Case 3:14-cv-00173-SI Document 186-4 Filed 09/16/16 Page 69 of 159

Therium Litigation Funding IC
Charter Place, 23/27 Seaton Place, St Helier.
Jersey JEl lJY
An Incorporated Cell Registered in Jersey number 118617

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At1EHBED AUii RI! !ITJl<T!D
FUNDING AGREEMENT

(1)

THERIUM LITIGATION FUNDING IC;

(2)

JACQUELINE A PERRY QC; and

(3)

NEIL J FRASER.

LITIGATION

© 2016 Therium Capital Management Limited

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 Case 3:14-cv-00173-SI Document 186-4 Filed 09/16/16 Page 70 of 159

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DATED this
PARTIES:

(1)

THERIUM LITIGATION FUNDING IC (an incorporated cell registered in
Jersey number 118617) whose address is Charter Place, 23/27 Seaton
Place, St Helier, Jersey, JEl lJY ("Therlum"):

(2)

JACQUELINE A PERRY QC, of 4/5 Grays Inn Square, Grays Inn.
London, WClR 5AH; and

(3)

NEIL J FRASER of 63 Perryn Road, Acton, London, W3 7LS.

RECITALS:

(A)

The Lawyers are attorneys called to the English and or Californian bar
and act, pursuant to a contingency fee agreement dated 9th June 2015
(as updated and signed by lead plaintiff on November 21, 2015, to
harmonise with the operative pleadings). as attorneys for the lead
plaintiff and the putative class in the case of Gbarabe, et al v Chevron
Corporation in the Federal Court of San Francisco Action Number 14cv-00173-SI arising out of the KS Endeavor rig explosion on 16 January
2012.

(8)

In order to facilitate the pursuit of the Claim, Therium agreed to fund
certain of the disbursements and expenses expected to be incurred in
pursuing the Claim, subject to and in accordance with the terms of a
Litigation Funding Agreement dated 24th November 2015. The Parties
wish to reflect in the documentation various amendments agreed as at
the date of the Litigation Funding Agreement and for that purpose
enter into this Amended and Re-Stated Litigation Funding Agreement
which replaces and supersedes the Litigation Funding Agreement
dated 24th November 2015 in its entirety with effect from the
Commencement Date.

1.

OPERATIVE PROVISIONS:

1.1

Interpretation
In this Agreement the following definitions shall have the
following meanings:

"Business Day" means a day on which banks generally are open
in Jersey and New York for the transaction of normal banking
business (other than a Saturday);
"Challenge Notice" means written notice setting out the grounds
of a challenge to the fees billed which are payable by Therium
pursuant to this Agreement;

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"Claim" means the claims and causes of action of the Claimants
as described in Schedule 1;
"Claimants" means Natto lyela Gbarabe and all other plaintiffs
and members of the class as certified in the Proceedings
represented by the Lawyers, together with their successors and
assigns and any other party in relation to which the Lawyers
agrees to act in relation to the Claim;
"Commencement Date" means 24th November 2015;
"Contingency Fee Agreement" means the contingency fee
agreement between Natto lyela Gbarabe as lead plaintiff and the
Lawyers dated gth June 2015 (as updated and signed by lead
plaintiff on November 21, 2015. to harmonize with the operative
pleadings) and any other agreement between one or more of the
Claimants and the Lawyers (and/or Rufus-Isaacs Acland &
Grantham) (as varied from time to time) in which the Lawyers
(and/or Rufus-Isaacs Acland & Grantham) agree to act or are
remunerated in relation to the Claim;
"Contingency Fee" means any share of the Proceeds and all
value received by, on behalf of, or in lieu of payment to. the
Lawyers before or after the date of this Agreement, in
connection with or arising out the Contingency Fee Agreement
and/or from the Claim;
"Committed Funds" means the Committed Funds as detailed in
the Schedule;
"Costs" means legal costs and Disbursements specified in the
Project Plan;
"Court" means the United States District Court Northern District
of California San Francisco Division and any other court,
arbitration panel or tribunal which is seized with the Proceedings
from time to time;
"Defendants" means those parties listed in Schedule 1;
"Disbursements" means the costs and expenses plus any VAT if
applicable, where specified in the Project Plan or otherwise
agreed or paid by Therium;
"Lawyers" means Jacqueline A Perry QC and Neil J Fraser, in
their personal capacity and trading as Rufus-Isaacs Acland &
Grantham.
"Legal Privilege" means attorney-client privilege, work product
protection and/or any other applicable privilege or protection

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against disclosure, as well as the
confidentiality to the Claimants;

Lawyers'

obligations of

"Party" means a party to this Agreement;
"Payment" shall mean a payment made by the Lawyers to
Therium made pursuant to this Agreement;
"Payment Date" shall mean , in respect of any Payment, the date
on which payment is received by Therium in cleared funds:
"Proceeds" means any value received by, on behalf of, or in lieu
of payment to, the Claimants (including but not limited to any
payment received into a trust for the Claimants) before or after
the date of this Agreement, in connection with or arising out of
the Claim as a result of any judgment, award, order, settlement
arrangement or compromise, (including payment of any attorney
fee award, costs order, interest, settlement sum, compensation
payment, costs and interest), whether in monetary or nonmonetary form, whether actual or contingent and before
deduction of any taxes in relation thereto;
"Proceedings" means the proceedings brought by the Claimants
against the Defendant in the case of Gbarabe, et al v Chevron
Corporation in the Federal Court of San Francisco, Action
Number 14-cv-00173-SI and each and every litigation or arbitral
proceeding issued or arising out of or in connection with the
Claim or any individual or class proceedings involving the same
or similar causes of action as the pending action with respect to
the explosion on the KS Endeavor on 161h January 2012, in which
the Lawyers may act. including any pre-action correspondence,
settlement negotiations or mediation and any enforcement
proceedings to enforce payment of any judgment. order, award
or settlement agreement. brief details of which are included in
the Schedule;
"Professional Conduct" means the professional ethical, legal
rules and mandates, including the Californian Bar rules, by which
the Lawyers are bound, governed and obliged to perform:
"Project Plan" means the project plan and budget for Costs for
the Proceedings, as may be varied from time to time by
agreement between the Parties in accordance with clause 18;
"Reasonable Costs" means the Costs, to the extent that those
Costs are reasonably incurred by the Claimants in accordance
with the terms of this Agreement and are within the limit of the
Committed Funds;
"Reasonable Costs Sum" means a sum equal to the total of all
Costs paid or otherwise funded by Therium pursuant to this
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Agreement, whether or not those Costs were reasonably
incurred by the Claimants in accordance with this Agreement
and whether or not they were specified in the Project Plan;
"Recovery" means the recovery of the Contingency Fee or any
part thereof;
"Success Fee" shall mean a sum equivalent to:
(i)

6x (six times) the total Committed Funds, plus

(ii)

2% of all Proceeds,

together with any VAT payable on such amount (if any);
"Trust Period" means the period of 80 years from the date of
this Agreement; and
"VAT" means value added tax or any similar sales tax at the rate
for the time being in force (as may be varied from time to time
by HM Revenue & Customs or such other relevant taxation
authority).
1.2

Any reference to a Recital, Clause, Schedule or Appendix is to
the relevant Recital, Clause, Schedule or Appendix of or to this
Agreement and any reference to a sub-clause or paragraph is to
the relevant sub-clause or paragraph of the Clause or Schedule
in which it appears.

1.3

Except where the context requires otherwise. words denoting
the singular include the plural and vice versa, and words
denoting any one gender include all genders.

1.4

Any reference to "persons" includes natural persons, firms,
partnerships,
companies,
corporations,
associations,
organisations, governments, states, foundations and trusts (in
each case whether or not having separate legal personality).

1.5

Any reference to a statute, statutory provision or subordinate
legislation shall be construed as referring to it as from time to
time amended, extended or re-enacted.

1.6

Any phrase introduced by the terms "including", "include", "In
particular" or any similar expression shall be construed as
illustrative and shall not limit the sense of the words following
those terms.

1.7

Any obligation on the Lawyers in this Agreement shall be
construed to mean the Lawyers joint and severally, both in their
personal capacity and working under the style of Rufus-Isaacs

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Acland & Grantham and any reference to the Lawyers shall refer
to the Lawyers each individually as well as jointly .
2.

LIABILITY OF THE PARTIES

This Agreement shall not give rise to any liability on the part of
Therium to pay any part of the Defendant's fees, costs or expenses.
3.

THE LAWYERS'S PRINCIPAL OBLIGATIONS

3.1

The Lawyers shall at all times:
3.1.l

act with the utmost good faith in all of their dealings
with Therium and the Claimants;

3.1.2

comply diligently with the terms
obligations under this Agreement;

3.1.3

prosecute the Claim diligently and use all reasonable
endeavours, consistent with the professional conduct of
the Claim in accordance with the terms of this
Agreement, to
recover the
maximum
possible
Contingency Fee in respect of the Claim, either through
an agreed settlement, a judgment. an order, or jury trial
as soon as reasonably possible;

3.1.4

insofar as is reasonably required to give effect to the
terms and commercial purpose of this Agreement,
procure that Rufus-Isaacs Acland & Grantham and any
other firm or entity engaged either in the conduct of the
Claims or engaged to act in whatever capacity for the
Claimants or the Lawyers in connection with the Claim,
shall at all times perform and act consistently with the
terms and commercial purpose of this Agreement; and

3.1.5

Subject to clause 3.1.2:

of,

and

their

(a)

not enter into any further arrangement for
funding
the
Claim
or dealing
with
the
Contingency Fee save as disclosed to Therium
prior to the Commencement Date or without
Therium's consent (not to be unreasonably
withheld or delayed);

(b)

not to add a Claimant to the Proceedings save
where the Lawyers provide their services to such
additional Claimant under the terms of the
existing
(or
equivalent)
Contingency
Fee
Agreement;

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3.2

(c)

(without prejudice to 3.1.S(b) above) give written
notice to Therium of its intention to add any
further Claimant;

(d)

comply diligently with the terms of, and the
Lawyers's obligations under, the Contingency Fee
Agreement;

(e)

not to vary the Contingency Fee Agreement;

(f)

not to terminate the Contingency Fee Agreement
except in accordance with clause 16 (save where
the Lawyers are compelled to stop acting for
Professional Conduct reasons, in which case the
Lawyers and Therium shall discuss the matter in
good faith before any action is taken):

(g)

enforce the Claimants' obligations under the
Contingency Fee Agreement;

(h)

give Therium true copies of all notices received
pursuant to the Contingency Fee Agreement
without unreasonable delay;

(i)

procure that the Contingency Fee is at all times
dealt with in accordance with clause 11 and in
cleared funds free of any encumbrance, charge or
lien, and that it remains free of any encumbrance,
charge or lien (other than in favour of Therium);

(j)

ensure that the Claim is conducted so as to
minimize the likelihood of the Claimant or the
Lawyers being ordered to pay the Defendant's
fees, costs or expenses or any part of them; and

(k)

subject also to clause 10, not seek an order that
would adversely affect Therium's rights under this
Agreement (save where the Lawyers are
compelled to seek such an order for Professional
Conduct reasons).

The Lawyers agree to pay to Therium in accordance with the
terms of this Agreement, up to but not exceeding the amount of
the Contingency Fee calculated as at the Payment Date:
3.2.1

first, the sum necessary to reimburse Therium the
amount of the Reasonable Costs Sum; and

3.2.2

secondly, the Success Fee.

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3.3

4.

THERIUM'S OBLIGATIONS

4.1

4.2

5.

If the Claimants do not recover any Proceeds in this case, the
monies invested by Therium are not required to be repaid. It is
realised and understood by the Parties that nothing in this
Agreement contains a guarantee that any amounts will be paid
to Therium save in the event of recovery of Proceeds by the
Claimants.

Therium shall at all times:
4.1.1

act in good faith in all its dealings with the Lawyers;

4.1.2

comply diligently with the terms of, and obligations
under, this Agreement; and

4.1.3

treat all information relating to the Claim disclosed to it
as subject to the confidentiality obligations set out in
clause 14.

Therium shall not be liable or responsible to the Lawyers or the
Claimants for any advice, view, comment or consent (or
withholding of a consent, unless unreasonably withheld where it
is provided that such consent will not be unreasonably withheld)
or notice given in the performance of this Agreement.

AGREEMENT TO FUND

5.1

In return for the Lawyers agreement to pay, where there is a
Recovery and limited to the extent of that Recovery, the Reasonable
Costs Sum and the Contingency Fee in accordance with the terms of
this Agreement, Therium agrees with effect from the Commencement
Date to pay the Claimant's Reasonable Costs incurred up to the
amount of the Committed Funds, in accordance with the terms of
this Agreement. This includes Reasonable Costs.

5.2

The Lawyers and any other suppliers of services provided for in the
Project Plan shall address invoices relating to the Costs described in
the Project Plan to Therium and to deliver those invoices to Therium
for payment.

5.3

If in the reasonably held opinion of Therium, any Costs invoiced by
the Lawyers or any other supplier of services are not Reasonable
Costs, Therium shall serve a Challenge Notice on the Claimant. with a
copy to the relevant supplier, within 20 Business Days of delivery of
the relevant invoice.

5.4

In the event of a Challenge Notice being served, the Lawyers agree
to raise any queries identified in the Challenge Notice with the
relevant supplier with the aim of reaching an agreement as to the
disputed Costs. Where an agreement, satisfactory to Therium, cannot

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be reached within 10 Business Days of service of the Challenge
Notice, the decision as to whether such Costs are Reasonable Costs
shall be taken by an independent costs lawyer (the "Costs Lawyer")
within 20 Business Days of his appointment. The Costs Lawyer so
appointed shall be a member of the Association of Costs Lawyers
and shall be appointed jointly by the Parties. Therium and the
Lawyers agree to be bound by such decision, and the Lawyers shall
use best endeavours to procure the agreement of the relevant
supplier to be bound by such decision. Unless the Costs Lawyer
directs another person to pay his costs, Therium agrees to meet his
costs which shall be treated as part of the Reasonable Costs and
within the Project Plan save that the amount of the Committed Funds
shall remain unaffected.
5.5

Pending resolution of a Challenge Notice, Therium shall pay all Costs
that are not subject to challenge.

5.6

Within 5 Business Days of receiving the Costs Lawyer's decision,
Therium will pay any sum owing to either the relevant supplier
and/or the Costs Lawyer if directed by the Costs Lawyer.

6.

INTEREST
6.1

7.

In the event, due to any action or inaction of the Lawyers, that
any sum payable under this Agreement is not paid by its due
date, interest will be payable on such sum:
6.1.1

at the rate of 5% per annum above National Westminster
Bank Pie's base rate for the time being in force,
compounded annually; and

6.1.2

from the date on which payment was due to the date
payment is received, or for such other period as may be
specified in this Agreement.

CHANGES TO THE LITIGATION
7.1

Subject to sub-clauses 3.1.3 and 3.1.5, the Lawyers shall have the
right to:
7.1.1

join an additional party to the Proceedings;

7.1.2

add a new cause of action to the claims in the
Proceedings; and

7.1.3

commence additional proceedings;

without first giving notice to Therium with an explanation of the
impact of such change on the Project Plan and budget.

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7.2 Save as set out in clause 7.1 and subject to Therium's prior
agreement to any proposed variation to the Project Plan, the
Proceedings shall be prosecuted in accordance with the Project
Plan and the Lawyers shall use all reasonable endeavours to keep
the disbursements within the Project Plan budgets.
8.

WARRANTIES
8.1

The Lawyers acknowledge and accept that Therium's decision to
enter into this Agreement is based on the information and
materials provided by it to Therium (which, subject to legal
privilege, shall include all requested copies of all legal advice
relating to the Claim and all requested copies of correspondence
with the Defendant relating to the Claim) and other documents
and materials provided to Therium prior to the Commencement
Date and where, for reasons of legal privilege, a document
cannot be produced, the Lawyers accept and warrant that they
have advised Therium that specific document has been withheld
and of its implications for the Claim.

8.2

The Lawyers confirm that, to the best of their knowledge and
belief, the information, documents and materials provided (or
otherwise notified in accordance with clause 8.1 above) by them
to Therium prior to the Commencement Date are accurate,
complete and true in all material respects and that the Lawyers
have not failed to disclose any information, document and/or
material which would be relevant to Therium's decision to enter
into and remain bound by this Agreement.

8.3

The Lawyers warrant that, save as disclosed to Therium in
writing:

8.3.l

as at the Commencement Date the Lawyers have not
granted (or purported to grant) any charge, lien or
other security in favour of a third party over the Claim
or the Contingency Fee (or otherwise dealt with the
same in any way); and

8.3.2

they will not grant (or purport to grant) any such
charge, lien or other security over the Claim or the
Contingency Fee, until all payments (whether actual or
contingent) due to Therium under this Agreement have
been met or otherwise extinguished.

8.4

Each Party warrants to the other that the execution and
performance of, and compliance with, their respective
obligations under this Agreement is fully authorised by each of
them and the persons executing the Agreement have the
necessary and appropriate authority to do so.

8.5

The Lawyers warrant that they have obtained all necessary
instructions, agreements and consents from the Claimants, to the
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extent required, to enable them to enter into and perform this
Agreement.
8.6

The Lawyers warrant that this Agreement is legal and
enforceable under the laws of California, including any applicable
professional or regulatory rules.

8.7

The Lawyers warrant that they have, where such consent or
instruction is necessary, obtained written irrevocable instructions
and consent from the Claimants and where there is no such
consent or instruction, the Lawyers will use their best
endeavours to ensure that the Claimants agree and/or comply as
follows:
8.7.1

as to the matters set out in clause 10.2 below;

8.7.2

that they shall use their best endeavours to support the
prosecution of the Claim through the Proceedings;

8.7.3

that they shall not take any step to encourage, induce,
cause, procure or behave in such a way that may result
in them or one or more of the Claimants withdrawing
from the Proceedings; and

8.7.4

that they shall not take any step to encourage, induce,
procure or behave in such a way that may result in them
or one or more of the Claimants seeking to bypass,
circumvent
or
otherwise
adversely
affect
the
Proceedings.

8.8

The Lawyers warrant that so far as they are aware, there is no
prospect of Therium being held liable to pay (or contribute to)
the Defendant's fees, costs and expenses in the event that the
Claim is lost.

8.9

The Lawyers warrant that there is no requirement to disclose the
content of this Agreement to the parties to the proceedings or
the Court, and that if at any time such a requirement arises or to
do so would be prudent and in furtherance of the objectives set
out at Clause 10.2, the Lawyers will promptly take all such steps
as reasonably practicable to make such disclosure (and shall
inform Therium of the existence of such requirement).

8.10

Notwithstanding any other provision of this Agreement, the
Lawyers shall not sell, dispose of or in any way alienate their
rights such that the Lawyers' right to be paid the Contingency
Fee may be materially prejudiced, without the consent of
Therium (such consent
not to be unreasonably delayed or
withheld).

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9.

10.

8.11

The Lawyers represent and warrant that there is no legal or
professional consideration which would adversely impact any
payment otherwise due under clause 3.2.
The Lawyers
irrevocably undertake that they will not assert any Professional
Conduct or ethical prohibition defence or objection to any
payment otherwise due under clause 3.2 of this Agreement to
Therium and agrees to waive any right to make any such
assertion to Therium seeking specific performance for any
payment otherwise due under clause 3.2 of this Agreement to
Therium.

8.12

The Lawyers warrant that they have no third party indebtedness
(other than trade creditors in the ordinary course of The
Lawyers' business), and that so far as the Lawyers are aware,
there is no reason why they will not be able to repay their
liabilities as they fall due for payment.

8.13

The Lawyers warrant that they have in place adequate
professional indemnity insurance appropriate to their practice.

ACKNOWLEDGEMENTS

9.1

Therium recognises that the Lawyers must at all times comply
with its duties under the rules of the California Bar to act
independently and in the best interests of the Claimant and in
accordance with their other professional duties.

9.2

Nothing in this Agreement entitles Therium to control the
conduct of the Claim and/or the Proceedings.

THE LAWYERS' FURTHER OBLIGATIONS

10.1

The Lawyers shall not engage any co-counsel or any forensic
accountants or other third parties not budgeted for in the
Project Plan without Therium's prior written consent, such
consent not to be unreasonably withheld and having regard at all
times to the Lawyers' Professional Conduct reasons for
proposing any such engagement.

10.2

The Lawyers shall (and for this purpose have obtained binding
and irrevocable instructions from the Claimants to):
10.2.1

conduct the Proceedings in accordance with the
procedural rules applicable in the Court and comply
with any judgment, order or award made in the
Proceedings;

10.2.2

provide Therium with any documents or information
relating to the Claim and Proceedings as may be
reasonably requested by Therium subject to the
Lawyers not breaching the Claimant's Legal Privilege;
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10.2.3

10.2.4

10.3

on behalf of the Claimants and on their own account:
(a)

diligently prosecute the Proceedings and seek to
enforce and recover the Contingency Fee;

(b)

devote sufficient and appropriate time and
reasonably available resources to the prosecution
of the Proceedings and the enforcement and
recovery of any Proceeds;

(c)

in respect of any forensic accountants or other
third parties retained to assist in the Proceedings:
(i)

monitor their work and performance; and

(ii)

take all reasonable steps to ensure that they
carry
out
their
proper
and
lawful
instructions in the Proceedings in a
professional manner, promptly and with due
expedience;

(d)

save as required to preserve the Claimants' legal
privilege, keep Therium promptly informed of any
significant developments in the Proceedings
(including any settlement discussions, any offers
received and any information, evidence or advice
coming to the attention of the Claimants or the
Lawyers, which may be material either to the
prospects of success of the Claim or of enforcing
any judgment or award or the amount of the
Contingency Fee); and

(e)

save as required to preserve the Claimants' legal
privilege, make a monthly summary report in
writing to Therium regarding the overall progress
of the Proceedings, giving reasonable particulars
of that progress and any developments and
Disbursements incurred against the Project Plan;

Subject to the Lawyers not breaching the Claimants'
Legal Privilege, give reasonable notice of and permit
Therium where reasonably practicable, to attend as an
observer at internal meetings, which include meetings
with experts, and send an observer to any mediation or
hearing relating to the Claim.

The Parties agree not to do or permit to be done anything likely
to deprive each other of any benefit for which the other has
entered into this Agreement.

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11.

10.4

The Lawyers acknowledge that Therium has relied on the
involvement of the Lawyers as acting for the Claimants in
agreeing to fund the Proceedings and that termination of their
representation of the Claimants may adversely affect the
Recovery and the return to Therium. Subject to any Professional
Conduct obligations, the Lawyers therefore agree, during the
operation of this Agreement, not to terminate their
representation of the Claimants without prior consent of Therium
such consent not to be unreasonably withheld.

10.5

The Lawyers agree that if Therium requires any advice given by
the Lawyers in respect of the Claim and/or the Proceedings to
be confirmed by a second opinion, the Lawyers will fully cooperate with any other firm instructed by Therium.

10.n

For the avoidance of doubt, subject to Therium's rights of
termination pursuant to clause 16, nothing in this Agreement
shall permit Therium to override any advice given by the
Lawyers to the Claimants. This includes any opinion given
pursuant to clause 10.5 of this Agreement.

10.7

The Lawyers agree to advise and represent the Claimants and
conduct the Proceedings with reasonable skill and care and
acknowledges and accepts that Therium shall be entitled to rely
upon the performance of their professional services as if Therium
were a client. The Lawyers further agree that, in the event of
loss caused by any breach of its duty to perform its obligations
with reasonable skill and care, that the harm suffered by Therium
has occurred in England and Wales. In the event of a conflict
between the interests of Therium and the Claimant, Therium
accepts that the Lawyers shall be obliged to act in the best
interests of the Claimants and shall be entitled to continue to act
for the Claimants in the Proceedings and Therium waives any
conflict so arising.

TREATMENT OF CONTINGENCY FEE

11.1

The Lawyers agrees to hold any Contingency Fee received by
them or any third party on its behalf, upon trust for Therium
throughout the Trust Period on terms that Therium shall be
entitled to such part of the Contingency Fee as shall be equal to
the total of all amounts due under the terms of this Agreement
to Therium.

11.2

The Lawyers shall ensure that the Contingency Fee when
payable to it shall be paid into the Escrow Account immediately
upon receipt. In the event of Recovery, the Lawyers shall notify
Therium as to the amount of that Recovery and provide a
calculation of the Contingency Fee together with such
supporting documentation as Therium may reasonably require.

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12.

11.3

In so far as consistent with their professional obligations as
attorneys to the Claimants, the Lawyers shall use their best
endeavours to cause any Claim Proceeds to be recovered as
quickly as possible.

11.4

The Lawyers shall at the request in writing of Therium execute all
documents and do all things that Therium may reasonably
require to perfect Therium's entitlement to be paid and/or to
ensure Therium is paid any amount, including the Success Fee,
due to Therium under this Agreement.

11.5

In the case of any Contingency Fee received in non-monetary
form, the Lawyers shall use their best endeavours to gather in
the Contingency Fee in accordance with the terms of the
Contingency Fee Agreement and the Contingency Fee received
shall be held and dealt with by the Lawyers in accordance with
clause 11.

11.6

In the case of any Contingency Fee received in a form other than
a single cash payment, the Parties agree that the non-cash
element shall be valued by an independent valuer agreed by the
Parties with the cost of that valuation to be met from the
Contingency Fee. Where the Parties cannot agree, within 10
Business Days of receipt of the Contingency Fee by The
Lawyers, on the identity of the independent valuer, then the
Parties will each appoint their own neutral third party ("a
Neutral") and these two Neutrals will select a third Neutral. In
each case the Neutral shall be from one of the larger UK
accountancy firms with offices in the UK. The majority decision
of the Neutrals ("the Neutral Decision") shall be binding upon the
Parties.

11.7

If any payment due to Therium from the Contingency Fee is
delayed due to action or failure to act on the part of The
Lawyers, the Lawyers shall compensate Therium for the delay in
making payment by paying to Therium interest on the sum
delayed for the period of the delay calculated in accordance with
clause 6.

EXCLUDED TIME COSTS, EXPENSES AND LIABILITIES

12.1

Therium will not pay nor be liable for any of the following costs,
expenses sums or liabilities:
12.1.1

fees and time costs of the Lawyers save as included
within the Project Plan (or otherwise agreed);

12.1.2

any fees, time costs, Disbursements and/or other sums
incurred as a result of any default by the Lawyers in the
performance of their obligations to Therium;

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 Case 3:14-cv-00173-SI Document 186-4 Filed 09/16/16 Page 84 of 159

12.2

13.

12.1.3

any liability to contribute to the Defendants' fees, costs
expenses or the Claimants' liability for fines or penalties;

12.1.4

any fees, time costs Disbursements and/or other sums
incurred as a result of any unreasonable failure by the
Claimants and/or the Lawyers, to comply with any
relevant rules of professional conduct or an order of the
Court during the Proceedings;

12.1.5

any fees, time costs Disbursements and/or other sums
incurred prior to the Commencement Date (save to the
extent that those costs are included in the Project Plan)
or after termination of this Agreement; or

12.1.6

any element of VAT or other tax on the provision of
services.

In the event that Therium suffers any fees, time costs
Disbursements and/or other sums falling within sub clauses 12.1.1
to 12.1.6 (inclusive) then the Lawyers shall indemnify Therium in
respect of any sum paid out by Therium.

PRIVILEGE

13.1

13.2

Subject at all times to Professional Conduct and Legal Privilege
obligations owed to the Claimants, the Lawyers shall use all
reasonable efforts to report fully and appropriately to Therium.
Therium agrees to take all reasonable steps in respect of any
such information to:
13.1.1

maintain its confidentiality;

13.1.2

protect and not waive any privilege attaching to it; and

13.1.3

keep it secure and safe.

The parties to this Agreement acknowledge and agree that:
13.2.1

the Claimants do not waive or lose any legal
professional privilege, litigation privilege, common
interest privilege, without prejudice privilege, attorneyclient privilege, attorney work product doctrine or other
privilege or protection attaching to any information
provided to Therium (whether provided by the
Claimants or the Lawyers);

13.2.2

The Claimants, the Lawyers and Therium share a
common purpose and interest in sharing confidential
information for the purpose of pursuing the Claim; and

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13.2.3

14.

15.

it is in the mutual interest of the Claimants, the Lawyers
and Therium that they share information, including
confidential information and/or work product subject
always to the protection of legal professional privilege,
litigation privilege, common interest privilege, without
prejudice privilege, attorney-client privilege, attorney
work product doctrine or other privilege or protection
attaching to any information that they share.

CONFIDENTIALITY

14.1

Therium shall procure that any persons to whom it provides
confidential documents or information shall comply with the
obligations imposed on Therium pursuant to clause 13.

14.2

Therium will immediately inform the Lawyers of any request or
order to disclose their privileged documents or any other
privileged information held by Therium, except where informing
the Lawyers would contravene any law or regulation.

TERMINATION

15.1

This Agreement shall continue in full force and effect until
payment of any and all sums due to Therium pursuant to this
Agreement and in any event clauses 1 (Interpretation), 6
(Interest), 8 (Warranties), 10 (The Lawyers' Further Obligations),
11 (Treatment of Contingency Fee), 13 to 15 (Privilege,
Confidentiality, Termination). 18 (Waiver), 20 and 21 (Invalidity
and Succession) and 24 (Dispute Resolution) and 26 (Law and
Jurisdiction)
shall
continue
in
full
force
and
effect
notwithstanding Termination of this Agreement.

15.2

The Lawyers and Therium jointly may at any time agree, by
mutual consent in writing, to terminate this Agreement.

15.3

In the event that Therium reasonably considers that there has
been a material breach of this Agreement by the Lawyers.
Therium shall notify the Lawyers that Therium requires the
Lawyers to remedy the breach within 20 Business Days. In the
event that the breach is not remedied within that period,
Therium shall be entitled to terminate this Agreement forthwith
by giving Notice to the Lawyers. Within 5 Business Days of such
termination the Lawyers shall reimburse to Therium the amount
of the Reasonable Costs Sum together with interest on the
amount of the Reasonable Costs Sum calculated in accordance
with clause 3.2 from the date of this Agreement to the date of
payment and pay to Therium the balance of any and all sums due
to Therium pursuant to clause 3.2. The Lawyers further agree to
provide all information and documents reasonably required by
Therium for the purpose of calculating the sums due in
accordance with this clause or for auditing that calculation. For
the purposes of this clause 15.3, a material breach shall include,
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 Case 3:14-cv-00173-SI Document 186-4 Filed 09/16/16 Page 86 of 159

but not be limited to, any breach of any of the warranties set out
in clause 8.
15.4

16.

17.

Exercise of the rights to terminate in accordance with this clause
15 shall not affect any accrued rights or entitlements of Therium
including any contingent rights or entitlements.

ASSIGNMENT

16.1

The Parties agree that Therium shall be entitled to assign to any
group, parent or associated entity and/or sub-contract all of its
rights, interests and obligations pursuant to this Agreement.

16.2

Save as provided in clause 16.1, a Party shall not assign or
transfer this Agreement or any of its rights under it, or purport to
do any of the same, nor sub-contract any or all of its obligations
under this Agreement.

16.3

If Therium assigns to a third party in accordance with clause 16.l
it shall notify The Lawyers of such assignment in accordance
with clause 21 within five (5) Business Days.

VARIATION

No variation to this Agreement shall be valid unless it is in writing and
signed by each of the Parties.
18.

WAIVER

No forbearance or delay by a Party in enforcing its rights shall
prejudice or restrict the rights of that Party and no waiver of any such
rights or of any breach of any contractual terms will be deemed to be a
waiver of any other right or of any later breach .
19.

MOST FAVOURED NATION

Should the Lawyers enter into any subsequent agreement with any
other person to provide funding in relation to the Claim which is more
favourable than this Agreement, then the Agreement shall be deemed
to be modified, in whole, at the election of Therium, to contain terms
identical to the subsequent agreement. The Lawyers shall notify
Therium promptly of the existence of such more favourable benefits
and terms and Therium shall have the right to receive the more
favourable benefits and terms with immediate effect from that notice.
If requested in writing by Therium, the Lawyers shall amend this
Agreement to contain the more favourable benefits or terms.

20.

INVALIDITY AND SEVERABILITY

If any of the provisions of this Agreement is or becomes invalid, illegal
or unenforceable whether in whole or in part or in relation to any of the
18

 Case 3:14-cv-00173-SI Document 186-4 Filed 09/16/16 Page 87 of 159

..

Parties to the Agreement. the validity, legality and enforceability of the
remaining provisions, or their validity and enforceability as against
other parties, shall not in any way be affected or impaired. The parties
shall nevertheless negotiate in good faith in order to agree to the
terms of a mutually satisfactory provision or arrangement, achieving so
nearly as possible the same commercial effect, to be substituted for
the provision so found to be void or unenforceable and each Party
shall take any step required, including executing any further or other
document, in order to give effect to the Parties' intention in entering
into this Agreement.
21.

SUCCESSION

This Agreement shall be binding on the Parties, their successors and
assigns and the name of a Party appearing herein shall be deemed to
include the names of any such successor or assign.

22.

NOTICES

22.1

Any Notice to be served under this Agreement shall be in
writing and may be delivered by hand or sent by pre-paid first
class recorded delivery post to the Party to be served at the
relevant address set out in this Agreement.

22.2

Any Notice shall be deemed to have been served:

22.3

23.

22.2.1

If delivered by hand, at the time of delivery to the
Party; or

22.2.2

if posted, at 10.00am on the second Business Day
after it was posted to the Party.

In proving service of a Notice it shall be sufficient to prove
that delivery by hand was made or that the envelope
containing the Notice was properly addressed and posted as
a pre-paid first class recorded delivery letter.

COUNTERPARTS

This Agreement may be signed in any number of counterparts, each of
which taken together shall be deemed to constitute one and each of
which individually shall be deemed to be an original, with the same
effect as if the signature on each counterpart were on the same
original.
24.

DISPUTE RESOLUTION

24.1

The Parties agree that in the event of any dispute between them
relating to:

19

 Case 3:14-cv-00173-SI Document 186-4 Filed 09/16/16 Page 88 of 159

.,

24.1.1

the distribution of the Contingency Fee or relating to
any payment alleged to be payable pursuant to this
Agreement; or

24.1.2

termination of this Agreement under clause 15;

24.2 They will give the other written notice of the event of dispute.
Within 10 Business Days of either party receiving notice in
accordance with this clause 23, the Parties will use their best
endeavours to agree to the identity of an Independent Queens
Counsel ("Jointly Appointed Counsel") or in lieu of such
agreement then. the Parties will each appoint their own neutral
third party Queens Counsel ("a Neutral") and these two Neutrals
will select a third such Neutral. The decision of the Jointly
Appointed Counsel or the majority decision of the Neutrals as
appropriate ("the Decision") shall be binding upon the Parties.
The costs of this dispute process will be payable as directed by
Jointly Appointed Counsel or the Neutrals, as appropriate.

25.

NO PARTNERSHIP
Nothing in this Agreement is intended to create a partnership between
the parties hereto.

26.

LAW AND JURISDICTION
26 .l

This Agreement and any dispute arising from or connected with
this Agreement, including any dispute concerning the validity of
this_ Agreement and any dispute as to the performance of the
Lawyers obligations referred to in clause 10.7 above, is governed
by and is to be construed in accordance with the law of England
and Wales.

26.2

Save for any dispute resolved finally pursuant to clause 23
above, any dispute arising out of or connected to this
Agreement, including the validity or termination thereof, shall be
finally resolved by a sole arbitrator under the arbitration rules of
the London Court of International Arbitration (the "LCIA") . The
seat of the arbitration shall be London, the language of the
arbitration shall be English and the arbitrator shall be a practising
member of the English Bar. The arbitrator shall be appointed by
the agreement of the Parties provided that, if the Parties cannot
reach agreement on the appointment of the arbitrator within 30
days, then any Party may apply to have the arbitrator appointed
by the LCIA.

IN WITNESS of which the Parties have each executed this Agreement as a

20

 Case 3:14-cv-00173-SI Document 186-4 Filed 09/16/16 Page 89 of 159

deed on the dates hown above

SIGNED by T HERIUM LITIGATION
FUNDING IC

I .. I"\ ~\
...............
~
,.
........................ ............................
iO\.alSeJZJ
\.,;)~\Q.1
Di1 eclUi

f\U

SIGNED by JACQUELINE A PERRY QC

SIGNED b y NEIL J FRASER

. . . . . . .L2-4- 2-o

tJov~

21

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 Case 3:14-cv-00173-SI Document 186-4 Filed 09/16/16 Page 90 of 159

•

•

I

SCHEDULE
Claim:

The claims and causes of action which are
the subject matter of the Proceedings and
any other claims and causes of action of
the Claimants arising out of the explosion
on the KS Endeavor on 161h January 2012.

Commencement Date:

TuQ..Elete of thfs-i&:greerrrent.

Defendant:

Chevron Corporation.

Committed Funds:

USD 1,500,000 (One million five hundred
thousand US dollars)

1-~

JJ(JVf.MOf:<C.

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 Case 3:14-cv-00173-SI Document 186-4 Filed 09/16/16 Page 91 of 159

APPENDIX 1
Project Plan

Page intentionally blank.

23

 Case 3:14-cv-00173-Sl Document 186-4 Filed 09/16/16 Page 92 of 159

Exhibit 14

Case 3:14-cv-00173-Sl Document 186-4 Filed 09/16/16 Page 93 of 159

o?n-t-o?m- - . .

THEE:

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Mm Uigaion Finding IC

Chane! Place. 2327 Seaman Place. 8! Helen
.3 Jotscy. J: 1 IJY

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Ms meme}! Pony QC
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London

WC1R SAH

By email

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Dear Jacquciim.

Uliga?ou Funding AW (1) mm Mn Funding Ic (2) Wino A
Party ac and (3) Neil Frau dated 2: March 2016 (in ?Funding 

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awaip?oninitsen?rety 

Omitted Funds: USO 1.700.000 (Om mlhon salon hundred thousand US
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Case 3:14-cv-00173-Sl Document 186-4 Filed 09/16/16 Page 94 of 159