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EXHIBIT 4.4
EQUITY TRANSFER AGREEMENT
This Equity Transfer
Agreement is entered into this 9th day of June, 2005 in
Beijing by and
between:
PETROCHINA COMPANY LIMITED
(THE "TRANSFEROR")
ADDRESS: World Tower,16
Andelu, Dongcheng District, Beijing
LEGAL REPRESENTATIVE: Chen
Geng
and
CHINA PETROLEUM EXPLORATION
& DEVELOPMENT COMPANY LTD. (THE "TRANSFEREE")
ADDRESS: International
Investment Building D, Fuchengmen Beidajie, Xicheng
District, Beijing
LEGAL REPRESENTATIVE: Wang
Dongjin
WHEREAS:
1. The
transferor is a joint stock company with limited
liabilities
established on 5 November 1999 in Beijing by law and validly
existing,
in compliance with laws of the People's Republic of
China;
2. The
transferee is a company with limited liability established on
14
March 2005 in Beijing and validly existing, in compliance with laws
of
the People's Republic of China;
3.
PetroChina International Limited ("PCI") is a company registered
and
established in British Virgin Islands, and the Transferor holds
100%
equity of PCI;
4. The
Transferor has signed the Capital Contribution Agreement with
China
National Oil and Gas Exploration and Development Corporation,
Central
Asia Petroleum Company Ltd. and the Transferee. Under the
Capital
Contribution Agreement, the Transferor will acquire 50% equity of
the
Transferee upon
the completion of "this Transaction" defined in that
agreement; and
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5. The
Transferor hereby agrees to transfer to the Transferee, and
the
Transferee hereby also agrees to accept as specified herein,
100%
equity of PCI held by the Transferor (this "Equity Transfer").
After
the closing of this Equity Transfer, the Transferee will hold
100%
equity of PCI.
NOW, THEREFORE, by adhering
to the principle of equality and mutual benefit,
through friendly negotiation,
and in accordance with relevant laws and
regulations of the People's
Republic of China, the parties hereby reach the
following agreement with
respect to the above equity transfer:
ARTICLE 1 DEFINITION AND INTERPRETATION
Unless specified otherwise in
the agreement, the terms and expressions herein
shall have the following
meanings:
1.1 THE
AGREEMENT: means the Equity Transfer Agreement and any revision
and
modification hereto duly agreed and executed by and among the
parties
hereto in writing from time to time;
1.2 EQUITY:
means the 100% equity of PCI held and to be transferred by
the
Transferor to the Transferee, including ownership, profit
distribution
right, director appointment power, assets allocation right and
other
rights and interests to which a shareholder is entitled;
1.3 CLOSING:
means that the Transferor pays the consideration specified
in
Article 5 herein when all closing conditions specified in Article
3.1
herein are satisfied or considered as satisfied according to
Article
3.2 herein;
1.4 CLOSING
DATE: means the date when the Transferor pays the
consideration
specified in Article 5 herein when all closing conditions specified
in
Article 3.1 herein are satisfied or considered as satisfied
according
to Article 3.2 herein.
1.5 BASE DATE:
means 31 December 2004.
1.6 RELATED
PERIOD: means the period from 1 January 2005 to Closing
Date
(inclusive).
1.7 MAJOR
PROCEEDINGS: means any pending lawsuit, arbitration,
administrative appeal or other legal processes related to
Transferred
Assets arising before the Closing Date, involving a value of more
than
US$3 million individually;
1.8 EXAMINING
AND APPROVING AUTHORITIES: mean all foreign and domestic
governmental examining and approving authorities that are entitled
to
approve or
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authorize this Equity Transfer and other actions related
thereto;
1.9 APPRAISAL
REPORT: means the report made by China Enterprises
Appraisals
for the assets and liabilities of PCI and/or PCI Group on Base
Date.
1.10 PCI GROUP: means
PCI and the companies in which PCI has interests,
directly or indirectly, and listed in Exhibit 1 hereto.
1.11 FORCE MAJEURE:
means war, natural disaster and any other unforeseen and
inevitable event that cannot be controlled by the parties
hereto.
ARTICLE 2 EQUITY TRANSFER
2.1 The
Transferor agrees hereby to transfer, and the Transferee
also
agrees hereby to accept, the equity in PCI.
2.2 Upon
closing of this Equity Transfer, it shall be considered that
the
Transferee shall hold 100% equity of PCI. Within ten (10) working
days
after the closing of this Equity Transfer, the Transferor shall
cause
PCI
to hold a shareholders' meeting, elect its directors and modify
its
Articles of Association according to relevant procedures specified
in
applicable laws, apply to relevant registration authorities
for
registration changes regarding the transaction contemplated
hereunder
and carry out all other procedures as required by applicable laws
and
regulations.
ARTICLE 3 CLOSING CONDITIONS FOR THIS EQUITY TRANSFER
3.1 The
closing herein shall occur on the date agreed by the parties
when
all preconditions below are satisfied or the parties agree
unanimously
that any one or partial or all preconditions below are
waived.
(1) The
Transferor has signed the Capital Contribution Agreement
with China National Oil and Gas Exploration and
Development
Corporation, Central Asia Petroleum Company Ltd. and the
Transferee, and "this Transaction" defined in the
Capital
Contribution Agreement has been completed;
(2) All
necessary approvals from examining and approving
authorities and consent from third party have been
obtained
for this Equity Transfer;
(3)
The audit
report and assets appraisal report for PCI have been
approved by both parties, and the necessary filling
formalities have been completed;
(4) The
Transferor has obtained the approval to this Equity
Transfer by its duly convened shareholders' meeting; and
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(5) The
representations and warranties given in Exhibit 3 remain
correct and free from error, as of the Closing Date.
3.2 If the
parties hereof agree, through negotiation, to grant waiver
with
respect to the conditions set forth in (5) under Article 3.1
herein
when such conditions have not been satisfied, it shall be
considered
that all such conditions have been satisfied.
3.3 The
parties believe and will make all reasonable efforts to ensure
that
the closing will occur no later than 28 February 2006.
ARTICLE 4 CLOSING
4.1 If, before
1 February 2006, the Transferor believes that the
closing
conditions specified in Article 3.1 herein have been
satisfied
completely, it shall issue a written notice to the Transferee
for
requesting the closing and provide the copies of
documents/evidences
demonstrating that the closing conditions have been
satisfied,
including but not limited to:
(1) Equity
ownership certificates;
(2)
Confirmation documents by the third party (if
necessary);
(3)
Approval/ratification documents by examining and
approving
authorities in countries/regions where the PCI Group is
located (if necessary); and
(4)
Approval/ratification/filing documents by examining and
approving authorities in the PRC.
4.2 If the
Transferee believes that all closing conditions have
been
satisfied, it shall, within ten (10) days as of its receipt of
the
above notice from the Transferor, reply to the Transferor in
writing
which shall specify the Closing Date; provided that the closing
date
shall not be later than 1 February 2006.
4.3 If, on or
before 1 February 2006, the Transferor believes that the
closing conditions specified in Article 3.1 herein have not
been
satisfied completely, it shall issue a written notice to
the
Transferee, stating such fact. The Transferee shall, within ten
(10)
working days upon such written notice, notify the Transferor in
writing
as to whether such unsatisfied conditions will be waived and
confirm
whether the closing conditions should be considered as satisfied
in
accordance with Article 3.2 hereinabove. If it is confirmed that
the
closing conditions should be considered as satisfied, the
Transferee
shall also expressly specify the closing date in such
notification;
provided that the closing date shall not be later than 28
February
2006.
4.4 At the
closing Date, the Transferee shall make the lump sum payment
for
the
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consideration specified in Article 5.1 hereinbelow, in cash, to
the
account indicated by the Transferor.
ARTICLE 5 CONSIDERATION
5.1. The parties
agree hereby, that the Transferee shall pay US$70.00
million as the consideration for this Equity Transfer, which shall
be
equivalent to RMB579.355 million on the basis of benchmark
exchange
rate of US$ vs RMB announced by the People's Bank of China on the
base
date.
ARTICLE 6 REPRESENTATIONS AND WARRANTIES
6.1. The parties
undertake to each other that, unless specified otherwise
herein, the representations and warranties under the Agreement
are
true, correct and complete in all material aspects, and also
covenant
to not impair the truth, correctness and completeness of
each
representations and warranties by any action or
omission.
6.2. The parties
hereby represent and warrant to each other as follows:
(1) Such party
is duly established and validly existing in
compliance with the laws of the jurisdiction in which it
is
incorporated, and has obtained all governmental
authorizations
and approvals required for its business operation;
(2) Such party
has obtained all authorizations and approvals
specified under relevant laws, regulations and articles,
and
has the power to sign and perform the Agreement;
(3) The
execution of the Agreement and all documents refereed to
herein by such party doesn't violate its articles of
association, any currently effective law or its
obligations
under any existing contract or agreement to which it is
a
party;
(4) such party
has never conducted any activity that impairs or
would impair the interests of the other party hereto, and
will
make efforts to prevent any third party from conducting
any
such activity.
6.3. The Transferor's
further representations and warranties regarding PCI
Group and other related matters are attached hereto as Exhibit
3.
6.4. Any
representations and warranties herein shall be able to
be
interpreted severally and independently, and subject to any
contrary
provisions herein, shall not be limited or restricted by any
other
provisions herein or under other agreement between the parties or
any
judgment on aforesaid articles.
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6.5. If, from the
date when the Agreement is signed to the Closing Date
for
this Equity Transfer, either party hereto is aware of any
information
that may have a material adverse impact on the representations
and
warranties or this Equity Transfer, it shall disclose such
information
to the other party, and take effective actions to minimize such
adverse
impact.
6.6. The
representations and warranties of either party hereto
shall
constitute preconditions for the other party to perform the
Agreement
and the other party will enter into the Agreement by reliance on
such
representations and warranties.
ARTICLE 7 RIGHTS AND OBLIGATIONS OF THE PARTIES
7.1. The Transferor shall:
(1) prepare
and submit all legal documents that shall be prepared
and submitted by the Transferor as required by the
Examining
and Approving Authorities, in order to perform the
Agreement;
(2) apply to
the Examining and Approving Authorities and third
parties for, and make efforts to cause them to
issue/provide,
approval, consent or permission from or filing with such
authorities and such third parties required to perform
the
Agreement;
(3) provide
all necessary documents to assist PCI in going through
related procedures for change of business registration
in
relevant registration authorities;
(4) make
efforts to assist the Transferee to prepare and submit
all legal documents that shall be prepared and submitted
by
the
Transferee.
7.2. The Transferee shall:
(1) pay the
consideration indicated in Article 5.1 in cash to the
Transferor, pursuant to the Agreement in a timely
manner;
(2) prepare
and submit all legal documents that shall be prepared
and submitted by it as required by the Examining and
Approving
Authorities, in order to perform the Agreement;
(3) exert
itself to assist the Transferor and PCI to prepare and
obtain all legal documents required by the Examining and
Approving Authorities;
(4) exert
itself to assist the Transferor and PCI to obtain all
approval, consent, permission and filing of the government
and
the third party; and
(5) provide
all necessary documents and assist PCI with procedures
for change of business registration in relevant
registration
authorities.
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7.3. After the
Agreement come into effect, the Transferee shall be
entitled
to appoint two observers to PCI, who shall have the right
of
information regarding the operations of PCI; the Transferor
shall
enable such observers to exercise the aforesaid rights; at the
request
of such observers, the Transferor shall provide them with all
documents
in relation to the operations of PCI.
ARTICLE 8 ARRANGEMENT IN THE RELATED PERIOD
8.1. The parties
hereby agree that, any change of PCI's assets and
liabilities during the Related Period shall not impact the
Transferee's
payment of the consideration in the amount specified herein
pursuant to
the terms and conditions of the Agreement. All income, expenditure
and
profit generated during the Related Period shall be attributable to
PCI
Group.
8.2. The parties
hereby also agree that, the parties shall, at the
Closing
Date, clear any expenses advanced and any income received on behalf
of
PCI Group by the Transferor during the Related Period, including
but
not limited to shareholders' loans, borrowings and capital
increase,
the current accounts and the product sales income and profit
gains,
etc., during the Related Period. Within 30 days after the Closing
Date,
such expenses and income shall be settled by PCI and the
Transferor
after the qualified auditor reviews and the Transferor, the
Transferee
and PCI confirm such amount.
8.3. From the
Effective Date of the Agreement to the Closing Date,
unless
specified otherwise herein or agreed by the Transferee in writing,
or
as mandatorily required by law or by examination and
approval
authorities, the Transferor shall cause PCI Group to:
(1) operate
PCI Group on in the ordinary course of business;
(2) maintain
the assets of PCI Group at conditions equivalent to
that in the Base Date, except for wear and tear;
(3) not
transfer or mortgage or pledge any assets of PCI Group,
or
provide guarantee for any other person with any assets of
PCI
Group;
(4) PCI Group
shall not sign any agreement, such as loan
agreement, that may increase the liabilities, unless it
