Exhibit 10.12
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE REDACTED PORTIONS OF THIS
AGREEMENT WHICH ARE DENOTED BY [******]. A COMPLETE COPY OF THIS AGREEMENT,
INCLUDING THE REDACTED PORTIONS, HAS BEEN FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
INVESTMENT COOPERATION AGREEMENT
Party A: The Management Committee of the Nanjing Jiangning Economic and
Technological Development Zone
Party B: Mindray Medical International Limited
The Witness: The People's Government of Jiangning District, Nanjing
Municipality
Through friendly consultation and according to the principles of good faith
cooperation and mutual benefit, Party A and Party B have reached the following
agreement with respect to matters concerning the investment to be made by a
subsidiary of Party B (hereinafter referred to as "Party B's Subsidiary") in the
establishment of the "Mindray Medical Electronic Industrial Base" (hereinafter
referred to as the "Base Project") in the Nanjing Jiangning Economic and
Technological Development Zone (hereinafter referred to as the "Jiangning
Development Zone").
ARTICLE 1 LAND AREA AND SITE OF THE BASE PROJECT
Party A agrees to transfer a plot of land covering an area of 650 mu in the
Jiangning Development Zone (of which 550 mu shall be used for industrial
purposes and 100 mu shall be used for construction of living quarters and
auxiliary facilities; the actual area of this plot shall be based on a field
measurement, provided, however, that it shall not be less than the area
specified above) to Party B for Party B's Subsidiary to develop and construct
the Base Project. Of the 650 mu as specified above, 450 mu shall be transferred
in the first phase of the Base Project (of which 350 mu shall be used for
industrial purposes and 100 mu shall be used for construction of living quarters
and auxiliary facilities), and a plot of land covering 200 mu shall be reserved
to expand the buildings for research, development and production in the second
phase of the Base Project). The plot of land for the Base Project (including the
reserved plot with an area of 200 mu) is located to the north of Zhengfang
Avenue and to the east of the plot of land to be used by a project of Zhongxing
Telecommunications Co., Ltd. in the Jiangning Development Zone (The sketch map
of the location is attached hereto and the specific boundaries of this plot of
land are to be determined by the authorities in charge of urban planning).
ARTICLE 2 CONTENTS OF THE BASE PROJECT
Party B's Subsidiary shall make an investment in the construction of the
Base Project on this plot of land and undertakes that it will go through the
formalities for registration of establishment of "Nanjing Mindray Biomedical
Electronics Co., Ltd." (a tentative name and the final name shall be as approved
by the authorities in charge of administration of industry and commerce) in the
Jiangning Development Zone, which is a project company that shall have the
status of an independent legal person (hereinafter referred to as the "Project
Company").
The total amount of investment in the Project Company shall be USD 150
million and the registered capital of the Project Company shall be USD 50
million and, in the first phase of the
1
Base Project, the total amount of investment shall be USD 30 million and the
registered capital shall be USD 15 million. The term of business operation of
the Project Company shall be more than 15 years. The formalities for
registration of establishment of the Project Company shall be commenced as of
the date of execution hereof and completed by the end of February 2007. 15% of
the registered capital of the Project Company shall be paid in within three
months after the date of issuance of its business license and the registered
capital shall be paid in full within one year and after the Project Company has
obtained the 450 mu of land to be transferred in the first phase of the Base
Project. The Project Company shall increase its registered capital and its total
amount of investment to USD 30 million and USD 90 million, respectively, during
the period from it has obtained the 200 mu of land to be transferred in the
second phase of the Base Project to the end of June, 2008; and the Project
Company shall increase its registered capital and its total amount of investment
to USD 50 million and USD 150 million, respectively, by the end of September
2009. The total amount of investment in the Base Project shall meet the
requirements concerning the intensity of investment in land as put forth by the
state.
After the construction of the Base Project is completed, the Project
Company shall engaged primarily in the research, development, production and
distribution of hi-tech medical equipment (including digital X-ray apparatuses,
unaesthetic machines, computerized tomography imaging systems and nuclear
magnetic resonance imaging systems), clinical test reagents, auxiliary precision
machinery, and parts and components, as well as in provision of related
technical training.
ARTICLE 3 TRANSFER AND DEVELOPMENT OF THE LAND FOR THE BASE PROJECT
The area of the plot of land for the Base Project shall total 650 mu. This
plot of land shall be reserved and planned as a whole, but it shall be
transferred in two phases and the construction thereon shall also be carried out
in two phases. Of these 650 mu of land, 450 mu shall be transferred in the first
phase of the Base Project to be used for the construction of buildings for
research, development, office, auxiliary facilities and residence in the Base
Project (of which 350 mu shall be used for industrial purposes and 100 mu shall
be used for construction of living quarters and auxiliary facilities); and 200
mu shall be transferred in the second phase of the Base Project mainly for the
purpose of expanding the buildings for research, development and production.
ARTICLE 4 PRICE OF LAND AND METHOD OF PAYMENT
4.1 Land for Industrial Use in the Base Project
4.1.1 Area and Price of the Land for Industrial Use in the Base Project
4.1.1.1 The area of the land for industrial use in the first phase of
the Base Project shall be 350 mu and the area of the land for
industrial use reserved for the second phase of the Base
Project shall be 200 mu.
4.1.1.2 To induce Party B to establish this base in the Jiangning
Development Zone, Party A agrees to transfer 550 mu of land
for industrial use in two phases to
2
Confidential Treatment Requested
Party B for it to construct an industrial zone for the Base
Project. The Project Company and the authorities in charge of
administration of state-owned land shall enter into a certain
Contract for Transfer of State-Owned Land Use Right. Party A
and Party B agree that the price of the land to be
transferred in connection of the Base Project will be RMB
[******] per mu (or RMB [******] per square meter), that the
total price of the land to be transferred in the first phase
of the Base Project will be RMB [******] (or in words, RMB
[******]) (the actual total price of the land shall be
calculated on the basis of the actual area of the land
determined by a field measurement); and that the total price
of the land to be transferred in the second phase of the Base
Project will be RMB [******] (or in words, RMB [******]). If
the price of the land to be transferred hereunder as agreed
in the Contract for Transfer of State-Owned Land Use Right
exceeds the price as agreed herein, the excess shall be dealt
with by Party A in accordance with the provisions of Article
4.1.2.3.
4.1.2 Method of Payment of the Price of the Land for Industrial Use
4.1.2.1 Within 30 days after the first instalment of the registered
capital of the Project Company is paid in, the Project
Company shall pay Party A 10% of the price of the land for
industrial use to be transferred in the first phase of the
Base Project, which will amount to RMB [******] (or in
words, RMB [******]);
4.1.2.2 Within 180 days after the Project Company has entered into
this Agreement, it shall enter into the Contract for Transfer
of State-Owned Land Use Right with respect to the land for
industrial use to be transferred in the first phase of the
Base Project with the authorities in charge of administration
of state-owned land and pay the price of the land to be
transferred in the first phase of the Base Project in
accordance with the provisions of that contract. Party A
shall assist the Project Company in preparing the materials
necessary for applying for issuance of the Certificate of
State-Owned Land Use Right and in obtaining such certificate;
4.1.2.3 If the land price paid by the Project Company in accordance
with the Contract for Transfer of State-Owned Land Use Right
exceeds the land price as agreed in Article 4.1.1.2 hereof,
Party A shall refund the excess to the Project Company within
thirty days after the Project Company has paid up the land
price in accordance with the Contract for Transfer of
State-Owned Land Use Right;
4.1.2.3 When the Project Company is going through the formalities for
issuance of the Certificate of State-Owned Land Use Right in
connection with the land for industrial use to be transferred
hereunder, it shall pay all taxes and charges as imposed
thereon by the authorities in charge of administration of
state-owned land and resources.
3
Confidential Treatment Requested
4.2 Land to Be Transferred for Construction of Living Quarters and Auxiliary
Facilities in the Base Project
4.2.1 Area, Price and Method of Transfer of the Land to Be Transferred for
Construction of Living Quarters and Auxiliary Facilities in the Base
Project
4.2.1.1 The area of the land to be transferred for construction of
living quarters and auxiliary facilities in the Base Project
shall be 100 mu.
4.2.1.2 To induce Party B to establish this base in the Jiangning
Development Zone, Party A agrees to transfer the land as
mentioned in the preceding paragraph to Party B for it to
construct living quarters and auxiliary facilities in the
Base Project. Party A and Party B agree that the price of
this land will be RMB [******] per mu (or RMB [******] per
square meter), that the total price of this land will be RMB
[******] (or in words, RMB [******]) (the actual total price
of this land shall be calculated on the basis of the actual
area of this land determined by a field measurement). If the
price of this land as agreed in the Contract for Transfer of
State-Owned Land Use Right exceeds the price as agreed
herein, the excess shall be dealt with by Party A in
accordance with the provisions of Article 4.2.2.2.
4.2.1.3 The land for construction of living quarters and auxiliary
facilities in the Base Project shall be transferred by means
of so-called "bidding, auctioning or listing" and Party A
shall assist Party B or the Project Company in going through
the formalities for such "bidding, auctioning or listing".
4.2.2 Method of Payment of the Price of the Land for Construction of Living
Quarters and Auxiliary Facilities
4.2.2.1 When the Project Company or the real estate development
company it has commissioned to develop the land to be
transferred hereunder has obtained the right to develop the
land to be transferred hereunder by means of "bidding,
auctioning or listing", it shall pay up the price of the land
as it has offered in such bid invitation or auction;
4.2.2.2 If the land price paid in accordance with the Contract for
Transfer of State-Owned Land Use Right by the Project Company
or the real estate development company it has commissioned to
develop the land to be transferred hereunder exceeds the land
price as agreed in Article 4.2.1.2 hereof, Party A shall
refund the excess to the Project Company within thirty days
after the Project Company has paid up the land price in
accordance with the Contract for Transfer of State-Owned Land
Use Right;
4.2.2.3 When the Project Company or the real estate development
company it has commissioned to develop the land to be
transferred hereunder is going
4
through the formalities for issuance of the Contract for
Transfer of State-Owned Land Use Right with respect to the
land to be transferred for construction of living quarters
and auxiliary facilities in the Base Project, it shall pay
all taxes and charges as imposed thereon by the authorities
in charge of administration of state-owned land and
resources.
ARTICLE 5 COMMENCEMENT OF CONTRACTION OF THE BASE PROJECT
5.1 Party A shall be responsible for the so-call "Seven Connections and One
Leveling" with respect to the infrastructure on the land to be used for the
Base Project, including connection with roads, connections with power and
water supply, connections with rain and waste water drainage, connection
with broadband, connection with post and telecommunication services, and
land leveling.
5.2 The Base Project shall be constructed in two phases. The construction of
the first phase of the Base Project shall be commenced within 8 months of
execution hereof (If the commencement of this construction is delayed
through no fault on Party B's fault, the time limit for such commencement
as specified above shall be appropriately lengthened) and is scheduled to
be completed by December 31, 2008; the agreement for investment in the
second phase of the Base Project shall be entered into by June 30, 2008,
the construction of this phase is scheduled to be commenced by December 31,
2008, and the development of the whole Base Project shall be completed by
June 30, 2010.
ARTICLE 6 RELATED UNDERTAKINGS
6.1 The time limit for the development of the plot of land for the Base
Project: The development of the whole Base Project shall be completed
within three years and a half years of execution hereof. If the development
of the plot of land for the Base Project fails to be completed within the
time limit as specified above through any fault on the part of Party B or
the Project Company, Party A shall have the right to recover any part of
the land that has not yet been developed, provided, however, that Party A
shall refund to the Project Company the part of the price which the Project
Company has paid for that part of the land which has not yet been
developed;
6.2 Party B or the Project Company shall plan and develop this plot of land
according to the plan as approved by the planning bureau of Jiangning
District and the requirements as put forth by this bureau and shall not
change the purposes as prescribed for this plot of land;
6.3 Party B undertakes that it will complete all the formalities for
registration of all the investments projects in this plot of land with the
authorities in charge of administration of industry and commerce, taxes,
and finances within the Jiangning Development Zone;
6.4 Party A undertakes that it will not transfer the 200 mu of land reserved
for the second phase of the Base Project to any other party than Party B's
Subsidiary until June 30, 2008. If Party A violates such undertaking, the
Project Company shall have the right not to
5
increase its registered capital or to reduce the amount by which it will
increase its registered capital.
6.5 If Party A fails to perform all the undertakings it has made herein
(including but not limited to those with respect to the area and price of
the land, the refund of the difference between the prices of the land and
the related support policies as provided for in Article 7), the Project
Company shall reserve the right not to increase its registered capital or
to reduce the amount by which it will increase its registered capital or
even to have its registration cancelled.
6.6 Party B's Subsidiary shall have the right to increase the registered
capital of the Project Company;
6.7 Party A shall assist Party B in completing the formalities for submission
of the project proposal and establishment of the Project Company for
approval, for registration of establishment of the Project Company with the
authorities in charge of administration of industry and commerce, and for
submission of the land planning and the commencement of the construction
for approval. When the Project Company has paid in full the price of this
plot of land and provided valid materials to be submitted to the relevant
authorities, Party A shall assist the Project Company in going through the
formalities for issuance of the Certificate of State-Owned Land Use Right,
for which the time limit may be specified in a supplementary agreement to
be entered into separately through consultation. After the construction of
the related factory buildings and the buildings that will be used to house
people and auxiliary facilities has been completed and such buildings have
been accepted after inspection, Party A shall assist Party B or the Project
Company in going through the formalities for issuance of the Certificate of
Building Property Ownership. At the request of the Project Company, Party A
shall assist Party B or the Project Company in transferring the ownership
of the buildings that will be used to house people and auxiliary facilities
to the individual employee(s) designated by Party B and have such buildings
registered in the name of such employee(s);
6.8 Party A agrees that the personnel of Party B or the Project Company will
have their households registered in the zone under Party A's management
(The specific list of such personnel will be as provided by Party B to
Party A).
6.9 Party A agrees that, so far as the right and opportunity to receive
education in the zone under Party A's management is concerned, the children
of the employees of Party B or the Project Company will be entitled to the
same treatment as given to the children of Party A's local employees (The
specific list of such employees will be as provided by Party B to Party A).
ARTICLE 7 RELATED SUPPORT POLICIES
Party A agrees to implement the following support policies toward the
Project Company provided that Party B has met the conditions for registration of
the establishment of the Project Company in accordance with the provisions of
Article 2 hereof:
6
7.1 Enterprise Income Tax: The Project Company shall be exempt from enterprise
income tax for the first and second year after the Project Company has
begun to make profit; for the period from the third to the fifth year the
enterprise income tax payable by the Project Company shall be reduced by
half and during this period a subsidy that will amount to all that part of
the enterprise income tax paid by the Project Company which may be retained
by the financial administration at the district level shall be given to the
Project Company; and for the period from the six to tenth year, a subsidy
that will amount to half of that part of the enterprise income tax paid by
the Project Company which may be retained by the financial administration
at the district level shall be given to the Project Company.
7.2 Value Added Tax: For the three years after the Project Company has
commenced its business operations, a subsidy that will amount to 40% of
that part of the value added tax paid by the Project Company which may be
retained by the financial administration at the district level shall be
given to the Project Company.
7.3 Deed Tax on Land Transactions: A subsidy that will amount to 50% of that
part of the deed tax paid by the Project Company on the transaction in the
land for industrial use to be transferred for the Base Project which may be
retained by the financial administration at the district level shall be
given to the Project Company.
7.4 Individual Income Tax: For the three years after the Project Company has
commenced its business operations, a subsidy that will amount to 40% of
that part of the individual income tax paid by the officers and key
technical personnel of the Project Company (who will account for 40% of all
the employees of the Project Company and the specific list of such officers
and personnel will be as provided by Party B to Party A) which may be
retained by the financial administration at the district level shall be
given to such officers and personnel.
7.5 The tax authorities shall make sure that taxes payable by the Project
Company will timely be reduced or exempted as provided in the national tax
preferential policy and, if any adjustments are made in the national tax
policy in the future, taxes payable by the Project Company will be reduced
or exempted in accordance with the new national tax policy. The Jiangjing
Development Zone shall accord any other items of the tax preferential
treatment to the Project Company in accordance with the financial
management system as formulated by the government of the Jiangning District
for the division of the tax revenue between the district and the Jiangning
Development Zone.
ARTICLE 8 SPECIAL PROVISIONS
8.1 Except as Party B's failure to perform this Agreement is caused by any
fault on Party A's Part or by Party A's failure to extend assistance to
Party B, if Party B fails to observe the provisions of either Article
4.1.2.1 or Article 5.2 hereof more than six months after the expiration of
the time limit for observation of such provisions, Party A shall have the
right to terminate this Agreement. If Party B has observed the provisions
of Article
7
4.1.2.1 but fails to complete the construction of the Base Project and to
put it into production in accordance with the provisions of Article 5.2
more than six months after it became due for it to do so, Party A shall
have the right to terminate this Agreement, recover the plot of land
hereunder and refund to Party B the land price it has already paid.
8.2 If Party B fails to observe any of the following provisions, Party A shall
have the right to terminate this Agreement unilaterally and shall not be
liable for any losses (including but not limited to economic losses) Party
B may suffer as a result, except as Party B's failure to perform this
Agreement is caused by any fault on Party A's Part or by Party A's failure
to extend assistance to Party B:
8.2.1 provisions concerning the obligation to establish the Project Company
as provided for in Article 2 hereof;
8.2.2 provisions concerning the obligation to pay the price for land
transfer as provided for in Articles 4.1 and 4.2 hereof;
8.2.3 provisions of Article 5.2 hereof;
8.2.4 provisions of Article 6.1 hereof;
8.2.5 provisions of Article 6.2 hereof; or
8.2.6 provisions of Article 6.3 hereof.
8.3 Party A and Party B undertake and warrant to each other that it has the
appropriate authority and qualifications to enter into this Agreement and
it is fully authorized to do so. If either party fails to perform any of
its undertakings or obligations hereunder or violates any of its warranties
in this article, it shall be liable for breach of contract and shall
compensate the other party for any direct or indirect losses it may suffer
as a result. Either party may make a claim for compensation against the
other party according to law if the other party commits any breach of
contract.
ARTICLE 9 SETTLEMENT OF DISPUTES
If any dispute arises out of or relating to performance of this Agreement,
Party A and Party B shall first try to settle such dispute through friendly
consultation. If such dispute fails to be settled within [30] days after the
request for such consultation is made, either party shall have the right to
submit such dispute for arbitration in [Shanghai] under the auspices of [the
Shanghai branch of the China International Economic and Trade Arbitration
Commission] in accordance with the arbitration rules of this commission in
effect at the time of submission of the application for arbitration of such
dispute. The award made by the arbitration tribunal shall be final and binding
on the parties to such dispute.
ARTICLE 10 MISCELLANEOUS
8
10.1 In the course of the performance hereof, through consultation Party A and
Party may enter into a written supplementary agreement, which shall have
equal effect and validity with this Agreement.
10.2 Subrogation. Whereas this Agreement is just a framework agreement Party A
and Party B have entered into with respect to the Base Project, all or part
of Party B's rights and obligations hereunder shall be actually assumed by
the Project Company upon its establishment, provided, however, that Party
B's obligation to make contributions to the registered capital of the
Project Company shall still be performed by Party B or Party B's
Subsidiary. Therefore, Party A agrees that this Agreement which provides
for Party B's rights and obligations, among other things, is entered into
by Party B on behalf of the Project Company and all of Party B's other
rights and obligation than that obligation to be assumed by Party B or
Party B's Subsidiary as specifically provided above will be assumed by the
Project Company at the agreed time.
10.3 Changes in Laws. If any legislative body or government agency of the
People's Republic of China or Jiangsu Province adopts any new law,
regulation, degree or ordinance, or amends or repeals any provisions of any
law, regulation, degree or ordinance now in effect, or promulgate any
different way to interpret or enforce any law, regulation, degree or
ordinance so that Party B or the Project Company may obtain a more
favorable treatment than provided hereunder, Party B or the Project Company
shall have the right to make a prompt written application for such
favorable treatment to Party A or the other relevant authorities and Party
A shall approve, or cause the relevant authorities to approve, such
application for a more favorable treatment by a lawful procedure, in which
case, Party A and Party B may consult about what adjustments should be made
with respect to the support policies as described above. If any changes in
any national or provincial policies have an adverse effect on Party B or
the Project Company, Party B shall have the right to make adjustments in
its plan for investment in the Base Project. If any changes in the policies
of Jiangning District or the Jiangning Development Zone have any adverse
effect, Party B shall still perform this Agreement in accordance with its
terms and conditions.
10.4 Party A undertakes that, if any provisions hereof are outside its
jurisdiction, it will use its best efforts to obtain approval of such
provisions from any other competent government agency so as to give effect
to this Agreement.
10.5 Authorization. Party A confirms that Party A is an agency of the people's
government of Jiangning District, Nanjing Municipality, Jiangsu Province
(hereinafter referred to as the "Jiangning District Government"), and it
has been authorized by the Jiangning District Government to enter into this
Agreement. (For the letter of authorization, see the attachment hereto)
10.6 This Agreement is executed in six counterparts, two of which shall be kept
by each of Party A, Party B, and the Witness, and this Agreement shall
become effective as of the date Party A and Party B have affixed their
respective seals and signatures hereto.
9
Party A: The Management Committee of the Nanjing Jiangning Economic and
Technological Development Zone (Seal)
Signature of the Authorized Representative:
Party B: Mindray Medical International Limited (Seal)
Signature of the Authorized Representative:
The Witness: The People's Government of Jiangning District, Nanjing Municipality
Signature of the Authorized Representative:
Date: December 27, 2006
-----------------------------------
10
