Framework Agreement on Mutual Supply of Products and Services between China BlueChemical Ltd. and CNOOC Limited (Summary Translation)
EXHIBIT
4.37
on
Mutual Supply of Products and Services
between
China
BlueChemical Ltd.
and
CNOOC
Limited
(Summary
Translation)
Exhibit
4.37-1
Table of
Contents
|
Article
1
|
Scope
of Products and Services
|
3
|
|
Article
2
|
Trading
Principles
|
4
|
|
Article
3
|
Pricing
Principles
|
4
|
|
Article
4
|
Implementation
|
4
|
|
Article
5
|
Rights
and Obligations
|
5
|
|
Article
6
|
Term
and Termination of
Individual Product and Service Supply
Contract
|
6
|
|
Article
7
|
Representations
and Warranties
|
6
|
|
Article
8
|
Performance
of this Agreement
|
7
|
|
Article
9
|
Force
Majeure
|
7
|
|
Article
10
|
Announcement
|
8
|
|
Article
11
|
Miscellaneous
|
8
|
|
Article
12
|
Notice
|
9
|
|
Article
13
|
Applicable
Law and Dispute Resolution
|
9
|
|
Article
14
|
Supplements
|
9
|
Exhibit
4.37-2
Framework
Agreement on Mutual Supply of Products and Services
(Summary
Translation)
This Agreement is
entered into in Beijing on November 8,
2007 by
and between the following parties:
China
BlueChemical Ltd. (hereinafter referred to as “BlueChemical”), a company limited
by shares incorporated and lawfully existing under the laws of the People’s
Republic of China (“PRC”).
CNOOC Limited
(hereinafter referred to as the “Company”), a company incorporated and lawfully
existing under Hong Kong law.
(Collectively
the “Parties” and individually the “Party”)
WHEREAS
On the date of
execution hereof, both BlueChemical and the Company are subsidiaries controlled
by China National Offshore Oil Corporation (“CNOOC”) and are listed on the Hong
Kong Stock Exchange. CNOOC owns approximately 59.41%
of BlueChemical’s stock equity and 65.08% of the issued share capital
of the Company.
BlueChemical is
mainly engaged in the production and sales of chemical fertilizer and methanol
and sewage disposal services. BlueChemical and its associates have certain
personnel, technical and regional strength and the aforementioned sewage
disposal services are necessary to the production and operation of the Company
and its associates. Therefore, the Company is willing to procure the said
services from BlueChemical in accordance with the provisions
hereof.
The
Company has natural gas and is capable of providing other products and services
related to natural gas. The company has long-term cooperation with BlueChemical.
Therefore, BlueChemical is willing to procure the said products and services
from the Company in accordance with the provisions hereof.
NOW THEREFOR,
WITH THE PRINCIPLE OF LONG-TERM COOPERATION, RECIPROCITY AND MUTUAL BENEFIT AND
DEVELOPMENT, AFTER AMICABLE NEGOTIATION, THE PARTIES HAVE AGREED AS FOLLOWS TO
ENSURE THE ASSOCIATES OF THE PARTIES (INCLUDING SUBSIDIARIES, BRANCHES AND OTHER
UNITS OF THE PARTIES) TO PROVIDE OR ACCEPT THE PRODUCTS AND SERVICES PRESCRIBED
IN THIS AGREEMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS
AGREEMENT.
Exhibit
4.37-3
Article
1 Scope
of Products and Services
|
1.1
|
The
services to be provided by BlueChemical to the Company
include:
|
|
|
1.1.1
|
management
and other ancillary services: sewage disposal and other supporting
services.
|
|
1.2
|
The
products and services to be provided by the Company to BlueChemical
include:
|
|
|
1.2.1
|
short-term
and long-term sales of natural gas, byproduct and semi-finished
products as well as other various products relating to the
natural gas.
|
Article
2 Trading
Principles
|
2.1
|
With
regard to all the products and services hereunder, the particular parties
may otherwise enter into relevant contracts in accordance with the scope
provided herein. The particular parties refer to BlueChemical, the Company
and their respective associates. The Parties agree that such relevant
contracts shall be executed based on the following general
principles:
|
|
|
·
|
The
products and services thereunder shall be satisfactory to the other Party;
and
|
|
|
·
|
The
products and services thereunder shall be provided on a fair and
reasonable price basis.
|
Article
3 Pricing
Principles
|
3.1
|
Subject
to the trading principles set out in Article 2.1 hereof, under the
prevailing local market conditions (including considerations such as
volume of sales, length of contracts, package of services, overall
customer relationship and other market factors), the products and services
under Article 1 shall be based on arm’s length negotiation and on normal
commercial terms or on terms no less favourable than those available from
any independent third party to the Company. Where such basic pricing
principles are not applicable, the following general principles and
precedence shall apply：
|
|
|
(i)
|
State-prescribed
price; or
|
|
|
(ii)
|
Where
there is no state-prescribed price, market prices (including local,
national or international market price);
or
|
|
|
(iii)
|
When
neither (i) nor (ii) is applicable, the cost to BlueChemical for providing
the relevant products and services plus a margin of not more than 10%,
before any applicable taxes.
|
Exhibit
4.37-4
Article
4 Implementation
|
4.1
|
The
Parties shall ensure and procure their respective associates to execute
such individual product and service supply contracts as are complied with
the principles and provisions
hereunder.
|
|
4.2
|
The
various product and service supply contracts which were entered into by
and between the Parties and their associates before January 1, 2008 and
will remain effective after January 1, 2008, shall be deemed as contracts
entered into in accordance with the provisions of this Agreement. Where
any or all of such contracts are inconsistent with the provisions of this
Agreement, they shall be amended in compliance with the provisions of this
Agreement.
|
|
4.3
|
The
term of such individual product and service supply contracts as are
entered into in accordance with this Agreement shall not be more than
three (3) years. Where the term of such contracts is not more than three
(3) years and will expire however after December 31, 2010, the followings
shall be provided therein: “This
contract shall be terminated on December 31, 2010 provided that CNOOC
Limited fails to obtain the approval of the annual caps from 2011 to 2013
for the connected transactions falling into the category of this contract
according to the requirements of the Rules Governing the Listing of
Securities on the Stock Exchange of Hong Kong Limited (the “Listing
Rules”) until December 31, 2010.”
|
Article
5 Rights
and Obligations
|
5.1
|
The
rights of the Parties include that the Parties
may
|
|
|
5.1.1
|
provide
certain products and services to any independent third party provided that
a guarantee by one Party of supply of the products and services hereunder
has been made to the other Party;
|
|
|
5.1.2
|
receive
lawfully payment due for products and services in accordance with the
provisions of relevant individual product and service supply
contracts.
|
|
5.2
|
The
obligations of the Parties include that the Parties
shall
|
|
|
5.2.1
|
procure
and ensure their respective associates to provide products and service to
the other Party in compliance with the standards and pricing principles
set out in this Agreement and individual product and service supply
contracts;
|
|
|
5.2.2
|
coordinate
the matters related to the aforesaid individual product and service supply
contracts under engagement by concerned parties to such individual product
and service supply contacts; and
|
|
|
5.2.3
|
make
relevant payment and pay service fees due pursuant to the relevant
individual product and service supply
contracts.
|
Exhibit
4.37-5
Article 6 Term and Termination of Individual
Product
and
Service Supply Contract
|
6.1
|
This
Agreement shall become effective from January 1, 2008 upon execution by
the authorized representatives of the Parties and shall remain in effect
for a term of three (3) years.
|
|
6.2
|
If
any Party breaches any provisions of this Agreement (the “Breaching
Party”), the other party (the “Non-breaching Party”) may notify the
Breaching Party in writing of such breach and request the Breaching Party
to make relevant remedies within the reasonable period specified; the
Non-breaching Party may forthwith terminate this Agreement provided that
the Breaching Party fails to make such remedies within the aforesaid
specified period. The Non-breaching Party reserves the right to recourse
and claim compensation and any other claims available under the applicable
laws.
|
|
6.3
|
Any
rights or obligations of any Party having arisen out of this Agreement
shall survive the termination of this
Agreement.
|
|
6.4
|
The
Parties agree that each Party may terminate an individual product and
service supply contract in respect of any certain or some products or
services with at least 6-month prior written
notice.
|
Article
7 Representations
and Warranties
|
7.1
|
BlueChemical
represents and warrants that:
|
|
|
7.1.1
|
BlueChemical
is a company limited by shares duly incorporated pursuant to the PRC laws
with independent legal person status and valid business
license;
|
|
|
7.1.2
|
BlueChemical
has obtained all the government approvals (if required) and internal
authorizations necessary for the execution and performance of this
Agreement. This Agreement shall become binding on BlueChemical upon
execution by the authorized representative of
BlueChemical;
|
|
|
7.1.3
|
the
execution and performance of this Agreement by BlueChemical will not
violate any other agreements entered into by BlueChemical or its articles
of association, nor conflict as a matter of law with other agreements
entered into by BlueChemical or its articles of
association.
|
|
7.2
|
The
Company represents and warrants
that:
|
|
|
7.2.1
|
the
Company is a Hong Kong company duly incorporated in accordance with the
Hong Kong law with independent legal person status and valid business
license;
|
Exhibit
4.37-6
|
|
7.2.2
|
the
Company has obtained all internal authorizations necessary for the
execution of this Agreement and this Agreement shall become binding on the
Company upon execution by the authorized representative of the
Company;
|
|
|
7.2.3
|
the
execution and performance of this Agreement by the Company will not
violate any other agreements entered into by the Company or its articles
of association nor conflict as a matter of law with other agreements
entered into by the Company or its articles of
association.
|
Article
8 Performance
of this Agreement
|
8.1
|
Where
any transaction hereunder constitutes the connected transaction under the
Listing Rules, such transaction may proceed, as required by the Listing
Rules, only if such transaction has been exempted by the Stock Exchange of
Hong Kong Limited (“HKSE”) or approved by the independent shareholders or
has complied with any other provisions of the Listing Rules concerning
connected transactions. Such transaction under this Agreement may be
carried out on conditions that the Company has obtained the approval of
the independent shareholders or has complied with any other relevant
provisions of the Listing Rules concerning connected transaction
concerning such transaction.
|
|
8.2
|
Where
the waiver of HKSE is conditional, this Agreement shall be performed in
compliance with such conditions.
|
|
8.3
|
Where
the waiver for certain connected transaction is withdrawn, revoked or
voided and such transaction fails to comply with the relevant requirements
of the Listing Rules concerning connected transactions, the performance of
this Agreement in connection with such transaction shall be
terminated.
|
|
8.4
|
Where
the performances of this Agreement in connection with all the transactions
hereunder are suspended pursuant to Article 8.3, this Agreement shall be
terminated.
|
Article
9 Force
Majeure
|
9.1
|
If any Party fails to perform any or all of its obligations under this
Agreement due to force majeure (“force majeure”
shall mean any circumstances which cannot be reasonably controlled,
foreseen or cannot be avoided and overcome though foreseen by the affected
Party, and occurred after the execution of this Agreement, making such
affected Party objectively fail to perform (including without limitation
failure to perform even though on a reasonable cost) any or all of its
obligations under this Agreement. Such force majeure includes but not
limited to flood, fire, drought, typhoon and hurricane, earthquake and any other natural disaster, and
traffic accident,
strike, riot,
war (whether or not
declared) and
acts or omissions of
|
Exhibit
4.37-7
the government), such performance shall be suspended for the duration of force
majeure.
|
9.2
|
The
affected Party shall promptly after its occurrence notify the other Party
in writing and provide the other Party with sufficient evidence specifying
the nature of such force majeure and its duration by hand or registered
mail within fifteen (15) days. The Party who claims a failure to perform
this Agreement due to force majeure shall make all reasonable efforts to
minimize the loss or damage that may be incurred by the Parties as a
result of force majeure.
|
|
9.3
|
Upon
the occurrence of force majeure, the Parties shall forthwith commence
joint consultations aimed at how to implement this Agreement. After
termination or elimination of force majeure, the Parties shall immediately
resume the performance of their respective obligations
hereunder.
|
Article
10 Announcement
Neither Party
shall make any announcement with regard to the matters of this Agreement without
the prior written consent of the other Party except for the public announcements
made in compliance with the PRC laws and relevant provisions of the China
Securities Regulatory Commission, the HKSE, the Hong Kong Securities and Futures
Commission, the New York Stock Exchange, the United States Securities and
Exchange Commission and other governmental or regulatory
authorities.
Article
11 Miscellaneous
|
11.1
|
Unless
otherwise provided, neither Party shall assign in whole or in part its
rights or obligations under this Agreement without the prior written
consent of the other Party.
|
|
11.2
|
This
Agreement constitutes the entire agreement between the Parties in respect
of its subject matter and supersedes all previous oral or written
agreements, contracts, memorandums of understanding and
communications.
|
|
11.3
|
Should
any provision of this Agreement be held to be illegal, invalid or
unenforceable, the legality, validity and enforceability of the remaining
provisions of this Agreement shall remain
unaffected.
|
|
11.4
|
The
Parties agree that BlueChemical and the Company will bear and pay
respectively any costs and expenses arising out of this Agreement subject
to relevant PRC laws. If relevant laws are not available, the Parties
agree to equally share all the relevant costs and
expenses.
|
Exhibit
4.37-8
|
11.5
|
The amendment of this Agreement shall only be valid and effective
subject to the
signing in writing by
the duly authorized
representative of the
Parties and sufficient approval by the
Parties. If such amendment
constitutes a substantive and material amendment to this Agreement, such
amendment shall become effective provided that a notification of or
consent from the HKSE (as the case may be) and shareholders’ meeting of
the Company (if applicable) is
available.
|
|
11.6
|
Unless
otherwise provided, failure of one Party to exercise or exercise on time
any right, power or privilege hereunder shall not act as a waiver, nor
shall any single or partial exercise thereof preclude any further exercise
of any other right, power or
privilege.
|
Article
12 Notice
|
12.1
|
All
notices or other communications made hereunder by one Party shall be in
writing and in Chinese and delivered by hand, or sent by registered mail
or facsimile addressed to the facsimile numbers specified by the other
Party. Any such notice shall be deemed to have been duly
served:
|
|
|
12.1.1
|
If
delivered by hand when signing by the intended
recipient;
|
|
|
12.1.2
|
If
sent by registered mail, the seventh (7th)
day after delivery (stamp date) (If the last day is a Saturday, Sunday or
statutory holiday, such date shall be postponed to the next business
day);
|
|
|
12.1.3
|
If
sent by facsimile, upon successful transmission by the sending
party.
|
Article
13 Applicable
Law and Dispute Resolution
|
13.1
|
This
Agreement shall be governed by and construed in accordance with the PRC
laws.
|
|
13.2
|
All
disputes arising out of or in connection with this Agreement shall be
settled through negotiation by the Parties. If such dispute can not be
settled, such dispute shall be submitted to China International Economic
and Trade Commission (“CIETAC’) for arbitration which shall be conducted
in accordance with CIETAC Arbitration Rules in effect at the time of
applying for arbitration. The arbitration award shall be final and legally
binding to the Parties.
|
Article
14 Supplements
|
14.1
|
Unless
otherwise provided in this Agreement, in the
context,
|
|
|
(1)
|
one
Party includes its legal successors;
and
|
Exhibit
4.37-9
|
|
(2)
|
the headings of the Articles of this Agreement are inserted for convenience only
and shall not be in
legal force or affect
the interpretation of this Agreement.
|
|
14.2
|
This
Agreement is written in Chinese.
|
IN WITNESS WHEREOF, each Party
hereto has caused this Agreement to be executed on the date and in the place
written on the first page.
| China BlueChemical Ltd. | CNOOC Limited | ||||
| /s/ Quan Changsheng | /s/ ▇▇▇▇ ▇▇▇ | ||||
|
By
|
Quan
Changsheng
|
By | ▇▇▇▇ ▇▇▇ | ||
| Authorized representative | Authorized representative | ||||
|
Title
|
Vice President, Chief
Financial Officer and Secretary to the Board
|
Title
|
Executive Director,
Executive Vice President and Chief Financial Officer
|
||
Exhibit
4.37-10