As filed with the Securities and Exchange Commission on March 22, 2004
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT
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Semiconductor Manufacturing International Corporation
(Exact name of Registrant as specified in its charter)
Cayman Islands Not Applicable
(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
No. 18 Zhangjiang Road
Pudong New Area, Shanghai 201203
People's Republic of China
Attn: Richard R. Chang, Chief Executive Officer
(+86-21) 5080-2000
(Address of Principal Executive Offices)
-----------------------------
Semiconductor Manufacturing International Corporation 2004 Stock Option Plan
Semiconductor Manufacturing International Corporation 2004 Equity Incentive Plan
Semiconductor Manufacturing International Corporation 2004 Employee Stock
Purchase Plan
Semiconductor Manufacturing International Corporation 2001 Stock Plan
Semiconductor Manufacturing International Corporation 2001 Preference Shares
Stock Plan
(Full title of the Plans)
CT Corporation System
111 Eighth Avenue
New York, NY 10011
Tel: (212) 894-8440
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
Carmen Chang
Shearman & Sterling LLP
1080 Marsh Road
Menlo Park, CA 94025
Tel: (650) 838-3600
CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Share Aggregate Registration Fee
(1) (2) Offering Price
- --------------------------------------------------------------------------------------------------------------------
Ordinary Shares, par value
$0.0004 per share
2004 Equity Incentive Plan 455,409,330 $0.35(3) $159,393,265.50 $20,195.13
2004 Stock Option Plan and
2004 Employee Stock 1,317,000,000 $0.35(3) $460,950,000.00 $58,402.37
Purchase Plan
2001 Stock Plan 102,608,310 $0.0535(4) $5,489,544.59 $695.53
2001 Preference Shares Stock
Plan 11,693,500 $0.1111(4) $1,299,147.85 $164.60
------------------ --------------------------------------------
Total:
1,886,711,140 $627,131,957.94 $79,457.63
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(1) The Ordinary Shares may be represented by the Registrant's American
Depositary Shares, each of which represents 50 Ordinary Shares. A
separate Registration Statement on Form F-6 (File No. 333-112725) has
been filed for the registration of American Depositary Shares evidenced
by American Depositary Receipts issuable upon deposit of Ordinary
Shares.
(2) The amount being registered also includes an indeterminate number of
Ordinary Shares which may be offered as a result of any stock splits,
stock dividends and anti-dilution provisions and other terms in
accordance with Rule 416 under the Securities Act of 1933, as amended
(the "Securities Act").
(3) Pursuant to Rule 457(h) under the Securities Act, the Proposed Maximum
Offering Price Per Share and the Proposed Maximum Aggregate Offering
Price for 1,772,409,330 Ordinary Shares available for future awards
under the 2004 Equity Incentive Plan, the 2004 Employee Stock Purchase
Plan and the 2004 Equity Incentive Plan are based on the Offering Price
listed on the Registrant's Registration Statement on Form F-1
(Registration No. 333-112720).
(4) Pursuant to Rule 457(h) under the Securities Act, the Proposed Maximum
Offering Price Per Share and the Proposed Maximum Aggregate Offering
Price for a total of 114,301,810 Ordinary Shares awarded under the 2001
Stock Plan and the 2001 Preference Shares Stock Plan are based on the
weighted average exercise price of the stock options granted under
each of the respective plans prior to the date of this Registration
Statement.
Page 2 of 12
Exhibit Index Appears on Pages 11-12
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information. *
Item 2. Registrant Information and Employee Plan Annual Information. *
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed with the
Securities and Exchange Commission (the "Commission") by the Registrant
are incorporated herein by reference and made a part hereof:
(a) The Registrant's Prospectus filed on March 11, 2004
pursuant to Rule 424(b) under the Securities Act,
which contains audited financial statements for the
Registrant's latest fiscal year for which such
statements have been filed;
(b)(1) the description of the Registrant's Ordinary Shares
set forth under the heading "Description of Share
Capital" contained in the Registrant's Registration
Statement on Form F-1, as filed with the Commission
on March 11, 2004 (File Number 333-112720);
(2) the description of the Registrant's American
Depositary Shares set forth under the heading
"Description of American Depositary Shares" contained
in the Registrant's Registration Statement on Form
F-1, as filed with the Commission on March 11, 2004
(File No. 333-112720); and
(3) the description of the Registrant's American
Depositary Shares contained in the form of Deposit
Agreement (including the form of American Depositary
Receipt) among the Company, JPMorgan Chase Bank, as
Depositary, and all owners and beneficial owners from
time to time of ADRs issued thereunder, filed as
Exhibit (a) to the Registrant's Registration
Statement on Form F-6, dated March 10, 2004, 2004
(File 333-112725).
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* Information required by Part I to be contained in the Section
10(a) prospectus is omitted from this Registration Statement
in accordance with Rule 428 under the Securities Act, and the
"Note" to Part I of Form S-8.
All documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") subsequent to the effective date of this
Registration Statement, but prior to the filing of a post-effective
amendment to this Registration Statement indicating that all securities
offered hereby have been sold or deregistering all securities then
remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing of such
documents.
Any statement contained herein or in any document incorporated
or deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement to
the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed to
constitute a part of this Registration Statement, except as so modified
or superseded.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Cayman Islands law does not limit the extent to which a
company's articles of association may provide for indemnification of
officers and directors, except to the extent any such provision may be
held by the Cayman Islands courts to be contrary to public policy, such
as to provide indemnification against civil fraud or the consequences
of committing a crime. The Registrant's Articles of Association permit
indemnification of officers and directors for losses, damages, costs
and expenses incurred in their capacities as such if they acted in good
faith, in a manner they reasonably believed to be in, or not opposed
to, the Registrant's best interests, in a manner that was not willfully
or grossly negligent, and, with respect to any criminal action or
proceeding, they had no reasonable cause to believe their conduct was
unlawful. In addition, the Registrant intends to enter into
indemnification agreements with each of its directors and executive
officers that will provide such persons with additional indemnification
beyond that provided in the Registrant's Articles of Association.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See attached "Index to Exhibits" list.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes;
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs
(a)(1)(i) and (a)(1)(ii) above do not apply if the information required
to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby further undertakes that,
for purposes of determining any liability under the Securities Act, each filing
of the Registrant's annual report
filed on Form 20-F pursuant to Section 13(a) or Section 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Shanghai, People's Republic of China, on March 19, 2004.
Semiconductor Manufacturing
International Corporation
By: /s/ Richard R. Chang
-----------------------------------
Name: Richard R. Chang
Title: Chairman of the Board, President and Chief
Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard R. Chang as his or her true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to the Registration Statement on Form S-8 of Semiconductor
Manufacturing International Corporation, and to file the same, with all exhibits
thereto, and all documents in connection therewith, with the U.S. Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he or she could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
This Power of Attorney may be executed in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which together shall
constitute one and the same agreement.
Pursuant to the requirements of the Securities Act, as amended, the
Registration Statement on Form S-8 has been signed below by the following
persons on March 19, 2004 in the capacities indicated.
Signature Title
--------- -----
/s/ Richard R. Chang Chairman of the Board, President and Chief
- ------------------------------- Executive Officer
Richard R. Chang
/s/ Jenny Wang
- ------------------------------- Chief Financial Officer and Chief
Jenny Wang Accounting Officer
/s/ David Tse Young Chou Director
- -------------------------------
David Tse Young Chou
Director
- -------------------------------
Ta-Lin Hsu
/s/ Yen-Pong Jou Director
- -------------------------------
Yen-Pong Jou
/s/ Tsuyoshi Kawanishi Director
- -------------------------------
Tsuyoshi Kawanishi
/s/ C. Richard Kramlich Director
- -------------------------------
C. Richard Kramlich
/s/ Jimmy Shueh-Mien Lee Director
- -------------------------------
Jimmy Shueh-Mien Lee
Director
- -------------------------------
Ming Fang Lu
/s/ Philip Richard Nicholls Director
- -------------------------------
Philip Richard Nicholls
/s/ Henry Shaw Director
- -------------------------------
Henry Shaw
/s/ Lip-Bu Tan Director
- -------------------------------
Lip-Bu Tan
Director
- -------------------------------
Yang Yuan Wang
SIGNATURE OF AUTHORIZED REPRESENTATIVE OF THE REGISTRANT
Pursuant to the Securities Act of 1933, as amended, the undersigned,
the duly authorized representative in the United States of Semiconductor
Manufacturing International Corporation, has signed this Registration Statement
in Fremont, California on March 19, 2004.
SMIC Americas
By: /s/ Samuel T. Wang
-------------------------------
Name: Samuel T. Wang
Title: President
INDEX TO EXHIBITS
The following exhibits are filed as part of this Registration Statement:
Exhibit Number Description
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4.1 Registrant's Ninth Amended and Restated Articles of
Association (previously filed as Exhibit 3.2 to the
Registrant's Registration Statement on Form F-1 (File No.
333-112720 on March 11, 2004 and incorporated herein by
reference)
4.2 Form of Deposit Agreement (including the form of American
Depositary Receipt) among the Company, JP Morgan Chase Bank,
as Depositary, and all owners and beneficial owners from time
to time of ADRs issued thereunder (previously filed as Exhibit
(a) to the Registrant's Registration Statement on Form F-6,
dated March 10, 2004 (File No. 333-112725), and incorporated
herein by reference)
4.3 Semiconductor Manufacturing International Corporation 2004
Stock Option Plan (previously filed as Exhibit 10.8 to the
Registrant's Registration Statement on Form F-1 (File No.
333-112720 on March 10, 2004 and incorporated herein by
reference)
4.4 Semiconductor Manufacturing International Corporation 2004
Equity Incentive Plan (previously filed as Exhibit 10.9 to the
Registrant's Registration Statement on Form F-1 (File No.
333-112720 on March 10, 2004 and incorporated herein by
reference)
4.5 Semiconductor Manufacturing International Corporation 2004
Employee Stock Purchase Plan (previously filed as Exhibit
10.10 to the Registrant's Registration Statement on Form F-1
(File No. 333-112720 on March 10, 2004 and incorporated herein
by reference)
4.6 Semiconductor Manufacturing International Corporation 2001
Stock Plan (previously filed as Exhibit 10.11 to the
Registrant's Registration
Statement on Form F-1 (File No. 333-112720 on February 11,
2004 and incorporated herein by reference)
4.7 Semiconductor Manufacturing International Corporation 2001
Preference Shares Stock Plan (previously filed as Exhibit
10.13 to the Registrant's Registration Statement on Form F-1
(File No. 333-112720 on February 11, 2004 and incorporated
herein by reference)
5* Opinion of Maples and Calder as to the legality of the
Ordinary Shares
23.1* Consent of Deloitte Touche Tohmatsu Certified Public
Accountants Limited
23.2* Consent of Maples and Calder (included in its opinion filed as
Exhibit 5)
24* Powers of attorney (included on signature page)
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* Filed herewith.