EXHIBIT 10.15
American 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 INC.
a Nevada 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 American 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) "American SFD Data" means all SFD Data relating to the sovereign
territory of the United States of America.
(c) "American Prospect" means an area in the sovereign territory of the
United States of America which has been identified, following
interpretation of American 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 American 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 American 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 American 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
American territory to ensure to the Grantee a supply of American 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 American 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 American 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 American 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 the
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United States of America as a proportion of the total value of the
commercially extractible Hydrocarbons identified world-wide.
3. COMMERCIAL EXPLOITATION OF American SFD DATA
Within 180 days after the Grantee has interpreted, or obtained the
interpretation of, the American SFD Data, and has identified an American
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 American 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
American 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 American
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 American
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 American
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 an American 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) an American Prospect, then
the Gross Revenues from such American 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 an American Prospect, and
independently extract and sell Hydrocarbons from such American
Prospect, then the Gross Revenues from such an American Prospect
will be the gross cash flows received by the Grantee and/or its
Subsidiaries from the sale of such Hydrocarbons.
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 an
American 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 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
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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 an American 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 American 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 American Prospect. The obligation to pay
the Licence Fee shall continue following the termination of this Agreement
with respect to any American 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 American
Prospect in such quarter;
(ii) total Gross Revenues collected from each American Prospect in
such quarter;
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(iii) the Licence Fee earned from each American 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 American 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 American
Prospect, and all costs, expenses, and investments in such American
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 American 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
American Prospect acquired by the Grantee and/or its Subsidiaries, which
will grant to the Grantor a security interest in any Gross Revenues
generated by the Grantee and/or its Subsidiaries in such American Prospect.
The grant of the security interest shall not exceed the anticipated
aggregate Licence Fee payable to the Grantor with respect to such American
Prospects.
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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
enforcement is considered in a proceeding in equity or at
law).
(c) No Breach or Conflict
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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
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
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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 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
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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.
(c) Enforcement
(i) Applicable Law
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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
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
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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 INC.
By: /s/ R. Dirk Stinson
-----------------------------
R. Dirk Stinson, President