EX-4.26 5 h05015exv4w26.htm EX-4.26 EX-4.26
Exhibit 4.26
 
English Translation of Chinese Original
 
Equity Transfer Agreement
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
 
             
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     4  
Article 6
  Investments and 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     6  
Article 13
  Confidentiality     6  
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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Equity Transfer Agreement
 
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:  JIANG Jiemin
 
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 (Zhong Tong Ping Bao Zi (2010) No. 164) issued by Zhong Tong Cheng 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:
  Free Trade Zone, Qinzhou, Guangxi
Attention:
  Xingyue Liu
Tel:
  0777-3886732
Fax:
  0777-3886732
 
Transferee:
 
China National Petroleum Corporation
 


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Address:
  9 Dongzhimen North Street, Dongcheng District, Beijing
Attention:
   
Tel:
  010-
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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