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: Xxxx Xxxx
and
CHINA PETROLEUM EXPLORATION & DEVELOPMENT COMPANY LTD. (THE "TRANSFEREE")
ADDRESS: International Investment Building D, Fuchengmen Beidajie, Xicheng
District, Beijing
LEGAL REPRESENTATIVE: Xxxx Xxxxxxx
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 is
necessary for normal operation;
(5) not make any revision to any existing contract or agreement
that is detrimental to PCI Group;
(6) perform the Agreement after being executed or any other
documents in relation to Transferred Assets and its business
in a timely manner;
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(7) not release anyone from any debts owed to PCI Group or waive
any claim of PCI Group;
(8) not make a compromise, settlement, withdrawal or waiver of
rights in any form with respect to any action or arbitration
or any other legal proceedings pending, in relation to PCI
Group;
(9) not issue or plan to issue any additional equity or
convertible bonds of PCI Group or grant any subscription right
or similar rights to the aforesaid equity or convertible
bonds, unless otherwise specified in any agreement/contract
binding upon the Transferor and/or PCI.
ARTICLE 9 LIABILITY FOR BREACH OF CONTRACT
9.1 The Transferee shall be entitled to claim on the Transferor for
compensation for any direct loss and damage incurred by it, and any
costs and expenses arising from any action or claim incurred by it due
to the nonperformance or incomplete performance by the Transferor of
any of its obligations under the Agreement or breach of any provision
hereof.
9.2 The Transferor shall be entitled to claim on the Transferee for
compensation for any direct loss and damage incurred by it, and any
costs and expenses arising from any action or claim incurred by it due
to the nonperformance or incomplete performance by the Transferee of
any of its obligations under the Agreement or breach of any provision
hereof.
9.3 Notwithstanding any contrary provisions herein, if the Transferee's
breach of any of its representations and warranties set forth in
Article 6 hereinabove results in any loss and damage to and/or cause
any costs and expenses to the Transferor arising from any action or
claim due thereto, the amount of loss that the Transferor can recover
from Transferee for any individual claim shall be no less than
RMB400,000 and the accumulative amount of loss that Transferor can
recover from the Transferee for any individual claim shall be no less
than RMB2000,000; provided that the total amount of loss that can be
recovered by the Transferor from the Transferee hereunder shall not
exceed 50% of the consideration for this Equity Transfer. In case of
any breach by the Transferee of any of its representations or
warranties set forth herein, if Transferor doesn't make any claim with
respect thereto within twelve (12) months as of the Closing Date, the
Transferee shall not assume any compensation therefor.
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9.4 Notwithstanding any contrary provisions herein, if the Transferor's
breach of any of its representations and warranties set forth in
Article 6 hereinabove results in any loss and damage to and/or cause
any costs and expenses to the Transferee arising from any action or
claim due thereto, the amount of loss that the Transferee can recover
from Transferee for any individual claim shall be no less than
RMB400,000 and the accumulative amount of loss that Transferee can
recover from the Transferor for any individual claim shall be no less
than RMB2000,000; provided that the total amount of loss that can be
recovered by the Transferee from the Transferor hereunder shall not
exceed 50% of the consideration for this Equity Transfer. In case of
any breach by the Transferor of any of its representations or
warranties set forth herein, if Transferee doesn't make any claim with
respect thereto within twelve (12) months as of the Closing Date, the
Transferor shall not assume any compensation therefor.
9.5 Any tolerance, grace, preferential treatment granted by either party to
the other party or delay of either party to exercise any of its rights
hereunder shall not affect, damage or limit any rights or interests
that such party shall have under the Agreement and any laws and
regulations, nor shall be considered as such party's waiver of any of
its rights or interests under the Agreement, nor release the other
party from any of its obligation under the Agreement.
9.6 All rights under the Agreement shall be cumulative and not prejudice
any other right or remedy specified in laws.
9.7 Notwithstanding the above agreement, both parties agree that, none of
the parties hereto shall assume the default responsibility if the
Closing of this Equity Transfer fails to occur as a result of the
failure to obtain from any of the Examining and Approving Authorities
any approval/ratification for any reason, and the parties shall assume
their respective costs arising out of or from this Equity Transfer.
ARTICLE 10 FORCE MAJEURE
10.1 Neither party shall be considered in default if it is unable to perform
this Agreement due to the occurrence of a force majeure event; provided
that such party shall make all necessary remedies if practicable to
mitigate the loss arising from the occurrence of the force majeure
event.
10.2 Either party who encountered the force majeure event shall notify the
other
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party thereof in writing as soon as possible, and submit a report
to the other party, stating the reasons for its inability to perform
its obligations under the Agreement either in whole or in part and for
any extension to perform its obligations, within fifteen (15) days
after the occurrence of the force majeure event and such party shall
take all actions practicable to mitigate the loss. If any force majeure
event occurs, none of the parties shall be responsible for any damage
and additional expense and loss suffered by the other party due to the
failure to perform or any delay in the performance of obligations
hereunder. The party claiming force majeure shall take proper measures
to mitigate or remove the impact thereof and try to resume the
performance of the obligations hereunder affected by force majeure as
soon as practicable.
ARTICLE 11 CONFIDENTIALITY
Each party shall treat all details about the Agreement and this Equity Transfer,
the interrelationship among the parties and the documents provided to each other
hereunder as confidential materials, and without prior written approval by the
other party, shall not disclose any of such materials to any party other than
the parties hereto in any way except for the purpose of this Equity Transfer,
except for any disclosure to relevant agents, financial institutions and
regulatory authorities for the purpose of the Agreement.
ARTICLE 12 GOVERNING LAW
The conclusion, effect, interpretation and performance of and settlement of any
dispute arising from the Agreement shall be governed by the laws of the People's
Republic of China.
ARTICLE 13 DISPUTE SETTLEMENT
13.1 Any dispute arising out of or from the Agreement shall be settled
through friendly negotiations between the parties, and may be referred
to arbitration if it is failed to be resolved through negotiation.
13.2 Such dispute shall be submitted to and resolved by China International
Economic and Trade Arbitration Commission for arbitration in Beijing in
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accordance with its arbitration rules.
13.3 The award of China International Economic and Trade Arbitration
Commission shall be final and binding upon both parties. The
arbitration costs shall be assumed by the losing party.
13.4 Pending resolution of any dispute, the parties shall continue to
perform the Agreement other than any matter under dispute.
ARTICLE 14 NOTICE
14.1 All communications between the parties regarding the Agreement shall be
delivered to each party at the following addresses by mail, facsimile,
telex or in other written form:
PetroChina Company Limited
To: He Jia
Address: World Tower,16 Andelu, Dongcheng District, Beijing
Tel: 000-00000000
Fax: 000-00000000
China Petroleum Exploration & Development Company Ltd.
To: Xxxx Xxxx
Address: International Investment Building D, Fuchengmen Beidajie,
Xicheng District, Beijing
Tel: 000-00000000
Fax: 000-00000000
14.2 In case of change of the contact person or any other contact
information of either party, such party shall notify the other party in
writing seven (7) days in advance.
ARTICLE 15 ENTIRE AGREEMENT
15.1 The Agreement constitutes the entire and sole agreement among the
parties regarding this Equity Transfer, and supersedes any other prior
understandings, arrangements and agreements between the parties
regarding this Equity Transfer.
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15.2 All of the exhibits hereto shall constitute a valid integral part
hereof and shall have the equal legal effect as the Agreement.
ARTICLE 16 EFFECTIVENESS OF AND AMENDMENT TO AGREEMENT
16.1 The Agreement shall be signed by the authorized representatives of both
parties on the date first written above, and shall become effective
from the date when both parties have obtained all necessary internal
corporate authorizations and approvals required for the execution and
performance of the Agreement.
16.2 Any amendment and modification to the Agreement shall not be effective
unless made in accordance with Article 16.1 above.
ARTICLE 17 COUNTERPARTS OF THE AGREEMENT
The Agreement shall be executed in Chinese in ten (10) originals, with each
party to hold two and the remaining originals to be submitted to the competent
governmental authorities. Each original of the Agreement shall have the equal
legal effect.
ARTICLE 18 MISCELLANEOUS
18.1 Any matter not covered hereunder shall be set forth in a supplementary
agreement by and among the parties which shall be attached hereto as an
exhibit. Such supplementary agreement shall not be effective unless
made in accordance with Article 16.1 above.
18.2 Each party shall be solely responsible for any tax imposed on it due to
its execution and performance of the Agreement pursuant to the relevant
laws and regulations.
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[Signature Page]
PetroChina Company Limited (seal)
Authorized representative: Xxxx Xxxxxxxx
China Petroleum Exploration & Development Company Ltd. (seal)
Authorized representative: Wu Dongshan
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Exhibit 1:
Organizational Structure of PCI Group
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Exhibit 2:
Further Representation and Warranties of the Transferor
For the purpose of this Equity Transfer, in addition to the existing
representations and warranties, the Transferor further makes the following
representations and warranties in accordance with Article 6.3 in the Agreement.
Except for the information disclosed to Transferee prior to the execution date
of the Agreement, to the extent that the Transferor knows and it should know as
a shareholder of PCI Group companies:
1. CORPORATE STATUS AND FORM OF PCI GROUP
1.1 Each of the entities of PCI Group is duly established and validly
existing in compliance with laws in the jurisdiction in which it is
incorporated, legally owns its assets, and is not subject to
receivership, liquidation, bankruptcy or winding-up nor does there
exist any measure or petition for its receivership, liquidation,
bankruptcy or winding-up.
1.2 PCI Group conducts its businesses legally and has obtained all licenses
and approvals required for the conduct of its business, which are all
legal and valid. It has not received any notice of an intention to
terminate or modify any of the aforesaid licenses and approvals, nor
has it been aware of any matter that impedes or affects any extension
or renewal of any of such licenses and approvals.
1.3 PCI Group doesn't create any mortgage, pledge, lien, restriction,
preemption rights, third party interests or encumbrance or security
interest in any other form or any other preferential arrangements on
any of its assets, nor does there exist any fact that shall be
disclosed or any material legal defect.
1.4 The Transferor holds all of the interests in PCI Group, free from
mortgage, pledge, lien, restriction, preemption rights, third party
interests, or encumbrance or security interest in any other form, or
any other preferential arrangements, or any fact that shall be
disclosed, or any material legal defect.
1.5 PCI Group complies with its articles of association or other
organizational documents in all material aspects. It does not surpass
its power or fail to obtain any authorization in the conduct of its
business, execution of any contracts, making any undertakings or
exercise of any of its rights.
1.6 PCI's book of minutes of board meetings and shareholders' meetings of
PCI
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include the complete and accurate records of all resolutions passed
by the board and shareholders of PCI.
1.7 The execution and performance of the Agreement will not constitute any
violation or any material breach of any provision of any agreement,
instrument, law, award, order, permit, license or consent by which PCI
Group is bound.
1.8 PCI Group's continued operation of its existing business will not
conflict with or infringe upon any third party's rights in any way,
including but not limited to land ownership, land use rights, oilfield
exploration rights and oilfield exploitation rights.
1.9 PCI Group does no have any agreement or obligations with respect to its
share capital, whether issued or not, or the issue of any share, bond,
subscription right, stock option or other similar securities.
1.10 PCI Group has legal title to all of the assets set forth in the
Appraisal Report and doesn't allow any creditor's right to be created
on any of such assets. It has legal use rights to the assets used in
the operation of its business.
1.11 PCI Group has not taken any action or omission that would result in
circumstances under which PCI Group must or may be responsible for:
(1) refunding any investment and financial support previously
granted by any government;
(2) repaying any governmental loan; or
(3) surrendering amount obtained by it under the preferential tax
treatment or tax reduction or exemption.
1.12 Neither PCI Group nor any of its directors is involved, in any criminal
act that has a material adverse impact on PCI Group's operation.
2. FINANCIAL STATEMENTS AND ACCOUNTING RECORDS OF PCI GROUP
2.1 PCI Group's financial statements:
(1) are complete and accurate in all aspects, and truly and fairly
reflect PCI Group's assets and liabilities on the Base Date,
and do not omit any debts or responsibilities;
(2) are prepared in compliance with relevant laws and/or
International Accounting Standards;
(3) no material adverse changes have occurred to the financial
conditions and prospects of the relevant business from the
Base Date to the effective date of the Agreement;
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(4) reflect that the fixed assets of PCI Group have been
depreciated at the depreciation ratio sufficient to reduce the
value of such assets to nil not later than the expiration of
their service life, after appropriate residual value of such
fixed assets is deducted; and
(5) disclose all contingent liabilities, commitments and deferred
or advance taxes and make proper provision therefor.
2.2 All book credits of PCI Group, whether indicated on the financial
statements of PCI or accrued since the Base Date, are valid and
enforceable, and have been or can be liquidated for their nominal
value.
2.3 Except as disclosed in the financial statements of PCI Group, as of the
execution date hereof, PCI Group:
(1) hasn't had any capital expenditure (other than any payment
made under any contract that has been executed) or provided
guarantee or made other material commitments;
(2) has not made any borrowings except in the ordinary course of
business.
2.4 None of the secured borrowing as disclosed in the financial statements
of PCI Group exceeds the amount thereof as indicated therein, and all
of the similar borrowings newly made after the Base Date have been
disclosed to the Transferee in a timely manner.
2.5 Since the Base Date, there has no major adverse change to the financial
conditions or prospects of the relevant business.
2.6 PCI Group's Accounting Records:
(1) With respect to the relevant business and any changes to the
relevant business occurred during the period from the Base
Date to the execution date of the Agreement, PCI Group has
established and prepared properly all necessary account books
and records, and all such account books and documents that
belong to or shall be held by PCI are maintained and held by
PCI.
(2) All accounts, account books, ledgers and all accounting
records:
i) have been noted and completed adequately, properly
and accurately;
ii) free from material error and deviation; and
iii) record and reflect, truly and fairly, all
transactions in relation to relevant businesses.
3. TAXES OF PCI GROUP
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3.1 All taxes payable by PCI Group, including any tax due and advance tax,
have been paid.
3.2 All tax returns and related materials to be prepared or filed by PCI
Group for the purpose of any tax have been prepared or filed in time
and on a proper basis, and are true and accurate when prepared and
consistent to the fact at the time of filing thereof; any aforesaid
will not or may not lead to any dispute with any tax authorities.
3.3 The Transferor has disclosed to the Transferee in detail of any and all
of the transactions entered into by PCI Group that are subject to
approval or permission by the competent tax authorities.
3.4 PCI and/or the Transferor have not taken any action that causes PCI
Group to assume any tax that is otherwise to be assumed by any party
other than PCI Group.
3.5 All remuneration, compensation, retirement or severance payment and
other amounts paid or payable to all of the current/former employees or
executives of PCI Group and all interests, annuities, patent royalty,
rent and other annual payment may be deducted before tax or treated in
other method as approved by tax authorities.
3.6 All documents to which PCI Group is a party, or that constitute part of
ownership of any entity of PCI Group to any assets, or in the
enforcement of which any entity of PCI Group has or may have interests,
and for which stamp tax or similar taxes shall be paid, have been
stamped or granted with tax exemption.
3.7 The materials submitted by PCI Group to relevant governmental
authorities and departments with respect to import or export of any
goods are true and accurate at submission; PCI Group has complied with
all ordinances, rules, orders, instructions or conditions regarding
import and export of goods and all custom affairs; and all duties
payable by PCI Group have been paid in full within the applicable time
limit.
3.8 PCI Group has reported in full detail its provision of benefits to its
directors or employees to relevant tax authorities and the services
provided by any individual to PCI Group as required by applicable tax
laws.
3.9 PCI Group has made all the withholdings and all the disclosures to the
authorities with respect to any item for which it is obligated or
entitled to make tax withholding.
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3.10 The Transferor agrees to be fully responsible for or compensate for any
accrued taxation obligations of PCI Group that are payable but not
paid, except for those disclosed in the financial statements of PCI,
unless otherwise provided herein.
3.11 PCI Group does not have any tax dispute or suffer from any tax penalty,
and the existing tax preferences enjoyed by PCI Group have not ceased
or been deprived of. The Transferor agrees to be fully responsible for
or compensate for any tax penalty incurred during the Related Period.
4. PROCEEDINGS OF PCI GROUP
4.1 PCI Group has not been involved in any Major Proceedings and there does
not exist any fact or situation at present that may involve PCI Group
in any Major Proceedings, other than the collection of accounts
receivable in the ordinary course of business.
4.2 None of the properties of PCI Group has been sealed up, frozen or
subject to any other enforcement actions by any administrative and/or
judicial authority.
5. LABOR RELATIONS OF PCI GROUP
PCI Group complies with the applicable laws and regulations and all of the
responsibilities to its employees under labor contracts in all material aspects,
and there is no material labor dispute involving a value/claim exceeding US$1
million individually pending between PCI Group and any of its employees.
6. ENVIRONMENTAL PROTECTION
6.1 PCI Group complies with the laws and regulations regarding
environmental protection in all material aspects.
6.2 PCI Group is not threatened with any civil, criminal or administrative
claim, investigation, complaint or lawsuit, in relation to
environmental protection that may result in a loss of US$3 million or
more to PCI Group.
7. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY
7.1 None of the confidential information used by PCI Group infringes upon
the legal rights of any third party to such confidential information.
7.2 PCI Group has legal ownership or use rights to any and all of the
intellectual properties used by it and its ownership or use thereof
does not infringe upon
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the intellectual properties of any third party.
8. INSURANCE
8.1 PCI Group has taken out insurance for its production and operation in
accordance with good commercial practice in international oil industry,
and PCI Group does not take any action or omission that may lead to the
invalidity of any of its insurance policies.
8.2 All materials provided in order to obtain or renew PCI Group's
insurance policies are correct, detailed and accurate at the time of
provision.
8.3 PCI Group has not incurred any loss that is not covered under
insurance, or waived any substantial or valuable right, or allowed any
insurance to become invalid.
9. ARRANGEMENTS WITH RELATED PERSONS
All pecuniary arrangements between PCI Group and any of its directors, senior
officers or shareholders have been correctly reflected in the account books of
PCI Group.
10. ACCURACY OF MATERIALS PROVIDED
All materials provided by the Transferor and PCI for the purpose of this Equity
Transfer are true, accurate and free of material omission.
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