Equity Transfer Agreement
Exhibit
4.26
English
Translation of Chinese Original
For the Transfer of the Equity in PetroChina Guangxi Oil Storage
Limited
By and between
China National Petroleum Corporation
and
PetroChina Guangxi International Enterprises Limited
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table of
contents
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Article 1
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Definitions | 3 | ||||
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Article 2
|
Subject Interest | 4 | ||||
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Article 3
|
Consideration for Transfer of Subject Interest | 4 | ||||
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Article 4
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Conditions Precedent to Closing of the Transfer | 4 | ||||
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Article 5
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Delivery of the Subject Interest | 4 | ||||
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Article 6
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Investments and Gain/Loss Arising in the Transition Period | 5 | ||||
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Article 7
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Representations, Warranties and Covenants of the Transferor | 5 | ||||
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Article 8
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Representations, Warranties and Covenants of the Transferee | 6 | ||||
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Article 9
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Obligations of the Transferor | 6 | ||||
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Article 10
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Obligations of the Transferee | 6 | ||||
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Article 11
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Taxes | 6 | ||||
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Article 12
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Default Liabilities | 6 | ||||
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Article 13
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Confidentiality | 6 | ||||
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Article 14
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Effectiveness, Amendments, Rescission, Termination and Assignment | 7 | ||||
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Article 15
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Force Majeure | 7 | ||||
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Article 16
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Notices | 8 | ||||
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Article 17
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Governing Law and Dispute Resolution | 8 | ||||
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Article 18
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Miscellaneous | 8 |
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This Equity Transfer Agreement (this “Agreement”) is
entered into this day
of November 2010 in Beijing by and between the following parties:
Transferor:
PetroChina Guangxi International Enterprises Limited
Registered Address: Free Trade Zone, Qinzhou,
Guangxi
Legal Representative: SHEN Dingcheng
Transferee:
China National Petroleum Corporation
Registered Address: Liupukang, Xicheng
District, Beijing
Legal Representative: XXXXX Xxxxxx
Whereas,
(i) The Transferor is a limited liability company duly
established and validly existing under the laws of the PRC and
legally owns 100% equity interest in PetroChina Guangxi Oil
Storage Limited (the “Oil Storage Company”);
(ii) Subject to the conditions and terms of this Agreement,
the Transferor desires to transfer to the Transferee, and the
Transferee desires to purchase from the Transferor, all the 100%
equity interest in Oil Storage Company.
NOW, THEREFORE, in accordance with the Company Law of the
People’s Republic of China, the Contract Law of the
People’s Republic of China, and other applicable laws
and regulations, the Transferor and the Transferee, after
friendly negotiations, hereby reach agreement as follows with
respect to the transfer of the Subject Interest (as defined
below) for mutual observance:
| Article 1 | Definitions |
| “Transferor ‘” | shall mean PetroChina Guangxi International Enterprises Limited, holding 100% equity interest in Oil Storage Company. | |
| “Transferee” | shall mean China National Petroleum Corporation. | |
| “Target Company” | shall mean PetroChina Guangxi Oil Storage Limited . | |
| “Subject Interest” | shall mean the target of the Transfer as further set forth in Article 2 hereof. | |
| “Transfer” | shall mean the transfer of the Subject Interest from the Transferor to the Transferee. | |
| “Appraisal Report” | shall mean the Assets Appraisal Report (Xxxxx Xxxx Ping Bao Zi (2010) No. 164) issued by Zhong Xxxx Xxxxx Asset Appraisal Compnay with respect to the assets and liabilities of the Subject Interest as of the Reference Date for the purpose of the Transfer. | |
| “Reference Date” | shall mean July 31, 2010. | |
| “Transition Period” | shall mean the period from the Reference Date up to and including the Closing Date. | |
| “Transition Period Interest” | shall mean the interest accrued on the loans invested by the Transferor in the Storage Facilities from the Reference Date to the date the buyers make payments. |
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| “Closing” | shall mean the delivery of the Subject Interest in accordance with Article 5 hereof. | |
| “Storage Facilities” | Shall mean the PetroChina international storage facilities located in the Free Trade Zone, Qinzhou of Guangxi, which consist of 40 oil storage tanks with the storage capacity of approximately 4 million cubic meters and other ancillary equipment and facilities. | |
| “Closing Date” | shall mean the date on which the Closing shall occur as agreed by and among the parties hereto after the satisfaction of all the conditions precedent to the Closing set forth in Article 4 hereof. | |
| “PRC” or “China” | shall mean the People’s Republic of China, but for purposes of this Agreement, excluding Hong Kong Special Administrative Region, Macau Special Administrative Region and Taiwan. |
| Article 2 | Subject Interest |
The Subject Interest shall refer to the 100% equity interest in
the Target Company owned by the Transferor.
| Article 3 | Consideration for Transfer of Subject Interest |
The parties hereto agree and acknowledge that the consideration
for the Transfer of the Subject Interest shall be determined in
accordance with the following method:
The consideration for the Transfer of the Subject Interest shall
be determined by reference to the asset appraisal results set
forth in the Appraisal Report prepared as of the Reference Date,
which shall be RMB 2,113,309,234.19 (excluding the Transition
Period Interest), and such consideration has been filed with and
reviewed by the competent state-own assets management authority.
| Article 4 | Conditions Precedent to Closing of the Transfer |
4.1 The Closing hereunder shall occur on the Closing Date
agreed between the parties hereto following the satisfaction of
the conditions precedent to the Closing:
(1) the Appraisal Report, being the pricing basis of the
Transfer, has been confirmed by the Transferor and the
Transferee, and the Transferor and the Transferee shall have
conducted their respective internal formalities and the filing
formalities;
(2) the Transferor and the Transferee shall have agreed
upon the transfer price of the Subject Interest; and
(3) The Transferor shall have obtained the consent of the
parties related to the Transfer.
4.2 The parties hereto shall make efforts to cooperate with
each other friendly to ensure that all the conditions precedent
set forth above will be satisfied as soon as practicable and
shall make all reasonable efforts to cause the Transfer to be
completed as soon as possible.
| Article 5 | Delivery of the Subject Interest |
5.1 The Transferor shall close the transfer of the Subject
Interest after the fulfillment of the Closing conditions set
forth in Article 4.
5.2 At the Closing Date, the Transferee shall pay the
consideration to the Transferor in full to the bank account
designated by the Transferor in a lump sum.
5.3 At the Closing Date, the Transferor shall deliver to
the Transferee the investment certificate issued by the Target
Company or the amended shareholder register, the relevant
resolution of the shareholders’ meeting and shall assist
the Target Company to carry out the registration of changes to
the Subject Interest with the competent administration for
industry and commerce.
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5.4 At the Closing Date, the Transferor shall deliver to
the Transferee or the Target Company, all the materials relating
to the Target Company in their possession, including without
limitation, asset lists, financial statements, and files
relating to the Target Company.
5.5 As from the Closing Date, the Transferee shall obtain
the Subject Interest, together with all the interest accrued
thereon in accordance with applicable PRC laws, and enjoy and
assume the corresponding rights and obligations under applicable
laws and regulations and articles of association of the Target
Company.
| Article 6 | Investments and Gain/Loss Arising in the Transition Period |
Since the Storage Facilities in which the Target Company
invested have not been completed, the parties hereto agree and
acknowledge that the various disbursements paid by the
Transferor for the Target Company required for the normal
operation of the Target Company and any gain/loss arising in the
Transition Period shall be separately settled by the Target
Company and the Transferor. The actual amount shall be
determined by the parties hereto by reference to the results of
the Supplemental Audit.
| Article 7 | Representations, Warranties and Covenants of the Transferor |
7.1 The Transferor is a limited liability company duly
established and validly existing under the laws of the PRC. The
Transferor legally owns the Subject Interest and has the right
to transfer the Subject Interest to the Transferee in accordance
with this Agreement.
7.2 The Transferor warrants that it has not, whether
directly or indirectly, created any pledge, third party interest
or any other restriction of right on the Subject Interest.
7.3 The execution and performance of this Agreement by the
Transferor do not violate any contracts or agreements to which
the Transferor is legally bound by.
7.4 The execution and performance of this Agreement by the
Transferor does not violate any applicable laws or regulations,
or the articles of association or other constitutional documents
of the Transferor.
7.5 The Transferor undertakes to make efforts to cooperate,
and cause the Target Company to cooperate with the Transferee in
the completion of any and all legal or administrative procedures
in connection with the Transfer hereunder, including without
limitation, industrial and commercial registration of the
relevant changes.
7.6 The Transferor hereby makes the following
representations, warranties and covenants to the Transferee with
respect to the Target Company:
(1) The Target Company is duly established and validly
existing as an independent legal person under the laws of the
PRC;
(2) The Target Company is not in violation of any currently
effective PRC laws, regulations or rules, and has duly completed
the procedures for the registration, annual review or annual
audit of all the relevant permits, licenses and approvals as
required by competent governmental authorities, including
without limitation, competent industrial and commercial
administrative authorities, tax authorities, and customs
authorities;
(3) Except as disclosed to the Transferee, the Target
Company has the legal ownership and use right to its assets as
evidenced by all the necessary certificates and instruments
without any flaw, free from any security interest or any other
encumbrance or third party interest;
(4) The Target Company does not have any material
litigations, claims, arbitration, administrative proceedings or
other legal proceedings, whether pending or threatening, or any
contingent liabilities in any other form. The Target Company has
paid in full all the taxes due and payable or prior to the date
hereof, and shall guarantee that it shall pay in full all the
taxes due and payable from the date hereof to the Closing Date;
(5) From the date hereof to the Closing Date, the Target
Company shall not declare or pay in any form any dividends,
bonuses or distributions to any of its shareholders or any other
person;
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(6) All the financial and operational information relating
to the Target Company furnished by the Transferor and the Target
Company are true, accurate and complete; and
(7) The Transferor has fully paid up the capital
contribution to the Target Company subscribed for by it.
| Article 8 | Representations, Warranties and Covenants of the Transferee |
8.1 The Transferee is a wholly-people owned enterprise duly
established and validly existing under the laws of the PRC.
8.2 The execution and performance of this Agreement by the
Transferee do not violate any contracts or agreements by which
the Transferee is legally bound.
8.3 The execution and performance of this Agreement by the
Transferee do not violate any applicable laws or regulations, or
the articles of association or other constitutional documents of
the Transferee.
| Article 9 | Obligations of the Transferor |
9.1 The Transferor shall complete the asset appraisal and
the filing of the result of the same with the competent
authority on a timely basis.
9.2 The Transferor shall cause the Target Company to carry
out the industrial and commercial registration of the amendments
to the shareholder register and articles of association of the
Target Company.
| Article 10 | Obligations of the Transferee |
10.1 The Transferee shall assist the Transferor to complete
all the applications for, filings of and industrial and
commercial registration of changes in connection with the
Transfer.
10.2 The Transferee shall pay the consideration for the
Transfer to the Transferor on a timely basis in accordance with
relevant provisions hereof.
| Article 11 | Taxes |
The taxes and charges incurred in connection with the Transfer
shall be assumed by the parties hereto in accordance with the
applicable laws and regulations.
| Article 12 | Default Liabilities |
12.1 After this Agreement takes effect, if any party hereto
fails to fulfill any of its other obligations hereunder in
accordance with the terms hereof, or any representations or
warranties contained herein made by such party hereto is false,
such party shall be deemed to be in default. The defaulting
party shall indemnify the non-defaulting party against any and
all losses suffered by the non-defaulting party as a result of
the above default.
12.2 After this Agreement takes effect, if the Transferor
fails to transfer any Subject Interest in accordance with the
terms hereof, the Transferee shall have the right to terminate
this Agreement. In addition, the Transferor shall be liable for
indemnifying the Transferee against any expenses and losses
actually incurred by the Transferee as a result of the above
failure, including without limitation, any and all related
expenses incurred in connection with the Transferee’s
purchase of the Subject Interest.
| Article 13 | Confidentiality |
All the parties hereto shall treat any and all details regarding
this Agreement and the Transfer of the Subject Interest, the
relationship among the parties hereto and the documents
furnished to each other hereunder as confidential information
(the “Confidential Information”). Without prior
written consent of the other party, any party hereto may not
disclose the Confidential Information to any person other than
the parties hereto, except for any disclosure to relevant
advisors or regulatory bodies or as required by the listing
rules of the jurisdiction in which it is listed.
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This Article shall survive the expiration or any termination of
this Agreement for any reason.
| Article 14 | Effectiveness, Amendments, Rescission, Termination and Assignment |
| 14.1 | Effectiveness |
This Agreement has been executed by the authorized
representatives of the parties hereto on the date first written
above and shall officially come into effect after obtaining the
authorization/approval from the competent internal governing
bodies of the Transferor and the Transferee.
| 14.2 | Amendments and Rescission |
After execution, this Agreement may not be amended or rescinded
by any party without prior written consent from the other
parties.
| 14.3 | Termination |
At any time prior to the consummation of the Closing, this
Agreement may be terminated as follows:
(a) by mutual agreement among the parties hereto; or
(b) by the Transferee at its own discretion, without any
liability, in case the Transferee is aware of any event that may
have an adverse effect on the Subject Interest or the Transferee
or any representation, warranty or covenant made by the
Transferor has any omission or is misleading, incomplete or
accurate.
| 14.4 | No Assignment |
Without the written consent of the other parties, any party
hereto may not transfer any of its rights or obligations
hereunder to any third party.
| Article 15 | Force Majeure |
If any party has been prevented from performing all or part of
its obligations provided in this Agreement because of an event
of Force Majeure, including earthquake, typhoon, flood, fire,
war and any governmental interference, or change of
circumstances, it shall promptly notify the other party in
writing, and shall provide the other party with details of the
event of force majeure or change of circumstances, as well as
valid evidence supporting its inability to perform all or part
of its obligations hereunder or the reasons for the extension of
the term for performance within seven (7) days following
the occurrence of such event. The parties shall negotiate to
terminate this Agreement, partially release or extend the term
of the performance of the affected obligations as necessary,
based on the extent of the effect of such event on the
performance of this Agreement.
| Article 16 | Notices |
16.1 Notices given hereunder shall be in writing and sent
by facsimile, email, personal delivery or mail. Any such notice
shall be sent to the addressee at the following address, and
shall contain sufficient statements
and/or
details indicating that it relates to the subject matters of
this Agreement.
The contact information of the parties hereto is as follows:
The Transferor:
PetroChina Guangxi International Enterprises Limited
|
Address:
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Free Trade Zone, Qinzhou, Guangxi | |
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Attention:
|
Xingyue Liu | |
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Tel:
|
0000-0000000 | |
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Fax:
|
0000-0000000 |
Transferee:
China National Petroleum Corporation
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|
Address:
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0 Xxxxxxxxxx Xxxxx Xxxxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxxx | |
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Xxxxxxxxx:
|
||
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Tel:
|
010- | |
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Fax:
|
010- |
16.2 Each notice given by facsimile, email or personal
delivery shall be deemed to have been duly delivered on the date
such notice is sent out, unless the addressee furnish proof to
the contrary evidencing that it has not received such notice as
a matter of fact.
16.3 Each notice given by mail shall be deemed to have been
duly delivered three (3) business days after such notice is
delivered to postal services, unless the addressee furnish the
proof to the contrary evidencing that it has not received such
notice as a matter of fact.
16.4 In case any party hereto intends to change its contact
person or any other contact information, such party shall notify
the other party in writing seven (7) business days prior to
such change.
| Article 17 | Governing Law and Dispute Resolution |
17.1 The formation, validity, performance, interpretation
and enforceability as well as any and all issues in connection
with this Agreement shall be governed by the laws of the PRC.
17.2 Any dispute arising from, out of or in connection with
this Agreement shall be settled through friendly consultations
among the parties.
| Article 18 | Miscellaneous |
18.1 Maintenance of Normal Operation and Management
From the effective date hereof to the Closing Date, the parties
hereto agree to maintain the normal operation and management of
the Target Company. The Transferor guarantees that the Target
Company will not make any material change or conduct any
substantial disposal with respect to its human resources or
assets, nor will it make any change or conduct any disposal with
respect to the Subject Interest or the human resources relating
thereto in a way contrary to the purpose of this Agreement. In
the event of any material changes to the Target Company other
than in the ordinary course of its business, the Transferor
shall forthwith notify the Transferee in writing of such changes.
18.2 Decision-making and Delivery of Operation and
Management
As from the Closing Date, the Transferee shall take over the
decision-making, operation and management of the Target Company.
The Transferor shall do its best endeavors to provide any and
all assistance and deliver the relevant materials and documents
in its possession to the Transferee.
18.3 Disposal of Creditor’s Rights and Debts
Following the consummation of the Transfer, all the
creditor’s rights, debts and other contingent liabilities
of the Target Company shall continue to be enjoyed and assumed
by the Target Company.
This Agreement shall be executed in
counterparts, with
for each party and the
remainder for standby purposes. All such counterparts shall have
equal legal force.
[End of
text]
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(Signature page of the Equity Transfer Agreement by and between
PetroChina Guangxi International Enterprises Limited and China
National Petroleum Corporation with respect to the transfer of
the equity interest in PetroChina Guangxi Oil Storage Limited)
The Transferor:
PetroChina Guangxi International Enterprises Limited
Legal Representatives or Authorized
Representative: /s/
The Transferee:
China National Petroleum Corporation (affixed with the
company seal)
Legal Representatives or Authorized
Representative: /s/
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