agreement (as may be amended or varied from time to time by an agreement in writing duly executed by the Parties);
“Announcement” means the announcement to be issued by the Company as soon as possible following the execution of this Agreement pursuant to the requirements under the Listing Rules relating to, amongst other things, the Subscription;
“Associate” has the meaning ascribed thereto in the Listing Rules;
“Business Day” means any day (excluding a Saturday) on which banks are generally open for business in Hong Kong;
“CCASS” means the Central Clearing and Settlement System operated by Hong Kong Securities Clearing Company Limited;
“Closing Date” means the fifteen (15th) Business Day after the date upon which the last of the Conditions to be satisfied shall have been so satisfied or waived or such other time and/or date as the Subscriber and the Company may agree in writing;
“Companies Ordinance” means the Companies Ordinance (Cap 622 of the Laws of Hong Kong) for the time being in force;
“Conditions” means the conditions to completion of the Subscription set out in Clause 3.1;
“Country Hill” means Country Hill Limited, a wholly-owned subsidiary of China Investment Corporation;
“Datang Telecom” means Datang Telecom Technology & Industry Holdings Co., Ltd., a company established under PRC laws;
“Datang Pre-Emptive Securities” means any Shares or perpetual subordinated convertible securities convertible into Shares to be issued to Datang Telecom (or any Shares to be issued thereunder) pursuant to any exercise of its pre-emptive right in connection with the issuance of any Shares or Securities as will result in Datang Telecom’s percentage shareholding (on a fully converted basis) in the Company not being diluted by the issuance of such Shares and Securities, under the share purchase agreement dated November 6, 2008 between Datang Telecom and the Company (as amended by the supplemental agreement dated August 22, 2014 entered into among the Company, Datang Telecom and Datang Holdings (Hongkong) Investment Company Limited);
“Directors” means the directors of the Company for the time being;
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended;
“General Rules” means the General Rules of CCASS from time to time in force;
“Group” means the Company and its subsidiaries and the expression “member of the Group” shall be construed accordingly;
“HK$” means Hong Kong dollars, the lawful currency of Hong Kong;
“Hong Kong” means the Hong Kong Special Administrative Region of the People’s Republic of China;
“Listing Committee” means the listing sub-committee of the board of directors of the Stock Exchange;
2
“Listing Rules” means the Rules Governing the Listing of Securities on The Stock Exchange of Hong Kong Limited;
“Material Adverse Effect” means a material adverse effect upon the financial or trading condition or the earnings, net assets, 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 Company to perform its obligations under this Agreement or which is material in the context of the issue of the Subscription Shares;
“Participant” means a person admitted for the time being by Hong Kong Securities Clearing Company Limited as a participant of CCASS;
“Parties” means the named parties to this Agreement and their respective successors and permitted assigns and “Party” means each one of them;
“PRC” means the People’s Republic of China;
“Relevant Securities” means the Subscription Shares, the Subscription Securities (or any Shares to be issued thereunder) and the Datang Pre-Emptive Securities;
“Securities” means the perpetual subordinated convertible securities convertible into Shares issued by the Company pursuant to the subscription agreement dated November 29, 2017 entered into between the Company, Barclays Bank Plc, Deutsche Bank AG, Hong Kong Branch and J.P. Morgan Securities Plc, which expression shall, where the context so admits, include Securities evidenced by a global certificate representing the Securities;
“Securities Act” means the U.S. Securities Act of 1933, as amended and the rules and regulations promulgated thereunder;
“SFC” means the Securities and Futures Commission;
“SFO” means the Securities and Futures Ordinance (Cap 571 of the Laws of Hong Kong) for the time being in force;
“Shareholders’ Meeting” means a shareholders’ meeting of the Company to consider and approve, amongst other things, the Subscription;
“Shares” means the ordinary shares of US$0.004 each in the share capital of the Company;
“Stock Exchange” means The Stock Exchange of Hong Kong Limited;
“Subscription” means the subscription by the Subscriber for the Subscription Shares on and subject to the terms and conditions set out in this Agreement;
“Subscription Monies” means the Subscription Price multiplied by the number of Subscription Shares in the aggregate sum of HK$607,634,695.65;
“Subscription Price” means HK$10.65 per Share, being the same price as the subscription price for the placing and subscription of the Marketed Shares;
“Subscription Securities” means the US$300,000,000 2.00 per cent. perpetual subordinated convertible securities to be issued to Subscriber pursuant to a subscription agreement entered into between the Company and the Subscriber on or about the date of this Agreement;
3
“Subscription Shares” means 57,054,901 new Shares to be issued by the Company under the Subscription;
“subsidiary” has the same meaning as in Section 15 of the Companies Ordinance;
“Takeovers Code” means the Hong Kong Codes on Takeovers and Mergers and Share Buy-backs issued by the SFC;
“Taxation” mean all forms of taxation whether of Hong Kong or elsewhere in the world whenever imposed and all statutory, governmental, state, provincial, local governmental or municipal impositions, duties and levies and all penalties, charges, costs and interests relating thereto;
“U.S.” or “United States” means the United States of America, its territories and possessions, any state of the United States, and the District of Columbia; and
“US$” means United States dollars, the lawful currency of the United States.
1.4 | Headings are inserted for convenience only and shall not affect the interpretation of this Agreement. |
1.5 | All references in this Agreement in relation to any time, date or period shall mean Hong Kong time. |
1.6 | References to Clauses, Sub-clauses and the Schedule are references to clauses and sub-clauses of and schedules to this Agreement. |
4
3.1.2 | the Company having obtained the approval of the shareholders of the Company (China IC Fund, the Subscriber and their associates having abstained from voting) at the Shareholders’ Meeting for the issue of the Subscription Shares by the Company; and |
3.2 | 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 its 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. |
5
4.3.2 | 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 |
6
5.5.2 | 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 |
5.5.3 | announce any intention to enter into or effect any such transaction described in Clauses 5.5.1 or 5.5.2 above, |
without first having obtained the written consent of the Subscriber (such consent not to be unreasonably withheld or delayed).
For the avoidance of doubt, any additional lock-up undertaking entered into pursuant to Clause 5.5 shall only be for a period of 90 days from the date of this Agreement.
6.1 | 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: |
7
8
9
10
11
(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; |
12
13
14
(i) | to fund or facilitate any activities of or business with any Person that, at the time of such funding or facilitation, is subject or the target of any Sanctions; |
(ii) | to fund or facilitate any activities of or business in any Sanctioned Country; |
(iii) | 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 any Sanctions, any Anti-Money Laundering Laws or any anti-bribery laws as set out in Clause 6.2.16; and |
15
“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. |
6.5 | 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: |
16
17
(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 |
18
then and in any such case, the Subscriber may terminate this Agreement without liability to it and/or the Company (other than for any antecedent breach) by giving notice in writing to the Company, which notice may be given at any time prior to 8:00 a.m. (Hong Kong time) on the Closing Date.
Save for the Announcement and the shareholders’ circular relating to, amongst other things, the Subscription, for the purpose of the Shareholders’ Meeting and save as required by law or applicable regulation or by the U.S. Securities and Exchange Commission, the Stock Exchange or the SFC, each of the Parties hereby undertakes to procure that no public announcement or communication to the press or to the Stock Exchange concerning the Subscription shall be made by or on behalf of the Company between the date hereof and the Closing Date without the prior written approval (such approval not to be unreasonably withheld or delayed) from the Subscriber as to the content, timing and manner of making thereof.
Any time, date or period mentioned in this Agreement may be extended by mutual agreement between the Subscriber and the Company and but as regards any time, date or period originally fixed or any date or period so extended as aforesaid, time shall be of the essence.
11.1 | All notices delivered hereunder shall be in writing in English and shall be communicated to the following addresses: |
Semiconductor Manufacturing International Corporation
No. 18 Zhangjiang Road
Pudong New Area
Shanghai 201203
The People’s Republic of China
19
China Integrated Circuit Industry Investment Fund Co., Ltd.
Room 718, Building 52, No.2 Jingyuan North Street, Beijing Economic and Technological Development Area, Beijing
Facsimile: 0086-10-59259778
Attention: Ze Fan
If to the Subscriber, to:
Xinxin (Hongkong) Capital Co., Ltd.
Room A 20/F, Kiufu Commercial Building, 300 Lockhart Road, Wan Chai, Hong Kong
Facsimile: 0086-10-59259778
Attention: Jie Zhang
20
12.7 | A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Ordinance (Cap 623 of the Laws of Hong Kong) to enforce any term of, or enjoy any benefit under, this Agreement, except that this does not affect any right or remedy of a third party which exists or is available apart from that Ordinance. |
21
IN WITNESS WHEREOF this Agreement has been entered into the day and year first before written.
for and on behalf of SEMICONDUCTOR MANUFACTURING INTERNATIONAL CORPORATION in the presence of: |
|
|
22
SIGNED by for and on behalf of CHINA INTEGRATED CIRCUIT INDUSTRY INVESTMENT FUND CO., LTD. |
|
|
23
SIGNED by for and on behalf of XINXIN (HONGKONG) CAPITAL CO., LTD. |
|
|
24