Cooperation Agreement - Ensyn Petroleum International Ltd. and Ivanhoe Energy (USA) Inc.
COOPERATION AGREEMENT
THIS COOPERATION AGREEMENT dated the 30th day of May, 2003 is entered
into by and between ENSYN PETROLEUM INTERNATIONAL LTD., a Delaware corporation
having offices at the City of Boston, Massachusetts 02116 (hereinafter called
"Ensyn"), and IVANHOE ENERGY (USA) INC., a Nevada corporation having offices at
the City of Bakersfield, California (hereinafter called "Ivanhoe").
WHEREAS, Ensyn and its Affiliates are constructing the Pilot Project;
WHEREAS, Ensyn and Ivanhoe entered into the Project Agreement; and
WHEREAS, pursuant to the Project Agreement, Ensyn may install the Pilot
Project at an Ivanhoe Site, or Ensyn may install the Pilot Project at an
Alternate Site.
NOW, THEREFORE, in consideration of the Parties' mutual promises and
agreements and subject to the terms and conditions set forth below, the Parties
agree as follows:
1. DEFINITIONS. In this Agreement, including the recital, unless there
is something in the subject matter or the context inconsistent therewith, the
following terms shall have the following meanings:
"AFFILIATE" means, in respect to a Party, a Person which controls, is
controlled by, or is under common control with, such Party and, for the purposes
of this definition, "CONTROL" means the direct or indirect ability, in the case
of a corporation, to vote sufficient shares of the corporation to elect a
majority of the directors thereof and, in the case of other Persons, "CONTROL"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership or voting of securities, by contract or otherwise. Notwithstanding the
foregoing, it is understood and agreed that ITS ENSYN LLC, a Delaware limited
liability company, shall be considered an Affiliate of Ensyn for purposes of
this Agreement.
"AGREEMENT" means this Cooperation Agreement, together with any
amendments to or replacements of or substitutions for this Agreement.
"AI EXCLUSIVE PERIOD" has the meaning of that term provided in Section
3(a) of this Agreement.
"ALTERNATE SITE" means a site that is not owned or controlled by
Ivanhoe.
"AREAS OF INTEREST" has the meaning of that term provided in Section
3(a) of this Agreement.
"BPD" means barrels per day.
"BARREL" means 0.15891 cubic meters.
"BUSINESS DAY" means any day on which banks are generally open to
transact commercial business in the State of Delaware, excluding any Saturday,
Sunday or statutory holiday in Delaware
"BUSINESS INFORMATION" has the meaning of that term provided in Section
2(f) of this Agreement.
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"BUSINESS PLAN" has the meaning of that term provided in Section 2(f)
of this Agreement.
"CONFIDENTIAL INFORMATION" means with respect to a Party, as the case
may be, any and all information of a confidential nature of such Party, and of
the Affiliates of such Party and of the shippers and customers of such Party or
its Affiliates, whether received in writing, verbally or through observation,
including without limitation, all data and information relating to the Pilot
Project and any process, technology or system relating thereto, and the design,
construction, operation, maintenance or any aspect of the Pilot Project,
including Pilot Project plans, production characteristics and testing results
related thereto and use of the RTP(TM) with respect to the Pilot Project.
"CONFIDENTIALITY AGREEMENT" means the Confidentiality Agreement dated
July 14, 2002 by and among Ivanhoe and its subsidiaries and affiliates and Ensyn
Group, Inc. and Ensyn Technologies Inc.
"EFFECTIVE DATE" means the date first set forth above.
"EXCLUSIVITY EXTENSION PREPAYMENT" has the meaning of that term
provided in Section 2(g) of this Agreement.
"FORCE MAJEURE" shall mean any act of God, accident, explosion, fire,
storm, earthquake, flood, drought, riot, embargo, civil commotion, war, act of
war, labor dispute or disruption, or any other circumstance or event beyond the
reasonable control of the Party relying upon such circumstance or event.
"INFORMATION PERIOD" has the meaning of that term provided in Section
2(f) of this Agreement.
"INTELLECTUAL PROPERTY" means any or all of the following:
(a) all Canada, United States and foreign patents and
applications therefor and all reissues, divisions, renewals,
extensions, provisionals, continuations and continuations-in-part
thereof;
(b) trade secrets and proprietary information, including trade
secrets and proprietary information that are inventions (whether
patentable or not), invention disclosures, improvements, know how,
technology, technical data, results of experiments, formulae,
specifications, procedures and tests;
(c) all copyrights, copyrights registrations and applications
therefor and all other rights corresponding thereto;
(d) all industrial designs and any registrations and
applications therefor;
(e) all trade names, logos, common law trade-marks and service
marks, and all trade-mark and service mark registrations and
applications therefor and all goodwill associated therewith;
(f) any rights similar, corresponding or equivalent to, and
all documentation related to, any of the foregoing.
"IVANHOE ANALYSIS" has the meaning of that term provided in Section
2(f) of this Agreement.
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"IVANHOE DATA" has the meaning of that term provided in Section 2(f)
of this Agreement.
"IVANHOE RESULTS DATE" means the date on which Ensyn provides Ivanhoe
with the results of the Ivanhoe Testing.
"IVANHOE SITE" means a site controlled by Ivanhoe in the State of
California.
"IVANHOE TESTING" means upgrading petroleum supplied by Ivanhoe by use
of the Technology and supplying the results of such upgrading to Ivanhoe,
including assays and other data and information regarding the characteristics of
such petroleum and the upgraded product produced therefrom.
"NOTICE DEADLINE" means December 31, 2003.
"OPERATING COSTS" shall include all costs for activities necessary for
the operation of the Project, including labor, raw materials, utilities,
insurance costs, replacement parts and maintenance. It is understood and agreed
that "OPERATING COSTS" will not include any allocations for depreciation or the
capital costs of the RTP(TM) equipment.
"OTHER FIELDS" has the meaning of that term provided in Section 2(f) of
this Agreement.
"OWNER" means the owner of the Alternate Site at which the Pilot
Project is sited.
"PARTIES" means the parties to this Agreement, and "PARTY" means one of
them.
"PERSON" means any individual, corporation, limited liability company
or other legal entity and also includes partnerships, whether limited or
general, and any trust.
"PILOT PROJECT" means a pilot project for Ensyn to demonstrate the
commercial viability of the Technology to partially upgrade bitumen and heavy
oil.
"PREPAID LICENSE FEE" has the meaning of that term provided in Section
2(f) of this Agreement.
"PROJECT AGREEMENT" means the Project Agreement dated the 18th day of
March, 2003 between Ivanhoe and Ensyn.
"PROJECT DATA" has the meaning of that term provided in Section 2(e) of
this Agreement.
"PROJECT DATA PERIOD" has the meaning of that term provided in Section
2(e) of this Agreement.
"RTP(TM)" means Ensyn's patented Rapid Thermal Pyrolysis technology and
its related Intellectual Property, including that having U.S. Patent No.
5,792,340.
"TECHNOLOGY" means (a) RTP(TM), as improved, developed, modified,
expanded or refined from time to time, (b) any Intellectual Property rights
relating to any Production, and (c) any and all other Intellectual Property
rights dealing with rapid pyrolysis technology owned by or licensed to Ensyn.
"TESTING NOTICE" has the meaning of that term provided in Section 2(d)
of this Agreement.
"THIRD PARTIES" means Persons other than Ensyn or Ivanhoe, and "THIRD
PARTY" means one of them.
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2. COOPERATION. In the event that Ensyn installs the Pilot Project on
an Alternate Site, the Parties agree as follows:
(a) Subject to Ensyn obtaining any necessary approvals, including that
of the Owner, at the request of Ensyn, Ivanhoe agrees to provide up to twenty
(20) hours per month of consulting services with respect to the Pilot Project
for a 12-month period commencing on August 1, 2003, with such services
consisting of evaluating construction and Operating Costs of the Pilot Project
and preparing reports with respect thereto
(b) Ivanhoe agrees to fund one-half of the cost of a study to be
performed by Purvin & Gertz, with Ivanhoe's portion not to exceed Seven
Thousand, Five Hundred and 00/100 ($7,500.00) Dollars, to analyze and evaluate
the market in the State of California for RTP(TM) upgraded products produced in
the amount of one thousand (1,000), three thousand (3,000) and ten thousand
(10,000) bpd.
(c) Ivanhoe agrees that, at Ensyn's request, it will deliver petroleum
to the Alternate Site for a 24-hour test on the Pilot Project (i.e., up to 250
barrels) and, in such case, will pay, within thirty (30) days of Ensyn providing
an invoice with respect thereto, an amount equal to one-half of the cost of
assays and evaluations for the products produced from such petroleum. Ensyn will
provide Ivanhoe with the results of such testing, including assays and other
data and information regarding the characteristics of such petroleum and the
upgraded product produced therefrom.
(d) If Ivanhoe delivers notice to Ensyn no later than the Notice
Deadline in the form attached hereto as Appendix "A" that Ivanhoe requires Ensyn
to operate the Pilot Project for a period of up to seven (7) days for the
Ivanhoe Testing of petroleum delivered to the Alternate Site by Ivanhoe
("Testing Notice") and Ivanhoe delivers such petroleum to the Alternate Site,
Ensyn shall perform such testing at a time reasonably agreed upon by the
Parties, but in no case later than June 30, 2004 unless the parties otherwise
agree in writing. In such case, Ivanhoe agrees to pay Ensyn within thirty (30)
days of Ensyn providing an invoice with respect thereto, an amount equal to all
Operating Costs of the Pilot Project during such period, as well as for the cost
of assays and evaluations for the products produced from such petroleum.
Provided that Ivanhoe gives Ensyn and the Owner reasonable notice and agrees to
ensure that persons visiting the Alternate Site adhere to the safety and other
reasonable requirements of Ensyn and the Owner, Ivanhoe has the right to visit
the Alternate Site during the Ivanhoe Testing and to visit the Alternate Site
with Third Parties with the prior approval of Ensyn, which approval shall not be
unreasonably withheld. It is understood and agreed that any Third Parties
visiting the Alternate Site at the request of Ivanhoe shall be required by
Ivanhoe to deliver to Ensyn a written acknowledgement of their familiarity with
the provisions of the Confidentiality Agreement and their agreement to be bound
by such provisions.
(e) Subject to any confidentiality or nondisclosure agreements with
Third Parties, if Ivanhoe delivers the Testing Notice to Ensyn by the Notice
Deadline, during the period beginning on the date on which Ivanhoe provides the
Testing Notice to Ensyn ("Notice Date") and ending six months after the Ivanhoe
Results Date ("Project Data Period"), Ivanhoe shall have access to any and all
data with respect to the operation of the Pilot Project and the products
produced at the Pilot Project, including data with respect to the Ivanhoe
Testing ("Project Data") to enable Ivanhoe to understand the operation of the
Pilot Project and to analyze the economics of the Pilot Project and future
facilities at which the RTP(TM) technology may be utilized, including an Ivanhoe
Site. Notwithstanding the preceding sentence, it is understood and agreed that
Ivanhoe may share the results from the Ivanhoe Testing with Third Parties
provided that any Third Parties to whom Ivanhoe gives access to such data that
constitutes Confidential Information within the meaning of such term in the
Confidentiality Agreement shall be required by Ivanhoe to deliver to Ensyn a
written acknowledgement of their familiarity with the provisions of the
Confidentiality Agreement and their agreement to be bound by such provisions.
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(f) It is understood that prior to or during discussions with Third
Parties, at its own expense, Ivanhoe will have completed an analysis of the oil
proposed to be the raw material, the characteristics of the upgraded product
based on testing, the markets for the upgraded product, and transportation
studies regarding delivery of the products to the market ("Ivanhoe Analysis").
If Ivanhoe delivers the Testing Notice, as soon as it is available, but in no
case later than the end of the Project Data Period, Ivanhoe shall also deliver
the Ivanhoe Analysis to Ensyn, as well as data substantiating the initiation of
discussions with Third Parties, including information regarding, and
identification of, specific sites and the progress of such discussions ("Ivanhoe
Data").
If Ivanhoe delivers the Testing Notice to Ensyn, Ivanhoe also agrees
that during the period from the Notice Date to the date that is one (1) year
after the Ivanhoe Results Date ("Information Period"), in addition to providing
Ensyn with the Ivanhoe Analysis and the Ivanhoe Data, Ivanhoe may obtain and
prepare information regarding the economics and other business considerations,
including preparing pro formas of the economics related to upgrading and selling
oil, with respect to certain oil fields or other areas in Peru and Oman that are
owned by others and which may be acquired by Ivanhoe ("Other Fields"), at which
the RTP(TM) could be utilized with the approval of Ensyn, ("Business
Information") so that the Parties can develop a business plan for such fields
("Business Plan"). The Business Plan shall also consider, if agreed to by the
Parties, the possibility that the Pilot Project could be installed and operated
at an Ivanhoe Site for an extended period of time or that the Technology would
be offered by Ensyn and Ivanhoe jointly to Third Parties for use at the Other
Fields, with Ivanhoe providing operating expertise and guidance to such Third
Parties. Such Third Parties may include foreign national or private oil
companies with which Ivanhoe has contacts and/or experience, provided that
Ensyn, in its sole discretion, is satisfied regarding the protection of the
Intellectual Property.
It is recognized that Ensyn's basic terms for the installation and use
of the Technology are (i) Ensyn's cost in manufacturing the equipment (materials
and labor) plus 25%, and (ii) a one-time prepaid license fee ("Prepaid License
Fee") calculated as $500 per barrel of the maximum daily oil throughput capacity
of installed RTP(TM) equipment. However, if the Pilot Project is to be operated
by Ivanhoe on an Ivanhoe Site, the terms therefor will be negotiated by the
Parties. The parameters for the financial terms for the utilization of the
Technology at Other Fields shall be negotiated in the Business Plan. Such terms
include (i) responsibility for obtaining funding for the RTP(TM) equipment, (ii)
ownership of the facilities, (iii) the Prepaid License Fee, and (iv) an agreed
running royalty based upon the daily volume in barrels per day of treated oil
produced in a facility utilizing the Technology or some other or additional type
of participation arrangement. The Business Plan will also provide the basis for
Ivanhoe to purchase the RTP(TM) facilities for the Other Fields, which shall be
determined on a "most favored nations" basis for a period of time to be
negotiated by the Parties and based on the purchase price and license fees paid
for similar RTP(TM) facilities of Ensyn in the vicinity of the Other Fields.
Notwithstanding any other provision of this Agreement, the Parties
understand and agree that no representations or guarantees are being made by
either of the Parties regarding the rights, obligations or intention of the
Parties to go forward with respect to any of the transactions analyzed and
discussed in this Section 2(f). Specifically, neither Party is obligated to
enter into binding agreements regarding the initial or permanent installation of
the Pilot Project, or the utilization of the Technology at the Other Fields.
3. THIRD PARTY LIMITATIONS AND ACTIVITIES.
(a) ENSYN. Ensyn agrees that, during the period from the Effective Date
through the Notice Deadline, it will not negotiate nor enter into business
transactions with Third Parties with respect to the development of RTP(TM)
projects in Peru and/or Oman or the sale of RTP(TM) equipment to be used in Peru
and/or Oman, provided that Ivanhoe has complied with the terms of this
Agreement.
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If Ivanhoe delivers the Testing Notice to Ensyn by the Notice Deadline,
then Ensyn agrees that it will not negotiate nor enter into business
transactions with Third Parties with respect to the development of RTP(TM)
projects in the country or countries for which the Testing Notice was delivered
(i.e., Peru and/or Oman) or the sale of RTP(TM) equipment to be used in the
country or countries for which the Testing Notice was delivered (i.e., Peru
and/or Oman) during the period from the Notice Deadline through the end of the
Information Period. However, it is understood and agreed that, subject to the
foregoing language with respect to the period prior to the end of Information
Period, Ensyn is, and shall be, free to negotiate and enter into business
transactions with respect to RTP(TM) projects outside of Peru and Oman and the
sale of RTP(TM) equipment to be used outside of Peru and Oman. Further, if
Ivanhoe does not deliver the Testing Notice to Ensyn by the Notice Deadline,
Ensyn shall be free to negotiate and enter into business transactions with
respect to RTP(TM) projects inside or outside of Peru and Oman and the sale of
RTP(TM) equipment to be used inside or outside of Peru and Oman without
restriction or limitation.
If Ivanhoe delivers the Testing Notice to Ensyn by the Notice Deadline
and, by the end of the Information Period, (i) delivers the Ivanhoe Analysis,
the Ivanhoe Data and the Business Information to Ensyn, and (ii) identifies to
Ensyn the specific projects (i.e., working fields or undeveloped oil reserves)
in Peru and Oman at which it is interested in utilizing the Technology ("Areas
of Interest"), then Ensyn agrees that it will not negotiate nor enter into
business transactions with Third Parties with respect to the development of
RTP(TM) projects in the Areas of Interest in the country or countries for which
the Business Information was delivered (i.e., Peru and/or Oman) or the sale of
RTP(TM) equipment to be used in the Areas of Interest in the country or
countries for which the Business Information was delivered (i.e., Peru and/or
Oman) during the period from the end of the Information Period to the first
anniversary of the Information Period ("AI Exclusive Period"). However, it is
understood and agreed that, subject to the foregoing language with respect to
the Information Period, Ensyn is, and shall be, free to negotiate and enter into
business transactions with respect to RTP(TM) projects outside of the Areas of
Interest and the sale of RTP(TM) equipment to be used outside of the Areas of
Interest without restriction or limitation. Further, if Ivanhoe does not timely
perform the obligations described in the first sentence of this paragraph, Ensyn
shall be free to negotiate and enter into business transactions with respect to
RTP(TM) projects inside or outside of Peru and Oman and the sale of RTP(TM)
equipment to be used inside or outside of Peru and Oman without restriction or
limitation.
Ivanhoe will have the option of extending the AI Exclusive Period for
an Area of Interest for a period of one (1) year by prepaying Ensyn 5% of the
Prepaid License Fee on a 10,000 barrel per day plant with $500/daily bbl of
capacity (i.e., $250,000 for each Area of Interest) ("Exclusivity Extension
Prepayment") at the end of the Information Period. Any Exclusivity Extension
Prepayment will be offset by Ivanhoe's out-of-pocket expenses, other than
salaries of Ivanhoe's employees, in pursuing opportunities for applying the
Technology in the Areas of Interest.
Following the payment of the Exclusivity Extension Prepayment and the
resulting extension of the AI Exclusive Period in one or more of the Areas of
Interest, Ivanhoe will have the option of extending the AI Exclusive Period for
another year for such one or more Areas of Interest by prepaying 10% of the
Prepaid License Fee on a 10,000 barrel per day plant with $500/daily bbl of
capacity (i.e., $500,000 for each Area of Interest) at the end of the extended
AI Exclusive Period. Any such prepayment will be offset by Ivanhoe's
out-of-pocket expenses, other than expenses offset against the Exclusivity
Extension Prepayment and salaries of Ivanhoe's employees, in pursuing
opportunities for applying the Technology in the Areas of Interest. If Ivanhoe
is successful in going forward with an RTP(TM) project in the Areas of Interest
hereunder, Ensyn will have the option to participate in such project on a ground
floor for an interest equal to Ivanhoe's.
If Ivanhoe does not pursue or is not successful in the Areas of
Interest during the AI Exclusive Period, including extensions thereof, Ensyn
will be free to pursue the application of the Technology in the Areas of
Interest by itself or with Third Parties, including negotiating and
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entering into business transactions with respect to RTP(TM) projects in the
Areas of Interest and selling RTP(TM) equipment to be used in the Areas of
Interest. In such case, if Ivanhoe has paid the Exclusivity Extension Prepayment
and Ensyn is successful in negotiating with Third Parties an RTP(TM) project in
the Areas of Interest within four (4) years from the Effective Date, then
Ivanhoe will have the option to participate in such project on a ground floor
basis for an interest equal to Ensyn's.
Subject to the foregoing limitations with respect to Peru and Oman and
with respect to the Areas of Interest, nothing in this Agreement shall prevent
Ensyn from conducting separate activities or joint activities with others or
entering into any arrangements with Third Parties without restriction or
limitation. It is further understood and agreed that, subject to the foregoing
limitations with respect to Peru and Oman and with respect to the Areas of
Interest, Ensyn has the right to engage in business and enter in transactions
with other companies, in California or elsewhere, without restriction or
limitation, including developing RTP(TM) projects and selling RTP(TM) equipment,
and that this Agreement does not, and shall not, restrict or limit such right
unless the Parties agree otherwise in other definitive agreements.
(b) IVANHOE. Without limiting Ivanhoe's rights and obligations hereunder,
Ivanhoe shall not be obligated to exclusively use the Technology in its
operations, and shall be free to use, alternatively or additionally, technology
developed by Third Parties. It is also understood that Ivanhoe has complete
freedom to enter into transactions with other companies in California or
elsewhere, without restriction or limitation; regarding utilizing alternative
technology to RTP(TM).
4. PROJECT DATA AND INTELLECTUAL PROPERTY. The Project Data shall be
and remain the property of Ensyn. Patent rights for any Intellectual Property
developed with respect to the Pilot Project or the RTP(TM) shall vest fully and
unconditionally in Ensyn, and Ensyn shall have the sole and exclusive right to
pursue patent protection to such Intellectual Property.
5. CONFIDENTIALITY. Ivanhoe and Ensyn recognize that the carrying out
of the terms of this Agreement will require the exchange and transfer of
Confidential Information between the Parties, including Pilot Project operating
data or product related data, whether produced by one of the Parties or by a
Third Party; it is therefore agreed that the Confidential Information will be
considered to be Confidential Information supplied by the Parties pursuant to
the Confidentiality Agreement.
6. AGREEMENTS WITH ALTERNATE SITE OWNER. The parties understand and
agree that this Agreement is subject to, and shall not interpreted in such
manner as contravenes, the provisions in any agreements between Ensyn and the
Owner with respect to the Pilot Project and the data therefrom, including any
confidentiality or nondisclosure agreements or provisions and any provisions
regarding access to the Alternate Site. Ivanhoe acknowledges that,
notwithstanding any other provision of this Agreement, it understands that it is
intended that the Pilot Project shall be installed on the Alternate Site for no
more than eighteen (18) months and operated on the Alternate Site for no more
than 180 days.
7. ARBITRATION.
(a) DISPUTES OR DISAGREEMENTS. All disputes or disagreements between
the Parties arising under or in connection with this Agreement will be resolved
in accordance with this Section 7. The Parties shall attempt to resolve any
dispute or disagreement by face-to-face meetings prior to resorting to any
additional process.
(b) MEDIATION. To the extent that any dispute or disagreement is not
resolved by face-to-face meetings within thirty (30) days, the Parties will use
all commercially reasonable efforts to resolve and finally settle all claims and
disputes referred to in Section 6(a) through mediation by an independent Third
Party mediator chosen by the disputing Parties. Each of the Parties agrees that
during any mediation process it will provide reasonable access to an officer
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with requisite decision-making authority for and on its behalf. The mediation
process will be completed within thirty (30) days following a request for
mediation by any one of the Parties. Each Party will bear its own costs of the
mediation, except that costs of the mediator will be borne equally between the
Parties.
(c) ARBITRATION. Any claim or dispute not resolved by mediation within
the time period prescribed in Section 7(b) will be settled by binding
arbitration in accordance with the following:
(i) an arbitration will be commenced by a Party giving a
written notice to the other Party containing a statement of
the issue in dispute, a description of the claim being made
and a statement that a dispute is being submitted to
arbitration. The arbitration will be held in Wilmington,
Delaware pursuant to the rules of the American Arbitration
Association before a single arbitrator who is knowledgeable
in the petroleum processing industry. The Parties will
appoint the arbitrator by agreement within fifteen (15)
Business Days after the notice commencing the arbitration,
failing which the arbitrator will be appointed by the
American Arbitration Association in Delaware upon
application by either Party. The arbitrator's decision and
award will be final and binding and may be entered in any
court having jurisdiction over the enforcement of such
award. The arbitrator will not have the power to award any
damages excluded by or in excess of any damage limitations
expressed in this Agreement or any subsequent written
agreement between the Parties. In order to prevent
irreparable harm, the arbitrator may grant temporary or
permanent injunctive or other equitable relief in
accordance with the rules of equity;
(ii) while the arbitrator will generally determine, in
accordance with the rules of the American Arbitration
Association, the procedure to be followed in connection
with an arbitration, the Parties agree that each will have
the right to carry out examinations in aid of discovery of,
and in respect of, each of the other Parties in connection
with such arbitrated dispute and such examination in aid of
discovery will be conducted pursuant to the rules of
Delaware's Court of Chancery as though such arbitration
proceeding were a litigation proceeding; and
(iii) in the final award, the arbitrator may award costs in
accordance with the rules of Delaware's Court of Chancery
as if the arbitration were a trial of a matter before such
court.
8. MISCELLANEOUS.
(a) HEADINGS; PARTY DRAFTING. The division of this Agreement into
articles, sections, paragraphs, subparagraphs and clauses and the insertion of
headings are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement. The terms "this Agreement",
"hereof", "herein", "hereunder" and similar expressions refer to this Agreement
and to the Schedules hereto and not to any particular article, section,
paragraph, subparagraph, clause or other portion hereof and include any
agreement or instrument supplementary or ancillary. Each Party acknowledges that
it and its legal counsel have reviewed and participated in settling the terms of
this Agreement and the Parties agree that any rule of construction to the effect
that any ambiguity is to be resolved against the drafting Party shall not be
applicable in the interpretation of this Agreement.
(b) INCLUDING. When the word "including", or any other form of that
word is used herein, it shall in all cases be deemed to mean "including without
limitation".
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(c) INDUSTRY USAGE. Terms and expressions used in this Agreement, but
not specifically defined herein which have generally accepted meanings in custom
and usage in the United States petroleum industry will have such meanings used
herein.
(d) GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Delaware (without regard to the choice of laws provisions thereof) and
the Parties hereto agree to irrevocably attorn to the jurisdiction of the courts
of the State of Delaware and agree that any proceedings taken in respect of this
Agreement shall be taken in such courts and in no other.
(e) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Parties to this Agreement with respect to the subject matter of this
Agreement and supersedes all prior negotiations, proposals and agreements,
whether oral or written, with respect to the subject matter of this Agreement.
Notwithstanding the foregoing, it is understood and agreed that this Agreement
shall not modify, amend or change the provisions of the Confidentiality
Agreement.
(f) NOTICES. Any notice required to be given under the terms hereof
shall be given by a Party in writing by delivering such notice to the Party to
which it is to be given at the address below or at such other existing address
as such Party may provide in writing to the other Party in lieu thereof in
accordance with this Section:
In the case of Ivanhoe:
Ivanhoe Energy
1200 Discovery Drive, Suite 301
Bakersfield, CA 93389-9279
Attention: Leon Daniel
with a copy to:
Ivanhoe Energy
1200 Discovery Drive, Suite 301
Bakersfield, CA 93389-9279
Attention: Robert Coffey
In the case of Ensyn:
Ensyn Petroleum International Ltd.
20 Park Plaza, Suite 434
Boston, Massachusetts 02116
Attention: Chief Operating Officer
with a copy to:
Ensyn Group, Inc.
Gurdwara Road, Suite 210
Ottawa, Ontario
Canada K2E 1A2
Attention: President
(g) CURRENCY. Unless otherwise indicated, any reference in this
Agreement to dollars shall be to United States dollars.
(h) WAIVER. Failure by any Party to insist in any one or more instances
upon the strict performance of any one of the covenants contained herein shall
not be construed as a waiver or relinquishment of such covenant. No waiver by
any Party of any such covenant shall be deemed to have been made unless
expressed in writing and signed by the waiving Party.
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(i) SEVERABILITY AND RENEGOTIATION. The unlawfulness or invalidity or
unenforceability of any provision in this Agreement or of any covenant herein
contained on the part of any Party shall not affect the validity or
enforceability of any other provision or covenant hereof or herein contained and
the Parties hereby undertake to renegotiate in good faith, with a view of
concluding arrangements as nearly as possible the same as those herein
contained.
(j) AMENDMENTS. No term or provision hereof may be amended except by an
instrument in writing signed by each of the Parties.
(k) ASSIGNMENT. Ensyn may not assign this Agreement, except to an
Affiliate, without the prior written consent of Ivanhoe, which consent may not
be unreasonably withheld. Ivanhoe may not assign this Agreement, except to an
Affiliate, without the prior written consent of Ensyn, which consent may not be
unreasonably withheld. In the case of an assignment by either Party, the
assigning Party shall retain full responsibility to the non-assigning Party for
all of the assigning Party's obligations arising out of this Agreement.
(l) FORCE MAJEURE. Each Party shall be excused for any failure of delay
in performing any of its obligations under this Agreement, if such failure or
delay is caused by Force Majeure, provided that such Party shall (i) promptly
notify the other Party in writing of the occurrence or circumstance upon which
it intends to rely to excuse its performance, (ii) immediately resume
performance after the cause of delay is removed, and (iii) use all commercially
reasonable efforts to minimize the duration of such delay. Neither Party to this
Agreement shall be entitled to the benefit of this Section 7(l) to the extent
that the failure or delay in performing its obligations under this Agreement was
caused solely by (i) the negligence of the Party claiming suspension, or (ii)
such Party's lack of funds. In any case, a Party may not rely on an event of
Force Majeure for a period of more than sixty (60) days from the commencement of
such event.
(m) COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which when so executed shall be deemed to be an original
and shall have the same force and effect as an original, but such counterparts
together shall constitute but one and the same instrument.
(n) FAXED COPIES. A faxed copy or telecopy of this Agreement shall have
the same force and effect as an originally executed copy of this Agreement.
(p) NO PARTNERSHIP. Nothing in this Agreement or in the relationship of
the Parties hereto shall be construed as in any sense creating a partnership or
joint venture among the Parties or as giving to any Party any of the rights or
subjecting any Party to any of the creditors of the other Party.
(q) INDEPENDENT CONTRACTOR. In the performance of its obligations under
this Agreement, each of the Parties, including its directors, officers,
employees, agents and consultants, shall be that of an independent contractor
and shall in no circumstances be construed to be an employee, agent or fiduciary
of the other Party or have their right to make commitments for or on behalf of
the other Party, except as specifically permitted under this Agreement.
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<PAGE>
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first set forth above.
IVANHOE ENERGY (USA) INC.
By: /s/ C. R. Coffey
-------------------------------
Name: C.R. Coffey
-----------------------------
Title: V.P. Operations
----------------------------
ENSYN PETROLEUM
INTERNATIONAL LTD.
By: /s/ R. Graham
-------------------------------
Name: R. Graham
-----------------------------
Title: President
----------------------------
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