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Exhibit 4.23
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Dated 2018 | |
(1) SEMICONDUCTOR MANUFACTURING INTERNATIONAL CORPORATION and (2) DATANG telecom technology & industry holdings co., ltd. and (3) DATANG HOLDINGS (HONGKONG) INVESTMENT COMPANY LIMITED
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SUBSCRIPTION AGREEMENT relating to the exercise of pre-emptive right in connection with |
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Clause |
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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 | 15 |
8 | TERMINATION | 16 |
9 | PUBLIC COMMUNICATION | 17 |
10 | TIME OF THE ESSENCE | 18 |
11 | NOTICES | 18 |
12 | MISCELLANEOUS | 19 |
13 | APPLICABLE LAW AND JURISDICTION | 19 |
THIS SUBSCRIPTION AGREEMENT is made on 2018
(3) | 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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“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;
“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;
“China IC Fund” means 國家集成電路產業投資基金股份有限公司 (China Integrated Circuit Industry Investment Fund Co., Ltd.), a company established under PRC laws;
“China IC Fund Pre-Emptive Securities” means any Shares or perpetual subordinated convertible securities convertible into Shares to be issued to China IC Fund (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 China IC Fund’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 February 12, 2015 between China IC Fund and the Company;
“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;
“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;
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“Listing Committee” means the listing sub-committee of the board of directors of the Stock Exchange;
“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 China IC Fund 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$655,256,937.45;
“Subscription Price” means HK$10.65 per Share, being the same price as the subscription price for the placing of the Marketed Shares;
“Subscription Securities” means the US$200,000,000 2.00 per cent. perpetual subordinated convertible securities to be issued to Subscriber pursuant to a
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subscription agreement entered into between the Company, Datang Telecom and the Subscriber on or about the date of this Agreement;
“Subscription Shares” means 61,526,473 new Shares to be issued by the Company under the Subscription;
“subsidiary” has the same meaning as in Section 15 of the Companies Ordinance;
“Takeovers Code” means the Hong Kong Codes on Takeovers and Mergers and Share Buy-backs issued by the SFC;
“Taxation” mean all forms of taxation whether of Hong Kong or elsewhere in the world whenever imposed and all statutory, governmental, state, provincial, local governmental or municipal impositions, duties and levies and all penalties, charges, costs and interests relating thereto;
“U.S.” or “United States” means the United States of America, its territories and possessions, any state of the United States, and the District of Columbia; and
“US$” 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. |
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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. 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. |
4.3.1 | deliver to the Subscriber a copy of the approval for the listing of, and permission to deal in the Subscription Shares duly obtained from the Stock Exchange; |
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 |
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Subscriber and/or its nominees as members in respect of the Subscription Shares; and |
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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: |
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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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and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, 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, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental or regulatory agency (collectively, the “Anti-Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental or regulatory agency, authority or body or any arbitrator involving the Subscriber or its Affiliates with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Subscriber (after due and careful enquiry), threatened. |
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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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(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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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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member of the Group and any of their jointly controlled entities of the Company with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Company (after due and careful enquiry), threatened; |
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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, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, the “Sanctions”); |
(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 |
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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: |
6.5.2 | 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. |
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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. |
8.1 | Notwithstanding anything contained in this Agreement, if at any time prior to 8:00 a.m. (Hong Kong time) on the Closing Date: |
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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.
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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
Facsimile: +86-21-3861-0000 (ext 16109)
Attention: Yong Wang
Datang Telecom Technology & Industry Holdings Co., Ltd.
18/F Edinburgh Tower
The Landmark
15 Queen’s Road
Central
Hong Kong
Facsimile: +86 1062301701
Attention: Ying Tian
If to the Subscriber, to:
Datang Holdings (Hongkong) Investment Company Limited
18/F Edinburgh Tower
The Landmark
15 Queen’s Road
Central
Hong Kong
Facsimile: +86 01062301701
Attention: Ying Tian
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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. |
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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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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: |
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SIGNED by for and on behalf of DATANG TELECOM TECHNOLOGY & INDUSTRY HOLDINGS CO., LTD. |
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SIGNED by for and on behalf of DATANG HOLDINGS (HONGKONG) INVESTMENT COMPANY LIMITED |
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