Equity Transfer Agreement
Exhibit 4.25
English
Translation of Chinese Original
For the Transfer of the Equity in PetroChina Fuel Oil Company
Limited
By and between
PetroChina Company Limited
and
China National United Oil Corporation
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table of
contents
Article 1
|
Definitions | 3 | ||
Article 2
|
Subject Interest | 4 | ||
Article 3
|
Consideration for Transfer of Subject Interest | 4 | ||
Article 4
|
Conditions Precedent to Closing of the Transfer | 4 | ||
Article 5
|
Delivery of the Subject Interest | 5 | ||
Article 6
|
Gain/Loss Arising in the Transition Period | 5 | ||
Article 7
|
Representations, Warranties and Covenants of the Transferor | 5 | ||
Article 8
|
Representations, Warranties and Covenants of the Transferee | 6 | ||
Article 9
|
Obligations of the Transferor | 6 | ||
Article 10
|
Obligations of the Transferee | 6 | ||
Article 11
|
Taxes | 6 | ||
Article 12
|
Default Liabilities | 7 | ||
Article 13
|
Confidentiality | 7 | ||
Article 14
|
Effectiveness, Amendments, Rescission, Termination and Assignment | 7 | ||
Article 15
|
Force Majeure | 7 | ||
Article 16
|
Notices | 8 | ||
Article 17
|
Governing Law and Dispute Resolution | 8 | ||
Article 18
|
Miscellaneous | 8 |
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This Equity Transfer Agreement (this “Agreement”) is
entered into this 26th day of November 2010 in Beijing by and
between the following parties:
Transferor:
China National United Oil Corporation (“United
Oil”)
Business License No.: 110000009716574
Registered Address: 00 Xxxxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxxxx
Legal Representative: LI Xinhua
Transferee:
PetroChina Company Limited
Business License No.: 1000001003252
Registered Address: Xxxxx Xxxxx, 00 Xxxxxx, Xxxxxxxxx District,
Beijing
Legal Representative: XXXXX Xxxxxx
Whereas,
(i) United Oil is a limited liability company duly
established and validly existing under the laws of the PRC and
legally owns 4.356% equity interest in PetroChina Fuel Oil
Company Limited (“Fuel Oil”);
(ii) Subject to the conditions and terms of this Agreement,
the Transferor desire to transfer to the Transferee, and the
Transferee desires to purchase from the Transferor, all the
4.356% equity interest in Fuel Oil.
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 China National United Oil Corporation, holding 4.356% equity interest in Fuel Oil. | |
“Target Company” | shall mean PetroChina Fuel Oil Company 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 (Xxxx Xx Xxxxx Xxx Ping Bao Zi(2010) No. 072) 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 October 31, 2010. | |
“Transition Period” | shall mean the period from the Reference Date up to and including the Closing Date. | |
“Supplemental Audit” | shall mean a special audit conducted by an auditor engaged by the parties hereto on the changes in the value of the Subject Interest from the Reference Date to the reference date of the Supplemental Audit for |
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the purpose of determining any gain or loss occurred during the Transition Period. | ||
“Closing” | shall mean the delivery of the Subject Interest in accordance with Article 5 hereof. | |
“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. | |
“SASAC” | shall mean the State-owned Asset Supervision and Administration Commission of the State Council. | |
“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 4.356% equity interest
in United Oil owned by the Transferor, i.e., United Oil.
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 RMB 39,224.8,
as determined by reference to the asset appraisal results set
forth in the Appraisal Report prepared as of the Reference Date.
However, such consideration will be adjusted by reference to the
final appraised value filed with SASAC.
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
all the conditions precedent to the Closing:
(1) This Agreement has been duly signed by the legal
representatives of the Transferor and the Transferee or their
respective authorized representative;
(2) All necessary consents or approvals in connection with
this Agreement and the Subject Interest have been obtained,
including without limitation:
(A) the Transferor has obtained approval from its
respective internal governing bodies in respect of the Transfer;
(B) the Transferee has obtained approval from its
respective internal authorities in respect of the Transfer;
(C) the Transfer has been approved by the shareholders of
the Target Company;
(D) creditors and any other relevant third parties have
given the Transferor all the necessary consents in respect of
the delivery of the Subject Interest;
(E) the Appraisal Report, being the pricing basis of the
Transfer, has been confirmed by the Transferor and the
Transferee and filed with SASAC or its authorized local
branches; and
(F) the Transfer, to take place by way of transfer by
agreement, has been approved by SASAC or its authorized local
branches.
(3) all the representations, warranties and covenants made
by the parties hereto in this Agreement shall remain true and
accurate as at the Closing Date.
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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 by June 30, 2011.
Article 5 Delivery
of the Subject Interest
5.1 The Transferor shall, within a reasonable period,
actively procure the fulfillment of all the Closing conditions
set forth in Article 4, give a notice to the Transferee in
writing requesting Closing to be conducted and shall furnish
copies of the documents/proof evidencing fulfillment of the
Closing conditions and the proposed Closing Date.
5.2 If the Transferee determines that all the Closing
conditions have been fulfilled, it shall, within five
(5) business days following receipt of the notice referred
to in Article 5.1, issue a letter to the Transferor in
writing indicating its agreement to the Closing as well as the
Closing Date proposed by the Transferor.
5.3 At the Closing Date, the Transferee shall pay the
consideration to the Transferor in full to the bank account
designated by the Transferorin a lump sum.
5.4 At the Closing Date, the Transferor shall deliver to
the Transferee the investment certificate issued by the Target
Company or the amended shareholder register, and shall cause and
assist the Target Company to carry out the registration of
changes to the Subject Interest with the competent
administration for industry and commerce.
5.5 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.
5.6 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 Gain/Loss
Arising in the Transition Period
The parties hereto agree and acknowledge that subject to the
terms and conditions hereunder any gain/loss arising in the
Transition Period shall be enjoyed and assumed by the
Transferor. Subject to the terms and conditions of this
Agreement, any gain/loss of the Target Company arising in the
Transition Period shall be enjoyed or borne by the Transferor.
The parties hereto agree that in the event of a loss during such
period the Transferee shall reduce the consideration by an
amount equal to such loss, and on the contrary in the event of a
profit during such period, the Transferee shall increase the
consideration by an amount equal to such loss. The actual amount
of gain/loss 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
Transferordo 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.
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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, and has obtained all the qualifications for the
conduct of its business;
(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;
(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 company limited by shares 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 apply to SASAC for its approval to
the Transfer of the Subject Interest by way of transfer by
agreement and arrange for the appraisal results to be filed with
SASAC.
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.
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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.
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 upon the
satisfaction of all the following conditions:
(1) this Agreement has been authorized/approved by the
competent internal governing bodies of the Transferor and the
Transferee; and
(2) the Transfer by way of transfer by agreement as
contemplated hereunder has been approved by SASAC.
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
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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:
China National United Oil Corporation
Address:
|
00 Xxxxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx | |
Attention:
|
Xxxx Xxxx | |
Tel:
|
000-00000000 | |
Fax:
|
000-00000000 |
Transferee:
PetroChina Company Limited
Address:
|
0 Xxxxxxxxxx Xxxxx Xxxxxx, Xxxxxxxxx District, Beijing | |
Attention:
|
Xxxxxxxx Xxxx | |
Tel:
|
000-00000000 | |
Fax:
|
000-00000000 |
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 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
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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 have the right to
nominate candidates for members of the board of directors and
the board of supervisors of the Target Company, and to
participate in 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 nine (9) counterparts,
with two 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
China National United Oil Corporation and PetroChina Company
Limited)
The Transferor:
China
National United Oil Corporation
Legal Representatives or Authorized
Representative: /s/
The Transferee:
PetroChina Company Limited (affixed with the company seal)
Legal Representatives or Authorized
Representative: /s/
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