EXHIBIT 10.8
DATED: 14 JUNE 2006
BETWEEN:
(1) PETROJARL JV AS having its registered office at Xxxxxxxxxxx 0, XX Xxx 00,
X-0000 Xxxxxxx, Xxxxxx ("PETROJARL");
(2) TEEKAY PETROJARL OFFSHORE HOLDINGS L.L.C., a limited liability company
formed in the Xxxxxxxx Islands with its registered office at Trust Company
Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Islands MH96960
and having a business address at Xxxxxxx Xxxxx, Xxxxxxx Xxxxxxxxx Xxxx,
Xxxx Xxx Xxxxxx and Blake Road, Nassau, The Bahamas ("TEEKAY"); and
(3) TEEKAY PETROJARL GP L.L.C. having its principal place of business at
Xxxxxxx Xxxxx, Xxxxxxx Xxxxxxxxx Xxxx, Xxxx Xxx Xxxxxx and Blake Road, PO
Box AP-59212, Nassau, Bahamas (the "GP").
PRELIMINARY
A. Teekay Shipping Corporation and Petrojarl entered into a Heads of Agreement
dated 20 February, 2006 whereby they agreed to establish a joint venture
(the "Joint Venture"), either directly or through their respective
nominees, that will primarily focus on the business of owning and operating
FPSO's, FSO's and other mobile production solutions for the oil industry
worldwide.
B. Teekay Shipping Corporation wishes to pursue the Joint Venture through its
wholly owned subsidiary Teekay Petrojarl Offshore Holdings L.L.C..
C. On or about 29 June 2006, Petrojarl will become a wholly owned subsidiary
of Petrojarl ASA (the "Demerger").
D. Teekay Petrojarl GP L.L.C. (the "GP") was formed on 13 June 2006 under the
Limited Liability Company Act as a limited liability company and has, as
the date of this Agreement, an authorised share capital of one thousand
Dollars (USD1,000) divided into one thousand shares of one Dollar (USD1)
each.
E. Teekay Petrojarl Offshore L.P. (the "LP") was formed on 13 June 2006 under
the Limited Partnership Act as a limited partnership, with GP as its
general partner.
E. Petrojarl and Teekay propose jointly (a) to own and operate FPSOs, FSOs and
other mobile production solutions for the oil industry worldwide, (b) that
those activities should be carried out through the GP and (c) that they
will hold the issued membership interests in the GP equally, and limited
partnership interests in the LP equally, all in the manner and on the terms
set out below.
1 DEFINITIONS AND INTERPRETATION
In this Agreement unless inconsistent with the context or otherwise
defined:
1.1 the following expressions have the following meanings:
"ADDRESS FOR SERVICE" : for Petrojarl means X/X XX
Xxxxxxx Xxxxxx Xxxxxxx, Xxx
Xx Xxxx'x Xxxxxxxxxx, Xxxxxx
XX0X 0XX and for Teekay
means C/O Teekay Shipping
(UK) Limited, 0xx Xxxxx, 00
Xxxxxx Xxxxxx, Xxxxxx XX0X
0XX;
"AFFILIATE" any other entity directly or
indirectly controlling or
controlled by or under
direct or indirect common
control of a party. For the
purposes of this definition,
"control" (including, with
correlative meanings
"controlling", "controlled
by", and "under common
control with") means the
power to direct or cause the
direction of the management
and policies of such party,
directly or indirectly,
whether through the
ownership of voting
securities, by contract or
otherwise, it being
understood and agreed that
with respect to a
corporation, limited
liability company or
partnership, control shall
mean direct or indirect
ownership of more than 50%
of the voting stock, or
limited liability company
interest, general
partnership interest or
voting interest in any
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such corporation, limited
liability company or
partnership;
"THIS AGREEMENT" : this agreement (and the
schedules to it), as varied
from time to time pursuant
to its terms;
"AUDITORS" : Ernst & Young;
"BOARD" : the board of directors of
the GP, from time to time;
"BUDGET" : the annual capital
expenditure and operating
budget of the LP, the first
such budget, in respect of
the period ending 31
December 2006, being in the
form set out in schedule 5;
"BUSINESS" : the business to be
transacted by the GP from
time to time as referred to
in schedule 2;
"CEDR" : Centre for Effective Dispute
Resolution;
"CHANGE OF CONTROL" : occurs in relation to a
Joint Venture Partner if:
(a) the ultimate Holding
Company of the Joint
Venture Partner as at
the date it acquired
its Joint Venture
Interest ceases to have
directly or indirectly,
the right or power to
direct or cause the
direction of the
management policies of
a person either by
contract or through
ownership of interests
or securities carrying
a majority of the votes
ordinarily exercisable
by the holders of such
interests or securities
(unless
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such interests or
securities have been
acquired by or on
behalf of the other
Joint Venture Partner)
or through the ability
to appoint the majority
of the directors or
other governing
officers of a person or
through ownership of
interests or other
securities which carry
the right to receive
the greater part of the
income of such person
(if all its income were
to be distributed)
PROVIDED ALWAYS that
the Demerger shall not
constitute a Change of
Control and Petrojarl
ASA shall thereafter be
considered the ultimate
Holding Company of
Petrojarl; or
(b) any action is taken to
appoint a receiver,
manager, liquidator or
similar officer in
respect of any assets
of a Joint Venture
Partner where such
assets include the
Joint Venture Interest
held by the Joint
Venture Partner;
"DISPOSE" : (a) any sale, transfer or
other disposal or
alienation of any
entitlement to or
legal, beneficial
interest or right in,
any Joint Venture
Interest (including by
way of gift, trust,
grant or option or
creation of any
Encumbrance);
(b) any agreement for such
sale, transfer or
disposal;
(c) any act or thing, or
series of acts or
things which has the
same or a
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substantially similar
economic effect as
anything in (a) or (b)
above;
"DOLLARS" and "USD" : means the lawful currency
for the time being of the
United States of America;
"ENCUMBRANCE" : means an interest or power:
(a) reserved in or over an
interest in any asset
including, but not
limited to, any
retention of title; or
(b) created or otherwise
arising in or over any
interest in any asset
under a xxxx of sale,
mortgage, charge, lien,
pledge, trust or power;
(c) by way of security for
the payment of a debt
or any other monetary
obligation or the
performance of any
other obligation and
includes any agreement
to grant or create any
of the above;
"DUE PROPORTIONS" : in relation to the time
when, as the case may be,
any liability referred to in
clause 6 arises or any
finance referred to in
clause 7 is required to be
provided, such proportions
as the nominal value of
partnership interests held
by each Shareholder bears to
the aggregate nominal value
of partnership interests
issued but for the avoidance
of doubt the proportion of
shareholding between the
Shareholders shall initially
be 50:50;
"FAIR MARKET VALUE" : in relation to a Project
(including the relevant
Unit) means the fair market
value
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of that Project (including
the relevant Unit) based
upon what a knowledgeable
and financially capable
arm's length purchaser
acting reasonably would be
prepared to pay for the
Project (including the
relevant Unit) as a whole as
if it were an orderly sale
in the ordinary course of
business. The valuation
shall take into
consideration the Project's
past performance and its
future prospects, and such
other circumstances as the
person carrying out the
valuation considers
relevant. The valuation
shall be carried out by the
firm that is the auditor for
the time being of the Joint
Venture, or if such person
is not available for any
reason, a valuator appointed
by the auditors of the Joint
Venture, and Fair Market
Value shall be determined as
of the date on which any
option is exercised under
Clause 7.11 to acquire a
Project and the relevant
Unit. In so acting the
valuator is instructed to
act as an expert and not as
an arbitrator and the
decision of the valuator
shall (save in respect of
manifest error) be final and
binding on the Joint Venture
Partners;
"FPSOS" : floating production, storage
and offloading facilities;
"FSOS" : floating storage and
offloading facilities;
"GROUP" : in relation to a company,
the group of companies
comprising that company and
any company which is from
time to time a holding
company of that company or a
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subsidiary of that company
or of such holding company;
"GUARANTEES" : all guarantees, indemnities
and covenants of the nature
referred to in clause 6.1 as
varied, extended or renewed;
"INTELLECTUAL PROPERTY RIGHTS : means:
(a) patents (including
continuations,
reissues, and
extensions), trade
marks, service marks,
rights (registered or
unregistered) in any
designs, applications
and rights to apply for
any of the foregoing,
trade or business
names, internet domain
names and e-mail
addresses, unregistered
trade marks and service
marks, brand names,
copyrights (including
rights in computer
software), database
rights, know-how,
rights in designs and
inventions, software
(object and source code
and any related
documentation),
business methods and
trade secrets;
(b) rights under licences,
consents, orders,
statutes or otherwise
in relation to a right
or asset in paragraph
(a);
(c) applications for all
rights and assets in
paragraph (a); and
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(d) rights and means of the
same or similar effect
or nature as or to
those in paragraphs (a)
and (b),
in each case in any
jurisdiction, and which in
the case of Petrojarl shall
include but not be limited
to those described in
Schedule 7;
"JOINT VENTURE" : the joint venture created by
the Joint Venture Partners,
and includes the Joint
Venture Entities;
"JOINT VENTURE ENTITIES" : all legal entities
established for the purpose
of pursuing the Business and
jointly owned by the Joint
Venture Partners and any
subsidiaries of such legal
entities including but not
limited to the GP, the LP,
the Service Co, and wholly
or partially owned
subsidiary companies of any
of them;
"JOINT VENTURE INTEREST" : 100% of the interest of a
Joint Venture Partner in the
Joint Venture however
represented, including all
issued shares or units in
the capital of the Joint
Venture, the GP, the Service
Co and the Joint Venture
Entities from time to time
(of whatever class);
"JOINT VENTURE PARTNER" : Petrojarl or Teekay as the
case may be;
"LIMITED LIABILITY COMPANY ACT" means the Limited Liability
Company Act of the Republic
of the Xxxxxxxx Islands;
"LIMITED PARTNERSHIP ACT" : means the Limited
Partnership Act of the
Republic of the Xxxxxxxx
Islands;
"LIMITED LIABILITY COMPANY AGREEMENT" means the limited liability
company agreement of the GP
in the form set out in
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schedule 1, Part B as
amended from time to time;
"LIMITED PARTNERSHIP AGREEMENT" means the limited
partnership agreement of the
LP in the form set out in
schedule 1, Part A as
amended from time to time;
"MAJOR DECISION" : any decision which may not
be delegated by the Board or
the GP, as provided by
clause 12.1 and more fully
described in Schedule 3;
"PARTIES" : the parties to this
Agreement; and "Party" means
any one of them;
"PETROJARL FPSOS" : those FPSOs currently
operated by entities within
the Petrojarl Group and
listed in Schedule 6(A);
"PETROJARL GROUP" : (i) prior to the Demerger,
PGS Production ASA and its
related bodies corporate
(but excluding the Joint
Venture and the Joint
Venture Entities); and (ii)
after the Demerger Petrojarl
ASA and its related bodies
corporate (but excluding the
Joint Venture and the Joint
Venture Entities) and MEMBER
OF THE PETROJARL GROUP has a
corresponding meaning;
"PROJECTS" : any opportunity to tender
for the provision of mobile
production solutions to the
oil industry;
"SERVICE CO" : Teekay Petrojarl Services
AS, a company incorporated
under the laws of Norway;
"SHAREHOLDERS" : Petrojarl and Teekay and any
other person who, as a
transferee of partnership
interests in the LP, is
required to enter into a
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covenant to comply with the
terms of this Agreement
pursuant to clause 11.6, for
so long as such persons are
holders of partnership
interests; and "Shareholder"
means any one of them;
"SUPPORT SERVICES" : engineering, design,
technical, computer,
commercial, accounting,
legal, personnel,
procurement and other
management and specialist
services and equipment
required by the GP from
third parties (including the
Shareholders) for the
purpose of carrying on the
Business;
"TEEKAY FSOS" : those FSOs currently
operated by entities within
the Teekay Group and listed
in Schedule 6(B);
"TEEKAY GROUP" : Teekay Shipping Corporation
and its related bodies
corporate (but excluding the
Joint Venture and the Joint
Venture Entities) and MEMBER
OF THE TEEKAY GROUP has a
corresponding meaning;
"UK" : the United Kingdom of Great
Britain and Northern
Ireland;
"UNIT" : any FPSO, FSO or other
equipment marketed by the
Joint Venture;
"WORKING DAY" : any day (except Saturdays
and Sundays) on which banks
are open for general
business in Oslo and New
York City.
1.2 references to clauses and the schedules are to clauses of and the
schedules to this Agreement;
1.3 words importing gender include each gender;
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1.4 references to persons include bodies corporate, firms and
unincorporated associations;
1.5 the singular includes the plural and vice versa;
1.6 clause headings are included for the convenience of the Parties only
and do not affect its interpretation; and
1.7 references to all or any part of any statute or statutory instrument
include any statutory amendment, modification or re-enactment in force
from time to time and references to any statute include any statutory
instrument or regulations made under it.
2 PRELIMINARY FORMALITIES
Forthwith following signature of this Agreement, the Joint Venture Partners
shall take, or cause to be taken, such steps as are necessary to procure
that the following provisions of this clause and clause 3, in so far as
such provisions have not already been implemented, are implemented.
2.1 The Joint Venture Partners will:
2.1.1 each become a member of the GP, execute the Limited Liability
Company Agreement in substantially the form attached in Schedule
1 hereof, and make initial capital contributions as provided
therein in cash;
2.1.2 each become a limited partner of the LP, execute the Limited
Partnership Agreement in substantially the form attached in
Schedule 1 hereof, and make initial capital contributions as
provided therein in cash;
2.1.3 procure that the GP shall become the general partner of the LP,
execute the Limited Partnership Agreement in substantially the
form attached in Schedule 1 hereof, and make initial capital
contributions as provided therein in cash;
2.1.4 each subscribe for an equal number of shares in the Service Co
at par and in cash.
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2.2 The GP will own the capital assets of the Joint Venture, either
directly or indirectly provided however that a Joint Venture Partner
shall be entitled to warehouse its interest in a Project in a member
of its Group during the project development phase and subsequently
transfer it to the GP or as it may direct when the Project begins to
generate revenue.
2.3 The GP will manage assets and operations through the LP as general
partner of the LP.
2.4 Teekay Petrojarl Services AS will provide services to the Joint
Venture, predominantly during the project tendering phase but also
during the operation phase as determined by the Board.
2.5 The Joint Venture Partners intend to structure and operate the Joint
Venture so as to minimize, to the extent reasonably commercially
possible, the tax payable by the Joint Venture.
3 BOARD OF DIRECTORS OF GP
3.1 APPOINTMENT AND REMOVAL OF DIRECTORS
3.1.1 The Board of Directors shall be appointed and removed in
accordance with the Limited Liability Company Agreement. In their
capacity as Members of the GP, each Joint Venture Partner shall
appoint as directors persons who are in good standing in the
community, of good repute, who have the power to act on behalf of
the Joint Venture Partner, and who will enhance the reputation
and prospects of the Joint Venture.
3.1.2 Any appointor removing a director shall be responsible for and
shall indemnify and hold harmless the other Shareholder and the
GP against any claim for unfair or wrongful dismissal or
otherwise arising out of such removal.
3.2 DIRECTORS DUTIES
Although a director shall act in the best interests of the GP, a
director appointed by a Joint Venture Partner may have regard to and
represent the interests of that Joint Venture Partner and act on the
wishes of that Joint Venture Partner in performing
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any of his or her duties or in exercising any power as a director in
relation to the law.
3.3 FREQUENCY OF MEETINGS
The Joint Venture Partners shall procure that the Board shall:
3.3.1 be responsible for the overall management, guidance and
direction of the GP, which shall include the preparation of its
business plan and the review of its objectives, business
procedures, budgets and cash call mechanisms;
3.3.2 oversee the business development and sales and marketing
activities for the GP worldwide;
3.3.3 identify Projects suitable for the LP;
3.3.4 develop and approve budgets for Projects;
3.3.5 optimise the use of existing resources from both Teekay and
Petrojarl for all aspects of the Business, and endeavour to
ensure that the contributions of each Joint Venture Partner to
the GP and other Joint Venture Entities are broadly equivalent by
reference to the reports delivered pursuant to clause 7.3;
3.3.6 appoint and supervise project teams from the employees of the
Joint Venture Partners (via the Service Co) for each Project;
3.3.7 approve the terms of any bid for a Project; and
3.3.8 establish an appropriate authorisation matrix setting out the
appropriate authorisations and signatories required for the
different aspects of the Business.
3.4 DIRECTORS' REIMBURSEMENT FOR EXPENSES
No directors fees shall be paid to persons appointed as directors of
any Joint Venture Entity, but this provision shall be without
prejudice to the terms of any contract of services held by any such
person. All out-of-pocket expenses incurred
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by a director in carrying out his or her duties as a director shall be
paid by the Joint Venture Partner who appointed that director.
3.5 DISCLOSURE OF INFORMATION
Each director shall be entitled to disclose any information relating
to the Joint Venture Entities and its business, affairs and financial
position to the Joint Venture Partner which appointed him.
4 MANAGEMENT AND STAFF
4.1 The managing director of the Service Co shall be appointed by mutual
agreement between the Joint Venture Partners. Mr. Oystein Huglem shall
be the first managing director.
4.2 The GP shall recruit and employ such staff as the Board shall from
time to time consider necessary for the proper conduct of the
Business. The present intention of the Joint Venture Partners is that
the GP will not initially have any direct employees, but shall be
resourced by secondments from the Joint Venture Partners via the
Service Co.
4.3 Each Joint Venture Partner shall (if so requested by the Board) use
reasonable endeavours to second appropriate personnel to the GP via
the Service Co on a full time or a part time basis and otherwise on
terms to be agreed between the Board and that Joint Venture Partner.
4.4 If a Joint Venture Partner decides that any person seconded pursuant
to clause 4.3 or the Managing Director appointed pursuant to Clause
4.1 is not suitable for employment in connection with the Business it
may require the Service Co to withdraw and replace such person (or, in
the case of the Managing Director, for the Board to appoint a new
Managing Director) or to take such other steps as it may deem
necessary or expedient.
4.5 All the salaries, wages, allowances, travelling and accommodation
expenses and other benefits to which such seconded executives may be
entitled and all necessary employer's pension and national insurance
contributions in each case relating to the period of such secondment
shall, except where otherwise agreed, be borne and paid by the GP at
rates agreed to by the Board, such rates to be established in a manner
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consistent with sound business practices and any applicable transfer
pricing principles and to form part of the reports delivered pursuant
to clause 7.3.
5 OBJECTIVE AND CONDUCT OF BUSINESS
5.1 The principal activities in which the GP shall be engaged shall be as
described in schedule 2.
5.2 It is the intention of the Joint Venture Partners that the GP shall
operate so far as practicable as a self-sufficient unit in the
contracting and performance of its activities, as specified in clause
5.1, but where this objective cannot be achieved then, until it is
possible to do so, each Joint Venture Partner shall use its reasonable
endeavours to provide Support Services to the GP via the Service Co
pursuant to the terms of clause 8.1.
5.3 The GP will ensure that single purpose subsidiaries are established
for each Project (the "JOINT VENTURE ENTITIES"). The constitution and
governance of each Joint Venture Entity shall be consistent with the
terms of this Agreement and with the constitution and governance of
the GP, save that each Joint Venture Entity shall only be concerned
with a single Project.
5.4 It is intended that the Joint Venture should be self-financing and
that it should obtain additional funds from third parties without
recourse to the Joint Venture Partners unless otherwise agreed to in
the Budget. The Joint Venture shall borrow additional funds from third
parties on the most favourable terms available and which are
compatible with its needs, as provided for in the Budget, but with the
intention of raising twenty per cent. (20%) of required capital in the
form of contributions (in the Due Proportions) of the Joint Venture
Partners and the balance of eighty per cent. (80%) in the form of
third party debt.
5.5 Other than as provided in clause 6, the Joint Venture Partners shall
not be obliged to guarantee or provide security for any indebtedness
of the Joint Venture. The liability of the Joint Venture Partners
under guarantees of the Joint Venture issued pursuant to this clause 5
shall be several and not joint or joint and several, unless otherwise
agreed. If a Joint Venture Partner incurs any such liability, that
Partner shall be entitled to contribution from the other Joint Venture
Partner to ensure that
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the aggregate liability of the Joint Venture Partners is borne equally
by the Joint Venture Partners.
5.6 If a Joint Venture Partner guarantees or provides security for any
indebtedness of the Joint Venture and thereby reduces the cost of
borrowing of the Joint Venture, the Joint Venture shall pay to such
Joint Venture Partner a guarantee fee calculated in accordance with
transfer pricing principles that the Joint Venture Partners have
agreed are applicable to the operation of the Joint Venture.
6 GUARANTEES AND INDEMNITIES
6.1 The GP shall not undertake any activity requiring a bond or guarantee
or in any way pledging the credit of the Joint Venture Partners or
either of them without the prior consent of each Joint Venture
Partner. Where, for the purpose of providing such security, the Joint
Venture Partners agree that any liability is to be assumed jointly
and/or severally by them under any guarantee, undertaking or other
obligation of a similar nature, it is the intention of the Joint
Venture Partners that:
6.1.1 the amount of such liability shall be apportioned between them
in the Due Proportions; and
6.1.2 Notwithstanding any agreement with the beneficiary of such
guarantee, undertaking or obligation, they shall be liable to
make contributions between themselves and indemnify and keep
indemnified each other so that such liability is ultimately borne
in the Due Proportions.
6.2 If any liability incurred is solely attributable to the act or default
of one Joint Venture Partner then, notwithstanding the terms of clause
6.1, the whole of such liability shall be borne by such Joint Venture
Partner who shall indemnify and keep indemnified the other Joint
Venture Partner accordingly.
6.3 Neither Joint Venture Partner shall take or receive from the GP or any
other person any security in connection with the Guarantees without
the prior written consent of the other Joint Venture Partner. Any
security so taken or received (or any sum of money received in respect
of such security) shall be held by the relevant Joint Venture Partner
as trustee for both Joint Venture Partners so that they shall share
the benefit of the same in the Due Proportions.
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6.4 Nothing contained in this Agreement shall operate to deprive either
Joint Venture Partner of any rights or remedies available to it at law
against the other Joint Venture Partner as co-sureties under the
Guarantees, except to the extent that any rights or remedies are
inconsistent with or excluded by the terms of this Agreement.
7 BUDGETS, ACCOUNTS AND FINANCE
7.1 The Joint Venture shall establish, maintain and duly administer an
internal control system comprising policies, processes and such other
features as are necessary or advisable, and in accordance with best
practices in the industry, to help:
7.1.1 ensure its effective and efficient operation by enabling it to
manage significant business, operational, financial, compliance
and other risks to achieve its objectives;
7.1.2 ensure the quality of its internal and external reporting; and
7.1.3 ensure compliance with any applicable laws and regulations
binding on it and assist in the compliance by the Joint Venture
Partners (but with any incremental costs of so doing to be
apportioned in accordance with Clause 7.3.7) with any applicable
laws and regulations binding on any of them.
7.2 Subject always to any applicable obligations of confidentiality, the
Joint Venture shall provide, at the expense of the Joint Venture
Partner requesting the information, such information and such access
to persons, premises or books and records as any of the Joint Venture
Partners shall reasonably require in order to:
7.2.1 satisfy themselves that the provisions of Clause 7.1 are being
complied with; and/or
7.2.2 allow them to comply with any obligations to which they are
subject under the laws and regulations referred to in Clause
7.1.3.
7.3 The Joint Venture Partners shall procure that the Board of the GP
shall be responsible for proper planning, forecasting and reporting
and shall, among other things:
7.3.1 provide the Joint Venture Partners with financial reports of the
LP, each Project and the Service Co. on a quarterly basis within
fifteen (15)
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Working Days after the end of each quarter including, but not
limited to, a balance sheet, profit and loss statement, cash flow
and forward projections on a rolling twelve (12) month basis
showing the year-to-date performance against the Budget, and a
rolling one year forecast of the performance against the Budget
together with a statement as to the contributions of each
Shareholder (in the form of seconding employees, provision of
office space and other services) by reference to agreed rates
specified from time to time by the Board of the GP;
7.3.2 prepare each annual Budget for submission to and approval by the
Joint Venture Partners;
7.3.3 ensure that audited financial statements of the GP and all Joint
Venture Entities are prepared in respect of each fiscal year and
submitted to the Joint Venture Partners not more than sixty (60)
days after the end of such fiscal year;
7.3.4 a report from the Board on the financial position and affairs of
the Joint Venture within ten (10) Working Days after the end of
each calendar quarter, such report to include a summary of the
Joint Venture's "long" and "short" positions and a calculation of
the capital at risk;
7.3.5 as soon as they are available, reasonable details of any actual
or prospective material change in the Business or the financial
position or affairs of the Joint Venture;
7.3.6 supply such other financial and other information to the Joint
Venture Partners in such form and at such times as either of them
may reasonably require in order to conform the Budgets and
financial reports to the accounting standards and reporting
obligations of the Joint Venture Partners, and comply with all
such regulatory requirements as may be required by a Joint
Venture Partner, it being agreed and acknowledged that any
additional costs that may be incurred by the Joint Venture in
meeting accounting or regulatory standards not applicable to the
Joint Venture Partner shall be for the account of the relevant
Joint Venture Partner.
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7.4 The GP shall ensure that all accounting records of the Joint Venture
Entities are maintained in accordance with accounting principles and
practices generally accepted in the United States of America and such
records shall be audited annually by the Auditors or such other firm
of chartered accountants as shall be approved by the Board.
7.5 All records of the GP and the Joint Venture Entities shall be open to
examination and audit by either Joint Venture Partner or its duly
authorised representative, each of whom shall be entitled to such
further information as it may reasonably require concerning their
business affairs and financial position.
7.6 The Joint Venture Partners shall each use reasonable endeavours to
procure that borrowings from banks and other similar sources shall be
on the most favourable terms reasonably obtainable as to interest,
repayment and security.
7.7 The working capital needs of the GP and LP, as envisaged in any
Budget, together with any cost over-runs on Projects, shall be
provided by the Joint Venture Partners in the Due Proportions to the
extent that such needs are not satisfied from the any such company's
share capital and reserves and third party borrowing. Such funding
shall be by way of loan by each of the Joint Venture Partners to the
GP in each case upon the terms of a note (a "Loan Note") on arm's
length commercial terms but otherwise in form and substance acceptable
to each Joint Venture Partner.
7.8 If (a) any of the GP or other Joint Venture Entities has excess
working capital needs referred to in clause 7.7 and (b) the GP (or
other relevant Joint Venture Entity) is unable to fund such excess by
third party borrowing, then either Joint Venture Partner on behalf of
the such company may require the Board of the GP to instruct the
Auditors to confirm that such company is able to pay its debts as they
fall due without realisation of any of its fixed assets and that the
assets of such company exceed its liabilities. If the Auditors are
unable to provide such confirmation they shall calculate and certify
the amount of further working capital required by such company (the
"Auditors' Certificate").
7.9 Unless otherwise agreed, the Joint Venture Partners shall advance to
the GP or other Joint Venture Entity in the Due Proportions such sums
as shall be equal in the aggregate to the further working capital
specified in the Auditors' Certificate for the
19
purposes of financing the GP or other Joint Venture Entity on the
terms of this clause and in the following manner:
7.9.1 forthwith upon receipt of the Auditors' Certificate the Joint
Venture Partners shall procure that the Board issues to each of
the Joint Venture Partners a notice in writing (a "Funding
Notice"), specifying the amount which each of them is required to
lend to such company;
7.9.2 each Joint Venture Partner shall advance to the GP or LP in cash
the amount stated in such Funding Notice within ten (10) Working
Days of the date of its receipt; and
7.9.3 amounts advanced by the Joint Venture Partners to the GP or LP
shall be loaned in each case upon the terms of a Loan Note.
7.10 If either Joint Venture Partner (in this Clause 7 the "Defaulting
Joint Venture Partner") fails to lend any amount properly requested by
the Board of the GP pursuant to and within the time specified in
clause 7.9.2, the other Joint Venture Partner (the "Supporting Joint
Venture Partner") shall be entitled (subject only to its having duly
loaned any amount properly required from it pursuant to this clause 7)
to lend to the GP or LP in cash and on arm's length commercial terms
the amount due to the GP or LP by the Defaulting Joint Venture Partner
against security over the assets of the Project requiring the
additional funding. The Defaulting Joint Venture Partner may provide
its funds to the GP or LP within six (6) months of its initial failure
to do and in such circumstances the Supporting Joint Venture Partner
shall have its loan repaid and release any security it might hold for
such loan.
7.11 At the end of the six (6) month period referred to in Clause 7.10 (and
if the Defaulting Joint Venture Partner has not in the meantime
provided its funds in full to the GP or the LP), the Supporting Joint
Venture Partner has a further period of the lesser of (a) six (6)
months from such date and (b) the period until the Unit in the Project
for which the Defaulting Joint Venture Partner failed to lend goes on
hire, to exercise an option (which once exercised shall be
irrevocable) to purchase such Unit and such Project from the Joint
Venture. The purchase price shall be the lesser of:
20
(i) the Fair Market Value of such Project (including the Unit)
discounted by twenty per cent (20%) less the amount of loans made
available for such Project by the Supporting Joint Venture
Partner; and
(ii) the actual amounts paid by the Joint Venture in respect of such
Project (including the Unit) discounted by twenty per cent (20%)
less the amount of loans made available for such Project by the
Supporting Joint Venture Partner,
but in any event shall not be less than zero.
If the Supporting Joint Venture Partner exercises this option,
completion of the transfer of the Project and the Unit shall take
place as soon as may be reasonably practical and the restrictions in
clause 16 shall not apply to that Project and that Unit.
7.12 it is acknowledged and agreed that the only recourse and sanction
against a Defaulting Joint Venture Partner for failing to advance
funds in accordance with Clause 7.9 shall be as set out in Clauses
7.10 and 7.11.
8 SUPPORT SERVICES AND SUPPLIES
8.1 If the GP requires Support Services of a type or kind which either
Joint Venture Partner is able to supply or provide, then that Joint
Venture Partner may tender to provide such Support Services (via the
Service Co) on an arm's length basis but having regard to customary
transfer pricing principles for the relevant category of Support
Services.
8.2 Either Joint Venture Partner may at any time require that the other
Joint Venture Partner (in this clause a "Supplier") shall provide a
certificate signed by the auditors for the time being of the Supplier
stating that the Support Services concerned have been provided on the
basis referred to in clause 8.1 (or if the auditors will not assist,
an opinion from an appropriate tax counsel). The Joint Venture
Partners shall use their respective reasonable endeavours to procure
that such auditors are allowed access to all papers of the GP, LP, the
Service Co and of the Joint Venture Partners which may be relevant to
any enquiries they may make prior to giving a certificate under this
clause. The costs of such auditors (or tax counsel) shall be borne by
whichever Joint Venture Partner required such certificate, except
that, if such
21
certificate is not given in the terms required by this clause, the
costs shall be borne by the Supplier.
9 TAX TREATMENT
The LP is established under the assumption that it is not considered a
separate tax subject in any jurisdiction where it might operate or hold
shares in subsidiaries, whereas any income of the LP for tax purposes will
flow through to and be taxed at the hand of the Joint Venture Partners in
accordance with each Joint Venture Partner's ownership percentage in the
LP. Each of the Joint Venture Partners are separately responsible for their
own income taxes as well as other taxes or duties imposed on the activities
performed by the LP, regardless of in which country(ies) such are levied.
This includes, but is not limited to, any withholding tax on dividends paid
by companies owned by the LP.
10 DISTRIBUTION OF PROFITS
As a general rule and unless otherwise decided by the Board of the GP, it
is the intention of the Joint Venture Partners that, subject to the
requirements of applicable law, on finalisation and audit of the financial
statements of the GP and other Joint Venture Entities for each accounting
period (subject to the due servicing of any loans made to the GP or LP by
either of the Joint Venture Partners pursuant to this Agreement), the Board
shall distribute as much as possible of the cash available for
distribution, having regard to:
10.1 amounts determined by the Board of the GP to be required (not to
exceed fifty per cent (50%) of distributable profits) to provide
sufficient working capital and any reserves (whether required by law
or otherwise) for the LP; and
10.2 the taxation position of the LP under the relevant legislation.
11 PARTNERSHIP INTEREST TRANSFERS
11.1 PROHIBITION
Neither Joint Venture Partner shall, without the prior written consent
of the other, directly or indirectly Dispose of its partnership
interests in the LP or its shares in either the GP or the Service Co
or any other Joint Venture Entity or the certificates representing any
of the foregoing now or in the future held by it, except by a transfer
to a single transferee of the entire legal and beneficial interest in
all its Joint
22
Venture Interest as expressly permitted by Clause 11 or Clause 15 of
this Agreement or in accordance with Clause 11.3.
11.2 REGISTRATION OF TRANSFERS
The Joint Venture Partners hereby covenant and undertake with each
other to comply with the terms of this Agreement and the Limited
Liability Company Agreement and the Limited Partnership Agreement
relating to the transfer of partnership interests and to take all such
steps as may be required to effect due registration of transfers
effected in accordance with this Agreement and/or the Limited
Liability Company Agreement and the Limited Partnership Agreement.
11.3 Notwithstanding the provisions of this Clause 11, a Joint Venture
Partner may encumber its Joint Venture Interests as security for any
financing arrangement with a bona fide commercial bank in the ordinary
course for business purposes, provided such bank is made aware of the
terms and conditions of this Agreement.
11.4 A Joint Venture Partner may transfer all or a portion of its Joint
Venture Interests to any Permitted Group Transferee as defined in
clause 11.5 provided that:
11.4.1 the transferring Joint Venture Partner ("INTRA-GROUP
TRANSFEROR") gives written notice of the impending transfer
together with an executed deed referred to in clause 11.6 to the
other Joint Venture Partner not less than 7 days before the
transfer is to be effected; and
11.4.2 the terms of the transfer comply with clause 11.6.
11.5 For the purposes of this clause, where the Intra-Group Transferor is:
11.5.1 Petrojarl, the Permitted Group Transferee is any member of the
Petrojarl Group; and
11.5.2 Teekay, the Permitted Group Transferee is any member of the
Teekay Group.
11.6 As a condition precedent to any transfer under clause 11.4, the
transferring Joint Venture Partner shall procure that the transferee
executes a deed in favour of the Joint Venture and each other Joint
Venture Partner stating that it shall assume as its own and be bound
by all obligations of the transferring Joint Venture Partner under
23
this agreement as if it were a party to it. The transferring Joint
Venture Partner will not be released from its obligations under this
Agreement or under the Share Purchase Agreement as a result of such
transfer or execution of such deed.
11.7 CHANGE OF CONTROL
If a Change of Control shall apply to either Joint Venture Partner,
then the other Joint Venture Partner shall have the right (but not the
obligation) within ninety (90) days of the Change of Control to
instigate the procedure set out in clauses 15.7 to 15.9.
12 MUTUAL UNDERTAKINGS CONCERNING THE LP
MAJOR DECISIONS
Each Joint Venture Partner undertakes with the other to exercise its voting
rights with a view to procuring that the GP shall not delegate
responsibility in respect of anything which shall from time to time be
declared by the Joint Venture Partners in writing to require the unanimous
approval of the Board (which at the date of this Agreement shall be those
matters set out in schedule 3, any of which may be varied at any time by
the written agreement of the Joint Venture Partners).
12.1 EXERCISE OF VOTING RIGHTS
Each Joint Venture Partner undertakes with the other:
12.1.1 to exercise all voting rights and powers of control available
to it in relation to the GP, the LP and the other Joint Venture
Entities so as to give full effect to the terms of this
Agreement;
12.1.2 to procure that the directors of the GP and the other Joint
Venture Entities nominated by it and its other representatives
will support and implement all reasonable proposals put forward
at meetings of the Board and other meetings of the GP and the
other Joint Venture Entities for the proper development and
conduct of the Business as contemplated in this Agreement;
12.1.3 (except where specific time periods are referred to in this
Agreement) to respond to any communication received from the
other and/or the GP
24
and/or the other Joint Venture Entities within ten (10) Working
Days of its receipt;
12.1.4 to procure that all third parties directly or indirectly under
its control shall refrain from acting in a manner which will
hinder or prevent the GP and/or the other Joint Venture Entities
from carrying on the Business in a proper and reasonable manner;
and
12.1.5 generally to use its reasonable endeavours to promote the
Business and the interests of the GP and/or the other Joint
Venture Entities.
12.2 CONFLICTS
In the event of any conflict between the terms of this Agreement and
those of the Limited Liability Company Agreement, the Limited
Partnership Agreement, and/or the constitutional documents of any
Joint Venture Entity, then the Joint Venture Partners shall each take
all such steps as lie within their respective powers to procure and
effect any amendment or alteration to the Limited Liability Company
Agreement, Limited Partnership Agreement and/or the constitutional
documents of any Joint Venture Entity as may be necessary, to carry
out the intention and terms of this Agreement, so far as such
amendment or alteration is permitted by the applicable laws governing
the Limited Liability Company Agreement, Limited Partnership Agreement
and/or the constitutional documents of any Joint Venture Entity.
12.3 JOINT OBLIGATIONS
Whenever in this Agreement an obligation is imposed on the GP, such
obligation shall be construed and applied so as to impose on the Joint
Venture Partners, as between themselves, a joint obligation
(additional to that of the GP) to procure, so far as they are able,
that the GP or the LP shall perform its obligation.
12.4 GP'S OBLIGATIONS
Except where to do so would constitute an unlawful xxxxxx on its
powers, the GP undertakes with each of the Joint Venture Partners to
be bound by and to comply with the provisions of this Agreement
insofar as they relate to the GP and to act in all respects in the
manner contemplated by this Agreement with respect to its own
25
business and the business of any other Joint Venture Entity,
including but not limited to the LP.
12.5 MARKETING
Each Joint Venture Partner undertakes to provide all information and
support as may be reasonably required in order to enable the GP and
any other Joint Venture Entity to satisfy potential clients as to its
or their capabilities and shall provide all details of experience,
trading history, financial resources and other information reasonably
required for this purpose.
12.6 PROTECTION OF NAME
Each Joint Venture Partner undertakes with the other that:
12.6.1 it shall not at any time use or permit to be used the name
"Teekay" or the tagline "Teekay - The Marine Midstream Company"
(in the case of Petrojarl) or "Petrojarl" or "Petrojarl
Production" (in the case of Teekay) or any similar trading style;
and
12.6.2 if the GP goes into liquidation or into Run Off (as defined in
Clause 15.7) it will join with the other to cause the name of the
GP to be changed to a name excluding the words Teekay and
Petrojarl or any similar trading style.
12.7 SUBSIDIARIES
The GP shall procure (so far as it is able) that any company which
becomes a subsidiary of the LP at any time during the term of this
Agreement shall adopt new articles of association in such form as the
Board of the GP shall approve in writing.
12.8 CONDUCT OF CLAIMS
If any dispute occurs between the GP or LP and a Joint Venture Partner
or any member of such Joint Venture Partner's Group then (but only in
relation to matters concerning such dispute):
12.8.1 such Joint Venture Partner shall not be allowed to exercise its
voting rights in the GP or LP (as the case may be); and
26
12.8.2 the quorum requirements for all or that part of meetings of
Joint Venture Partners, directors or any committee of directors
of the GP at which such dispute is to be discussed or in relation
to which resolutions are to be passed shall be varied accordingly
so as to permit the other Joint Venture Partner to exercise sole
control over the GP for all purposes relating to the dispute
concerned.
13 DELIBERATELY NOT USED
14 COMMENCEMENT AND TERMINATION
14.1 This Agreement shall become effective on the date of the Demerger,
subject always to all necessary regulatory approvals, pursuant to
merger control, antitrust or competition laws, having been obtained
(whether by decision of the relevant regulatory entity, expiry or
termination of the waiting periods or otherwise) and/or all necessary
competition or merger control notifications having been made.
14.2 Thereafter (subject to the terms of this clause) it shall continue
until the first to occur of the following dates:
14.2.1 the date of commencement of the GP's winding up; or
14.2.2 the date on which the Joint Venture Partners unanimously agree
to terminate this Agreement; or
14.2.3 the date of registration of a transfer of partnership interests
resulting in all partnership interests in the GP or LP being held
by or on behalf of one Joint Venture Partner;
subject to (a) the relevant provisions of this Agreement and (b) the
performance of any obligations or exercise of any rights respectively
remaining to be performed or exercised after the event and to any
rights of the Parties in respect of antecedent breaches or
non-observance of this Agreement.
14.3 It is agreed and acknowledged that the GP may execute this Agreement
after it is executed by the Joint Venture Partners. However, as
between the Joint Venture Partners, it shall be a valid and
enforceable agreement (in accordance with its terms) from the
execution of the Agreement by the Joint Venture Partners.
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15 DEADLOCK
15.1 Whenever a matter is submitted to a general meeting of the GP pursuant
to clause 12.1 and that general meeting is also unable to arrive at a
decision on the matter by reason of a disagreement between the Joint
Venture Partners then a deadlock shall be deemed to have occurred in
relation to that matter.
15.2 If deadlock arises as to whether or not to bid on a Project then the
GP will not, and will not cause any Joint Venture Entity to, bid on
the Project. In such circumstances the Joint Venture Partner not
wishing to bid on the Project shall not be entitled to tender for that
Project, either directly or indirectly, alone or together with another
party, nor shall that Joint Venture Partner assist or participate with
any other person tendering on that Project except with the express
written consent of the other Joint Venture Partner. The Joint Venture
Partner that wishes to bid on the Project shall however be entitled to
pursue the Project, either by itself or with a third party. For the
avoidance of doubt if one Joint Venture Partner wishes to offer one of
its existing Units for a Project it shall be free to do so and the
Joint Venture may only make a competing bid if both Joint Venture
Partners wish to do so. If deadlock arises as to the terms on which to
bid on a Project, the matter should be referred to the Chief Executive
Officers at such time (the "CEOs") of the ultimate holding companies
of each Joint Venture Partner. Thereafter procedures set out in
Clauses 15.4, 15.5 (but with the time limit of twenty (20) Working
Days, replaced for these purposes only with a time period of five (5)
Working Days) and 15.6 shall apply. If the CEOs are unable to reach a
decision by the end of this consultation period, then each Joint
Venture Partner shall be entitled to bid for the Project alone, and
the provisions of Clause 16 shall not apply to such bids or any
resulting contracts.
15.3 If and whenever a deadlock is deemed to have occurred (other than in
the circumstances set out in clause 15.2), either Joint Venture
Partner shall be entitled, within twenty (20) Working Days after the
date on which the deadlock occurred, by written notice to the other,
to require the matter to which the deadlock relates to be referred to
the CEOs.
15.4 Each of the Joint Venture Partners and the GP shall supply the CEOs
with any information which they may request.
28
15.5 The CEOs shall endeavour for a period of twenty (20) Working Days from
the date of referral of the deadlock to them under Clause 15.3 (the
"CEO Consultation Period") to decide the course of action which, in
all the circumstances, it would be appropriate for the GP and the
Joint Venture Entities to take in its best interests. In reaching
their decision the CEOs shall, so far as possible, balance the
interests of each Joint Venture Partner fairly but they shall not put
the interests of any Joint Venture Partner before those of the GP and
the Joint Venture Entities.
15.6 Forthwith upon receiving the CEOs decision each of the Joint Venture
Partners and the GP shall ensure that the CEOs decision and directions
are carried out.
15.7 If the CEOs are unable to reach a decision by the end of the CEO
Consultation Period, within thirty (30) Working Days thereafter either
Joint Venture Partner (the "Offeror") may by written notice to the
other (which once given shall be irrevocable) declare that the Joint
Venture is in run off ("Run Off").
15.8 Whilst the Joint Venture is in Run Off:
(i) any Projects then being considered by the Joint Venture, but
prior to any bids having been irrevocably submitted, shall be
terminated;
(ii) no new Projects shall be considered by the Joint Venture;
(iii) all other Projects shall continue to be run in the same manner
as before until the relevant Unit finishes its then current
contract, with capital expenditure required to meet obligations
under such contract still to be funded in accordance with the
terms of this Agreement;
(iv) no existing contracts for such Projects may be amended or
extended or commitments to further capital expenditure made
(other than as envisaged in paragraph (iii) above) without the
consent of each Joint Venture Partner;
(v) when existing contracts come to an end, the relevant Unit shall
not be redeployed by the Joint Venture but shall be marketed for
sale to third parties and sold to the highest bidder (it being
agreed and acknowledged that each Joint Venture Partner may bid
for the Unit in its own capacity) on the best available terms;
the GP will appoint an independent third party to
29
manage any such auction process in accordance with then
prevailing best market practice;
(vi) neither Joint Venture Partner may solicit employees of the Joint
Venture; and
(vii) the provisions of Clause 16 shall be of no further effect, but
in all other respects this Agreement shall remain in full force
and effect.
15.9 Notwithstanding the provisions of Clause 15.8, it is the intention of
the Parties to enter into good faith negotiations when the Joint
Venture goes into Run Off to seek an orderly separation of the Joint
Venture assets and a winding up of the Joint Venture (subject to
obtaining any necessary third party consents) within three (3) years.
16 RESTRICTIONS
16.1 In clauses 16.1 and 16.2, the following expressions have the following
meanings:
"Exceptions" : (i) the contracts as at the
date hereof relating to
Petrojarl FPSOs and, Teekay
FSOs; (ii) any redeployment
of Petrojarl FPSOs or Teekay
FSOs; and (iii) any
exception contemplated by
clause 7.11 or by clause
15.2;
"Prohibited Business" : the Business carried on by
any Joint Venture Entity as
at the date in question or,
if earlier, the Termination
Date relating to the Joint
Venture Partner concerned;
"Prohibited Supply Business" the business of making
supplies of the kind made to
the GP during the Relevant
Period in relation to any
Prohibited Business;
"Relevant Period" : the period from the date
hereof until the Joint
Venture goes into Run Off;
30
"Restricted Supplier" : any person who was at any
time in the Relevant Period
a supplier of the GP or any
Joint Venture Entity;
"Termination Date" : in relation to any
particular Joint Venture
Partner, the date it ceases
to hold any partnership
interests.
16.2 Each of the Joint Venture Partners undertakes to the other, and
separately with the GP, that it will not directly or indirectly on its
own account or on behalf of any other person and whether as principal,
Joint Venture Partner, partner, employee, agent or otherwise at any
time prior to Run Off, (other than in respect of the Exceptions) carry
on or be concerned or interested or engaged (except as a shareholder
in a public listed company holding not more than five (5) per cent of
the share capital, of any class, of such public company) in (a) any
business competing with the whole or part of the Prohibited Business
or (b) the setting up of any business which would compete with the
whole or part of the Prohibited Business.
16.3 Nothing contained in this clause 16 shall preclude or restrict a Joint
Venture Partner or any member of such Joint Venture Partner's Group
from:
16.3.1 carrying on any activity carried on during the twelve (12)
month period immediately preceding the date of this Agreement; or
16.3.2 offering any service or goods similar to those previously
supplied as part of the Business but subsequently discontinued
and not supplied by the LP at the time when such similar service
or goods are offered.
For the purposes of this clause 16.3 a service or offer of goods shall
be regarded as discontinued if it has not been provided or offered by
the GP or any Joint Venture Entity for a twelve (12) month period.
16.4 The restrictions contained in clause 16.2 are considered reasonable by
the Parties and are intended to be separate and severable. If any of
those restrictions are held void but would be valid if part of the
wording were deleted, such restriction shall apply with such deletion
as may be necessary to make it valid and effective.
31
17 REPRESENTATIONS AND WARRANTIES
17.1 Each of Petrojarl and Teekay represents and warrants to the other
that:
17.1.1 it is a corporation or company duly incorporated or formed
under the laws of its place of incorporation or formation and has
the corporate power and authority to accept the terms of this
Agreement and perform its obligations under it;
17.1.2 its entry into this Agreement has been duly and validly
authorised and all requisite corporate action has been taken in
order to make such entry valid and binding upon it in accordance
with the terms of this Agreement;
17.1.3 the entry into this Agreement and the consummation of the
transactions contemplated by it will not:
(a) breach or conflict with any provision of its memorandum and
articles of association or equivalent or result in a breach
of, conflict with or constitute a default under any
mortgage, indenture, agreement, other instrument or rules of
any relevant stock exchange to which it is a party or by
which it, or any of its properties or assets, is bound; or
(b) violate any order, judgement or decree of any court or
governmental agency to which it is a party or by which it,
or any of its properties or assets, is bound.
18 IP RIGHTS
18.1 Any Intellectual Property Rights held or owned by any Joint Venture
Partner which are transferred, assigned, licensed or otherwise made
available by to the Joint Venture shall remain the property of the
transferring Joint Venture Partner (subject to the terms of the
transfer, assignment, license or other applicable agreement), and
shall not be used in any way by, and shall not confer any rights or
interests on, any other Joint Venture Partner.
18.2 Any Intellectual Property Rights owned by the Joint Venture shall not
be made available to a Joint Venture Partner solely by reason of the
fact that it is a Joint Venture Partner. If the Joint Venture makes
any such Intellectual Property Rights
32
available to a Joint Venture Partner, it shall only do so on
commercial terms prescribed by the Board.
18.3 The Joint Venture Partners agree to establish, as soon as reasonably
possible after the Completion Date, a co-branding strategy for the
Joint Venture and its business. Each Joint Venture Partner agrees that
it shall consider the reasonable requests of the Joint Venture to use
its name, logo and other proprietary identifying marks on a
non-exclusive basis for the purposes of co-branding, advertising or
other promotions of the Joint Venture (but such obligation shall only
be to consider such reasonable request, but not necessarily to grant
any right in or to the same, the granting or withholding of such
rights to be in the sole discretion of such Joint Venture Partner, it
being acknowledged and agreed that all rights to the names "Petrojarl"
and "Petrojarl Production" are to remain the property of Petrojarl and
all rights to the name "Teekay" and the tag line "Teekay - The Marine
Midstream Company" are to remain the property of Teekay).
19 CONFIDENTIALITY
19.1 For the purposes of this Clause, "CONFIDENTIAL INFORMATION" means:
19.1.1 the provisions of this Agreement or any document referred to in
this Agreement;
19.1.2 in relation to the Joint Venture or a Joint Venture Partner or
any member of the Teekay Group any information belonging or
relating to the Joint Venture or a Joint Venture Partner or any
member of the Teekay Group, its/their business, affairs,
activities, products or services, which is disclosed by one party
or an Affiliate (each a "Disclosing Party") to another party or
an Affiliate (each a "Receiving Party") whether before or after
the date of this Agreement. To fall within this definition,
Disclosing Party must specify in writing which information is
Confidential Information, and any disclosure in oral form shall
not be subject to this Agreement, unless the oral disclosure is
memorialized by Disclosing Party in a written document that is
sent to Receiving Party within ten (10) Working Days from the
date of disclosure;
33
19.2 During the term of this Agreement and for a period of three years
after termination or expiration of this Agreement for any reason
whatsoever each Receiving Party shall:
19.2.1 keep the Confidential Information confidential;
19.2.2 not disclose the Confidential Information to any other person
other than with the prior written consent of the Disclosing Party
or in accordance with Clauses 19.3 and 19.5; and
19.2.3 not use the Confidential Information for any purpose other than
the performance of its obligations under this Agreement subject
to Clauses 19.3 and 19.5.
19.3 During the term of this Agreement a Receiving Party may disclose the
Confidential Information to
19.3.1 its directors, officers, employees, agents and advisers and to
its Associated Companies and their directors, officers,
employees, agents and advisers to the extent that it is necessary
for the purposes of this Agreement or to enforce this Agreement;
and
19.3.2 its financiers, the financiers of the Joint Venture, financiers
to a member of the Teekay Group or the Petrojarl Group;
(each a "RECIPIENT")
19.4 The Receiving Party shall procure that each Recipient is made aware of
and complies with all the Receiving Party's obligations of
confidentiality under this Agreement as if the Recipient was a party
to this Agreement.
19.5 The obligations contained in Clauses 19.1 to 19.4 shall not apply to
any Confidential Information which:
19.5.1 is required to be disclosed by law or by a governmental
authority or other authority with relevant powers to which the
Receiving Party is subject provided that to the extent reasonably
possible the disclosure shall be made after consultation with the
Disclosing Party and after taking into
34
account the Disclosing Party's reasonable requirements as to its
timing, content and manner of making or dispatch;
19.5.2 is required to be disclosed under the rules of any stock
exchange on which the Joint Venture Partner or any member of its
Group or debt instrument thereof are listed provided that to the
extent reasonably possible the disclosure shall be made after
consultation with the Disclosing Party and after taking into
account the Disclosing Party's reasonable requirements as to its
timing, content and manner of making or dispatch;
19.5.3 is at the date of this Agreement or at any time after the date
of this Agreement comes into the public domain other than through
breach of this Agreement by the Receiving Party or any Recipient;
19.5.4 can be shown by the Receiving Party to have been known to the
Receiving Party prior to it being disclosed by the Disclosing
Party to the Receiving Party;
19.5.5 subsequently comes lawfully into the possession of the
Receiving Party from a third party that is not itself under a
duty to maintain confidentiality; or
19.5.6 can be shown by the written records of the Receiving Party to
have been independently developed by employees of the Receiving
Party acting without access to the Confidential Information.
20 PUBLIC ANNOUNCEMENTS
20.1 No Joint Venture Partner shall make or send (and shall use reasonable
endeavours to ensure that no associated company of such Joint Venture
Partner makes or sends) a public announcement, communication or
circular concerning the Joint Venture (an "ANNOUNCEMENT") unless it
has first notified the other Joint Venture Partner.
20.2 Clause 20.1 shall not apply where a Joint Venture Partner reasonably
determines that it is required by law or a rule of a stock exchange or
by a governmental authority to make or send any Announcement prior to
obtaining the agreement of the other Joint Venture Partner provided
that the party has taken all reasonable steps
35
to provide the other party with an opportunity to comment on the
Announcement prior to making or issuing the same.
21 ENFORCEMENT OF THE JOINT VENTURE'S RIGHTS
21.1 The following provisions of this clause 21 apply to any right of
action which the Joint Venture may have or face in respect of the
following:
21.1.1 an alleged breach of any Joint Venture Partner of this
Agreement or any obligation owed to or by the Joint Venture; or
21.1.2 any alleged breach by any member of the Petrojarl Group or any
member of the Teekay Group of a contract entered into between
that party and the Joint Venture,
(each a "CONFLICTED ACTION").
21.2 Each Conflicted Action shall be prosecuted or defended by the
directors of the Joint Venture appointed by the Non-Defaulting Joint
Venture Partner and no director appointed by the Defaulting Joint
Venture Partner shall be entitled to receive any document or other
information relating to such dispute or any action taken in connection
with such dispute. The directors appointed by the Non-Defaulting Joint
Venture Partner shall have full authority on behalf of the Joint
Venture to negotiate, litigate and settle any claim arising out of the
alleged breach or exercise of any right of termination arising out of
the alleged breach and the Joint Venture Partners shall take all steps
within their power to give effect to the provisions of this Clause.
21.3 This clause is subject to, and shall not be construed as altering, the
duties owed by directors to the Joint Venture.
21.4 In this clause 21:
"DEFAULTING JOINT VENTURE PARTNER" means the Joint Venture Partner the
actions of which have given rise to, or which is involved in, the
matters giving rise to, the cause of action and, where the cause of
action arises from a breach of a contract between the Petrojarl Group
or the Teekay Group and the Joint Venture, it means the Joint Venture
Partner who is a member of that group; and
36
"NON-DEFAULTING JOINT VENTURE PARTNER" means the Joint Venture Partner
who is not the Defaulting Joint Venture Partner in relation to the
relevant cause of action.
22 ANCILLARY PROVISIONS
22.1 EXCLUSION OF LIABILITY
Except as provided by this Agreement, neither Joint Venture Partner
shall in any circumstances whatsoever be under any liability to the
other for any loss, damage or expenses sustained (whether or not
caused by any negligence, default, want of care or breach of contract
of such Joint Venture Partner, or of their servants or agents), unless
and to the extent that such loss, damage, or expense arises as a
result of any fraud or wilful misconduct committed by a Joint Venture
Partner or a director nominated by a Joint Venture Partner to the
Board.
22.2 WAIVER
No delay or failure by either Joint Venture Partner or the GP to
exercise any of its powers, rights or remedies under this Agreement
shall operate as a waiver of them, nor shall any single or partial
exercise of any such powers, rights or remedies preclude any other or
further exercise of them. The remedies provided in this Agreement are
cumulative and not exclusive of any remedies provided by law. No
waiver by any Party of any breach by any other Party of any provision
of this Agreement shall be deemed to be a waiver of any subsequent
breach of that or any other provision of this Agreement.
22.3 ASSIGNMENT
Except as otherwise expressly provided in this Agreement, no Party
shall assign, encumber, dispose of or otherwise transfer its rights
under this Agreement or its Partnership Interests, other than as
permitted by clause 11 or purport to transfer any burden imposed on it
under this Agreement, without the prior written consent of the other
Parties, which may be withheld in their absolute discretion.
22.4 SEVERABILITY
If any part of this Agreement is found by any court or other competent
authority to be invalid, unlawful or unenforceable then such part
shall be severed from the
37
remainder of this Agreement which shall continue to be valid and
enforceable to the fullest extent permitted by law.
22.5 COSTS AND EXPENSES
Each Joint Venture Partner shall pay its own costs and expenses
incurred in the negotiation, preparation, execution, implementation
and enforcement of this Agreement save that the costs of external
counsel in establishing the LP and preparing this Agreement shall be
shared equally by the Joint Venture Partners.
22.6 VALUE ADDED TAX
All sums payable under any term of this Agreement are exclusive of
value added tax.
22.7 DOCUMENTARY TAXES
All applicable stamp duties and sales and transfer taxes which arise
as a result of or in consequence of this Agreement shall be payable by
the Joint Venture.
22.8 ENTIRE AGREEMENT
22.8.1 This Agreement and the documents referred to in it constitute
the entire agreement and understanding between the Parties in
relation to its subject matter.
22.8.2 Each of the Parties agrees that in entering into this
Agreement, and the documents referred to in it, no Party may rely
on, and shall have no right or remedy in respect of, any
agreement, representation, warranty, statement, assurance or
undertaking of any nature whatsoever (other than those expressly
set out in this Agreement and the documents referred to in it)
made by or given by any person prior to the date of this
Agreement and all conditions, warranties or other terms implied
by statute or common law are excluded to the fullest extent
permitted by law. Nothing in this clause shall limit or exclude
any liability for fraud.
22.8.3 Except as otherwise permitted by this Agreement, no change to
its terms shall be effective unless it is in writing and signed
by or on behalf of each of the Parties.
38
22.9 PARTNERSHIP
Nothing in this Agreement shall create or be deemed to create a
partnership or the relationship of principal and agent or employer and
employee between any of the Parties and no Party shall be responsible
for the acts or omissions of the employees or representatives of the
other Parties.
22.10 COUNTERPARTS
22.10.1 This Agreement may be executed in any one or more number of
counterparts each of which, when executed, shall be deemed to
form part of and together constitute this Agreement.
22.10.2 This Agreement shall be immediately binding and effective when
each of the Parties has unconditionally executed either this
Agreement or any of those counterparts, subject always to clause
14.3.
22.11 NOTICES
22.11.1 Any notice or other communication to be given under this
Agreement shall (unless otherwise provided by this Agreement) be
in writing and shall either be delivered by hand or sent by a
generally recognised international courier service (with relevant
fees prepaid) or facsimile transmission (provided that, in the
case of facsimile transmission, the notice is confirmed by being
delivered by hand or sent by recognised international courier
service within two Working Days after transmission) as follows:
(a) (in the case of Petrojarl) to:
Address: Petrojarl ASA
X X Xxx 00
X-0000 Xxxxxxxxx
Xxxxxx
For the attention of: Xxxxx Xxxxxx
Fax: x00 00 000000
(b) (in the case of Teekay) to:
Address: X/X Xxxxxx Xxxxxxxx Xxxxxxxxxxx
Xxxxxxx Xxxxx
Xxxxxxx Executive Park
00
Xxxx Xxx Xxxxxx and Blake Road
Nassau
The Bahamas
For the attention of: General Counsel
Fax: x0000 000 0000
(c) (in the case of the GP) to:
Address: c/o Teekay Shipping Corporation
Bayside House
Bayside Executive Park
West Bay Street and Blake Road
Nassau
The Bahamas
For the attention of: General Counsel
Fax: x0 000 000 0000
22.11.2 A Party may change the address or facsimile number or the name
of the person for whose attention notices are to be addressed by
serving a notice on the others in accordance with this clause
22.11.
22.11.3 All notices shall be deemed to have been served as follows:-
(a) if delivered by hand, at the time of delivery;
(b) if sent (with relevant fees prepaid) by a generally
recognised international courier service, at the expiration
of two Working Days after the envelope containing the same
was delivered into the custody of the relevant international
courier; and
(c) if communicated by facsimile, six hours after the time of
transmission;
PROVIDED that where, in the case of delivery by hand or by
facsimile transmission, such delivery or transmission occurs
after 5p.m. on a Working Day or on a day which is not a
Working Day, service shall be deemed to occur at 9 a.m. on
the next following Working Day.
40
22.11.4 In proving such service it shall be sufficient to prove that
the envelope containing such notice was properly addressed and
delivered either to the address shown thereon or into the custody
of the relevant international courier or that a completed report
confirming that such notice has been transmitted in full was
received by the sender as the case may be.
22.12 GOVERNING LAW
This Agreement shall be construed and take effect in all respects in
accordance with English law.
22.13 JURISDICTION
The Parties irrevocably agree, subject to the provisions of Clause
22.14, that the courts of England are to have jurisdiction to settle
any disputes which may arise out of or in connection with this
Agreement and that any proceedings may be brought in those courts. The
Parties irrevocably waive any objection which they may now or in the
future have to the laying of the venue of any proceedings in any court
referred to in this Clause, and any claim that those proceedings have
been brought in an inconvenient or inappropriate forum.
22.14 MEDIATION
If any dispute arises in connection with this Agreement, the Parties
will attempt to settle it by mediation in accordance with the CEDR
Model Mediation Procedure. Unless otherwise agreed between the
Parties, the mediator will be nominated by CEDR. To initiate the
mediation a party must give notice in writing ("ADR notice") to the
other parties to the dispute requesting a mediation. A copy of the
request should be sent to CEDR. The mediation will start not later
than thirty (30) days after the date of the ADR notice. No Party may
commence any court proceedings in relation to any dispute arising out
of this Agreement until it has attempted to settle the dispute by
mediation and either the mediation has terminated or the other party
has failed to participate in the mediation, provided that the right to
issue proceedings is not prejudiced by a delay.
41
22.15 SERVICE OF PROCESS
The Parties irrevocably agree that any writ, notice, judgment or other
legal process shall be sufficiently served on them if addressed to
them and left at or sent by post to the Address for Service, and in
that event shall be conclusively deemed to have been served at the
time of leaving or, if sent (with relevant fees prepaid) by a
generally recognised international courier service, at 9.00 a.m. on
the third Working Day after the envelope containing the same was
delivered into the custody of the relevant international courier.
23 EXCLUSION OF CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
The parties to this Agreement do not intend any of its terms to be
enforceable pursuant to the Contracts (Rights of Third Parties) Xxx 0000 by
any person who is not a party to this Agreement.
This Agreement has been signed on the date first stated on page 1 above.
SIGNED by )
duly authorised for and on )
behalf of PETROJARL JV AS )
in the presence of: )
SIGNED by )
duly authorised for and on )
behalf of TEEKAY PETROJARL )
OFFSHORE HOLDINGS L.L.C. )
in the presence of: )
TEEKAY PETROJARL GP L.L.C.
By: /s/ Xxxxxxx Xxxx, Attorney-in-fact
----------------------------------
Name: Xxxxxxx Xxxx
--------------------------------
Title: Attorney in fact
-------------------------------
42
SCHEDULE 1
PART A
(LIMITED PARTNERSHIP AGREEMENT OF LP)
43
SCHEDULE 1
PART B
(LIMITED LIABILITY COMPANY AGREEMENT OF GP)
44
SCHEDULE 2
(BUSINESS OF THE LP)
The owning and operation of FPSOs, FSOs and such other mobile production
solutions as may be required by the oil industry from time to time. This will
include but not be limited to:-
(i) marketing the LP;
(ii) identifying, defining and tendering for Projects;
(iii) executing, commissioning, operating and decommissioning Projects;
(iv) acquiring assets for Projects, converting such assets if required, and
disposing of assets following completion of Projects (unless such assets
are to be redeployed on other Projects);
(v) providing all related support activities and complying with all applicable
legislative and regulatory requirements;
(vi) (at the request and cost of the relevant Joint Venture Partner) marketing
the Petrojarl FPSOs and the Teekay FSOs.
45
SCHEDULE 3
(MAJOR DECISIONS)
1 Decisions to pursue a Project.
2 Decisions as to whether, and if so on what terms, to bid for a Project.
3 Any change in the Limited Partnership Agreement or Limited Liability
Company Agreement.
4 Any variation, increase, reduction, redemption or repayment of any of the
share capital or other change in the capital structure of the Joint
Venture.
5 Any merger or other transaction resulting in a change of majority voting
control or the sale of all or substantially all of the Joint Venture's
assets.
6 Entering into any partnership, joint venture or profit-sharing arrangement
with any person.
7 The making of any composition or arrangement with creditors of the Joint
Venture or any Joint Venture Entity or the winding up or liquidation of the
Joint Venture or any Joint Venture Entity or consenting to the appointment
of a receiver or administrative receiver over the assets of the Joint
Venture or any Joint Venture Entity.
8 Making any distribution of assets.
9 Altering the agreed dividend policy.
10 Entering into any contractual agreements or financial transactions with any
member of the Petrojarl Group or any member of the Teekay Group other than
chartering ships or buying services on arm's length terms.
11 The issue of any new equity, debenture or loan stock (whether secured or
unsecured), or the granting of options or other instruments that entitle
the holder to acquire new equity.
12 Any change in the business of the Joint Venture away from the Business.
13 Commencing litigation in the name of the Joint Venture or any Joint Venture
Entity.
14 Renting or leasing premises for use by the Joint Venture for a term
exceeding one year;
46
15 Issuing guarantees as provided in clause 5.
16 Engaging persons as employees of the Joint Venture.
17 Staffing of Projects.
18 Budgets for Projects/annual budgets and dealing with major deviations from
budgets.
19 Competing with a Petrojarl FPSO or a Teekay FSO being redeployed.
20 Material acquisitions and disposals.
21 Borrowing sums in excess of one million Dollars (USD1,000,000).
47
SCHEDULE 4
DEED OF COVENANT
DATED: ____________ 200__
BETWEEN:
(1) [_______] [having its registered office/principal place of business] at
[_______] (the "Transferor");
(2) [_______] [having its registered office/principal place of business] at
[_______] (the "Transferee");
(3) TEEKAY PETROJARL GP L.L.C. [having its registered office/principal place of
business] at [_______] (the "GP"); and
(4) [_______] [having its registered office/principal place of business] at
[_______] (the "Continuing Joint Venture Partner")
PRELIMINARY
This Agreement is supplemental to and entered into pursuant to clause [11.3] of
the Joint Venture Partners' Agreement.
1 DEFINITIONS AND INTERPRETATION
In this Agreement, unless inconsistent with the context or otherwise
defined:
1.1 the term "Joint Venture Partners' Agreement" means the agreement dated
[_______] 2006 (with schedules) made between (1) [the Continuing Joint
Venture Partner/the Transferor] (2) [the Transferor/the Continuing
Joint Venture Partner] and (3) the GP; and
1.2 all other words and phrases shall be defined and interpreted in
accordance with the definitions and interpretation provisions
contained in the Joint Venture Partners' Agreement.
2 COVENANT AND UNDERTAKING
2.1 The Transferee confirms that it has been supplied with a copy of the
Joint Venture Partners' Agreement and covenants with each of the
Continuing Joint Venture
48
Partner and the LP to observe, perform and be bound by all the terms
of the Joint Venture Partners' Agreement which are capable of applying
to the Transferee and which have not been performed at the date of
this Agreement to the intent and effect that the Transferee shall be
deemed with effect from [_______] to be a party to the Joint Venture
Partners' Agreement and to be a holder of [_______] shares of
[_______] each in the GP.
2.2 The Transferee undertakes with the Transferor that it will enter into
such Guarantees which the Transferor may have entered into and
together with the Continuing Joint Venture Partner shall use all
reasonable endeavours to obtain the release of the Transferor from
such Guarantees as soon as reasonably practicable. Until such release
is obtained the Transferee [together with the Continuing Joint Venture
Partner] undertake[s] [on a joint and several basis] to indemnify and
hold harmless the Transferor in respect of its continuing liability
under such Guarantees.
2.3 Upon the Transferee being deemed to be a party to the Joint Venture
Partners' Agreement in accordance with clause 2.1, the Transferor
shall cease to be a party to the Joint Venture Partners' Agreement,
provided that such cessation shall without prejudice to any rights or
liabilities of the Continuing Joint Venture Partner, the Transferor or
the GP which have then accrued.
3 REPRESENTATIONS AND WARRANTIES
The Transferee represents and warrants to each of the Transferor, the
Continuing Joint Venture Partner and the GP as follows:
3.1.1 it is a [company/corporation] duly incorporated under the laws of
[_______] and has the corporate power and authority to accept the
terms of this Agreement and perform its obligations under it;
3.1.2 its entry into this Agreement has been duly and validly authorised
and all requisite corporate action has been taken in order to make
such entry valid and binding upon it in accordance with the terms of
this Agreement;
3.1.3 the entry into this Agreement and the consummation of the
transactions contemplated by it will not:
49
(a) breach or conflict with any provision of its memorandum and
articles of association or equivalent or result in a breach of,
conflict with or constitute a default under any mortgage,
indenture, agreement or other instrument to which it is a party
or by which it, or any of its properties or assets, is bound; or
(b) violate any order, judgement or decree of any court or
governmental agency to which it is a party or by which it, or any
of its properties or assets, is bound.
4 REMAINING PROVISIONS
In all other respects, the terms of the Joint Venture Partners' Agreement
shall continue in full force and effect. The provisions of clauses 22.13,
22.14 AND 22.15 of the Joint Venture Partners' Agreement shall apply to and
be deemed to be incorporated into this Agreement.
5 EXCLUSION OF CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
The parties to this Agreement do not intend any of its terms to be
enforceable pursuant to the Contracts (Rights of Third Parties) Xxx 0000 by
any person who is not a party to this Agreement
This Agreement has been signed as a deed and delivered on the date first stated
on page 1 above.
TEEKAY PETROJARL GP L.L.C.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
THE COMMON SEAL of )
THE TRANSFEREE was affixed )
to this Deed in the presence )
of: )
-------------------------------------
Director
-------------------------------------
Director/Secretary
50
THE COMMON SEAL of )
the CONTINUING JOINT )
VENTURE PARTNER )
was affixed to this Deed )
in the presence of: )
-------------------------------------
Director
-------------------------------------
Director/Secretary
51
SCHEDULE 5
(BUDGET)
52
SCHEDULE 6
EXISTING UNITS
(A) Petrojarl FPSOs
(i) Petrojarl Foinaven;
(ii) Petrojarl I;
(iii) Ramform Banff;
(iv) Petrojarl Varg;
(v) Xxx Xxxxxxx
(B) Teekay FSOs
(i) Nordic Apollo
(ii) Karratha Spirit
(iii) Pattani Spirit
(iv) Dampier Spirit
(v) Su Tu Xxxx FSO (tbn)
53
SCHEDULE 7
SCHEDULE OF PETROJARL INTELLECTUAL PROPERTY
1 Title: Device by ship for production/test production of oil/gas from a
field below seabed level
United States Patent No. 6,199,500, granted 13 March 2001
Angola Patent No. 104, granted 21 September 0000
Xxxxxx Pending Application P19808896-3, filed on 10 March 1998
China Patent No. ZL98804994, granted 12 March 0000
Xxxxxx Patent No. 308128, granted 31 July 2000
2 Title: Bearing System for a Turning Means
United States Patent No. 5,051,035, granted 24 September 1991
3 Title: System for Transferring Fluids from a Piping System in a Ship's Hull
to a Turning Device, and Vice Versa
United States Patent No. 5,002,433, granted 26 March 1991
4 Management systems in the form of manuals, graphs etc created for use in
Petrojarl.
5 Project studies concluded outside of the JV and not for the benefit of the
JV.
6 Existing contracts between Petrojarl and its customers and vendors.
7 Topsides drawings and engineering studies for previous contracts not with
the JV.
8 Conversion cost budgets for previous contracts not with the JV.
9 Business plans not relating to the business of the JV.
54
Execution Copy
DATED 14 JUNE 2006
(1) PETROJARL JV AS
(2) TEEKAY PETROJARL OFFSHORE HOLDINGS L.L.C.
(3) TEEKAY PETROJARL GP L.L.C.
----------
JOINT VENTURE PARTNERS' AGREEMENT
----------
XXXXXXXXXX XXXXXXX
XXX, XX XXXX'X XXXXXXXXXX
XXXXXX XX0X 0XX
TEL: 000 0000 0000
FAX: 000 0000 0000
REF: 819
CONTENTS
PAGE
----
1 Definitions and Interpretation........................................ 2
2 Preliminary Formalities............................................... 11
3 Board of Directors of GP.............................................. 12
4 Management and Staff.................................................. 14
5 Objective and Conduct of Business..................................... 15
6 Guarantees and Indemnities............................................ 16
7 Budgets, Accounts and Finance......................................... 17
8 Support Services and Supplies......................................... 21
9 Tax treatment......................................................... 22
10 Distribution of profits............................................... 22
11 Partnership Interest Transfers........................................ 22
12 Mutual Undertakings Concerning the LP................................. 24
13 Deliberately not used................................................. 27
14 Commencement and Termination.......................................... 27
15 Deadlock.............................................................. 28
16 Restrictions.......................................................... 30
17 Representations and Warranties........................................ 32
18 IP Rights............................................................. 32
19 Confidentiality....................................................... 33
20 Public Announcements.................................................. 35
21 Enforcement of the Joint Venture's rights............................. 36
22 Ancillary Provisions.................................................. 37
23 Exclusion of Contracts (Rights of Third Parties) Act 1999............. 42
