EXHIBIT 10.10
FORM OF AGREEMENT ON TRANSFER OF
SHARES OF SHENZHEN MINDRAY BIO-MEDICAL
ELECTRONICS CO., LTD.
Date: _________________
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(as "Transferor")
and
----------
(as "Transferee")
Agreement on Transfer of _________ Shares
of Shenzhen Mindray Bio-Medical Electronics Co., Ltd.
This Agreement is entered into by and between the following parties as of
______, 2005 in Shenzhen, People's Republic of China (hereinafter referred to as
the "PRC"):
Transferor: __________________________ (hereinafter referred to as
"Transferor"), a limited liability company incorporated in British
Virgin Islands,
Registered Address: _______________________________________
Mailing Address : _________________________
Legal Representative : ______________________ Position: ________
Nationality: ___________________
Tel no.: _______________ Fax no.: _________________
Transferee: _________________________ (hereinafter referred to as
"Transferee"), a limited liability company incorporated in British
Virgin Islands,
Registered Address: _______________________________________
Mailing Address: _________________________
Legal Representative: _______________________ Position: ________
Nationality: ___________________
Tel no.: _______________ Fax no.: _________________
WHEREAS,
(1) Shenzhen Mindray Bio-Medical Electronics Co., Ltd. (hereinafter referred to
as "Mindray") is a foreign-invested company limited by shares organized
under the PRC laws. As of the date hereof, Transferor holds ___________
shares in Mindray.
(2) Transferor, Transferee, _____________ and Mindray entered into an Agreement
on _______________ Shares of Shenzhen Mindray Bio-Medical Electronics Co.,
Ltd. (hereinafter referred to as the "Share Agreement") on _________, under
which Transferor agrees to transfer the shares it holds in Mindray in the
amount of __________ to Transferee and ________________ when permitted by
law.
(3) Now Transferor may legally transfer the shares it holds in Mindray in the
amount of __________. Transferor agrees to transfer to Transferee and
Transferee agrees to acquire from Transferor __________ shares of Mindray
owned by Transferor as a beneficial owner out of the above amount of
shares.
Therefore, after friendly consultation between Transferor and Transferee, this
Agreement is hereby made for transfer of the ____________ shares of Mindray to
Transferee by Transferor.
1. DEFINITIONS
1.1 Unless otherwise specified herein, the following terms and expressions
contained in this Agreement and all appendices (if applicable) shall have
the meanings set forth below:
"Related Shares" mean the __________ shares of Mindray owned by
Transferor as a beneficial owner, which
Transferee has agreed to acquire from Transferor
and Transferor has agreed to sell to Transferee.
Such __________ shares account for ________ of
the total amount of issued shares of Mindray;
"Conditions Precedent" mean the conditions precedent for completion of
transfer of the Related Shares pursuant to
Article 4 hereof;
"Completion of Transfer
of the Related Shares" means the consummation of the transfer of the
Related Shares specified in Article 5 hereof;
"Business Day" means any day which is a working day in both the
mainland of China and the Hong Kong Special
Administrative Region;
"Price" means the price for purchasing the Related Shares
by Transferee from Transferor set forth in
Article 3 hereof;
"Force Majeure" means any event beyond the expectation of both
parties, and the occurrence or result of which
cannot be reasonably avoided or overcome by the
affected party, including but not limited to
earthquake, typhoon, flood, fire, riot, war,
strike;
"RMB" means the legal currency of the PRC.
"USD" means the legal currency of the United States of
America.
1.2 All references to statutory clauses shall be construed to be references to
the clauses as each amended from to time, reformulated, or clauses whose
applicability revised according to other clauses (whether revised before or
after the date hereof) and including the reformulated clauses (whether with
or without revisions).
1.3 All references to provisions and annexes are to the provisions and annexes
of this Agreement; all references to sections shall be references to the
sections under the related provisions (unless otherwise specified herein).
The annexes of this Agreement (if any) shall be deemed as a constitutional
part of this Agreement.
1.4 The headings used in this Agreement are used for convenience only and shall
not affect the interpretation of this Agreement.
2. TRANSFER OF THE RELATED SHARES
Subject to each of the terms herein, Transferor shall sell the Related Shares to
Transferee as the beneficial owner of such shares. Transferee shall not be
subject to all liens, mortgages and
encumbrances at the time of acquiring the Related Shares and shall be entitled
to all rights affiliated to the Related Rights.
3. PRICE AND PAYMENT
3.1 The Price for purchasing the Related Shares by Transferee shall be RMB
_________ (RMB _____ per share).
3.2 Transferee has paid in USD in the amount equivalent to RMB _________ into
the bank account designated by Transferor in accordance with the Share
Agreement and the remaining payment (to be made in US Dollar in the amount
equivalent to RMB _______) will be made pursuant to Article 5 hereof.
3.3 Both parties agree that although the Price specified herein is in Renminbi,
transferee may pay the Price in US Dollar at the exchange rate for
converting USD into Renminbi published by the People's Bank of China on the
payment date (the average of selling price and buying price).
4. CONDITIONS PRECEDENT FOR TRANSFER OF THE RELATED SHARES
4.1 The Conditions Precedent for transfer of the Related Shares set forth
herein shall be:
(a) After the date hereof, Transferor will and will cause Mindray to
promptly complete all the formalities for transfer of the Related
Shares owned by Transferor to Transferee and go through the requisite
procedures in accordance with the related regulations and provide
Transferee with the relevant documentations;
(b) The board of directors of Transferor has adopted a resolution to
approve the share transfer contemplated hereunder in compliance with
the provisions of the articles of association of Transferor;
(c) The board of directors of Transferee has adopted a resolution to
approve the share transfer contemplated hereunder in compliance with
the provisions of the articles of association of Transferee;
(d) Transferor will cause all current directors of Mindray appointed by
Transferor to resign from the board without giving rise to claims of
any compensation or other payment against Mindray by such directors as
a result of removal from their posts and cause the general meeting of
shareholders of Mindray to approve such resignation and the
replacements into the board of directors of Mindray appointed by
Transferee (if any);
(e) The original examination and approval authority of Mindray has
approved the transfer of the Related Shares by Transferor to
Transferee, approved the joint venture contract and articles of
association of Mindray after the share transfer and
issued the amended Certificate of Approval of Foreign-invested
Enterprise to Mindray;
(f) Other related authorities have ratified and approved the share
transfer and other related matters (if necessary);
(g) The resolution of the board of directors/general meeting of
shareholders of Mindray approving the share transfer has been made and
the written confirmation of the other shareholders of Mindray
approving the share transfer and indicating waiver of right of first
refusal has been made (if applicable).
4.2 Transferee may, at any time, give a written notice to Transferor to waive
all or any of such conditions (unless otherwise provided by the applicable
laws and regulations).
5. COMPLETION OF TRANSFER OF THE RELATED SHARES
Except for the unpaid remaining amount of the Price, within 10 Business Days
after all the formalities for transfer of the Related Shares have been completed
(including but not limited to approval of transfer of the Related Shares by
Transferor and acquisition of the Related Shares by Transferee granted by the
examination and approval authority and other related authorities, if any,
completion of renewal of registration with the administrative department of
industry and commerce and other related processes and fulfillment of the
Conditions Precedent in Article 4.1 hereof), Transferee shall pay the remaining
amount of the Price into the bank account designated by Transferor in USD in the
amount equivalent to RMB ________ and pay to Transferor the interest accrued on
the remaining amount of the Price for the period between __________ and the date
when all formalities for transfer of the Related Shares have been completed at
the annual interest rate of 5%.
6. WARRANTIES AND UNDERTAKINGS
6.1 Transferor hereby makes warranties and undertakings to Transferee that
Transferor has made full capital contribution to Mindray, owns the Related
Shares as a beneficial owner, has full rights and powers to execute and
perform this Agreement and the execution and performance of this Agreement
by Transferor will not breach any applicable laws, regulations and other
obligations of Transferor. The Related Shares are free from any third party
interests, liens, pledges or other encumbrances (except for those in which
Transferee has any right).
6.2 Transferor hereby makes warranties and undertakings to Transferee that
after execution of this Agreement and prior to the Completion of Transfer
of the Related Shares, Transferor has not taken and will not take any
action having or possibly having adverse impact on the good standing,
production and operation and conditions of assets of Mindray.
6.3 Transferee hereby makes warranties and undertakings to Transferor that
Transferee has full rights and powers to execute and perform this Agreement
and the execution and
performance of this Agreement by Transferee will not breach any applicable
laws, regulations and other obligations of Transferee.
7. LIABILITIES FOR BREACH OF THIS AGREEMENT
In the process of performance of this Agreement, unless otherwise specified
herein, any violation of the agreements contained herein by either party
shall constitute a breach and such party shall assume the liabilities
incurred therefrom.
8. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement shall be governed by, and construed in accordance with, the
laws of the PRC. Any dispute arising out of or relating to this Agreement
shall be settled friendly through consultation between both parties. If no
settlement can be reached through such consultation, the dispute shall be
referred to the China International Economic and Trade Arbitration
Commission for arbitration in accordance with the arbitration rules of such
entity as then in effect. The arbitral award shall be final and binding
upon both parties.
9. WAIVER
No Transferee's waiver of breach of any provision hereof by Transferor
shall be deemed as Transferee's waiver of any subsequent breach or breach
of any other provisions hereof. Transferee's delay or lateness in
exercising any of its rights hereunder shall not be construed to be a
waiver of such rights. As long as any of the provisions hereof has not been
performed upon the Completion of Transfer of the Related Shares, such
provision shall remain in full force.
10. FORCE MAJEURE
Neither party shall be liable for failure to perform its obligations
hereunder as a result of Force Majeure but both parties shall take all
reasonable and practical compensatory measures to reduce the losses caused
by such Force Majeure event as permitted by the then conditions.
11. NOTICE
Any notice or written communication to be given by either party to the
other party under this Agreement, including but not limited to any and all
offers, letters or notices hereunder, shall be written in English or
Chinese (if required by the relevant Chinese authorities to be made in
Chinese, then such notice or written communication shall be made in
Chinese) and sent or delivered in letter form by courier service or by
facsimile (followed by a confirmation copy delivered by a courier service)
to the address of the recipient party. Any notice or communication given
hereunder shall be deemed sent on the seventh (7) Business Day after the
letter is delivered to the courier service or on the second (2) Business
Day following the date of facsimile transmission. All notices and
communications shall be sent to the address below unless either party
notifies the other party in writing of change of such address.
___________________________________
Address: ___________________________________________
Attn: _____________________________
Tel no.: __________________________
Fax no.: __________________________
___________________________________
Address: ___________________________________________
Attn: _____________________________
Tel no.: __________________________
Fax no.: __________________________
12. EFFECTIVENSS, AMENDMENT AND TERMINATION OF THE AGREEMENT
12.1. This Agreement shall become effective upon execution by the legal
representatives or authorized representatives or agents of both parties and
approval by the competent examination and approval authority by issuing the
amended Certificate of Approval of Foreign-invested Enterprise.
12.2. This Agreement may be amended only by a writing signed by both parties.
12.3. Unless otherwise specified herein, this Agreement shall be terminated upon
consultation between both parties in written form or overall performance of
this Agreement by both parties.
13. MISCELLANEOUS
13.1. This Agreement shall be binding upon both parties. No rights or
obligations hereunder may be transferred by either party without a written
consent of the other party.
13.2. This Agreement, together with any document referred to herein, shall
constitute the entire agreement between both parties.
13.3. The invalidity of any of the provisions hereof shall not affect the
validity of the remaining provisions.
13.4. Unless required by the provisions of any applicable laws, regulations,
statutes or rules or by any competent authorities, neither party may
disclose or in any other manner publish any information relating to this
Agreement or any related issues without prior written consent of both
parties.
13.5. Transferor shall pay the taxes and various expenses (including attorney's
fees) payable during the execution and performance of this Agreement to the
extent permitted by law.
13.6. Any matters not covered by this Agreement may be agreed by both parties by
entering into a supplementary agreement in writing. The supplementary
agreement and this Agreement shall have the equal legal effect.
13.7. This Agreement is made in Chinese in 6 counterparts. Each party shall
retain one counterpart and the others shall be submitted to the competent
examination and approval authority and other departments.
IN WITNESS WHEREOF, this Agreement is executed as of the date first written
above.
Transferor: ______________________ (seal)
Representative:
---------------------
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(signature)
Transferor: ______________________ (seal)
Representative:
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(signature)
EQUITY TRANSFER CHART
Form A
NUMBER OF AMOUNT PAID
DATE TRANSFEROR TRANSFEREE SHARES (RMB)
---- ------------------------------------------- ------------------------------- --------- ------------
2004/12/30 Xxxx Xxxxx Greatest Elite Limited 518,408 3,162,288.80
2005/01/07 Taiwan Asia Pacific Venture Capital Limited Greatest Elite Limited 1,300,593 6,502,965.00
2004/12/30 Xxxx Xxxxx Giant Glory Investments Limited 518,408 3,162,288.80
2005/01/07 Taiwan Asia Pacific Venture Capital Limited Giant Glory Investments Limited 1,300,592 6,502,960.00
