Exhibit 10.2
FORM OF INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "AGREEMENT") is made as of
____________, 2006, by and between MINDRAY MEDICAL INTERNATIONAL LIMITED, an
exempted company duly incorporated and validly existing under the Law of the
Cayman Islands (the "COMPANY"), and __________ (the "INDEMNITEE"), a director of
the Company.
WHEREAS, the Indemnitee has agreed to serve as a director of the Company
and in such capacity will render valuable services to the Company;
WHEREAS, in order to induce and encourage highly experienced and capable
persons such as the Indemnitee to serve as directors of the Company, the Board
of Directors has determined, that this Agreement is not only reasonable and
prudent, but necessary to promote and ensure the best interests of the Company
and its shareholders; and
NOW, THEREFORE, in consideration of the premises and mutual agreements
hereinafter set forth, and other good and valuable consideration, including,
without limitation, the service of the Indemnitee, the receipt of which hereby
is acknowledged, and in order to induce the Indemnitee to serve as a director of
the Company, the Company and the Indemnitee hereby agree as follows:
1. DEFINITIONS. As used in this Agreement:
(a) "BOARD OF DIRECTORS" shall mean the board of directors of the
Company.
(b) "CHANGE IN CONTROL" SHALL MEAN A change in control of the Company of
a nature that would be required to be reported in response to Item 5(f) of
Schedule 14A of Regulation 14A (or in response to any similar item on any
similar or successor schedule or form) promulgated under the United States
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (collectively, the "ACT"), whether or not the Company is
then subject to such reporting requirement; provided, however, that, without
limitation, such a Change in Control shall be deemed to have occurred
(irrespective of the applicability of the initial clause of this definition) if
(i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Act,
but excluding any trustee or other fiduciary holding securities pursuant to an
employee benefit or welfare plan or employee share plan of the Company or any
subsidiary of the Company, or any entity organized, appointed, established or
holding securities of the Company with voting power for or pursuant to the terms
of any such plan) is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Act), directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power of the Company's then
outstanding securities without the prior approval of at least two-thirds of the
Continuing Directors (as defined below) in office immediately prior to such
person's attaining such interest; (ii) the Company is a party to a merger,
consolidation, scheme of arrangement, sale of assets or other reorganization, or
a proxy contest, as a consequence of which Continuing Directors in office
immediately prior to such transaction or event constitute less than a majority
of the Board of Directors of the Company (or any successor entity) thereafter;
or (iii) during any period of two (2) consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of the Company
(including for this purpose any new director whose election or
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nomination for election by the Company's shareholders was approved by a vote of
at least two-thirds of the directors then still in office who were directors at
the beginning of such period) (such directors being referred to herein as
"CONTINUING DIRECTORS") cease for any reason to constitute at least a majority
of the Board of Directors of the Company.
(c) "DISINTERESTED DIRECTOR" with respect to any request by the
Indemnitee for indemnification or advancement of expenses hereunder shall mean a
director of the Company who neither is nor was a party to the Proceeding (as
defined below) in respect of which indemnification or advancement is being
sought by the Indemnitee.
(d) The term "EXPENSES" shall mean, without limitation, expenses of
Proceedings, including attorneys' fees, disbursements and retainers, accounting
and witness fees, expenses related to the preparation or service as a witness,
travel and deposition costs, expenses of investigations, judicial or
administrative proceedings and appeals, amounts paid in settlement of a
Proceeding by or on behalf of the Indemnitee, costs of attachment or similar
bonds, any expenses of attempting to establish or establishing a right to
indemnification or advancement of expenses, under this Agreement, the Company's
Memorandum of Association and Articles of Association as currently in effect
(the "ARTICLES"), applicable law or otherwise, and reasonable compensation for
time spent by the Indemnitee in connection with the investigation, defense or
appeal of a Proceeding or action for indemnification for which the Indemnitee is
not otherwise compensated by the Company or any third party. The term "Expenses"
shall not include the amount of judgments, fines, interest or penalties, or
excise taxes assessed with respect to any employee benefit or welfare plan,
which are actually levied against or sustained by the Indemnitee to the extent
sustained after final adjudication.
(e) The term "INDEPENDENT LEGAL COUNSEL" shall mean any firm of
attorneys reasonably selected by the Board of Directors of the Company, so long
as such firm has not represented the Company, the Company's subsidiaries or
affiliates, the Indemnitee, any entity controlled by the Indemnitee, or any
party adverse to the Company, within the preceding five (5) years.
Notwithstanding the foregoing, the term "Independent Legal Counsel" shall not
include any person who, under applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the Company
or the Indemnitee in an action to determine the Indemnitee's right to
indemnification or advancement of expenses under this Agreement, the Company's
Articles, applicable law or otherwise.
(f) The term "PROCEEDING" shall mean any threatened, pending or completed
action, suit, arbitration, alternate dispute resolution mechanism, or any other
proceeding (including, without limitation, an appeal therefrom), formal or
informal, whether brought in the name of the Company or otherwise, whether of a
civil, criminal, administrative or investigative nature, and whether by, in or
involving a court or an administrative, other governmental or private entity or
body (including, without limitation, an investigation by the Company or its
Board of Directors), by reason of (i) the fact that the Indemnitee is or was a
director of the Company, or is or was serving at the request of the Company as
an agent of another enterprise, whether or not the Indemnitee is serving in such
capacity at the time any liability or expense is incurred for which
indemnification or reimbursement is to be provided under this Agreement, (ii)
any actual or alleged act or omission or neglect or breach of duty, including,
without limitation,
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any actual or alleged error or misstatement or misleading statement, which the
Indemnitee commits or suffers while acting in any such capacity, or (iii) the
Indemnitee attempting to establish or establishing a right to indemnification or
advancement of expenses pursuant to this Agreement, the Company's Articles,
applicable law or otherwise.
(g) The phrase "SERVING AT THE REQUEST OF THE COMPANY AS AN AGENT OF
ANOTHER ENTERPRISE" or any similar terminology shall mean, unless the context
otherwise requires, serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
limited liability company, trust, employee benefit or welfare plan or other
enterprise, foreign or domestic. The phrase "serving at the request of the
Company" shall include, without limitation, any service as a director of the
Company which imposes duties on, or involves services by, such director with
respect to the Company or any of the Company's subsidiaries, affiliates,
employee benefit or welfare plans, such plan's participants or beneficiaries or
any other enterprise, foreign or domestic. In the event that the Indemnitee
shall be a director, officer, employee or agent of another corporation,
partnership, joint venture, limited liability company, trust, employee benefit
or welfare plan or other enterprise, foreign or domestic, 50% or more of the
ordinary shares, combined voting power or total equity interest of which is
owned by the Company or any subsidiary or affiliate thereof, then it shall be
presumed conclusively that the Indemnitee is so acting at the request of the
Company.
2. SERVICES BY THE INDEMNITEE. The Indemnitee agrees to serve as a director
of the Company under the terms of the Indemnitee's agreement with the Company
for so long as the Indemnitee is duly elected and qualified, appointed or until
such time as the Indemnitee tenders a resignation in writing or is removed as a
director; provided, however, that the Indemnitee may at any time and for any
reason resign from such position (subject to any other contractual obligation or
other obligation imposed by operation of law).
3. PROCEEDING OTHER THAN A PROCEEDING BY OR IN THE RIGHT OF THE COMPANY.
The Company shall indemnify the Indemnitee if the Indemnitee is a party to or
threatened to be made a party to or is otherwise involved in any Proceeding
(other than a Proceeding by or in the right of the Company), by reason of the
fact that the Indemnitee is or was a director of the Company, or is or was
serving at the request of the Company as an agent of another enterprise, against
all Expenses, judgments, fines, interest or penalties, and excise taxes assessed
with respect to any employee benefit or welfare plan, which are actually and
reasonably incurred by the Indemnitee in connection with such a Proceeding, to
the fullest extent permitted by applicable law; provided, however, that any
settlement of a Proceeding must be approved in advance in writing by the Company
(which approval shall not be unreasonably withheld).
4. PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. The Company shall
indemnify the Indemnitee if the Indemnitee is a party to or threatened to be
made a party to or is otherwise involved in any Proceeding by or in the right of
the Company to procure a judgment in its favor by reason of the fact that the
Indemnitee is or was a director of the Company, or is or was serving at the
request of the Company as an agent of another enterprise, against all Expenses,
judgments, fines, interest or penalties, and excise taxes assessed with respect
to any employee benefit or welfare plan, which are actually and reasonably
incurred by the Indemnitee in
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connection with the defense or settlement of such a Proceeding, to the fullest
extent permitted by applicable law.
5. INDEMNIFICATION FOR COSTS, CHARGES AND EXPENSES OF WITNESS OR SUCCESSFUL
PARTY. Notwithstanding any other provision of this Agreement (except as set
forth in subparagraph 9(a) hereof), and without a requirement for determination
as required by Paragraph 8 hereof, to the extent that the Indemnitee (a) has
prepared to serve or has served as a witness in any Proceeding in any way
relating to (i) the Company or any of the Company's subsidiaries, affiliates,
employee benefit or welfare plans or such plan's participants or beneficiaries
or (ii) anything done or not done by the Indemnitee as a director of the Company
or in connection with serving at the request of the Company as an agent of
another enterprise, or (b) has been successful in defense of any Proceeding or
in defense of any claim, issue or matter therein, on the merits or otherwise,
including the dismissal of a Proceeding without prejudice or the settlement of a
Proceeding without an admission of liability, the Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred by the
Indemnitee in connection therewith to the fullest extent permitted by applicable
law.
6. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for a portion of
the Expenses, judgments, fines, interest or penalties, or excise taxes assessed
with respect to any employee benefit or welfare plan, which are actually and
reasonably incurred by the Indemnitee in the investigation, defense, appeal or
settlement of any Proceeding, but not, however, for the total amount of the
Indemnitee's Expenses, judgments, fines, interest or penalties, or excise taxes
assessed with respect to any employee benefit or welfare plan, then the Company
shall nevertheless indemnify the Indemnitee for the portion of such Expenses,
judgments, fines, interest penalties or excise taxes to which the Indemnitee is
entitled.
7. ADVANCEMENT OF EXPENSES. The Expenses incurred by the Indemnitee in any
Proceeding shall be paid promptly by the Company in advance of the final
disposition of the Proceeding at the written request of the Indemnitee to the
fullest extent permitted by applicable law; provided, however, that the
Indemnitee shall set forth in such request reasonable evidence that such
Expenses have been incurred by the Indemnitee in connection with such
Proceeding, a statement that such Expenses do not relate to any matter described
in subparagraph 9(a) of this Agreement, and an undertaking in writing to repay
any advances if it is ultimately determined as provided in subparagraph 8(b) of
this Agreement that the Indemnitee is not entitled to indemnification under this
Agreement.
8. INDEMNIFICATION PROCEDURE; DETERMINATION OF RIGHT TO INDEMNIFICATION.
(a) Promptly after receipt by the Indemnitee of notice of the
commencement of any Proceeding, the Indemnitee shall, if a claim for
indemnification or advancement of Expenses in respect thereof is to be made
against the Company under this Agreement, notify the Company of the commencement
thereof in writing. The omission to so notify the Company will not relieve the
Company from any liability which the Company may have to the Indemnitee under
this Agreement unless the Company shall have lost significant substantive or
procedural rights with respect to the defense of any Proceeding as a result of
such omission to so notify.
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(b) The Indemnitee shall be conclusively presumed to have met the
relevant standards of conduct, if any, as defined by applicable law, for
indemnification pursuant to this Agreement and shall be absolutely entitled to
such indemnification, unless a determination by clear and convincing evidence is
made that the Indemnitee has not met such standards by (i) the Board of
Directors by a majority vote of a quorum thereof consisting of Disinterested
Directors, (ii) the shareholders of the Company by majority vote of a quorum
thereof consisting of shareholders who are not parties to the Proceeding due to
which a claim for indemnification is made under this Agreement, (iii)
Independent Legal Counsel as set forth in a written opinion (it being understood
that such Independent Legal Counsel shall make such determination only if the
quorum of Disinterested Directors referred to in clause (i) of this subparagraph
8(b) is not obtainable or if the Board of Directors of the Company by a majority
vote of a quorum thereof consisting of Disinterested Directors so directs), or
(iv) a court of competent jurisdiction; provided, however, that if a Change of
Control shall have occurred and the Indemnitee so requests in writing, such
determination shall be made only by a court of competent jurisdiction.
(c) If a claim for indemnification or advancement of Expenses under this
Agreement is not paid by the Company within thirty (30) days after receipt by
the Company of written notice thereof, the rights provided by this Agreement
shall be enforceable by the Indemnitee in any court of competent jurisdiction.
Such judicial proceeding shall be made de novo. The burden of proving by clear
and convincing evidence that indemnification or advances are not appropriate
shall be on the Company. Neither the failure of the directors or shareholders of
the Company or Independent Legal Counsel to have made a determination prior to
the commencement of such action that indemnification or advancement of Expenses
is proper in the circumstances because the Indemnitee has met the applicable
standard of conduct, if any, nor an actual determination by the directors or
shareholders of the Company or Independent Legal Counsel that the Indemnitee has
not met the applicable standard of conduct shall be a defense to an action by
the Indemnitee or create a presumption for the purpose of such an action that
the Indemnitee has not met the applicable standard of conduct. The termination
of any Proceeding by judgment, order, settlement or conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself (i) create a
presumption that the Indemnitee did not act in good faith and in a manner which
he reasonably believed to be in the best interests of the Company and/or its
shareholders, and, with respect to any criminal Proceeding, that the Indemnitee
had reasonable cause to believe that his conduct was unlawful or (ii) otherwise
adversely affect the rights of the Indemnitee to indemnification or advancement
of Expenses under this Agreement, except as may be provided herein. The Company
further agrees to stipulate in any such judicial proceeding that the Company is
bound by all the provisions of this Agreement and is precluded from making any
assertion to the contrary.
(d) If a court of competent jurisdiction shall determine that the
Indemnitee is entitled to any indemnification or advancement of Expenses
hereunder, the Company shall pay all Expenses actually and reasonably incurred
by the Indemnitee in connection with such adjudication (including, but not
limited to, any appellate proceedings). The Indemnitee's Expenses incurred in
connection with any Proceeding concerning the Indemnitee's right to
indemnification or advancement of Expenses in whole or in part pursuant to this
Agreement shall also be indemnified by the Company, regardless of the outcome of
such a Proceeding, to the fullest extent permitted by applicable law and the
Company's Articles.
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(e) With respect to any Proceeding for which indemnification or
advancement of Expenses is requested, the Company will be entitled to
participate therein at its own expense and, except as otherwise provided below,
to the extent that it may wish, the Company may assume the defense thereof, with
counsel reasonably satisfactory to the Indemnitee. After notice from the Company
to the Indemnitee of its election to assume the defense of a Proceeding, the
Company will not be liable to the Indemnitee under this Agreement for any
Expenses subsequently incurred by the Indemnitee in connection with the defense
thereof, other than as provided below. The Company shall not settle any
Proceeding in any manner which would impose any penalty or limitation on the
Indemnitee without the Indemnitee's written consent. The Indemnitee shall have
the right to employ his own counsel in any Proceeding, but the fees and expenses
of such counsel incurred after notice from the Company of its assumption of the
defense of the Proceeding shall be at the expense of the Indemnitee, unless (i)
the employment of counsel by the Indemnitee has been authorized by the Company,
(ii) the Indemnitee shall have reasonably concluded that there may be a conflict
of interest between the Company and the Indemnitee in the conduct of the defense
of a Proceeding, or (iii) the Company shall not in fact have employed counsel to
assume the defense of a proceeding, in each of which cases the fees and expenses
of the Indemnitee's counsel shall be advanced by the Company. The Company shall
not be entitled to assume the defense of any Proceeding brought by or on behalf
of the Company or as to which the Indemnitee has reasonably concluded that there
may be a conflict of interest between the Company and the Indemnitee.
9. LIMITATIONS ON INDEMNIFICATION. No payments pursuant to this Agreement
shall be made by the Company:
(a) To indemnify or advance funds to the Indemnitee for Expenses with
respect to (i) Proceedings initiated or brought voluntarily by the Indemnitee
and not by way of defense, except with respect to Proceedings brought to
establish or enforce a right to indemnification under this Agreement or any
other statute or law or otherwise as required under applicable law or (ii)
Expenses incurred by the Indemnitee in connection with preparing to serve or
serving, prior to a Change in Control, as a witness in cooperation with any
party or entity who or which has threatened or commenced any action or
proceeding against the Company, or any director, officer, employee, trustee,
agent, representative, subsidiary, parent corporation or affiliate of the
Company, but such indemnification or advancement of Expenses in each such case
may be provided by the Company if the Board of Directors finds it to be
appropriate;
(b) To indemnify the Indemnitee for any Expenses, judgments, fines,
interest or penalties, or excise taxes assessed with respect to any employee
benefit or welfare plan, and sustained in any Proceeding for which payment is
actually made to the Indemnitee under a valid and collectible insurance policy,
except in respect of any excess beyond the amount of payment under such
insurance;
(c) To indemnify the Indemnitee for any Expenses, judgments, fines,
expenses or penalties sustained in any Proceeding for an accounting of profits
made from the purchase or sale by the Indemnitee of securities of the Company
pursuant to the provisions of Section 16(b) of the Act or similar provisions of
any foreign or United States federal, state or local statute or regulation;
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(d) To indemnify the Indemnitee for any Expenses, judgments, fines,
interest or penalties, or excise taxes assessed with respect to any employee
benefit or welfare plan, for which the Indemnitee is indemnified by the Company
otherwise than pursuant to this Agreement;
(e) To indemnify the Indemnitee for any Expenses (including without
limitation any Expenses relating to a Proceeding attempting to enforce this
Agreement), judgments, fines, interest or penalties, or excise taxes assessed
with respect to any employee benefit or welfare plan, on account of the
Indemnitee's conduct if such conduct shall be finally adjudged to have been
knowingly fraudulent, deliberately dishonest or willful misconduct, including,
without limitation, breach of the duty of loyalty; or
(f) If a court of competent jurisdiction finally determines that any
indemnification hereunder is unlawful.
10. CONTINUATION OF INDEMNIFICATION. All agreements and obligations of the
Company contained herein shall continue during the period that the Indemnitee is
a director of the Company (or is or was serving at the request of the Company as
an agent of another enterprise, foreign or domestic) and shall continue
thereafter so long as the Indemnitee shall be subject to any possible Proceeding
by reason of the fact that the Indemnitee was a director of the Company or
serving in any other capacity referred to in this Paragraph 10.
11. INDEMNIFICATION HEREUNDER NOT EXCLUSIVE. The indemnification provided
by this Agreement shall not be deemed to be exclusive of any other rights to
which the Indemnitee may be entitled under the Company's Articles, any
agreement, vote of shareholders or vote of Disinterested Directors, provisions
of applicable law, or otherwise, both as to action or omission in the
Indemnitee's official capacity and as to action or omission in another capacity
on behalf of the Company while holding such office.
12. SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon, and shall inure to the benefit
of, the Indemnitee and the Indemnitee's heirs, executors, administrators and
assigns, whether or not the Indemnitee has ceased to be a director, and the
Company and its successors and assigns. Upon the sale of all or substantially
all of the business, assets or share capital of the Company to, or upon the
merger of the Company into or with, any corporation, partnership, joint venture,
trust or other person, this Agreement shall inure to the benefit of and be
binding upon both the Indemnitee and such purchaser or successor person. Subject
to the foregoing, this Agreement may not be assigned by either party without the
prior written consent of the other party hereto.
(b) If the Indemnitee is deceased and is entitled to indemnification
under any provision of this Agreement, the Company shall indemnify the
Indemnitee's estate and the Indemnitee's spouse, heirs, executors,
administrators and assigns against, and the Company shall, and does hereby agree
to assume, any and all Expenses actually and reasonably incurred by or for the
Indemnitee or the Indemnitee's estate, in connection with the investigation,
defense, appeal or settlement of any Proceeding. Further, when requested in
writing by the spouse of the Indemnitee, and/or the Indemnitee's heirs,
executors, administrators and assigns, the Company
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shall provide appropriate evidence of the Company's agreement set out herein to
indemnify the Indemnitee against and to itself assume such Expenses.
13. SUBROGATION. In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of the Indemnitee, who shall execute all documents required and shall
do all acts that may be necessary to secure such rights and to enable the
Company effectively to bring suit to enforce such rights.
14. SEVERABILITY. Each and every paragraph, sentence, term and provision of
this Agreement is separate and distinct so that if any paragraph, sentence, term
or provision thereof shall be held to be invalid, unlawful or unenforceable for
any reason, such invalidity, unlawfulness or unenforceability shall not affect
the validity, unlawfulness or enforceability of any other paragraph, sentence,
term or provision hereof. To the extent required, any paragraph, sentence, term
or provision of this Agreement may be modified by a court of competent
jurisdiction to preserve its validity and to provide the Indemnitee with the
broadest possible indemnification permitted under applicable law. The Company's
inability, pursuant to a court order or decision, to perform its obligations
under this Agreement shall not constitute a breach of this Agreement.
15. SAVINGS CLAUSE. If this Agreement or any paragraph, sentence, term or
provision hereof is invalidated on any ground by any court of competent
jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any
Expenses, judgments, fines, interest or penalties, or excise taxes assessed with
respect to any employee benefit or welfare plan, which are incurred with respect
to any Proceeding to the fullest extent permitted by any (a) applicable
paragraph, sentence, term or provision of this Agreement that has not been
invalidated or (b) applicable law.
16. INTERPRETATION; GOVERNING LAW. This Agreement shall be construed as a
whole and in accordance with its fair meaning and any ambiguities shall not be
construed for or against either party. Headings are for convenience only and
shall not be used in construing meaning. This Agreement shall be governed and
interpreted in accordance with the laws of the State of New York without regard
to the conflict of laws principles thereof.
17. AMENDMENTS. No amendment, waiver, modification, termination or
cancellation of this Agreement shall be effective unless in writing signed by
the party against whom enforcement is sought. The indemnification rights
afforded to the Indemnitee hereby are contract rights and may not be diminished,
eliminated or otherwise affected by amendments to the Company's Articles, or by
other agreements, including directors' and officers' liability insurance
policies, of the Company.
18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each party and delivered to the other.
19. NOTICES. Any notice required to be given under this Agreement shall be
directed to MINDRAY MEDICAL INTERNATIONAL LIMITED, x/x Xxxxxxxx Xxxxxxx, Xxxxxxx
Xxxxxxxx, Xxxx 12(th) Road South, Hitech Industrial Park, Nanshan, Shenzhen, PRC
518057,
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Attention: Xxxxx Xxx, and to the Indemnitee at _________ or to such other
address as either shall designate to the other in writing.
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IN WITNESS WHEREOF, the parties have executed this Indemnification
Agreement as of the date first written above.
INDEMNITEE
-----------------------------
Name:
MINDRAY MEDICAL INTERNATIONAL LIMITED
By:
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Name:
Title:
