Framework Agreement on Mutual Supply of Products and Services between Offshore Oil Engineering Co., Ltd. and CNOOC Limited (Summary Translation)
EXHIBIT
4.40
on
Mutual Supply of Products and Services
between
Offshore
Oil Engineering Co., Ltd.
and
CNOOC Limited
(Summary
Translation)
Exhibit
4.40-1
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
|
5
|
|
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
4.40-2
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:
Offshore
Oil Engineering Co., Ltd. (hereinafter referred to as “CNOOC Engineering”), 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 CNOOC Engineering and the Company are
subsidiaries controlled by China National Offshore Oil Corporation (“CNOOC”).
CNOOC owns approximately 51.36% of the stock
equity of CNOOC Engineering and approximately 65.08% of the issued share capital
of the Company.
CNOOC Engineering
is engaged in the design of petroleum, natural gas and construction projects,
and the construction of all kinds of offshore oil construction projects and
other projects. Such services are necessary to the production and operation of
the Company and its associates. CNOOC Engineering and its associates have
certain personnel, technical and regional strength, as well as long-term
cooperation with the Company and its associates. Therefore, the Company is
willing to procure the said products and services from CNOOC Engineering 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.
|
Article
1 Scope of Products and
Services
|
|
1.1
|
The
products and services to be supplied by CNOOC Engineering to the Company
include:
|
|
|
1.1.1
|
development
services: design, construction, installation and tuning of oil and gas
field production facilities as well as other related technical and
supporting services; and
|
Exhibit
4.40-3
|
|
1.1.2
|
production
services: production operations, maintenance and repair of oil and gas
field production facilities as well as other related technical and
supporting services.
|
|
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 traders refer to CNOOC Engineering, 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 CNOOC Engineering for
providing the relevant products and services plus a margin of not more
than 10%, before any applicable
taxes.
|
|
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
|
Exhibit
4.40-4
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 on conditions 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 product 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.
|
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.
|
Exhibit
4.40-5
|
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
|
CNOOC
Engineering represents and warrants
that:
|
|
|
7.1.1
|
CNOOC
Engineering 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
|
CNOOC
Engineering 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 CNOOC Engineering
upon execution by the authorized representative of CNOOC
Engineering;
|
|
|
7.1.3
|
The
execution and performance of this Agreement by CNOOC Engineering will not
violate any other agreements entered into by CNOOC Engineering or its
articles of association, nor conflict as a matter of law with other
agreements entered into by CNOOC Engineering 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;
|
|
|
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;
|
Exhibit
4.40-6
|
|
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
transactions.
|
|
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 the above 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 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)
|
Exhibit
4.40-7
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 public 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 CNOOC Engineering 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.
|
|
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.
|
Exhibit
4.40-8
|
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
|
|
|
(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.
|
Exhibit
4.40-9
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.
| Offshore Oil Engineering Co., Ltd. | CNOOC Limited | ||||
| /s/ Jiang Xizhao | /s/ ▇▇▇▇ ▇▇▇ | ||||
|
By
|
Jiang
Xizhao
|
By |
▇▇▇▇
▇▇▇
|
||
| Authorized representative | Authorized representative | ||||
|
Title
|
President
and Director
|
Title
|
Executive Director,
Executive Vice President and Chief Financial Officer
|
||
Exhibit
4.40-10