SEMICONDUCTOR MANUFACTURING INTERNATIONAL CORPORATION AGREEMENT TO GRANT RESTRICTED SHARE UNIT AND STOCK OPTION AWARDS
Exhibit 99.(A)
(3)
AGREEMENT TO GRANT
This Agreement to
Grant Restricted Share Unit and Stock Option Awards (“Agreement”) is made
______________, 2010 (the “Effective Date”),
by and between Semiconductor Manufacturing International Corporation (the
“Company”) and [________] (“Participant”).
WHEREAS, the Company attempted on February 5, 2009 to
approve an option (the “Attempted Option Grant”) issuable to Participant to purchase [________] ordinary shares of the
Company under the Company’s 2004 Stock Option Plan (the “Option Plan”) with
an intended effective grant date of February 17, 2009;
WHEREAS, the Attempted Option Grant was communicated
to Participant in the summer of 2009;
WHEREAS, the Company discovered that the Attempted
Option Grant was not properly awarded and processed; and
WHEREAS, the Company now desires to grant
Participant, and Participant desires to accept, restricted share unit and stock
option awards based on the terms set forth below in lieu of any rights
Participant may have with respect to the Attempted Option Grant.
NOW,
THEREFORE, Participant and
the Company mutually agree as follows:
1. Equity Awards.
(a) Restricted Share Unit Award. In accordance with the Company’s policies
relating to the granting of equity awards, the Company will grant Participant
[__________] restricted share units (the “RSU Grant”) under
the Company’s 2004 Equity Incentive Plan (the “Equity Plan”) to be
settled in ordinary shares of the Company. Fifty percent (50%) of the RSU Grant
will vest on March 1, 2010 and the remaining fifty percent (50%) of the RSU
Grant will vest on March 1, 2011, subject to Section 1(c) and Participant’s
continued service with the Company or its subsidiaries through each vesting
date. In all other respects, the RSU Grant will be subject to the terms and
conditions of the Equity Plan and a restricted share unit agreement to be
executed between Participant and the Company (the “RSU Agreement”).
(b) Stock Option. The Company will grant Participant an option
to purchase [_______] ordinary shares of the Company (the “Option”) under the
Option Plan with an exercise price equal to the fair market value of the
underlying ordinary shares on the effective grant date (but in no event lower
than the exercise price communicated to Participant with respect to the
Attempted Option Grant). The Option will vest as to fifty percent (50%) of the
shares subject to the Option on March 1, 2010 and as to fifty percent (50%) of
the shares subject to the Option on March 1, 2011, subject to Section 1(c) and
Participant’s continued service with the Company or its subsidiaries through
such vesting dates. In all other respects, the Option will be subject to the
terms and conditions of the Option Plan and a stock option agreement to be
executed between Participant and the Company (the “Option Agreement”).
(c) Acceptance of Agreement. The RSU Grant and the Option will not vest
unless and until Participant accepts and agrees to this Agreement, which must
occur no later than March 31, 2010. If Participant has not accepted and agreed
to this Agreement by March 31, 2010, the RSU Grant and the Option will terminate
and be null and void and Participant will have no further rights with respect
thereto.
2. Waiver. By Participant’s electronic signature to
this Agreement, Participant acknowledges and agrees that the Attempted Option
Grant is null and void and Participant shall have no rights whatsoever with
respect to the Attempted Option Grant. Further, by Participant’s electronic
signature to this Agreement, Participant waives and forever discharges the
Company, its agents, employees, officers, directors, shareholders, related
companies, predecessor and/or subsidiary corporations, successors, and assigns
from all claims, suits, debts, liabilities, promises or causes of action
whatsoever, known or unknown, arising from or in any way related to
Participant’s right to vest in, purchase, or exercise shares which were granted,
promised to be granted, or accrued on or before the date Participant
electronically signs this Agreement, including, without limitation, any claims
for fraud, misrepresentation, breach of fiduciary duty, breach of duty under
applicable state corporate law, and securities fraud under any state or federal
law. Participant expressly waives any rights or benefits under any state law
which provides that a general release does not extend to claims which the
creditor does not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have materially
affected his or her settlement with the debtor.
3. Acknowledgements. Participant acknowledges and agrees that
Participant has had the opportunity to consult with Participant’s personal
advisors regarding any tax or other consequences of accepting the RSU Grant and
the Option and waiving any and all rights with respect to the Attempted Option
Grant. The Participant further agrees and acknowledges that Participant is aware
of the Company’s business affairs and financial condition, including the risks
related to the Company’s business, and has acquired sufficient information about
the Company to reach an informed and knowledgeable decision to enter into this
Agreement and that Participant is not prohibited by any applicable laws in
accepting the RSU Grant or the Option.
4. Governing Law. This Agreement is governed by the laws of
the Cayman Islands.
5. Entire Agreement. This Agreement, together with the Equity
Plan, Option Plan, the RSU
Agreement and Option Agreement, represent the entire agreement and understanding
between the parties as to the subject matter hereof and supersedes all prior or
contemporaneous agreements, whether written or oral. No waiver, alteration or
modification of any of the provisions of this Agreement shall be binding, unless
in writing and signed by duly authorized representatives of the parties
hereto.
IN WITNESS WHEREOF,
this Agreement is entered into as of the date set forth above.
Participant
acknowledges and agrees that clicking the “ACCEPT” button below shall act as
Participant’s electronic signature to this Agreement and shall result in a
contract between Participant and the Company. Participant agrees and
acknowledges that Participant’s electronic signature indicates Participant’s
mutual understanding with the Company to the terms of this
Agreement.
