Pre-Effective Amendment to Registration of Securities Issued in a Business-Combination Transaction · Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4/A Registration Statement 94 341K
2: EX-2.01 Agreement and Plan of Merger 22 117K
3: EX-3.1 Articles 4 17K
4: EX-3.2 By-Laws 15 59K
5: EX-5.01 Opinion of Counsel 1 15K
6: EX-10.01 Agreement for Design, Supply of Plant 82 308K
7: EX-10.02 Agreement for Design, Supply of Plant 10 35K
8: EX-10.03 Agreement for Design, Supply of Plant 8 32K
9: EX-10.04 Kloberville Agreement 38 173K
10: EX-10.05 Agreement Between Sayed Hamid Behbehani 11 43K
11: EX-10.06 Menmorandum of Understanding - First Right 1 14K
12: EX-10.07 Memorandum of Understanding - Commission Fees 1 14K
13: EX-10.08 Agreement to Supply 33 78K
14: EX-10.09 Agreement to Supply Electrical Items 29 71K
15: EX-10.10 Note Agreement With Kuwait 5 40K
16: EX-10.12 Line of Credit Agreement 1 13K
17: EX-10.13 Credit Agreement - Hongkong and Shanghai 17± 69K
18: EX-10.14 Lease of Tinian Land 10 31K
19: EX-10.15 Employment Agreement With K.J. 6 34K
20: EX-10.16 Employment Agreement With Nidal 6 33K
21: EX-10.17 401k 13 53K
22: EX-23.1 Consent of Accountants 1 13K
23: EX-23.2 Consent of Williams 1 15K
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Exhibit 10.05
Agreement between Sayed Hamid Behbehani
SHBC-TELESOURCE
CONTRACT OF AGREEMENT
This agreement is hereby entered into by and between Sayed Hamid
Behbehani & Sons Co. which is a corporation duly organized and existing under
the laws of the State of Kuwait (herein after referred to as "Company"), and
Telesource CNMI Inc. (herein after referred to as "Subcontractor").
Witnesseth that, whereas Company desires to utilize the services of the
Subcontractor and the Subcontractor desires to provide those services, now
therefore in consideration of the promises contained herein Company and the
Subcontractor do mutually agree as follows.
1. The Subcontractor, acting as an independent contractor and not as an
agent, representative, or employee of Company, shall build on a turn-key basis
all the necessary facilities (as described in the attached VOA RFP), with its
own personnel and building equipment and shall otherwise do all things necessary
or incident to the performance of the services as agreed upon herein. Attached
hereto and made a part hereof is the latest version of the Request for Proposal
issued by the United States Information Agency. All parts of this RFP which are
relevant to Subcontractors scope of work are hereby identified as the Statement
of Work. The Subcontractors scope of work excludes the provision of all major
equipment and supplies necessary for the completion of the project: such as
buildings, transmitters, fuel tanks, towers, antennas, cable, diesel generators,
water treatment systems, etc., and all related ancillary equipment and supplies.
These items will be provided by the Company and shipped to Saipan/Tinian by the
Company for the "custody" of Subcontractor. It is acknowledged by both parties
that by the time the referenced equipment arrives in the CNMI it has been paid
for by the Voice Of America, and that rightful title to said equipment lies with
the Voice Of America. Upon receipt of said equipment, Subcontractor will act in
a fiduciary capacity to the Voice Of America and the Company, and will handle
the equipment accordingly. Subcontractor will transport the equipment to the
project site and commence with the erection and installation process as per the
terms and conditions of this Agreement.
2. The services to be performed by the Subcontractor shall
commence on November 1,1996 and shall continue through March 1,1999. This period
includes time for the delivery of all required items including the final report
unless otherwise specifically stated elsewhere in this agreement.
3. This is a cost-plus-fixed-fee technical services agreement. It is
estimated that the total cost of the work under this agreement will be $
2,000,000 (Two Million Dollars), which includes an estimated cost of
$1,850,000,( One Million Eight Hundred and Fifty Thousand Dollars) and a fixed
fee of $ 150,000 (One Hundred and Fifty Thousand Dollars). Unless the agreement
is incrementally funded as noted elsewhere, this is the amount presently
authorized.
For performance of this agreement, Company shall pay to the
Subcontractor in consideration for its efforts the incurred costs and fixed fee
thereof determined to be allowable in accordance with Federal Acquisition
Regulation 52.216-07 and 52.216-08. Payment on account of allowable costs shall
not in the aggregate exceed the amount authorized.
Whenever the Subcontractor has reason to believe that the total cost of
the work under this agreement will be greater or substantially less than the
amount authorized, the
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Subcontractor shall promptly notify the Company in writing when the aggregate of
expenditures plus outstanding commitments and liabilities allowable is equal to
85 percent of the amount then authorized. When such expenditures and outstanding
commitments and liabilities equal 100 percent of such amount, the Subcontractor
shall make no further commitments or expenditures and shall be excused form
further performance of the work unless and until the Company thereafter shall by
written notice increase the amount authorized.
The Subcontractor may bill on each invoice the amount of fee bearing the same
percentage to the total fixed fee as the amount of cost billed bears to the
total estimated cost. After payment of 85 percent of the fixed fee set forth
above, Company will temporarily withhold further payment of fee. This reserve
will not be paid until the Subcontractor has complied with all material
requirements of this agreement. The reserve will not accrue any interest.
4. This agreement is a completion type wherein the technical effort
and deliverables are required to be provided as part of the effort. In the event
that the technical effort and one or more of the deliverables cannot be provided
within the estimated cost, Company can elect to provide additional funds in an
amount mutually agreed to so that the technical effort can be completed and the
deliverables provided. In no event, however, will any additional fee/profit be
paid on any such additional funds.
5. This agreement is incrementally funded. Total funds in the amount
of $1,000,000 (One Million Dollars). are presently available for payment of
allowable costs. Until such time that additional funds are committed, the
Subcontractor shall not incur costs nor will Company be liable for costs in
excess of this amount. Costs referred to in this paragraph include a
proportionate profit/fee, if applicable to this agreement.
6. The Subcontractor's obligation under this agreement is to
diligently pursue all required work and to provide all required reports and
other deliverables, if any, within the parameters of the level of effort
described herein.
7. The Subcontractor shall submit invoices to Company in its Kuwait
office. Invoices shall reflect the agreement number. Invoice terms are net 30
days. Each item of equipment having an acquisition cost of $500 or more that is
purchased shall be itemized separately. The final invoice should be marked
"Final Invoice."
8. Company may at any time, by written notice to the Subcontractor,
terminate this agreement, in whole or in part, either for the convenience of
Company or Company's prime contract sponsor or because of the failure of the
Subcontractor to fulfill its obligations. Any such action shall be in accordance
with the FAR termination clause of this agreement. However, in order to allow
Company time to complete its final termination settlement proposal, the
Subcontractor shall submit its proposal promptly but no later than nine (9)
months from the effective date of termination unless this period is extended in
writing by Company. In no event will payments be made for anticipatory profits
or consequential damages as a result of a termination of this agreement. This is
in conformance with the Federal Government's policy as set forth in Federal
Acquisition Regulation 49.108-3(a) and 49.108-5(a).
287
9. Any controversy upon a question of fact and/or law pertaining to
this agreement or the performance thereof, which cannot be satisfactorily
adjusted between the parties hereto, shall be decided by recourse to any
available legal, equitable, or administrative remedies. Pending final resolution
of any request for relief, claim, appeal, or action arising under the agreement,
the Subcontractor shall diligently proceed with the performance of this
agreement unless directed by Company. This article shall to be considered to
give the Subcontractor any Rights under the "Disputes" clause of Company's prime
government contract. If as a result of any decision or judgment (including a
government audit of the Subcontractor's books and records) which is binding upon
the Subcontractor and Company, Company is unable to obtain reimbursement from
the Government under the prime contract for, or if required to refund or credit
to the Government, any amount with respect to any item of cost or fee for which
Company has reimbursed Subcontractor, the Subcontractor shall, on demand,
promptly repay such amount to Company. The rights and obligations described
herein shall survive completion of and final payment under this agreement.
10. Company, through any authorized representative, has the right, at
all reasonable times, to inspect, or otherwise evaluate the work performed or
being performed hereunder and the premises where it is being performed. . All
inspections and evaluations shall be performed in such a manner as will not
unduly delay the work.
11. Company may at any time, by written order to the Subcontractor,
require the Subcontractor to stop all, or any part, of the work called for by
this agreement for a period of up to ninety days. Upon receipt of such an order,
the Subcontractor shall forthwith comply with its terms and take all reasonable
steps to minimize the incurrence of costs allocable to the work covered by the
order during the period of work stoppage. Within the ninety-day period or any
extension of that period to which the parties shall have agreed, Company shall
either (i) cancel the stop work order, or (ii) terminate the work covered by
such order.
If a stop work order is canceled in writing, the Subcontractor shall
resume work. If the period of the order or any extension thereto merely expires,
the Subcontractor shall contact Company and ask for directions before resuming
work or treating the silence as a termination for convenience. An equitable
adjustment shall be made in the delivery schedule and/or estimated cost and
fixed fee, and the agreement shall be modified in writing accordingly, if (I)
the stop work order results in an increase in the time required for, or in the
Subcontractor's costs properly allocable to, the performance of any part of this
agreement within twenty (20) days after the end of the period of work stoppage.
If a stop work order is not canceled and the work covered is
terminated for the convenience of Company and/or its prime contract sponsor, the
reasonable costs resulting from the stop work order shall be allowed in arriving
at the termination settlement in accordance with FAR 52.249-06.
12. This agreement shall be governed and construed in all respects by
federal contract law as enunciated and applied by federal statutes and
regulations and by federal judicial bodies, boards of contract appeals, and
other judicial and quasi-judicial agencies of the federal government.
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13. The attached close-out report must be filled out, signed, dated,
and returned to the Company at the end of the period of performance of the
agreement.
14. If requested by the Company, Subcontractor agrees to close out
this agreement in accordance with the procedures established in Federal
Acquisition Regulation (FAR) 42.708. As such, the Subcontractor will negotiate
the settlement of indirect costs in advance of the determination of its final
indirect costs rates if
(a) the agreement is physically complete;
(b) the amount of unsettled indirect cost to be allocated to the
agreement is relatively insignificant; and (c) agreement can be
reached on a reasonable estimate of allocable dollars.
The provisions providing for allowable costs and payments that are a
part of this agreement will be applied, as necessary, in this procedure.
15. It is agreed that this effort is not of a research and development
nature and there is no expectation that any "invention" (defined as any
discovery which is or may be patentable or otherwise protectable under Title 35
of the United States Code) of the Subcontractor will be conceived or first
actually reduced to practice in the performance of work under this agreement.
16. The sponsor of Company's prime contract under which this work is
being funded is The United States Information Agency. The prime contract number
is IA 2101-C 6234574.
17. FAR 52.243-2, Changes - Cost Reimbursement, is hereby changed to
the extent that the time for submitting a proposal is 20 days, not 30, so that
Company will have time to prepare the proposal under its prime contract.
18. This agreement may not be assigned, in whole or in part, nor may
any assignment of any money due or to become due be made by the Subcontractor
without, in each case, the prior written consent of Company.
19. The provisions of the FAR listed below and other attached articles
and provisions, if any, as applicable, and as in effect on the date of the award
of this agreement by Company (except as required to be changed by statute), are
incorporated in this agreement by reference with the same force and effect as
though herein set forth in full. All such clauses shall, with respect to the
rights, duties and obligations of Company and the Subcontractor hereunder, be
interpreted and construed in such manner as to recognize and give effect to the
contractual relationship between Company and the Subcontractor under this
agreement and the rights of the U.S. Government with respect thereto under the
Prime Contract from which the agreement is being funded. As used therein the
term "the Contractor" and equivalent terms shall mean the Subcontract and the
terms "the Government" and "the Contracting Officer" and equivalent terms shall
include the Company and the Company's authorized representative hereunder,
respectively, except under those clauses relating to the rights to audit or
examine the Subcontractor's financial records, and all other clauses noted with
an asterisk (*), in which
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case the terms "the Government" and "the Contracting Officer" shall
mean the U.S. Government and the Contracting Officer under the Prime
Contract, respectively. The word "contract" and like terms shall mean
this agreement.
Federal Acquisition Regulations (FAR)
Cost-Plus-Fixed-Fee
52.202-01 Definitions
52.203-01 Officials Not to Benefit
52.203-03 Gratuities
52.203-05 Covenant Against Contingent Fees
52.212-08 Priorities, Allocations, and Allotments
52.215-01 Examination of Records by Comptroller General
52.215-02 Audit - Negotiation
52.215-22 Price Reduction for Defective Cost or Pricing Data
52.215-23 Price Reduction for Defective Cost or Pricing Data-
Modification
52.215-24 Subcontractor Cost or Pricing Data
52.215-25 Subcontractor Cost or Pricing Data - Modification
52.215-30 Waiver of Facilities Capital Cost of Money
52.216-07 Allowable Cost and Payment
52.216-08 Fixed Fee
52.219-08 Utilization of Small Business Concerns and Small
Disadvantaged
Business Concerns
52.219-13 Utilization of Women-Owned Small Businesses
52.220-01 Preference for Labor Surplus Area Concerns
52.220-03 Utilization of Labor Surplus Area Concerns
52.222-02 Payment for Overtime Premiums "overtime premium
cost does
Not exceed ZERO."
52.222-03 Convict Labor
52.222-26 Equal Opportunity
52.222-35 Affirmative Action for Special Disabled and Vietnam
Era Veterans
52.222-36 Affirmative Action for Handicapped Workers
52.227-01 Authorization and Consent - Alternative I
52.227-02 Notice and Assistance Regarding Patent and Copyright
Infringement
52.227-7013 Rights in Technical Data and Computer Software
52.227-7018 Restrictive Markings on Technical Data
52.227-7029 Identification of Technical Data
52.227-7030 Technical Data - Withholding of Payment
52.228-07 Insurance - Liability to Third Persons
52.230-3 Cost Accounting Standards
52.230-4 Administration of Cost Accounting Standards
52.231-7000 Supplemental Cost Principles
52.232-09 Limitation on Withholding of Payments
52.232-17 Interest
52.232-20 Limitation of Cost
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52.232-23 Assignment of Claims
52.242-01 Notice of Intent to Disallow Costs
521.242-7000 Submission of Commercial Freight Bills to the
General Services
Administration for Audit
52.243-2 Changes - Cost Reimbursement - Alternative V
52.243-7001 Pricing of Adjustments
52.244-02 Subcontracts under Cost-Reimbursement and Letter
Contracts
52.245-05 Government Property (Cost Reimbursement,
Time-and-Material, or
Labor-Hour Contracts)
52.247-01 Commercial Bill of Lading Notations
52.249-06 Termination (Cost Reimbursement)
52.249-14 Excusable Delays
52.251-7000 Ordering from Government Supply Sources
291
APPENDIX
Close-out Report
SUBCONTRACTOR NO.:
SUBCONTRACTOR:
INSTRUCTIONS: Complete and return to: Sayed Hamid Behbehani & Sons
Co. C/O Nidal
Z. Zayed 180 North LaSalle St. Chicago II. USA 60601, at the end of the period
of performance of the agreement.
A. Property Certificate
The Subcontractor hereby certifies that, with respect to any property
furnished by Company and/or the Government or purchased under this agreement and
in compliance with any and all agreement provisions relating to such property,
the following applied (check one as appropriate):
--- The Subcontractor has Government and/or Company property or
scrap. (A property inventory form will be provided to the
Subcontractor by Company when this form is returned.)
--- The Subcontractor has disposed of all Government and/or
Company property and any generated scrap in accordance with
Company instructions and the terms of this agreement.
--- No Government or Company property was furnished, purchased, or
otherwise acquired by the Subcontractor or his lower tier
subcontractors under this agreement.
Signed: _____________________ Date: ____________________
Printed Name and Title: _________________________________________
B. Subcontractor's Release of Claims and Assignments of Refunds, Rebates, and
Credits.
1. Pursuant to the terms of this agreement and in consideration
thereof which has been or is to be paid under the said agreement, the
Subcontractor or its assignees, if any, upon payment of said consideration, does
remise, release, and discharge Company and the U.S. Government (including their
officers, agents, and employees) of and from all liabilities, obligations,
claims, and demands whatsoever under or arising from this agreement except:
a. Specified claims in stated amounts or in estimated amounts
where the amounts are not susceptible of exact statements by
the Subcontractor, as follows.
b. Claims, together with reasonable expenses incidental
thereto, based upon the liabilities of the Subcontractor to
third parties arising out of the performance of
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this agreement, which are not known to the Subcontractor on
the date of the execution of this release and of which the
Subcontractor gives notice in writing to Company within the
period specified in said agreement, and provided further, that
the Subcontractor gives notice of such claims in writing to
Company not more than five (5) years after the date of this
release or the date of any notice to the Subcontractor that
Company is prepared to make final payment, whichever is
earlier.
c. Claims for reimbursement of costs, including reasonable
expenses incidental thereto, incurred by the Subcontractor
under any provision of this agreement relating to patents.
d. If there is included in the agreement a provision concerning
"Data Requirements," claims pursuant to such provision where a
written request by Company and/or the U.S. Government to
furnish data is made within the one-year period after final
payment.
The Subcontractor agrees, in connection with patent matters and with
claims which are not released as set forth above, that it will comply with all
provisions of this agreement, including without limitations those provisions
relating to notification to Company and relating to the defense or prosecution
of litigation.
2. Further, in consideration of the reimbursement of costs and payment
of fee under this agreement and any assignment thereunder, the Subcontractor
does hereby:
a. Assign, transfer, set over and release to Company all right,
title, and interest to all refunds, rebates, credits, or other
amounts (including any interest thereon) arising out of the
performance of said agreement, together with all the rights of
action accrued or which may hereafter accrue thereunder.
b. Agree to take whatever action may be necessary to effect
prompt collection of all refunds, rebates, credits or other
amounts (including any interest thereon); due or which may
become due, and to promptly forward to Company checks, made
payable to Company, for any proceeds so collected. The
reasonable costs of any such action to effect collection shall
constitute allowable costs when approved by Company as stated
in said subcontract and may be applied to reduce any amounts
otherwise payable to Company under the terms hereof.
c. Agree to cooperate fully with Company as to any claim or suit
in connection with refunds, rebates, credits, or other amounts
due (including any interest thereon); to execute any protest,
pleading, application, power of attorney, or other papers in
connection therewith; and to permit Company to represent it at
any hearing, trial, or other proceeding arising out of such
claim or suit.
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IN WITNESS HEREOF, the parties hereto have accepted and executed this
agreement as of the latest date noted below.
SAYED HAMID TELESOURCE CNIMI, Inc.
BEHBEHANI & SONS CO. W.L.L.
Signature: /s/ Fouad S. H. Behbehani Signature: /s/ K. J. Semikian
Printed Name and Title:
Fouad S. H. Behbehani Printed Name and Title:
K. J. Semikian
Chairman
President
Date: January 6, 1997 Date: January 6, 1997
294
ADDENDUM
The following is an addendum to the agreement dated 6th
January 1997 between Sayed Humid Behbehani & Sons Co. (herein
after referred to as "Company" and Telesource CNMI, Inc
(herein after referred to as "Subcontractor")
Witnesseth that, whereas Company desires to continue
utilizing the services of the subcontractor and the
Subcontractor desires to provide those services, now
therefore in consideration of the promises contained herein
Company and the Subcontractor do mutually agree as follows:
l- All terms and conditions and statements of the January
6, 1997 contract not specifically addressed in this
addendum are still valid.
2- Subcontractor shall raise a single invoice per month
covering the activities carried out on a fix price
bases as follows:
2.1 Manpower . . $ 30,000.00
2.2 Construction Equipment rentals $ 35,000.00
2.3 Tower Crane rental $ 50,000.00
2.4 Misc. expenses for all services
Provided, such as: housing, food,
Communications, fuel, etc.. $ 45,000.00
Total of monthly lump-sum cost $ 160,000.00
Overhead and profit $ 12,000.00 Grand total of
monthly invoice $ 172,000.00
3- In addition all local purchases and procurements shall be
invoiced to the Company on monthly bases plus 7.5% overhead
and profit. 4- This Addendum shall be effective from September
1st 1998.
IN WITNESS HEREOF, the parties hereto have accepted and
executed this agreement as of the latest date noted below.
SAYED HAMID TELESOURCE CNIMI, Inc.
BEHBEHANI & SONS CO. W.L.L.
Signature: /s/ Fouad S. H. Behbehani Signature: /s/ K. J. Semikian
Printed Name and Title: Fouad S. H.
Behbehani Printed Name and Title:
K. J. Semikian
Chairman President
Date: August 27, 1998 Date: August 27, 1998
295
Dates Referenced Herein and Documents Incorporated By Reference
| Referenced-On Page |
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| This S-4/A Filing | | Date | | First | | Last | | | Other Filings |
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| |  |
| | 1/6/97 | | 10 | | 11 |
| | 8/27/98 | | 11 |
| Filed On / Filed As Of | | 3/28/00 |
| |
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