exv10w26



 





Exhibit 10.26




Reservation and Use Agreement




     This Reservation and Use Agreement, dated September 25, 2007 (this “Agreement”), is by and
between Synthesis Energy Systems, Inc., a Delaware corporation having its principal place of
business at 6330 West Loop South, Suite 300, Houston, Texas 77401 (“SES”), and the GAS TECHNOLOGY
INSTITUTE, a not for profit corporation organized under the laws of the State of Illinois having
its principal business offices at 1700 S. Mount Prospect Road, Des Plaines, Illinois 60018 (“GTI”).



ARTICLE 1. RELATIONSHIP OF THE PARTIES





	 	1.1	 	This Agreement sets forth the relationship between SES and GTI (each, a
“Party,” and collectively, the “Parties”), to develop Gasification solutions for the
conversion of Coal into gases, on the terms and subject to the conditions set forth
herein.





ARTICLE 2. DEFINITIONS.





	 	2.1	 	“Gasification” shall mean the conversion of Coal into gases suitable for fuel
gas production through the use of a single stage fluidized bed process.
	 
	 	2.2	 	“Intellectual Property and Know-How” shall mean know-how, technical data,
unpublished research information, unpatented processes, operating procedures,
commercial or industrial techniques, computer software, and inventions, any applicable
copyrights, mask works, trademarks, service marks, patents, patent applications, trade
secrets, and other intellectual property rights of the Parties.
	 
	 	2.3	 	“Affiliates” shall mean any parent, subsidiary, an assignee of a majority of
the assets of a Party, or any enterprise (a company, a person, or group of persons,
whether incorporated or not) entitled to carry on business in any country, which now or
hereafter directly or indirectly controls, is controlled by, or is under common control
with a Party of this Agreement: “control” in an Affiliate requires ownership of fifty
percent (50%) or more of (1) voting stock of a company which has issued voting stock,
or (2) ownership interest in any other enterprise.
	 
	 	2.4	 	“Coal” shall mean anthracite, bituminous, sub-bituminous, lignite, cannel,
waste from coal cleaning/preparation facilities (including but not limited to
middlings, coarse refuse, gob, culm and gangue). Additionally, for the purposes of
this license agreement, the term Coal would additionally




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	 	 	 	include oil shale, petroleum coke and other non-biomass solid and heavy liquid
hydrogen-carbon materials.
	 
	 	2.5	 	“Proprietary Information” shall mean (i) any information or material of a Party
or any third party that is clearly identified as confidential in either written, oral
or machine readable form and (ii) all technical or business information of a Party or
any third party relating to such Party or third party’s inventions, products, research
and development, production, manufacturing or engineering processes, costs, profit or
margin information, staff skills, salaries or benefits, finances, customers, marketing,
production or future business plans.
	 
	 	2.6	 	“U-GAS” shall mean a GTI proprietary process involving conversion of Coal to
fuel gas by reaction of Coal with air with the addition of steam, carbon dioxide or
other diluent gases in a fluidized bed reactor system with a sloping grid and central
nozzle in which high carbon conversion is obtained by utilizing techniques with or
without ash agglomeration with control of ash sintering and the withdrawal of high ash
material or agglomerates, wherein crushed Coal is fed directly into the fluidized bed
with recycle of Coal dust or char fines entrained in effluent gas back into the
fluidized bed.
	 
	 	2.7	 	“Proposal” shall mean GTI Proposal 10124.1.45 “U-Gas® Technical Support
Services.”





ARTICLE 3. BACKGROUND





	 	3.1	 	GTI has a facility located in Des Plaines, Illinois that is capable of testing
different types of fluidized bed gasification and gas treatment technologies in
multiple configurations, including oxygen-blown gasification, under pressures up to 25
bara in conjunction with multiple types of feedstocks (the “Flex-Fuel Test Facility”).
	 
	 	3.2	 	SES wishes to employ the Flex-Fuel Test Facility for the design and testing of
U-GAS for the Gasification of certain Coals into gases suitable for fuel gas
production.





ARTICLE 4. ACTIVITIES OF THE PARTIES UNDER THIS AGREEMENT





	 	4.1	 	GTI will allocate time in its Flex-Fuel Test Facility to SES for multiple test
campaigns over two three (3) month periods, the first test period beginning January 1,
2008 and ending March 31, 2008. After this first three (3) month test period, an
additional three month period of test campaigns shall occur in 2009. That second three
month test period shall be




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	 	 	 	scheduled on a priority basis no later than July 15, 2008. Failure to schedule the
second three month test period prior to July 15, 2008 shall result in SES’s second
three month test period being scheduled as time and availability permits. However,
any delays caused in execution of work in the Proposal due to Force Majeure shall
extend either the start of the test period or postpone the test period by an
equivalent time of the delay. For the purposes of this Agreement, Force Majeure
shall mean occurrences beyond the reasonable control of the Party affected,
including Acts of God; laws, regulations or other orders of public authorities;
military action, state of war or other national emergency; riot or strikes: and fire
or flood; all of which, by the exercise of reasonable diligence, the delayed Party
is unable to prevent or provide against. The Party affected by any Force Majeure
event or occurrence shall give the other Party written notice of said event or
occurrence within ten (10) days of such event or occurrence. If the event of Force
Majeure continues beyond a reasonable period of time (which shall not be greater
than three (3) months) such that it frustrates the intent of the parties to this
Agreement, and causes economic loss to the party against whom the Force Majeure has
been invoked, then the party against whom Force Majeure is being invoked shall give
notice to the invoking party that full performance of this Agreement must resume
within thirty (30) days or the Agreement will be terminated. An Act of God shall
mean a natural phenomena that is exceptional, inevitable and irresistible, the
effects of which could not be prevented or avoided by the exercise of due care or
foresight, such as earthquake, flood, tornado or hurricane.
	 
	 	4.2	 	During either of the three (3) month test periods, the GTI Flex-Fuel Test
Facility may be available to other clients, as long as, in the opinion of SES, those
activities do not interfere with or delay the SES test campaigns.
	 
	 	4.3	 	In order to perform the test campaigns, SES shall enter into a contract with
GTI to undertake the work described in the Proposal.





ARTICLE 5. EXCHANGE OF PROPRIETARY INFORMATION





	 	5.1	 	During the term of this Agreement and for a period of ten (10) years following
the termination or expiration hereof, each Party shall maintain in strict confidence,
shall not disclose to any person or entity, and shall not copy or use any Proprietary
Information, including Intellectual Property and Know-How, of the other Party or any
Proprietary Information of a third party received through the other Party, which was
disclosed pursuant to this Agreement or related contract executed pursuant hereto,
whether or not it is in written or permanent form, provided that a Party may copy or
use any such Proprietary Information solely to the extent required to




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	 	 	 	perform its obligations pursuant to the terms of this Agreement or related contract
executed pursuant hereto. The obligation of confidentiality shall not apply to
information:
	 
	 	(a)	 	that is not clearly marked or identified as “Confidential”;

	 
	 	(b)	 	which is already in the possession of the receiving Party or its employees;
	 
	 	(c)	 	which is now publicly known or subsequently becomes publicly known through no
fault of the receiving Party, its affiliates or its employees;
	 
	 	(d)	 	which is developed independently by an employee of the receiving Party without
breach of this Agreement;
	 
	 	(e)	 	which the receiving Party rightfully receives from third Parties, if such third
Party is not in violation of a confidentiality obligation to the disclosing Party by
providing the information to the receiving Party;
	 
	 	(f)	 	which is approved by the disclosing Party’s written authorization for use or
release by the receiving Party; or
	 
	 	(g)	 	which is required to be disclosed pursuant to court and/or commission order and
subject to appropriate protective orders.
	 
	 	5.2	 	Each Party agrees to take all practicable measures reasonably available to such
Party to prevent any unauthorized use, disclosure, publication or dissemination of any
Proprietary Information.
	 
	 	5.3	 	Each Party agrees to return to the other Party, or to destroy (and to certify
to such destruction in writing to the other Party), all materials containing any
Proprietary Information of the other Party, regardless of the media and regardless of
by whom prepared, within ten (10) days after termination of this Agreement, subject to
the terms of any existing licenses of such Proprietary Information.
	 
	 	5.4	 	The provisions of this Article 5 shall survive the termination or expiration of
this Agreement and shall remain in force and effect during the term of this Agreement
and for a period of five (5) years thereafter.





ARTICLE 6. TERM OF AGREEMENT





	 	6.1	 	This Agreement shall be effective upon its execution by a duly authorized
representative of each of the Parties and shall continue for a term of three (3) years,
unless sooner terminated in accordance with Article 7.





ARTICLE 7. TERMINATION





	 	7.1	 	Each Party shall have the right to terminate this Agreement for cause by giving
the other Party notice of a breach of this Agreement. The Party receiving the notice
of breach shall have thirty (30) days to cure any such breach. In the event that the
breaching Party has failed to cure any




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	 	 	 	breach by it of this Agreement within thirty (30) days of demand by such Party for
such cure, this Agreement shall terminate sixty (60) days from the date of the
notice of breach.
	 
	 	7.2	 	Upon expiration or termination of this Agreement, neither Party shall have any
rights, duties or obligations by virtue of this Agreement except (i) for the
obligations of confidentiality and nonuse set forth in Article 5 and (ii) the
obligation to pay a Fee as set forth in Article 8 hereof.





ARTICLE 8. RESERVATION and USE FEE. 





	 	8.1	 	RESERVATION and USE FEE. In consideration of GTI’s reservation of its
Flex-Fuel Test Facility for SES pursuant to the terms of this Agreement, SES agrees to
pay to GTI a Reservation and Use Fee (“Fee”) of two hundred and seventy-eight thousand
(278,000) shares of Common Stock of SES, pursuant to the terms of the Stock Purchase
Agreement between the Parties executed as of the date of this Agreement.





ARTICLE 9. DISPUTES





	 	9.1	 	Each Party shall immediately give the other Party written notice of any dispute
arising under or relating to this Agreement in accordance with Section 11.1.
	 
	 	9.2	 	Regarding/resolving any claim, controversy or dispute arising out of or
relating to this Agreement, or the breach thereof, by the Parties shall first attempt
resolution through good faith negotiations between the Parties.
	 
	 	9.3	 	If resolution is not reached through negotiations within 30 days of first
notice of such, any such claim, controversy, or dispute shall be submitted to binding
arbitration administered by the American Arbitration Association (AAA) under its
Commercial Arbitration Rules.
	 
	 	9.4	 	The Controversy shall be submitted to one (1) neutral arbitrator.
	 
	 	9.5	 	In no event shall the arbitrator have the power to include any element of
punitive or consequential damages, nor lost sales or profits in the arbitration
decision and award.
	 
	 	9.6	 	Other than attorney’s fees and expenses (which shall be borne by the Party
incurring the same), the costs of the arbitration shall be borne equally by the
Parties.
	 
	 	9.8	 	The Place of arbitration shall be the forum wherein the Party against
whom arbitration is being brought has its corporate office.




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	 	9.9	 	The laws of the forum identified in Section 9.8 shall be used by the arbitrator
in resolving all disputes under this Agreement.
	 
	 	9.10	 	Judgment upon an award by the arbitrator may be entered in any federal or state
court having jurisdiction thereof.





ARTICLE 10. INDEMNIFICATION and LIMITATION OF LIABILITY.





	 	10.1	 	SES agrees to and hereby indemnifies and saves GTI harmless from and against
any and all claims of any kind, including but not limited to liability for injury to
persons or damage to property, including environmental damage, arising out of the work
done by SES or its subcontractors under this Agreement, including any and all expenses,
costs, attorney’s fees, settlements, judgments or awards incurred by GTI in the defense
of any such claim or lawsuit.
	 
	 	10.2	 	GTI agrees to and hereby indemnifies and saves SES harmless from and against
any and all claims of any kind, including but not limited to liability for injury to
persons or damage to property, including environmental damage, arising out of work done
by GTI or its subcontractors under this Agreement, including any and all expenses,
costs, attorney’s fees, settlements, judgments or awards incurred by SES in the defense
of any such claim or lawsuit.
	 
	 	10.3	 	No Party to this Agreement shall be liable to any other Party under this
Agreement for incidental, indirect or consequential damages whether such damages are
alleged as a result of tortuous conduct, or breach of warranty, by way of indemnity or
breach of any of the provisions of this Agreement, even if advised of the possibility
of such damages. Such damages include, but are not limited to, cost of removal and
reinstallation of products or items, outside computer time, labor costs, loss of
goodwill, loss of profits, loss of savings, loss or interruption of business, or other
incidental, indirect, or consequential damages.
	 
	 	10.4	 	Each Party shall maintain adequate valid insurance in the types and amounts as
so determined solely by that Party.





ARTICLE 11. GENERAL





	 	11.1	 	All notices pursuant to this Agreement shall be sent to the Project Manager at
the addresses indicated from time to time on Exhibit B, or to such other
persons and addresses as either Party shall designate by written notice to the other
Party.




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	 	11.2	 	Neither Party may assign, in whole or in part, any rights or obligations
hereunder without the prior written consent of the other Party, provided,
however, that either Party may assign this Agreement in whole to any Affiliate
or wholly-owned subsidiary of such Party.
	 
	 	11.3	 	Any waiver by either Party of any breach of any provision of this Agreement
shall not be construed as a waiver of any continuing or succeeding breach of such
provision, or as a waiver or modification of the provision itself.
	 
	 	11.4	 	This Agreement may only be amended by written agreement executed by each of the
Parties. Upon the execution of this Agreement, the rights, duties and obligations of
the Parties with respect to the matters set forth herein shall be governed solely by
the provisions of this Agreement; provided, however, that this
Agreement does not, and shall not be construed to, alter, amend or change the terms or
provisions of any contract or agreement between the Parties existing on the date hereof
and each such contract and agreement shall remain unaffected and in full force and
effect.
	 
	 	11.5	 	The Exhibits to this Agreement shall constitute an integral part of this
Agreement.
	 
	 	11.6	 	All publicity material, news releases, relating to the signing and execution of
this Agreement, or generally relating to the initiation of operations by the Parties
shall be issued jointly by SES and GTI, or shall be written and issued in another
manner that is mutually agreed to by the Parties through their Project Managers.
	 
	 	11.7	 	Nothing contained in this Agreement shall be construed to create a partnership
or other entity or to imply a joint venture, principal-agent or employee-employer
relationship between the Parties.
	 
	 	11.8	 	Neither Party shall have any power to create any obligation, express or
implied, on behalf of the other Party without such other Party’s prior express written
authorization.
	 
	 	11.9	 	Nothing herein shall grant either Party the right to use the name or marks of
the other Party or any of the other intellectual property rights of the other Party;
any such grant shall be made by separate written agreement between the Parties.




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ARTICLE 12. GOVERNING LAW





	 	12.1	 	THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.





     IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date and year first
written above.



	 	 	 	 	 	 	 	 	 
	GAS TECHNOLOGY INSTITUTE	 	 	 	SYNTHESIS ENERGY SYSTEMS, INC.
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Paul Chromek
	 	 	 	By:
	 	/s/ David Eichinger
	 

	 	 
	 	 	 	 	 	 
	Name: Paul Chromek	 	 	 	Name: David Eichinger
	Title: Secretary	 	 	 	Title: Chief Financial Officer







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EXHIBIT A




PROJECT MANAGERS




SES 




David Eichinger

Phone: (713) 579-0600

Facsimile: (713) 579-0610

6330 West Loop South, Suite 300

Houston, Texas 77401




Gas Technology Institute




Mr. Vann Bush

Phone: (847) 768-0973

Facsimile: (847) 768-0501

1700 S. Mount Prospect Road

Des Plaines, Illinois 60018





 









 








EXHIBIT B

ADDRESSES FOR FORMAL NOTICE




SES 

David Eichinger

Phone: (713) 579-0600

Facsimile: (713) 579-0610

6330 West Loop South, Suite 300

Houston, Texas 77401




Gas Technology Institute




Paul G. Chromek

General Counsel

Phone: (847) 768-0913

Facsimile: (847) 919-6820

1700 S. Mount Prospect Road

Des Plaines, Illinois 60018