EXHIBIT 10.14
Canadian SFD Data Licence Agreement
THIS AGREEMENT made as of April 1, 1997
BETWEEN:
PINNACLE OIL INTERNATIONAL INC.
a Nevada corporation whose principal executive
office is located at 380 - 1090 West Georgia Street
Vancouver, B.C., Canada, V6E 3V7
(the "Grantor")
OF THE FIRST PART
AND:
PINNACLE OIL CANADA INC.
a Canadian federal corporation whose principal
executive office is located at #380 - 1090 West
Georgia Street,Vancouver, B.C. V6E 3V7
(the "Grantee")
OF THE SECOND PART
WHEREAS:
1. The Grantor has the worldwide right to the use of certain data known
as SFD Data (hereinafter defined) as it relates to the identification
and exploitation of Hydrocarbons (as hereinafter defined) pursuant to
an agreement dated as of August 1, 1996, and made between (among
others) Momentum Resources Corporation ("Momentum") as the owner of
the technology which generates the SFD Data, and the Grantor (the
"Restated Technology Agreement"), a copy of which is attached to this
Agreement as a Schedule;
2. Pursuant to the Restated Technology Agreement, Momentum has agreed
with the Grantor that it will use its best efforts to survey, using
the Stress Field Detector (as hereinafter defined), certain geographic
areas throughout the world which will have been preselected by both
Momentum and the Grantor from time to time during the term of the
Restated Technology Agreement, and to provide all raw SFD Data
resulting from such surveys to the Grantor for its exclusive use for
the identification and exploitation of Hydrocarbons in accordance with
the terms of the Restated Technology Agreement;
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3. The Restated Technology Agreement further provides that the surveys
are to be conducted by George Liszicasz (the original inventor of the
technology) or, under the general supervision of George Liszicasz, by
such personnel of Momentum as have appropriate levels of training to
enable them to conduct such surveys. Under the Restated Technology
Agreement, Momentum has agreed with the Grantor that it will provide
not less than 500 hours per year of trained manpower to generate the
SFD Data with respect to the pre-selected geographic areas to be
surveyed;
4. The Restated Technology Agreement further provides, (as does the
employment agreement dated as of April 1, 1997, and between the
Grantor and Liszicasz (the "Liszicasz Employment Agreement") that
Liszicasz will be available to provide the required manpower until at
least December 31, 2005, unless Liszicasz is unable to render such
services by reason of death or disability (as that term is defined in
the Liszicasz Employment Agreement);
5. The Restated Technology Agreement also provides that Liszicasz shall
initially interpret all raw SFD Data provided to the Grantor by
Momentum to ascertain whether there is a reasonable likelihood that
there are commercially extractable amounts of Hydrocarbons in any
given surveyed area. Further, Liszicasz and the Grantor have agreed
that they will both use their best efforts to train mutually
acceptable personnel of the Grantor to conduct such interpretation
under the general supervision of Liszicasz as soon as is reasonably
practical;
6. The Restated Technology Agreement also provides that the Grantor may
fulfil its obligation to Momentum to use its best efforts to exploit a
commercially viable area by means of a wholly-owned subsidiary, and
that the Grantor may license any or all of its rights to a wholly-
owned subsidiary;
7. The Grantee is a wholly-owned subsidiary of the Grantor, and the
parties wish to enter into this Licence Agreement with respect to both
the generation and the interpretation of raw Canadian SFD Data (as
hereinafter defined), and to the exploitation of Hydrocarbons
identified by such interpretation.
NOW THIS AGREEMENT WITNESSES that in consideration of the premises the parties
covenant and agree as follows:
1. DEFINITIONS
In this Agreement:
(a) The terms "Hydrocarbons", "SFD Data", "SFD Technology" and "Stress
Field Detector" shall have the meanings ascribed to them in paragraph
1 of the Restated Technology Agreement;
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(b) "Canadian SFD Data" means all SFD Data relating to the sovereign
territory of Canada.
(c) "Canadian Prospect" means an area in the sovereign territory of Canada
which has been identified, following interpretation of Canadian SFD
Data, as one in which there is a reasonable likelihood of commercially
extractible amounts of Hydrocarbons.
(d) "Subsidiaries" means any subsidiary of a party (or subsidiary of a
subsidiary of a party) regardless of form of entity, such as a
corporation, partnership, limited partnership, or limited liability
company, with the exception of joint ventures and third party
arrangements described in this Agreement.
2. GRANT OF LICENCE FOR CANADIAN SFD DATA
2.1 In consideration of the licence fee set out in paragraph 4, the Grantor
hereby grants to the Grantee an exclusive licence, for the periods set out
in paragraph 6, to use and exploit the Canadian SFD Data generated by
Momentum for the Grantor under the Restated Technology Agreement.
2.2 By way of fulfilling its obligation under this Licence Agreement to
supply an amount of Canadian SFD Data sufficient for the Grantee to
commercially exploit the Hydrocarbons identified using such data, the
Grantor covenants with the Grantee that, when pre-selecting Designated
Search Areas together with Momentum under the provisions of paragraph 2 of
the Restated Technology Agreement, the Grantor will at all times during the
term of this Licence Agreement use its best efforts to select sufficient
surveys in Canadian territory to ensure to the Grantee a supply of Canadian
SFD Data sufficient to enable the Grantee to carry on a commercially viable
business, and to fulfil its obligations under all agreements with third
parties respecting the use of Canadian SFD Data.
2.3 The Grantor will also use its best efforts to ensure the availability
to the Grantee of the services of Liszicasz to interpret or cause to be
interpreted, for the benefit of the Grantee, the Canadian SFD Data supplied
under this Licence Agreement. To better secure the availability of
Liszicasz or other trained personnel for such purposes, the Grantee may
itself enter into appropriate employment contracts with Liszicasz and/or
such other trained personnel. In determining the amount of time which
Liszicasz and/or other trained personnel must devote to the interpretation
of the Canadian SFD Data, as a proportion of world-wide SFD Data, the
parties will act reasonably, basing the determination on, among other
things:
(a) the obligations of the Grantee under third party agreements, to the
extent that the Grantor has been made aware of such obligations; and
(b) an estimate of the value of commercially extractable Hydrocarbons
identified in Canada as a proportion of the total value of the
commercially extractible
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Hydrocarbons identified world-wide.
3. COMMERCIAL EXPLOITATION OF CANADIAN SFD DATA
Within 180 days after the Grantee has interpreted, or obtained the
interpretation of, the Canadian SFD Data, and has identified a Canadian
Prospect, the Grantee will, either directly or indirectly through joint
ventures and/or other third parties, use its best efforts to commercially
and economically exploit the Canadian Prospect. Such exploitation may
occur through one or a combination of the following, as selected by the
Grantee in its reasonable discretion:
(i) the direct acquisition by the Grantee and/or a wholly owned
Subsidiary of the legal rights for the further exploitation,
development and production of Hydrocarbons with respect to the
Canadian Prospect;
(ii) the indirect acquisition of such rights through joint ventures
or other arrangements with third parties; and/or
(iii) the sale by the Grantee and/or its joint venture partners of
such rights.
The Grantee will use its best efforts to commercially exploit the Canadian
Prospect through one or more of the foregoing methods, and will diligently
pursue such efforts unless it is not, in the opinion of either the Grantee
or the Grantor, commercially reasonable to make any such acquisition and/or
pursue such exploration development and/or production and/or enter into any
such agreement with a joint venture partner and/or other third parties.
4. LICENCE FEE
4.1 AMOUNT OF FEE
In consideration of this grant of the licence with respect to the Canadian
SFD Data, the Grantee shall pay to the Grantor a fee (the "Licence Fee")
equal to 50% of the "Gross Revenues" (as such term is defined below)
actually received by the Grantee and/or its Subsidiaries with respect to
the commercial exploitation of the Hydrocarbons identified in each Canadian
Prospect.
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4.2 GROSS REVENUES DEFINED
The term "Gross Revenues" generally means the aggregate of all gross
revenues received by the Grantee and/or its Subsidiaries from the
commercial exploitation of Hydrocarbons calculated by way of example and
not limitation as follows:
(i) If the Grantee and/or its Subsidiaries indirectly acquire
the legal rights for the further exploration, development
and production of Hydrocarbons with respect to a Canadian
Prospect through joint ventures and/or other arrangements
with third parties, then the Gross Revenues will mean the
cash flows received by the Grantee and/or its Subsidiaries
from such joint venture and/or third party, whether from
the sale of Hydrocarbons or the sale by the joint venture
and/or third party of its interest in such legal rights.
(ii) If the Grantee and/or its Subsidiaries sell or transfer
the legal rights for (or "leads" relating to) a Canadian
Prospect, then the Gross Revenues from such Canadian
Prospect will be the gross consideration received by the
Grantee and/or its Subsidiaries as a result of such sale
or transfer.
(iii) If the Grantee and/or its Subsidiaries directly acquire
the legal rights for the further exploration, development
and productions of Hydrocarbons with respect to a Canadian
Prospect, and independently extract and sell Hydrocarbons
from such Canadian Prospect, then the Gross Revenues from
such a Canadian Prospect will be the gross cash flows
received by the Grantee and/or its Subsidiaries from the
sale of such Hydrocarbons.
(iv) In the case of the agreement between Encal Energy Ltd. and
the Grantor, Gross Revenues means all payments of any kind
to which the Grantor (or through the Grantor, the Grantee)
is entitled under that agreement.
The Grantee and/or its Subsidiaries acknowledge and agree that they
shall not be entitled to deduct any expenses, costs, capital or equity
investment and/or loans against any calculation of Gross Revenues when
determining the Licence Fee owing to the Grantor (such as acquisition,
development, extraction, marketing and/or distribution costs which
would be incurred should the Grantee and/or its Subsidiaries directly
exploit the Prospect without joint venture partners), it being
understood that the Grantor has an interest in Gross Revenues
generated from the Hydrocarbons identified in a Canadian Prospect
without offset or deduction. Notwithstanding the foregoing, the
Grantor understands and agrees that Gross Revenues arising from
distributions from joint ventures and/or third party arrangements
may, based upon the
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terms and conditions of such arrangements, be made after the joint
venture has deducted costs, expenses and reserves, or repaid capital
provided by the joint venture and/or other third party, and the
Grantor further agrees that it shall have no right to "gross up" the
Gross Revenues to reflect the pre-distribution deduction by the joint
venture or other third party of such costs, expenses and reserves
and/or repayment of capital.
The parties further acknowledge that the foregoing examples are merely
examples, and do not fully reflect many methods by which the Grantee
may commercially and economically exploit a Canadian Prospect, with
and without the participation of joint venture and/or other third
parties. Accordingly, the parties agree that the Licence Fee shall be
liberally interpreted to apply to each and every transaction by which
the Grantee and/or any of its Subsidiaries exploit the Canadian
Prospect to ensure that the Grantor receives such equitable portion of
the total return received by the Grantee and/or its Subsidiaries as to
enable the Grantor to receive the benefit of its bargain, subject to
avoidance of duplicative payments by the Grantee and its Subsidiaries.
In order to avoid any disputes or misunderstandings, the parties agree
to use their best efforts, while the Grantee is formulating its
proposed method to exploit a Prospect, to outline in writing, prior to
committing to such method, the economics of the proposed method of
exploitation consistent with the terms of this Agreement. Should the
parties be unable to agree upon such economics, they agree that such
issue shall be resolved by arbitration (an "Arbitration Proceeding")
before the American Arbitration Association (the "Arbitration
Authority") located in Carson City, Nevada, according to the rules and
practices of the Arbitration Authority from time-to-time in force,
unless the parties mutually agree upon a different Arbitration
Authority and/or different location for such Arbitration Proceeding.
4.3 TERMS OF PAYMENT OF LICENCE FEE
The Licence Fee shall be paid to the Grantor within 15 days of the end of
each quarter in which the Grantee and/or any of its Subsidiaries collect
Gross Revenues with respect to any Canadian Prospect. The obligation to
pay the Licence Fee shall continue following the termination of this
Agreement with respect to any Canadian Prospect for which the Licence Fee
was provided by the Grantor to the Grantee on or before the effective date
of such termination.
4.4 REPORTS
Within 15 days after the end of each quarter, irrespective of whether any
Gross Revenues have been collected by the Grantee and/or any of its
Subsidiaries or whether any sum is then due to the Grantor, the Grantee
shall deliver to the Grantor a complete and accurate written statement
setting forth;
(i) total Gross Revenues earned or accrued from each Canadian
Prospect in such quarter;
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(ii) total Gross Revenues collected from each Canadian Prospect
in such quarter;
(iii) the Licence Fee earned from each Canadian Prospect in such
quarter;
(iv) the Grantee's calculation of the amount of the Licence Fee
then due the Grantor for the period covered by such
report; and
(v) such other information reasonably requested by the Grantor
with respect to each Canadian Prospect, in specific detail
so as to allow an audit of underlying documents.
4.5 BOOKS AND RECORDS
During the period that the Grantee shall be obligated to pay to the Grantor
a Licence Fee, the Grantee shall keep or cause to be kept accurate,
complete and up-to-date books of accounts separately stating records of all
revenues earned, accrued and/or collected with respect to each Canadian
Prospect, and all costs, expenses, and investments in such Canadian
Prospect.
4.6 INSPECTION
During the period that the Grantee and/or its Subsidiaries shall be
obligated to pay to the Grantor the Licence Fee, the Grantor or its
authorized representatives shall have the right to inspect all records of
the Grantee and/or its Subsidiaries with respect to the Canadian Prospect,
and to make copies of said records utilizing the facilities the Grantee
and/or its Subsidiaries without charge, and shall have free and full access
thereto on reasonable notice during the normal business hours of the
Grantee and/or its Subsidiaries. If such inspection or audit reveals an
underpayment by the Grantee and/or its Subsidiaries of the Licence Fee
and/or any other amounts then due to the Grantor under this Agreement, the
Grantee and/or its Subsidiaries shall upon written notice pay to the
Grantor the balance of all such amounts found to be due pursuant to such
audit inspection, together with interest thereon at the "best commercial
customer" rate of the largest bank in terms of assets in the eleventh
district of the Federal Reserve, plus 4% per annum from the date such
amounts first became due to the Grantor, until all such amounts have been
paid in full. If such inspection or audit discloses that, for the annual
period reviewed or audited, the Grantee has underpaid or understated its
Licence Fee obligation under this Agreement by 5% or more, then the Grantee
shall also pay the reasonable professional fees of the independent
representatives engaged to conduct or review such inspection or audit.
4.7 SECURITY INTEREST GRANTED TO THE GRANTOR
As security for the Grantee's obligation to pay the Licence Fee to the
Grantor, the Grantee agrees to execute a Security Agreement in a form
reasonably acceptable to the Grantor with respect to any interest in any
Canadian Prospect acquired by the Grantee and/or its
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Subsidiaries, which will grant to the Grantor a security interest in any
Gross Revenues generated by the Grantee and/or its Subsidiaries in such
Canadian Prospect. The grant of the security interest shall not exceed the
anticipated aggregate Licence Fee payable to the Grantor with respect to
such Canadian Prospects.
5. TERM OF LICENCE
The term of the licence granted under this Agreement will correspond in all
respects, including provisions for extension and for early termination,
with the term of the Restated Technology Agreement.
6. REPRESENTATIONS AND WARRANTIES OF PARTIES
Each of the parties to this Agreement hereby represents and warrants to
each of the other parties of this Agreement, each of which is deemed to be
a separate representation and warranty, as follows:
(a) ORGANIZATION, POWER AND AUTHORITY
Such party, if an entity, is duly organized, validly existing and
in good standing under the laws of its state, territory or
province of incorporation or organization, and has all requisite
corporate or other power and authority to enter into this
Agreement.
(b) AUTHORIZATION AND VALIDITY OF AGREEMENT
The execution and delivery of this Agreement by such party, and
the performance by such party of the transactions herein
contemplated, have, if such party is an entity, been duly
authorized by its governing organizational documents, and are not
prohibited by its governing organization documents, and no
further corporate or other action on the part of such party is
necessary to authorize this Agreement, or the performance of such
transactions. This Agreement has been duly executed and
delivered by such party and, assuming due authorization,
execution and delivery by all of the other parties hereto, is
valid and binding upon such party in execution and delivery by
all of the other parties hereto, is valid and binding upon such
party in accordance with its terms, except as limited by:
(i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect
relating to creditor rights generally; and
(ii) general principles of equity (regardless of whether
such
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enforcement is considered in a proceeding in equity
or at law).
(c) NO BREACH OR CONFLICT
Neither the execution nor delivery of this Agreement, nor the
performance by such party of the transactions contemplated
herein:
(i) if such party is an entity, will breach or conflict
with any of the provisions of such party's governing
organizational documents; nor
(ii) to the best of such party's knowledge and belief,
will violate or constitute an event of default under
any agreement or other instrument to which such party
is a party.
7. INDEMNIFICATION; DEFENSE OF THIRD-PARTY CLAIMS
The provisions of paragraph 12 of the Restated Technology Agreement
entitled "Indemnification; Defense of Third-Party Claims" apply to this
Agreement.
8. MISCELLANEOUS
(a) COOPERATION
Each party agrees, without further consideration, to cooperate and
diligently perform any further acts, deeds and things, and to execute
and deliver any documents that may be reasonably necessary or
otherwise reasonably required to consummate, evidence, confirm and/or
carry out the intent and provisions of this Agreement, all without
undue delay or expense.
(b) INTERPRETATION
(i) SURVIVAL
All representations and warranties made by any party in
connection with any transaction contemplated by this
Agreement shall, irrespective of any investigation made by
or on behalf of any other party hereto, survive the
execution and delivery of this Agreement, and the
performance or consummation of any transaction described
in this Agreement.
(ii) ENTIRE AGREEMENT/NO COLLATERAL REPRESENTATIONS
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Each party expressly acknowledges and agrees that this
Agreement, and the agreements and documents referenced
herein;
(i) is the final, complete and exclusive statement of
the agreement of the parties with respect to the
subject matter hereof;
(ii) supersedes any prior or contemporaneous agreements,
memorandums, proposals, commitments, guaranties,
assurances, communications, discussions, promises,
representations, understandings, conduct, acts,
courses of dealing, warranties, interpretations or
terms of any kind, whether oral or written, and
that may such prior agreements are of no force or
effect except as expressly set forth herein; and
(iii) may not be varied, supplemented or contradicted by
evidence of prior agreements, or by evidence of
subsequent oral agreements.
No prior drafts of this Agreement, and no words or phrases
from any prior drafts, shall be admissible into evidence
in any action or suit involving this Agreement.
(iii) AMENDMENT; WAIVER; FORBEARANCE
Except as expressly provided otherwise herein, neither
this Agreement nor any of the terms, provisions,
obligations or rights contained herein, may be amended,
modified, supplemented, augmented, rescinded, discharged
or terminated (other than by performance), except by a
written instrument or instruments signed by all of the
parties to this Agreement. No waiver of any breach of any
term, provision or agreement contained herein, or of the
performance of any act or obligation under this Agreement,
or of any extension of time for performance of any such
act or obligation, or of any right granted under this
Agreement, shall be effective and binding unless such
waiver shall be in a written instrument or instruments
signed by each party claimed to have given or consented to
such waiver and each party affected by such waiver. Except
to the extent that the party or parties claimed to have
given or consented to a waiver may have otherwise agreed
in writing, no such waiver shall be deemed a waiver or
relinquishment of any other term, provision, agreement,
act, obligation or right granted under this Agreement, or
any preceding or subsequent breach thereof. No forbearance
by a party to seek a remedy for any noncompliance or
breach by another party hereto shall be deemed to be a
waiver by such forbearing party of its rights and remedies
with
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respect to such noncompliance or breach, unless such
waiver shall be in a written instrument or instruments
signed by the forbearing party.
(iv) REMEDIES CUMULATIVE
The remedies of each party under this Agreement are
cumulative and shall not exclude any other remedies to
which such party may be lawfully entitled.
(v) SEVERABILITY
If any term or provision of this Agreement or the
application thereof to any person or circumstance shall,
to any extent, be determined to be invalid, illegal or
unenforceable under present or future laws, then, and in
that event:
(i) The performance of the offending term or provision
(but only to the extent its application is invalid,
illegal or unenforceable) shall be excused as if it
had never been incorporated into this Agreement,
and in lieu of such excused provision, there shall
be added a provision as similar in terms and amount
to such excused provisions as may be possible and
be legal, valid and enforceable; and
(ii) The remaining part of this Agreement (including the
application of the offending term or provision to
persons or circumstances other than those as to
which it is held invalid, illegal or unenforceable)
shall not be affected thereby, and shall continue
in full force and effect to the fullest extent
provided by law.
(vi) PARTIES IN INTEREST
Notwithstanding anything else to the contrary herein,
nothing in this Agreement shall confer any rights or
remedies under or by reason of this Agreement on any
persons other than the parties hereto and their respective
successors and assigns, if any, as may be permitted
hereunder, nor shall anything in this Agreement relieve or
discharge the obligation or liability of any third party
to any party to this Agreement, nor shall any provision
give any third person any right of subrogation or action
over or against any party to this Agreement.
Notwithstanding the prior sentence, the parties
acknowledge that the subsidiaries of the Grantee and the
Grantor and their respective successors and assigns are a
third party beneficiary of this Agreement.
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(c) ENFORCEMENT
(i) APPLICABLE LAW
This Agreement and the rights and remedies of each party
arising out of or relating to this Agreement (including,
without limitation, equitable remedies) shall (with the
exception of the applicable securities laws) be solely
governed by, interpreted under, and construed and enforced
in accordance with the laws (without regard to the
conflicts of law principles) of the State of Nevada, as if
this Agreement were made, and as if its obligations are to
be performed, wholly with in the State of Nevada.
(ii) CONSENT TO JURISDICTION: SERVICE PROCESS
Any "action or proceeding" (as such term is defined below)
arising out of or relating to this Agreement shall be
filed in and heard and litigated solely before the state
courts of Nevada. Each party generally and unconditionally
accepts the exclusive jurisdiction of such courts and
venue therein; consents to the service of process in any
such action or proceeding by certified or registered
mailing of the summons and complaint in accordance with
the notice provisions of this Agreement; and waives any
defense or right to object to venue in said courts based
upon the doctrine of "forum non conveniens" the Term
"action or proceeding" is defined as any and all claims,
suits, actions, hearings, arbitrations or other similar
proceedings, including appeals and petitions therefrom,
whether formal or informal, governmental or non-
governmental, or civil or criminal.
(iii) WAIVER OF RIGHTS TO JURY TRIAL
Each party hereby waives such party's respective right to
a jury trial of any claim or cause of action based upon or
arising out of this Agreement. Each party acknowledges
that this waiver is a material inducement to each other
party hereto to enter into the transaction contemplated
hereby; that each other party has already relied upon this
waiver in entering into this Agreement; and that each
other party will continue to rely on this waiver in their
future dealings. Each party warrants and represents that
such party has reviewed this waiver with such party's
legal counsel, and that such party has knowingly and
voluntarily waived its jury trial rights following
consultation with such legal counsel.
(d) ASSIGNMENT
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Provided in this Agreement the Grantee may not sell, license, transfer
or assign (whether direct or indirect, merger, consolidations,
conversion, sale of assets, sale or exchange of securities, or by
operation of law, or otherwise) any of its rights or interests or
delegate its duties or obligations under this Agreement, in whole or
in part, including to any Subsidiary or any Affiliate, without the
prior written consent of the Grantee which consent may be withheld in
such other party's sole discretion.
(e) COUNTERPARTS; ELECTRONICALLY TRANSMITTED DOCUMENTS
This Agreement may be executed in counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and
the same instrument, binding on all parties hereto. Any signature
page of its Agreement may be detached from any counterpart of this
Agreement and reattached to any other counterpart of this Agreement
identical in form hereto by having attached to it one or more
additional signature pages. If a copy or counterpart of this
Agreement is originally executed and such copy or counterpart is
thereafter transmitted electronically by facsimile or similar device,
such facsimiled document shall for all purposes be treated as if
manually signed by the party whose facsimile signature appears.
WHEREFORE, the parties hereto have, for purposes of this Agreement,
executed this Agreement in Vancouver, British Columbia, Canada, as of the date
first herinabove set forth.
THE GRANTOR PINNACLE OIL INTERNATIONAL INC.,
a Nevada corporation
By: /s/ R. Dirk Stinson
--------------------------------
R. Dirk Stinson, President
THE GRANTEE PINNACLE OIL CANADA INC.
By: /s/ R. Dirk Stinson
-------------------------------
R. Dirk Stinson, President