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EXHIBIT 4.3
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE REGISTERED FORM, THIS CERTIFICATE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC
TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
CHINA MOBILE (HONG KONG) LIMITED
__% Convertible Note due _______
No. ____ US$_______________
China Mobile (Hong Kong) Limited, a corporation duly organized
and existing under the laws of the Hong Kong Special Administrative Region of
the People's Republic of China (herein called the "Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ______________ or registered assigns, the
principal sum of _____________ United States Dollars on _______, at the office
or agency of the Company referred to below, and to pay interest thereon
commencing ________, 2001 and semi-annually thereafter, on ________ and ________
in each year, at the rate of __% per annum accruing from ________, 2000 or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, until the principal hereof is paid or duly provided for, and (to
the extent lawful) to pay on demand interest on any overdue interest at the rate
borne by the Securities from the date on which such overdue interest becomes
payable to the date payment of such interest has been made or duly provided for.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the _______ or _______ (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder on such Regular Record Date, and such overdue interest, and (to
the extent lawful) interest on such overdue interest at the rate
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borne by the Securities, may be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture. Payment
of the principal of and interest on this Security will be made at the office or
agency of the Company maintained for that purpose in The City of New York, or at
such other office or agency of the Company as may be maintained for such
purpose, in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Company (i)
by check mailed to the address of the Person entitled thereto as such address
shall appear on the Security Register or (ii) by transfer to an account
maintained by the payee located in the United States.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
This Security is one of a duly authorized issue of securities
of the Company designated as its __%Convertible Notes due _____ (herein called
the "Securities"), limited (except as otherwise provided in the Indenture
referred to below) in aggregate principal amount to US$________, which may be
issued under an indenture (herein called the "Indenture") dated as of _______,
2000 between the Company and The Bank of New York as trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Trustee and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
This Security is redeemable at the option of the Company, as a
whole but not in part, on any date at a Redemption Price equal to 100% of the
principal amount plus any accrued and unpaid interest to the Redemption Date if
the Company determines that, as a result of any change in or amendment to the
laws or any regulations or rulings promulgated thereunder of Hong Kong or any
political subdivision or taxing authority thereof or therein, or any change in
the official application or interpretation of such laws, regulations or rulings,
or any change in the official application or interpretation of, or any
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execution or amendment to, any treaty or treaties affecting taxation to which
Hong Kong is a party, which change, execution or amendment becomes effective on
or after the original issue date of the Securities, the Company has been or will
be required to pay Additional Amounts with respect to the Securities as
described under Section 1001 of the Indenture.
This Security is redeemable at the option of the Company, in
whole but not in part, at any time on or after _______, at a Redemption Price
equal to 100% of the principal amount plus any accrued and unpaid interest to
the Redemption Date; provided, however, that no such redemption may be made
unless the closing price per Ordinary Share on the Hong Kong Stock Exchange for
each of the 30 consecutive Trading Days (translated into US dollars at the
Prevailing Exchange Rate on such Trading Day), the last of which occurs not more
than five days prior to the date on which notice of such redemption is given, is
at least __% of the Conversion Price per Ordinary Share as adjusted through, and
effective on, such notice date (translated into US dollars at the Fixed Exchange
Rate).
Notwithstanding the foregoing, the Company may redeem all of
the Securities outstanding, including this Security, at a Redemption Price equal
to 100% of the principal amount plus any accrued and unpaid interest to the
Redemption Date if at anytime the aggregate principal amount of the Securities
Outstanding is less than 5% of the aggregate principal amount of the Securities
originally issued.
This Security, or a portion thereof equal to US$1,000 or any
integral multiple thereof, is subject to repayment by the Company at the option
of the Holder hereof upon the occurrence of certain Repayment Events described
in Article Twelve of the Indenture (including events relating to change of
control of the Company or delisting of the Ordinary shares or ADSs), at a
Repayment Price equal to 100% of the principal amount, together with any accrued
and unpaid interest to the Repayment Date. In order to be repaid at the option
of the Holder, this Security, with the "Notice to Elect Repayment" form duly
completed by the Holder hereof (or the Holder's attorney duly authorized in
writing), must be received by the Company at its office or agency maintained for
that purpose in the Borough of Manhattan, The City of New York, not later than
the date specified by the Company in its notice of the Repayment Event in
accordance with Section 1206 of the Indenture. Exercise of such option by the
Holder of this Security shall be irrevocable unless waived by the Company.
In the case of any redemption or repayment of Securities,
interest installments whose Stated Maturity is on or prior to the Redemption
Date or Repayment Date will be payable to the Holders of such Securities, or one
or more Predecessor Securities, of record at the close of business on the
relevant Regular Record Date referred to on the face hereof, as provided in the
Indenture. Securities (or portions thereof) for whose redemption or repayment
provision is made in accordance with the Indenture shall
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cease to bear interest from and after the Redemption Date or Repayment Date (as
applicable).
This Security is convertible into Ordinary Shares of the
Company at any time after 30 days from its original issuance and before the
close of business on the third Business Day preceding _____, at the Conversion
Price then in effect; provided, however, that, if this Security is called for
redemption pursuant to Article Eleven of the Indenture, such conversion right
shall terminate at the close of business on the third Business Day preceding the
Redemption Date for this Security. A Holder may convert a portion of this
Security equal to US$1,000 or any integral multiple thereof.
The number of Ordinary Shares issuable upon conversion of this
Security (or a portion hereof equal to US$1,000 or any integral multiple
thereof) shall be determined by dividing the principal amount (translated into
Hong Kong dollars at the Fixed Exchange Rate specified in the Indenture) of this
Security or portion hereof surrendered for conversion by the Conversion Price
per Ordinary Share in effect on the Conversion Date. The initial Conversion
Price is US$______per ADS, which is equivalent to HK$______ per Ordinary Share
at the Fixed Exchange Rate (US$1.00 = HK$ ____), in each case, subject to
adjustment for certain anti-dilution events as provided in Article Thirteen of
the Indenture. The Ordinary Shares issuable upon conversion will be duly
authorized, validly issued, fully paid and nonassessable and will rank equally
with all other Ordinary Shares.
A Holder may elect to receive Ordinary Shares upon conversion
in the form of ADSs. In such event, the Company agrees to, on behalf of such
Holder, deliver to and deposit with the ADS depositary or its custodian, in
accordance with the terms of the ADS Deposit Agreement, such number of Ordinary
Shares the Holder would have received upon conversion had he not elected to
receive such Ordinary Shares in the form of ADSs. Such Ordinary Shares will be
registered in the name of the ADS depositary or its nominee. Subject to
compliance with the terms of the ADS Deposit Agreement, including payment of the
fees and expenses of the ADS depository by such Holder, the ADS depository will
issue such number of ADSs representing the deposited Ordinary Shares to such
Holder based on the applicable share-to-ADS ratio then in effect. For the
avoidance of doubt, such number of ADSs can also be determined by dividing the
principal amount of this Security or portions hereof surrendered for conversion
by the Conversion Price per ADS in effect on the Conversion Date.
All calculation relating to redemption and conversion,
including adjustment of the Conversion Price, will be made to the nearest 0.01
of an Ordinary Share or ADS or other property or the nearest cent. Fractions of
Ordinary Shares will not be issued on conversion, and no cash adjustments will
be made in respect of any such fraction. Similarly, under the ADS Deposit
Agreement, fractions of ADSs will not be
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issuable upon conversion, and no cash adjustments will be made in respect of any
such fraction.
To convert this Security, a Holder must (a) complete and
manually sign the "Conversion Notice" form herein, including an election on
whether to receive Ordinary Shares or ADSs upon conversion, and deliver such
notice to the Conversion Agent, (b) surrender this Security to the Conversion
Agent duly endorsed or assigned to the Company or in blank, (c) furnish
appropriate endorsements and transfer documents (if any) required by the
Registrar or the Conversion Agent, and (d) pay any required transfer or similar
tax and make any other required payment. The date on which the Holder satisfies
all of those requirements is the "Conversion Date."
As soon as practicable, and in any event not later than 14
days, after the Conversion Date (or such longer period as may be required to
comply with any applicable fiscal or other laws or regulations), the Company
will register the person or persons designated for the purpose in the Conversion
Notice as holder(s) of the relevant number of Ordinary Shares in its share
register and 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 for such Ordinary Shares to the person or persons
and at the place specified in the Conversion Notice. The person or persons
specified for that purpose will become the holder of record of the number of
Ordinary Shares issuable upon conversion with effect from the date he is or they
are registered as such in the Company's share register (the "Registration
Date"). The Indenture contains various provisions concerning circumstances where
the record set for a dividend on the Ordinary Shares or an Adjustment Effective
Date for the adjustment of the Conversion Price falls between the Conversion
Date and the Registration Date.
No payment or adjustment will be made for accrued interest on
this Security when delivered for conversion. If any Holder surrenders this
Security for conversion after the close of business on the Record Date for the
payment of an installment of interest and before the close of business on the
related Interest Payment Date, then, notwithstanding such conversion, the
interest payable on such Interest Payment Date shall be paid to the Holder of
this Security on such Regular Record Date. In such event, unless this Security
has been called for redemption, this Security, when surrendered for conversion,
must be accompanied by delivery of a check or draft payable to the Company in an
amount equal to the interest payable on such Interest Payment Date on the
portion so converted. If such payment does not accompany this Security, this
Security shall not be converted.
A conversion notice once given will be irrevocable and may not
be withdrawn without the prior written consent of the Company. The Company or
the Conversion Agent on its behalf may reject any incomplete or incorrect
conversion notice.
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All costs and expenses incurred by an incomplete or incorrect conversion notice
will be for the account of the relevant Holder.
As conditions precedent to conversion, the Holder must pay to
the Conversion Agent any taxes and capital, stamp, issue and registration duties
arising on conversion, other than any taxes or capital or stamp duties payable
in Hong Kong in respect of the allotment and issuance of the Ordinary Shares and
listing of the Ordinary Shares upon conversion. In addition, the Holder will be
required to pay any tax or duty relating to any disposal or any deemed disposal
relating to conversion and transfer involved in the issue or delivery of the
Ordinary Shares upon conversion in a name other than such Holder's. The Company
will pay all other expenses arising on the issue, allotment and delivery of the
Ordinary Shares issuable upon conversion.
In the event of conversion or repayment of this Security in
part only, a new Security or Securities for the unpaid portion hereof shall be
issued in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the
principal of all the Securities may be declared due and payable in the manner
and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by or on behalf of the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee indemnity, and the Trustee shall not have received
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from the Holders of a majority in principal amount of Securities at the time
Outstanding a direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Security for the enforcement of any payment of principal
hereof or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Security at the times, place, and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable on
the Principal Security Register and the other Security Register of the Company,
upon surrender of this Security for registration of transfer at the office or
agency of the Company maintained for such purpose in Hong Kong and The City of
New York, respectively, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in fully registered form
without coupons in denominations of US$1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, the Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to the time of due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any agent shall be affected by notice to
the contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
This Security is a global Security. Notwithstanding any other
provisions in this Security, payment of the principal of and interest on this
Security will be made by
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transfer of immediately available funds to a bank account in the Borough of
Manhattan, The City of New York designated by the Holder hereof.
Upon the exchange, redemption, repayment or conversion of any
portion of this global Security, the Security Registrar shall adjust the
Security Register to reflect the reduction or increase, as the case may be, in
the principal amount of this global Security by an amount equal to the aggregate
principal amount of the Securities so exchanged, redeemed, repaid or converted,
whereupon the principal amount hereof shall be reduced or increased, as the case
may be, for all purposes by the amount so exchanged, redeemed, repaid or
converted and noted.
This global Security or portion hereof may not be exchanged
for definitive Securities except in the limited circumstances provided herein
and in the Indenture. If at any time, (i) the Depository notifies the Company
that it is unwilling or unable to continue as Depository or if at any time the
Depository shall no longer be registered or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation and a successor Depository is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such condition,
as the case may be, or (ii) the Company determines that the Securities shall no
longer be represented by a global Security or Securities or (iii) any Event of
Default shall have occurred and be continuing, then in such event the Company
will execute and the Trustee will authenticate and deliver Securities in
definitive registered form, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of this Security in exchange for
this Security. Such Securities in definitive registered form shall be registered
in such names and issued in such authorized denominations as the Depository,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Securities to the
Persons in whose names such Securities are so registered.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
CHINA MOBILE (HONG KONG) LIMITED
By
---------------------------------
Dated:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the
within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK,
as Trustee
By
--------------------------------
Authorized Signatory
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FORM OF NOTICE TO ELECT REPAYMENT
The undersigned registered Holder of the within Security
hereby irrevocably requests and instructs the Company to repay this Security (or
the portion thereof specified below), pursuant to Article Twelve of the
Indenture referred to in this Security, on the "Repayment Date" specified in the
Company's notice of occurrence of the Repayment Event, at a Repayment Price
equal to 100% of the principal amount thereof, together with accrued interest to
the Repayment Date, to the undersigned at:
-------------------------------------------------
(Name and Address of the Undersigned.)
For this Notice to Elect Repayment to be effective, this
Security with the Notice to Elect Repayment duly completed must be received, not
later than the day that is 10 days prior to the Repayment Date, as specified in
the Company's notice of occurrence of the Repayment Event, by the Company at its
office or agency in the Borough of Manhattan, The City of New York.
If less than the entire principal amount of the within
Security is to be repaid, specify the portion thereof (which shall be US$1,000
or an integral multiple thereof) which is to be repaid: US$__________.
If less than the entire principal amount of the within
Security is to be repaid, specify the denomination(s) of the Security(ies) to be
issued for the unpaid amount (US$1,000 or any integral multiple of US$1,000):
US$__________.
Dated:
By:
--------------------------------
Signature of Registered Holder
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FORM OF CONVERSION NOTICE
The undersigned registered Holder of the within Security
hereby irrevocably exercises the option to convert this Security (or the portion
thereof specified below) into Ordinary Shares of the Company and elects to
receive such Ordinary Shares in the form of:
- Ordinary Shares, for the principal amount of the
Security of US$ ___ (which shall be an integral
multiple of the Conversion Price in effect on the
Conversion Date), and/or
- ADSs, for the principal amount of the Security of US$
___ (which shall be an integral multiple of the
product of the Conversion Price and the
share-to-ADS ratio in effect on the Conversion Date),
pursuant to the terms of the Indenture referred to in this Security, and directs
that Ordinary Shares or ADSs, as the case may be, issuable upon conversion and
any Security representing any unconverted principal amount hereof, be issued and
delivered to the registered Holder hereof unless a different name has been
provided below:
-----------------------------------------------------
(Name, Address and Taxpayer Identification Number.)
If less than the entire principal amount of this Security is
to be converted, specify the denomination(s) of the Security(ies) to be issued
for the unconverted amount (US$1,000 or any integral multiple of US$1,000):
US$__________.
If Ordinary Shares or any portion of this Security not
converted are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto and is
delivering herewith a certificate in proper form certifying that the applicable
restrictions on transfer have been complied with.
The undersigned hereby acknowledges that fractions of Ordinary
Shares or ADSs will not be issued on conversion and no cash adjustments will be
made in respect of any such fraction. The undersigned hereby agrees that,
promptly after request of the Company or Conversion Agent, it will furnish such
proof in support of this certificate as the Company or Conversion Agent may
request.
Dated:
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By:
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Signature of Registered Holder
By:
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Signature Guaranty