HDY BOS Contract Sept 29, 2009 2D
Seismic Service Agreement
MARINE 2D SEISMIC DATA
ACQUISITION SERVICES AGREEMENT
This agreement
is entered into as of the 29 th of September 2009 (hereinafter
referred to as "the Effective Date").
BETWEEN
Hyperdynamics Corporation
a Company
incorporated and organized under the laws of Delaware with home
office at
One Sugar Creek
Center Boulevard, Suite 125
hereinafter
referred to as “the Company”
ON THE ONE HAND,
AND Bergen
Oilfield Services AS
a Company
incorporated and organised under the laws of Norway with
registered office at
N-5035
Bergen
hereinafter
referred to as “the Contractor”
ON THE OTHER HAND,
HDY BOS Contract Sept 29, 2009 2D
Seismic Service Agreement
NOW
THEREFORE , in
consideration of the mutual covenants herein, the parties
(hereinafter referred to as “the Parties”) have entered
into this agreement (hereinafter referred to as “the
Agreement”) on the following terms and
conditions:
SECTION 1
FORM OF AGREEMENT
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This Agreement
consists of three main "Sections" as detailed below. Each Section
consists of several "Clauses".
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In this
Agreement, unless the context requires otherwise, the following
words or expressions shall have the following meanings:
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Section 1 -
Form of Agreement;
Section 2 -
Scope of Services and Commercial Terms (including all
Appendices);
Section 3 -
General Conditions;
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"Services"
means the marine seismic data acquisition and related services
described in Section 2;
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“Survey” means the seismic survey
conducted as part of the Services.
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Where the
context so admits, words importing the singular shall include the
plural and vice versa, and words importing persons shall include
firms and corporations and vice versa.
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Clause headings
are for ease of reference only and have no effect on the
interpretation or construction of this Agreement.
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In the event of
any conflict and/or discrepancies between the Sections which form
this Agreement, the Sections shall take precedence in the reverse
order of the list defined in Clause 1.2a) above. Thus,
the terms and conditions of Section 3 “General
Conditions” shall take precedence over Section 2 “Scope
of Services and Commercial Terms”, which shall in turn take
precedence over Section 1 “Form of
Agreement”. In the event of any conflict and/or
discrepancies between a Section and its related Appendices, the
text of the Section shall prevail.
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Unless the
context otherwise requires, other terms defined elsewhere in this
Agreement shall have the same meaning throughout the
Agreement.
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HDY BOS Contract Sept 29, 2009 2D
Seismic Service Agreement
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Contractor
agrees to provide, execute and complete the Services for the sole
and exclusive benefit of Company in accordance with the terms and
conditions set out in this Agreement and Company agrees to pay all
amounts due hereunder for the Services in accordance with the terms
and conditions set out in this Agreement.
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IN WITNESS
WHEREOF this Agreement has been duly executed by both Parties on
the date first hereinabove written:
Signed for and
on behalf of Company:
Title: Chief
Executive Officer
Signed for and
on behalf of Contractor:
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Title: Chief
Executive Officer
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Bergen Oilfield
Services AS
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HDY BOS Contract Sept 29, 2009 2D
Seismic Service Agreement
SECTION 2
SCOPE OF SERVICES AND COMMERCIAL
TERMS
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GENERAL
DESCRIPTION OF SERVICES
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The Services
shall be provided in accordance with the techniques set out in
Appendices C ( Scope of Work ) , as rapidly as
conditions permit and shall be performed in a professionally
competent and workmanlike manner.
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Contractor
shall make available and use in the conduct of the Survey the
equipment and the vessel BOS ARCTIC as specified in Appendix
B . (Technical Specification) The
Contractor shall make the vessel BOS ARCTIC available for
inspection by the Company within a mutually agreeable time frame
prior to mobilization. 2.2 The Equipment shall be capable of
providing data in accordance with the specifications contained in
Appendix E . (Operating Standards)
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To verify that
the Equipment can produce data in accordance with the agreed to
specifications, Contractor shall conduct the start up and periodic
tests described in Appendix E and following Company’s
written request shall deliver the results thereof to Company.
Company's Representative may attend such tests if Company so
requires.
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Contractor
shall provide all normal spare parts for the efficient running and
maintenance of the Equipment and shall at all times during the
Survey replace at its own expense any defective or faulty
parts.
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Contractor
shall use reasonable endeavours to provide any additional items of
equipment requested by Company at a price to be agreed between the
Parties.
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Contractor
shall provide the personnel (“the Personnel”) as
specified in Appendix B .
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The Survey
shall take place in the area set out in Appendix A (Location
and Survey Map) by reference to country, area, license block and/or
other description (the "Survey Area") and shall be conducted along
the seismic lines and/or over the total number of kilometres
specified in Appendix A . Company shall furnish
Contractor with adequate and customary charts and maps of suitable
scale and detail for the Survey Area. If the seismic lines are not
specified on such charts and maps, then this shall be as
subsequently agreed between Contractor and Company. If
the order in which the seismic lines are to be surveyed is not
specified then this shall be under the control of Contractor, who
shall decide, and may subsequently amend such order.
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HDY BOS Contract Sept 29, 2009 2D
Seismic Service Agreement
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Contractor
shall be entitled to rely on the above referenced maps and charts
and shall bear no responsibility to Company for Services rendered
based on faulty or erroneous maps and charts and any claim or
damages resulting there from shall be for Company's sole
account.
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COMMENCEMENT
AND TERMINATION
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Contractor
shall use its best endeavours to arrive with the Equipment and
Personnel in the Survey Area on or before the date set out in
Appendix F (Commencement Date) and shall carry out the
Survey as rapidly thereafter as conditions shall permit.
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Company shall
pay Contractor in accordance with the rates, charges and fees, and
on the terms set out in Appendix D (Rates, Charges and
Fees). Additionally, in the event of early termination for reasons
other than Contractor's default, Company shall pay Contractor in
accordance with Clause 22.1 of Section 3. The
Parties agree that the Services provided by Contractor cannot be
cancelled or terminated earlier without first reaching an agreement
on an early termination fee to be paid to Contractor
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Contractor
shall not start or continue the Survey when the Equipment fails to
meet the Operating Standards set out in Appendix E
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Contractor
shall deliver the field tapes containing the data collected during
the Survey together with such information and reports specified by
Company, at times to be agreed with Company, to such person,
carrier or place and in a manner as Company may require, all as set
out in Appendix C .
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Navigation services for GPS and DPGS signals,
including provision of navigation chain, onshore and onboard
Equipment and Personnel required to be provided under this
Agreement may be freely sub-contracted by Contractor without
requiring further authorisation from Company.
Contractor
shall be responsible for safety related to the performance of the
Work and Services and shall protect the Work, workers, public and
all other persons or property. The standards for Safe Working
Practise are set out in Appendix G .
HDY BOS Contract Sept 29, 2009 2D
Seismic Service Agreement
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Following
Company’s written request and a subsequent agreement between
the Parties, Contractor may to the best of its ability (but without
liability for failure to do so) supply other personnel, equipment,
supplies and services in the performance of the Survey, such as but
not limited to:
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Fisheries
Inspectors or other governmental agents necessary to meet the
requirements of the local law, including vessel transport and other
expenses for them.
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HDY BOS Contract Sept 29, 2009 2D
Seismic Service Agreement
SECTION 3
GENERAL CONDITIONS
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The general
scope and practice of the Services shall be under the direction of
Company, but the actual conduct and the manner of performance of
the Services shall be under the direction, supervision and control
of Contractor. Contractor is an independent contractor, and is not
an agent of Company, and persons engaged by Contractor in the
Services and all matters incidental thereto shall be employees or
independent subcontractors of Contractor and not of Company. No
employee of Company shall be deemed to be an employee of
Contractor, and neither Company nor Contractor shall have control
over the employees of the other.
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Company and
Contractor shall each appoint and maintain a competent
representative to act on its behalf. The representative
shall be authorised to act on behalf of Company and Contractor
respectively in all matters concerning the Services and
administration of this Agreement. Representatives shall be
available for consultation at all reasonable times, and all oral/or
written communication shall be between these representatives.
Should a Party's representative prejudice the proper and efficient
performance of the Services, the other Party may request his
removal and upon good cause shown, the representative shall be
removed and replaced as soon as is reasonably practicable.
Contractor reserves the right not to allow employees of its
competitors or its former employees or former employees of its
affiliates to act as Company Representatives.
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Company may
designate one on-board representative (“the On-Board
Representative”) to act on its behalf and to supervise and
where necessary give directions about the Survey. Such
representative should be entitled to exercise Company's rights
arising from this Agreement. All costs and expenses of
and incurred by such representative shall be met by Company, save
that Contractor shall provide accommodation and food for such
representative.
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INGRESS/EGRESS AND
PERMITS/LICENSES
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For Services
rendered off Contractor’s premises, Company shall secure for
Contractor rights of ingress and egress to the area where Services
are to be performed by Contractor. Company shall advise Contractor
of any limitations or restrictions affecting ingress and egress,
and Contractor shall abide by such limitations or restrictions.
Should Contractor be denied free access to such area for any reason
not within the control of Contractor, Contractor shall not be
liable to Company for any liability, loss, cost or expense
resulting therefrom. During such period Contractor shall
be paid in accordance with the rates, charges and fees set out in
Appendix D .
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HDY BOS Contract Sept 29, 2009 2D
Seismic Service Agreement
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Contractor
shall be responsible for obtaining all licenses and approvals
required by applicable law from any authority to enable Contractor
to perform the Services. This does not include permits
to be provided by Company pursuant to 3.3 below.
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Company shall
be responsible for obtaining all licenses, permits and approvals,
required in the name of Company, from any authority or company to
enable the Services to be performed. For the avoidance of doubt
this shall include any license being in the nature of a mineral
exploration or prospecting license. Contractor acknowledges
Company’s exclusive contract with the Republic of Guinea and
Company represents to Contractor such exclusive rights and
Company has shown Contractor its rights are granted
through its 2006 Hydrocarbon Production Sharing Contract, and as
such, Company is the lessee and owner of the concession
offshore Guinea and thus Company may notify the Guinea
government of any of all of its petroleum operations and any and
all of its chosen sub-contractors, and therefore
Company’s arrangement with the government is to
merely notify the government of its sub-contractors and ongoing
work, and as such Company will be providing Contractor with permits
it writes in accordance with its exclusive contract with the
Republic of Guinea for performing all work specified in Work Orders
associated with this agreement, and such permits, may or may not
come with timely independent acknowledgement from the
Republic of Guinea and the parties agree that any such lack of
acknowledgment will not be cause to delay any Services under this
agreement. In the Company’s experience the Government usually
responds in writing upon acknowledgement requests but not always,
thus the 2006 Production Sharing Contract is the basis for it or
any of its Sub-Contractors to enter the contract area to perform
petroleum operations under the 2006 Production Sharing Contract
which is in full compliance with the 1986 Petroleum code of the
Republic of Guinea.
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Subject to the
provisions of Clause 13, Company shall indemnify the Contractor
against any liability whatsoever arising from its failure to obtain
and maintain, or any breach of, any license, permit or approval
which it is responsible for obtaining under 3.2 and 3.3
above.
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Contractor
warrants that the Services will be performed in accordance with
good geophysical practices and with all the requirements of this
Agreement and will at the time of performance comply with the
technical and other specifications contained in this
Agreement. Any interpretation of seismic data,
interpretation of test and any recommendation or reservoir
description is expressly excluded from the scope of the Services.
All other warranties, express or implied, or whether relating to
merchantability, fitness for a particular purpose, or otherwise,
are hereby excluded and disclaimed.
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Contractor does
not warrant the accuracy of seismic data transmitted by electronic
processes and will not be responsible for any liability resulting
from breach of the integrity of the data, including any accidental
or international interception of such data by others.
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HDY BOS Contract Sept 29, 2009 2D
Seismic Service Agreement
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As long as the
data is delivered periodically and can be verified by Company every
week or two weeks during the data acquisition, the Parties
acknowledge that defective, damaged or incorrect data delivered to
Company will become apparent during the course of the
Services. Contractor shall not be liable for any claims
submitted in respect of such data after demobilisation as long as
Company has received all the source data field records and verified
and backed up the source data.
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5.1
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Until all raw data field records and tapes in
SegD format and P190 navigation files, and all other raw
field records are delivered to the Company and verified
by the Company , Contractor remains responsible for the integrity
protection and security of all seismic data. No data shall be
erased from Contractor’s acquisition and storage media
onboard the acquisition vessel until field tapes have been received
and verified by Company, and the Company notifies
Contractor.. If in the provision of the Services,
Contractor loses, damages or destroys Company's seismic data tapes
(which are in Contractor's custody and control), Contractor shall
bear the risk of and shall defend, indemnify and hold Company
harmless against the loss, damage or destruction of such tapes.
Company's remedy and Contractor's liability under this Clause 5.1
shall be limited to one of the following at Contractor’s
option:
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refund to
Company of that portion of the seismic data acquisition costs
originally incurred, that is directly related to and required as a
result of the loss, damage or destruction of the tapes;
or
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re-acquisition
by Contractor of the seismic data lost, damaged or destroyed, at a
time to be determined by Contractor, but within 12 months from the
date of such loss, damage or destruction.
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However, if the
damage is such that it may be reasonably corrected through the
provision of tape copies or further re-processing services, that
shall be the sole remedy available to Company. Notwithstanding the
above, if a reputable or agreed common carrier is used to transport
the seismic data tapes, then Company shall bear the risk of loss,
damage or destruction of the tapes during such transport and
Contractor shall bear no liability therefore. However,
until data is obtained from Contractor and verified, Contractor is
not deemed to have delivered the data. In all cases damaged tapes
that are replaced by Contractor shall become the property of
Company.
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Unless
specifically and separately contracted and paid for, Contractor
assumes no liability for and shall not be responsible for any
gratuitous bailment or storage of any seismic data, whether on
tape, disk, in physical sections, in computer memory or in any
other form whatsoever, Contractor shall not be liable for any
damage, destruction, loss or theft of any such seismic data or
portions thereof and Company agrees to defend, indemnify and hold
Contractor harmless from any and all claims brought by third
parties in relation to such seismic data.
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HDY BOS Contract Sept 29, 2009 2D
Seismic Service Agreement
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Contractor
shall not be required (save as otherwise expressly agreed in
writing) to store, hold or save any drawings, seismic data, tapes,
reports, records or other information in any media about or arising
from the Services after completion of the Services.
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All drawings,
reports, records, seismic data, tapes and other documents or
information furnished by Contractor in the course of, or as a
result of, performing the Services may be used by Company for any
lawful purpose and shall be and become the property of Company as
soon as they are created, subject only to Contractor’s
receipt of the full payment for the Services rendered.
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All information
in any media supplied by Company and all material to which Company
becomes entitled under Clause 6 shall be and remain the property of
Company and shall be returned by Contractor to Company immediately
upon completion or termination of the Services, upon request in
writing. Contractor shall not permit any person other than a duly
authorised representative of Company to borrow or to have access to
such information and material or any part thereof, and shall keep
the same strictly confidential and shall neither divulge any such
information to any third party nor permit any of its officers,
employees, or agents to do so without prior written consent of
Company. Excepted from this undertaking is any information or media
already in the public domain or which is required to be disclosed
by law or legal process.
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Company shall
treat in the strictest confidence all specifications, know-how,
technical and other information about the techniques, services and
equipment used or provided by Contractor under this Agreement and
otherwise concerning Contractor or its operation and shall not
disclose nor allow to be disclosed the same to any third party
without the prior written consent of Contractor. Company warrants
that its personnel are aware of and shall comply with the
provisions of this sub-clause 7.2. Excepted from this
undertaking is any information or media already in the public
domain or which is required to be disclosed by law or legal
process.
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Company to pay,
and/or indemnify the Contractor for, all local, State, National
taxes and/or dues assessed on the vessel BOS Angler or the
Contractor by the Republic of Guinea resulting from the
Company's orders herein, whether assessed during or after the
currency of this Agreement including but not limited to any income
taxes, remittance taxes, withholding taxes, contractor's taxes,
gross receipt taxes, social security taxes, social insurance
charges, value added taxes, property taxes, excise taxes and stamp
duties. Any such assessments by the Republic of Guinea will be
immediately forwarded to Company to handle.
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HDY BOS Contract Sept 29, 2009 2D
Seismic Service Agreement
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INVOICE AND
PAYMENT FOR THE SERVICES
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In Section 2 of
this Agreement, the Parties have agreed the scope of the Services
to be provided and the compensation for such Services. Should
Company require additional or different Services or in any way
change or modify the scope, parameters or content of the Services
from that previously agreed (the "Additional Services"), Contractor
shall be entitled to additional compensation. The amount of such
additional compensation shall be determined by the Parties with due
regard to the rates of compensation due for the Services previously
agreed. However, Contractor shall not be required to commence the
Additional Services until the Parties have mutually agreed to the
compensation due for the Additional Services.
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Contractor
shall present invoices in accordance with the payment schedule
agreed between the Parties, or if none is specified, and at
Contractor’s option, such invoices may be presented on the
3rd day and 18 th day of each month or at the
end of each completed stage during the progress of the Services.
Invoices shall quote Company’s contract reference number (if
any), and shall be calculated in accordance with the sums, rates,
charges and other provisions of this Agreement and shall be for the
amount due for the Services performed to date less the amount of
any previous invoice.
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Company shall
pay by bank wire transfer direct to Contractor’s bank account
or as otherwise directed, or as otherwise agreed herein (such as
payment options provided for in section 10 below regarding the sale
of Deposit Shares and Cash Proceeds which may be available in
Deposit Account for Company to treat as Applied Cash Proceeds)
within fifteen (15) days of receipt of invoice all undisputed
amounts due under that invoice.
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Company agrees
that should any portion of an invoice be disputed, Company shall
promptly pay the non-disputed portion.
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Within fifteen
(15) days of receipt of an invoice, Company shall promptly notify
Contractor in writing of the reasons for disputing all or part of
that invoice and Contractor shall promptly produce such evidence as
it may have in support of the disputed amount. Having due regard to
all the facts, the Parties shall seek to reach agreement as to how
much, if any, of such disputed amount should be paid. Failing
agreement, the matter may be referred to arbitration in accordance
with Clause 24. If no notice is given by the 15
th day following receipt of an invoice, it shall be
presumed that Company has no dispute therewith.
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Contractor may
at its absolute discretion charge interest, which Company shall
promptly pay, on all amounts not paid strictly in accordance with
the payment terms of this Clause 9 or as otherwise agreed
herein. Interest shall accrue at 1% per month.
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9.7
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The provisions
of Section 10 (X) below may be applied for making payments on all
amounts due herein. The Common Stock shares will be issued to BOS
and be deposited in Deposit Account as described below.
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HDY BOS Contract Sept 29, 2009 2D
Seismic Service Agreement
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COMMON STOCK
ISSUED TO CONTRACTOR FOR DEPOSIT AND TO FACILITATE ADDITIONAL
PAYMENT OPTIONS
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Regarding the
Contractor’s ownership of the common stock of Company’s
parent Company, Hyperdynamics Corporation, as prescribed hereunder,
the Contractor shall not of its own volition cause itself or its
affiliates (as the term “affiliates” is defined in U.S.
law) to beneficially own, in the aggregate, more than 4.99% of the
outstanding common stock of Hyperdynamics Corporation until six
months after this Agreement has been fully performed by the
Contractor. The Contractor understands that Hyperdynamics
Corporation is a public company. The Contractor is aware
that the work of the Contractor may expose the Contractor to inside
information about Hyperdynamics Corporation and its
affiliates. The Contractor understands that buying or
selling securities while having knowledge of inside information is
unlawful. The Contractor understands that tipping others
about inside information is unlawful.
The Contractor and Company agree to the
following deposit in the form of common stock and related
administration and payment options:
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A
deposit for this Agreement of 2,500,000 shares of common stock ,
currently representing approximately 4.4% of the outstanding shares
of Hyperdynamics Corporation’s unregistered restricted common
stock, listed with the American Stock Exchange (AMEX Symbol: HDY -
herein referred to as “Deposit Shares” or
“Deposit Stock”) with an agreed value of $4,075,000
shall be made by the Company’s parent company Hyperdynamics
Corporation. SCS Corporation is a wholly owned subsidiary of
Hyperdynamics Corporation. For the purposes of the rest of
this article of the Agreement, Company means collectively both
Hyperdynamics Corporation and SCS Corporation. This deposit
shall act as collateral for the remaining mobilization payment of
$1,100,000 due within 8 weeks of the initial payment of
$500,000. If the Company does not timely pay this
remaining mobilization fee, the Contractor may begin to sell the
Deposit Shares to satisfy the remaining mobilization
fee.
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To
issue the Deposit Shares, restricted common stock certificates with
restrictive legend will be issued to and in the name of Bergen Oil
Field Services AS (Contractor) within 30 days of signing of
contract and after the stock has been listed on the American Stock
Exchange (AMEX) with a Listing of Additional
Shares (LAS) application being approved by the AMEX. These
Deposit Shares will be delivered to Contractor and at their
specific direction for international delivery service such as DHL
or Federal Express.
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Upon
the six month anniversary of issuance of the Deposit Stock, should
it remain issued and outstanding, the Deposit Stock will be
deposited into an electronic stock trading account (the
“Deposit Account”) with C.K. Cooper or other mutually
agreed registered FINRA broker dealer, registered and licensed in
the United States. The broker dealer receiving the shares for
deposit will be referred to herein as the “Deposit
Manager”. Once the Deposit Account is established and the
Deposit Shares deposited, the Deposit Manager will be immediately
instructed by Contractor to begin selling the Deposit Shares in
accordance with SEC regulations for 144 restricted stock sales and
such Deposit Manager will be instructed by Contractor to sell only
a specified maximum number of shares on any one trading day
calculated as follows:
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HDY BOS Contract Sept 29, 2009 2D
Seismic Service Agreement
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Total average
trading volume per day for the prior 90 days as calculated and
reported by Yahoo Financial’s website, multiplied by
5%. Thus, as an example: On any particular trading day,
presuming the reported average daily trading volume for the last 90
days as reported by Yahoo Financial is 300,000 shares, then the
maximum shares eligible to be sold on that particular trading day
is (300,000 x 5%) 15,000 shares.
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The
Deposit Manager will be obligated, by the specific instruction of
the Contractor, to send daily trading records, sales details, and
balances of the Deposit Stock and any cash balances from the
proceeds of the sale of Deposit Shares to Company, at the close of
each business day via email to Hyperdynamics Corporation as
follows: jdavis@hyperdynamics.com. The
Contractor may optionally arrange for a view and report only login
ability for the Company to view all the activity in the Deposit
Account.
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The
Contractor may at any time move cash sales proceeds realized from
the sale of Deposit Shares (herein referred to as the “Cash
Proceeds” or “proceeds”) into any other account
of Contractor, but immediately upon doing so, Contractor must
notify Company with a memo via email that specifies which
outstanding invoices that Contractor is applying such Cash Proceeds
to. Such application of proceeds must be made to the oldest
outstanding invoice(s) first. No Cash Proceeds shall be moved
by Contractor from Deposit Account unless there are legitimate
outstanding invoice(s) to apply such proceeds to.
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On
the due date of any outstanding invoice(s) due to Contractor by
Company under this Agreement, Company may elect to do the following
to pay for such legitimate and undisputed outstanding
invoice(s):
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Pay outstanding
invoice(s) in their entirety in cash by wire transfer;
or
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Pay any portion
of the outstanding invoice(s) with Cash Proceeds available in the
Contractor’s Deposit Account that have already cleared with
the Cash Proceeds deposited after the prior sale of Deposit
Stock. This form of payment will be referred to herein as an
“Applied Cash Proceeds” payment. In such case the
Company will email a memo to the Contractor of how much of the cash
in the Deposit Account is to be applied to which invoice(s) that
become due. Such amount designated will be considered the
“Applied Cash Proceeds” to pay all or parts of such
outstanding and due invoice(s). It will be the sole
responsibility of the Contractor to move such Applied Cash Proceeds
out of the Deposit Account to its other cash accounts. Any
remaining balance of cash required to pay off the invoice(s) that
are due must be paid by Company by cash wire transfer as provided
for herein within the agreed upon terms.
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HDY BOS Contract Sept 29, 2009 2D
Seismic Service Agreement
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Once
the Deposit Manager begins selling the Deposit Shares, the Company
at any time prior to all of the Deposit Shares being sold, notice
the Contractor by email and redeem any Deposit Shares remaining
unsold in the Deposit Account, for a price of $6 per share, by
wiring the appropriate amount to the Deposit Account. In such
case the shares will be transferred to the Company immediately by
electronic transfer (DTC) and no more Deposit Shares may be
sold.
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Also
after the Deposit Manager has begun selling the shares, and at any
time there are no more invoice balances outstanding that were
generated from the 3-D survey and processing work associated with
this Agreement, then no more Deposit Shares will be sold by
Contractor and Contractor will instruct Deposit Manager not to sell
any more Deposit Shares. At such time as the parties agree
that all obligations under the Agreement have been fulfilled, then
any remaining unapplied Sales Proceeds and Deposit Shares, at the
option of the Company, will be refunded directly to the Company and
the Deposit Account closed.
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However, if the
Company agrees and approves, upon request of Contractor to Company,
then any remaining unapplied Sales Proceeds may be applied as
Company’s credit towards future work with the
Contractor. Also upon the Company’s agreement and
approval, any remaining Deposit Shares may be sold by Contractor,
or at Contractors risk held by Contractor. In this case, if
the stock is sold, the net Sales Proceeds amount from the sale of
the remaining Deposit Stock shall be credited by Contractor to
Company’s account to be available to pay for future
services.
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Should the
Contractor decide (the “Decision”) not to sell the
Deposit Stock, then Company shall receive a credit against future
work based on the number of Deposit Shares remaining times the
closing last sales price reported by the AMEX on the date of the
Decision. In this case, as approved by the Company, the
remaining Deposit Shares would remain as an asset owned by
Contractor with no further encumbrances and the risk of loss in the
future on such remaining Deposit Shares shall be born entirely by
Contractor.
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On the date of
the Decision when there are no more unpaid Company
obligations to Contractor under this Agreement, and if there was
500,000 Deposit Shares remaining on January 31, 2009 in the Deposit
Account together with $100,000 and Contractor and Company agreed
that 100% of the obligations had been met by the Company, and the
Company agreed to take a credit opposed to a refund, and the last
trade price of Hyperdynamics stock was $7 per share; then the
Company would receive a credit for ($100,000 + ($7x500,000)
$3,600,000 to be applied against future invoices for future
work. If the Contractor decided to not sell the stock
remaining, still under the required selling limitation, then upon
notice of Contractors intent to keep the Deposit Stock, a credit of
$3,600,000 would be issued by Contractor to Company for future work
and if the stock was sold for $20 in the future, Contractor would
receive $10,000,000 (500,000 x $20) and all proceeds would belong
to Contractor. If the same stock sold for $5 then Company
would still have a credit on the books for $3,500,000 for stock
that Contractor sold for $2,500,000.
HDY BOS Contract Sept 29, 2009 2D
Seismic Service Agreement
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Contractor
shall keep and preserve accurate accounts and records in accordance
with generally accepted accounting principles and practices,
showing all quantities consumed and costs and charges incurred
pertaining to the Services.
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For the purpose
of reviewing and verifying the costs of cost reimbursable items and
the quantities of both these and of items or expenses reimbursable
on a cost or “cost-plus” basis, or as called for under
this Agreement, Company or its authorised representatives shall
have access, at all reasonable and mutually agreed to times, to all
the accounts and records of Contractor pertaining to the Services
only.
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If as a result
of any review or audit the invoices submitted in accordance with
Clause 9 are found to be in error, such errors shall be adjusted in
the next invoice issued, or by issuance of an additional invoice or
credit note.
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The provisions
of this Clause 11 shall be valid only one (1) year after the
invoice including said reimbursable items has been
issued.
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Nothing herein
shall entitle company or its authorised representatives to access
to any of Contractor’s privileged, confidential, trade-secret
or "other-client" information or documents.
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Contractor
shall provide all personnel necessary to carry out the Services
("Contractor’s Personnel"). Contractor shall be responsible
for the payment of wages, salaries and all other remuneration or
benefits due to Contractor’s Personnel, for safety measures,
for payment of compensation in respect of accident or injury or
occupational disease, and for payment of any and all contributions
to the tax or other Governmental authorities in respect of
Contractor’s Personnel, and shall defend, hold harmless and
reimburse Company for any expense which Company may incur
as a result of Contractor’s failure to comply with
such responsibility.
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Contractor’s Personnel shall be skilled
and experienced in their several trades and callings. Company may
upon showing good cause request in writing the removal of any of
Contractor’s Personnel who are prejudicing the proper
performance of the Services. Contractor shall promptly at its own
cost replace such personnel.
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Contractor
shall ensure that its personnel comply with any applicable
immigration law and hold work permits when required, details of
which shall be submitted to Company upon request.
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If the Services
involve close liaison and cooperation between Company personnel and
any of Contractor’s Personnel, Contractor shall not
voluntarily reassign such personnel from the Services without
reasonable notice to Company, and in any event only upon providing
a satisfactory replacement.
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HDY BOS Contract Sept 29, 2009 2D
Seismic Service Agreement
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If Contractor
is performing the Services in a location other than his own place
of business, Contractor and Contractor’s Personnel will
comply fully with all the procedures and regulations applicable to
that location of which it has been made aware.
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Provided
Company gives Contractor an adequate opportunity, Contractor shall
familiarize itself completely with all locations at which the
Services are to be performed and the hazards which might be
encountered in carrying out the Services, as far as is reasonably
practicable.
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Contractor
shall take all reasonable safety measures in relation to the type
of work undertaken and shall conduct its operations in such a way
as to comply at all times with its obligations and duties under all
legislation, regulations and enactments relating to health and
safety matters applicable to the locations at which the Services
are performed.
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Company shall
give Contractor adequate notice of any Company safety rules and
applicable to the Services (including any relating to illicit
drugs, alcohol and firearms) and shall also, if required by
Company, appoint a Safety Officer who shall be responsible for all
safety matters relating to Contractor’s Personnel.
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Contractor
shall cooperate fully with, and shall comply with any lawful
directions from, the police, Company, safety officials and fire
authorities should any of them consider there to be a safety hazard
and request Contractor to alter its mode of operations.
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Notwithstanding
anything to the contrary contained herein or in any other agreement
between the Parties, the following shall apply :
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Except as set
forth in Clause 4.3 of Section 2 above, each Party (as indemnitor)
shall defend, indemnify and hold harmless the other Party (as
indemnitee) from and against any and all liability, causes of
action, actions, claims, demands, suits, damages, losses, costs and
expenses (including reasonable attorneys fees) for property damage
or loss and/or personal injury, illness or death incurred by the
indemnifying Party, its affiliated companies, co-venturers,
partners, other contractors, sub-contractors,
agents, representatives and all their respective
employees, officers and directors.
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All claims of
third parties shall be determined at law.
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Neither Company
nor Contractor shall be liable to the other for loss of production,
loss of profits, loss of business, loss or damage to a well,
formation or reservoir, damage or injury resulting from pollution
originating in a well, formation or reservoir, inaccuracy of any
data or incorrect interpretation or recommendation, or any other
indirect or consequential damages, including, inter-alia, special
and punitive damages.
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HDY BOS Contract Sept 29, 2009 2D
Seismic Service Agreement
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Notwithstanding
anything to the contrary contained herein, in no event shall
Contractor be liable for any subsea or submerged equipment of any
type located within the Survey Area and belonging to the Company
Group, their contractors or any third party and Company shall
defend, indemnify and hold Contractor Group harmless from and
against any and all claims relating to the loss of or damage to any
such equipment, whether or not resulting from any act or omission,
breach of duty, statutory or otherwise, or the negligence in any
form of Contractor Group.
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Unless stated
otherwise above, the exclusions of liability and indemnities
contained in this Clause 13, shall apply to any such injury,
illness, death, loss or damage, without regard to the cause(s)
thereof including, without limitation, unseaworthiness, strict
liability, negligence, gross negligence or wilful misconduct,
ultra-hazardous activity, breach of express or implied warranty,
breach of duty, imperfection of material, defect of failure of
equipment, defect or "ruin" or other condition of premises, or the
sole, joint or concurrent negligence or other fault of the
indemnified Party or its owners, directors, officers, employees,
agents and/or representatives.
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For the
purposes of this Clause 13 and with regard to when acting only as
an indemnitee, "Company", "Contractor" and "Party" shall include
such Party’s parent, subsidiary and affiliated companies
(where affiliated means any entity more than 50% owned or
controlled, either directly or indirectly, by said Party’s
ultimate parent company), subcontractors, coventurers and other
contractors, and their respective owners, shareholders, directors,
officers and employees (where any person provided by a Party in
connection with the Services shall be deemed that Party’s
employee).
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The Parties
agree that Contractor’s liability, if any, to the Company or
HDY under this Agreement shall not exceed the aggregate amount of
payments received by Contractor for its services under this
Agreement and Company shall indemnify and hold harmless Contractor
for any amounts in excess thereof.
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Without
limiting the indemnity obligations or liabilities of Contractor at
any and all times during the terms of this Agreement, Contractor
agrees to carry insurance of the types and in minimum amounts
(shown in US dollars) as follows:
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Workmen’s
Compensation insurance in full compliance with applicable laws and
regulations of the area where the Services are
performed;
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Employer’s Liability insurance, with
minimum limits of $ 1,000,000.00 per occurrence, covering injury or
death to any employee which may be outside the scope of the
Workman’s Compensation statue of the area where the Services
are performed.
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General Third
Party Liability Insurance, including but not limited to Contractual
Liability insurance, in full compliance with any applicable laws
and regulations of the area where the Services are performed, with
minimum limits of $ 1,000,000.00 for personal injury, death and
property damage per occurrence.
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HDY BOS Contract Sept 29, 2009 2D
Seismic Service Agreement
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Protection and
indemnity insurance to at least the declared value of the
vessel.
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Hull and machinery insurance covering the vessel and all inboard
and over the side equipment.
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Insurance of
tapes while at Contractor’s risk.
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any other cover
required by law.
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All such
insurance shall be carried by Contractor at Contractor’s
expense with an insurance company or companies satisfactory to
Company and authorised to do business in the area where the
Services are to be performed. Said insurance shall not be cancelled
or changed materially without fourteen (14) days prior written
notice to Company. For liabilities assumed hereunder by Contractor,
Contractor’s insurance shall be endorsed to provide that the
insurer(s) waive all right(s) of subrogation against Company except
as to workers compensation paid. Company likewise shall cause its
insurer(s), if any, to waive all right(s) of subrogation against
Contractor for liabilities Company assumes hereunder. If requested
by Company, Contractor shall furnish evidence of insurance coverage
as required above.
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Company may
request Contractor to amend the insurances listed above or the
cover specified therein. To the extent that this is possible, and
to the extent that Contractor is in agreement, such amendments will
be made and witnessed by a side letter agreement. Any increase in
premiums resulting from these amendments will be paid by Company
upon presentation of corresponding invoices.
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COMPLIANCE
WITH LAWS, RULES AND REGULATIONS
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Contractor and
Company respectively agree to comply with all laws, rules and
regulations, whether municipal, regional and/or national which are
applicable to the Services or operations covered by this Agreement
or rising out of the performance of such Services operations. If
either Party is required to pay any fine or penalty resulting from
the other Party’s failure to comply with such laws, rules or
regulations, the Party failing to comply shall immediately
reimburse the other for any such payment except as otherwise
provided in Clause 13 of this Agreement.
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HDY BOS Contract Sept 29, 2009 2D
Seismic Service Agreement
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Contractor
represents to Company that no director, officer, employee or agent
of Contractor or of any subcontractor or vendor of Contractor, has
given or received or shall give or receive any commission, fee,
rebate, gift, entertainment or other payment or remuneration of
significant cost or value to or from Company, its directors,
officers, employees or agents, in connection with the Services to
be performed by Contractor her
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