Pre-Effective Amendment to Registration of Securities by a Small-Business Issuer — Form SB-2
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SB-2/A Amendment No. 1 to Form SB-2 96 349K
2: EX-5.1 Opinion re: Legality 2 10K
6: EX-10.10 Material Contract 14 61K
3: EX-10.7 Material Contract 3 20K
4: EX-10.8 Material Contract 2 9K
5: EX-10.9 Material Contract 13 40K
7: EX-23.2 Consent of Experts or Counsel 1 6K
Exhibit 10.9
CONTRACT(1)007-01
London "____" August 27, 2001
"So Cal Energy Inc.," hereinafter referred to as the "Buyer," in the person
of its President Mr. Steve Mason, on the one hand, and SOJSC Caspi Neft TME, in
the person of Nurzhan Kurmanov, its General Director, hereinafter referred to as
the "Seller," on the other hand, have concluded the present Contract as follows:
1. SUBJECT OF THE CONTRACT
The Seller will sell and the Buyer will buy crude oil belonging to the
Seller, hereinafter referred to as "Goods."
2. QUALITY
2.1 The quality of Goods sold under the present Contract shall conform to
the values set forth in the specifications, hereinafter referred to as the
"Specifications," attached hereto as Addendum 2, which addendum is an integral
part of the present Contract. In the event there is a material change in the
quality of the Goods Seller shall immediately notify the Buyer of this change in
writing.
2.2 The responsibility of the Seller for the quality of Goods supplied
under the present Contract is limited by the values and tolerances set forth in
the Specifications. Except for the warranty of right of ownership and the
warranty that the Goods comply with the Specifications, no conditions or
warranties of merchantability of the Goods or warranty that the Goods are
suitable for any particular purpose or otherwise are made by Seller.
2.3 The quality of Goods shipped under the present Contract shall confirmed
by a Quality Certificate issued by the laboratory of the Seller, and the
quantity of the Goods shipped shall be confirmed by the respective railway bill.
2.4 Goods not conforming to the Specifications should not be shipped.
3. TERMS OF DELIVERY
3.1 The terms of delivery for each individual shipment hereunder shall be
FCA INCOTERMS 2000 unless expressly varied by this Contract.
3.2 Seller shall make deliveries of the Goods beginning on or before
October 1, 2001, and deliveries shall continue through October 2002.
3.3 The quantity of Goods supplied by the Seller under the present Contract
shall average 3,000 (three thousand) metric tons per calendar month. The actual
quantity of Goods delivered by Seller shall be subject to adjustment depending
upon mechanical constraints of the Seller's field delivery systems and the
relevant terminal capacity to receive and dispatch railway tank cars.
3.4 Goods shall be transported by railway tank cars provided by the freight
forwarder, hereinafter referred to as "the Agent." The Buyer in the first week
of the calendar month preceding the calendar month of delivery will provide to
the Seller a written request to deliver the Goods nominating the quantity,
number of railway tank cars, station of destination, forwarders and any other
information that may be required for the arrangement of the shipment by the
Seller. Any such shipment shall be subject to the requirements, formalities and
the time frames set by Republic State Enterprise "Kazakhstan Temir Zholy." The
Agent is to be mutually agreed in advance by both Parties, and approved in
writing by the OJSC Bank Caspian ("Caspian Bank"). The Agent shall supply the
railway tank cars to Emba Station, Kazakhstan, or any other station mutually
agreed by the Parties in accordance with the schedule submitted by the Seller.
3.5 The shipment date for any shipment of Goods hereunder shall be deemed
the date of the railway bill. The Seller, within 48 (forty-eight) hours after
the shipment of Goods from Seller's
oil terminal at Emba Station, Kazakhstan, shall notify by facsimile the Buyer
indicating the shipment date, the railway tank car numbers, the railway bill
numbers and weight. The Buyer, within 48 (forty-eight) hours after the arrival
of Goods to the station of destination, shall notify by facsimile the Seller of
the numbers of the railway tank cars that have arrived and the GTD (Customs
declarations) numbers with respect to each railway tank car.
4. PRICE OF THE GOODS
4.1 The Provisional Payment (as hereinafter defined) and the Final Price
(as hereinafter defined) of Goods for each shipment shall be determined in
accordance with Addendum 1, which Addendum is an integral part of this Contract.
4.2 The Final Price, calculated pursuant to Addendum 1, shall be rounded to
two decimal places.
5. INSPECTION
Buyer, at his own expense, may appoint a mutually agreed upon independent
inspector such as SGS, Saybolt, Petrak, etc., hereinafter known as the
"Independent Inspector," to perform inspection of the Goods at Emba Station,
Kazakhstan and at the destination.
6. PAYMENTS
6.1 All payments shall be made in US Dollars free of any charges,
deductions, set-off or counter-claims by bank transfer of immediately available
funds ("same day funds") only to the bank account indicated below.
Name: SOJSC "Caspi Neft TME"
Tax No. (RNN): 600900159346
OJSC "Bank Caspian"
Bank Account No. 13070208/001
BIC 190501722
Correspondent Bank:
Bankers Trust Company, New York,
USA
Swift BKTRUS33
USD Account No. 04-405-582
In favor of JSC "Bank Caspian"
For SOJSC "Caspi Neft TME"
Bank Account No. 13070208/001
6.2 Buyer shall provide guarantee of payment in the form of a stand-by
letter of credit in favor of Seller assignable to Caspian Bank, as further
provided in Addendum No.3, which shall be an integral part of this Contract.
Caspian Bank at its sole discretion shall be entitled to waive this requirement
stipulated in this Section 6.2.
7. PROVISIONAL PAYMENT
7.1 Buyer shall make payment of 80 (eighty) percent of the provisional
invoice value of the shipped Goods (the "Provisional Payment") within 5 (five)
banking days after Seller's presentation of the following documents:
7.1.1 Provisional invoice, in English, indicating contract and addendum
number, description of Goods, calculation of the provisional invoice value of
the shipped Goods in accordance with Addendum 1, railway bill date(s), total
railway bill quantity in metric tons and net U.S. barrels, railway bill numbers
covering invoiced quantity and showing the total provisional invoice value and
the Provisional Payment (80% (eighty percent) of the provisional invoice value).
(A fax copy of the foregoing is acceptable.)
7.1.2 One copy of each railway bill covering the invoiced quantity
certified by the Seller's stamp. (If a special arrangement is made with the
Independent Inspector to provide the railway bills to the Buyer, this document
shall not be required of Seller by the Buyer).
7.1.3 One copy of the Certificate of Origin. The certificate may be
presented as one certificate for each rail lot and/or as one certificate
covering multiple rail lots. If only one certificate for multiple lots is
provided then Seller's provisional invoice shall indicate the starting and
ending "balance" of the invoiced quantity covered under that certificate. (The
foregoing Certificate shall be in the Russian language. A faxed copy is
acceptable.)
7.1.4 One copy of each Customs declaration covering the railway bills that
have been presented in accordance with Section 7.1.2. (These declarations should
be in the Russian language. A faxed copy is acceptable.) (If an arrangement is
made with the Independent Inspector to provide the railway bills to the Buyer,
Seller shall not be required to present these declarations to the Buyer.)
7.1.5 Or, in lieu of any of the foregoing documentation, Seller's Letter of
Indemnity in a format acceptable to the Buyer.
7.2 On the banking day after all the information for making a final price
calculation in accordance with Addendum 1 ("Pricing Completion Date") has been
published in Platts Crude Oil Marketwire ("Platts"), the Seller shall calculate
the final payment value to be paid by the Buyer in accordance with Addendum 1
(the "Final Price") and notify the Buyer by presentation of a final invoice.
Should the Final Price be less than the Provisional Payment made to the Seller
in accordance with the provisional invoice, then the Seller shall reimburse the
Buyer the difference between the Provisional Payment and the Final Price for the
shipped Goods upon receipt of Buyer's invoice. Should the Final Price be greater
than the Provisional Payment made to the Seller, then the Buyer shall pay the
Final Price in accordance with Article 8 below.
8. FINAL PAYMENT
8.1 Subject to Section 7.2, Buyer shall make final settlement of and pay to
Seller the Final Price (less the corresponding Provisional Payment previously
paid to Seller) for the respective shipment, calculated in accordance with
Addendum 1, within 7 (seven) banking days after the Pricing Completion Date.
8.2 Within 21 (twenty one) days of the shipment date of the last railcar
making up the individual shipment, the Buyer shall present to the Seller
document(s) (Border Crossing Act, or other official document) showing that the
Goods
have been exported from the CIS. In the event that the Buyer fails to do so, the
Buyer will also pay the VAT applicable the total value of the shipment within 5
(five) days after expiration of the 21 (twenty one) day period as above
mentioned.
9. TERM OF CONTRACT
The Contract shall be effective on the date of its signing by authorized
representatives of both Parties and shall remain in force until complete
fulfillment of the obligations undertaken hereunder by the Parties.
10. CLAIMS
10.1 Claims in respect of quality and/or quantity may be submitted in
writing by Buyer to Seller within 60 (sixty) days from the shipment date of the
respective Goods to which the claim relates. Claims may be sent in accordance
with Article 14.
10.2 Seller shall respond to Buyer's claims within 20 (twenty) days of
Seller's receipt of any claim.
10.3 Claims for quality shall be considered only to the extent that the
Goods do not conform to the Specifications within the tolerances specified in
Addendum 1.
10.4 Buyer may make a claim against quantity, should the quantity of Goods
at the destination, as measured by the Independent Inspector, be less than the
quantity indicated in the railway bills. Railway tank cars shall be sealed after
loading at Emba Station, Kazakhstan by Seller and/or carrier and/or the
Independent Inspector. The Independent Inspector at the destination shall verify
the condition of the seals. Should railway tank cars arrive with any seals
broken or missing, Buyer's claim shall be directed to the Agent.
11. FORCE MAJEURE
11.1 Should any circumstances arise which prevent complete or partial
fulfillment by either of the Parties of a their respective obligations under the
present Contract, namely fire, acts of God, war, military operations of any
kind, blockade, prohibition of export or import, strikes, civil-disturbances,
delays with transport
as a result of technical failures or bad weather conditions, embargo, government
actions and changes in legislation or any other circumstances beyond the control
of Parties, then the time stipulated for the fulfillment of such obligations
(excluding any obligations to make payments hereunder) shall be extended for the
period equal to that during which such circumstances will remain in force.
11.2 Should the above circumstances continue to be in force for more than
30 (thirty) days, each Party shall have the right to refuse any further
fulfillment of the obligations under the Contract and in such case neither of
the Parties shall have the right to make a demand upon the other Party for the
compensation of any damages incurred due to the cancellation of the Contract
obligations.
11.3 The Party for whom it becomes impossible to meet its obligations under
the present Contract, shall immediately advise the other Party as regards the
beginning and the cessation of the circumstances preventing the fulfillment of
its obligations.
11.4 The certificates issued by the respective Chamber Commerce of the
Seller's or of the Buyer's country shall be sufficient proof of such
circumstances and their duration.
12. ARBITRATION
Any dispute arising out of or in connection with this Contract, including
any question regarding its existence, validity or termination, shall be referred
to and finally resolved by binding arbitration in accordance with this Article
12. Arbitration shall be in New York, New York and shall be conducted by the
American Arbitration Association ("AAA") in accordance with the Commercial
Arbitration Rules as in effect on the day of the Arbitration Notice (as
hereinafter defined), except that in the event of any conflict between such
rules and the arbitration provisions of this Contract, the provisions of this
Contract shall govern. The Party seeking arbitration (the "Initiating Party")
shall deliver to the other party to the Dispute (the "Responding Party") written
notice of an arbitral claim (an "Arbitration Notice"). The number of arbitrators
shall be one (1) and
shall be appointed by the AAA from the AAA approved list of arbitrators. The
language used in arbitration, including the language of the proceedings, the
language of the award and the reasons supporting it, shall be in English or such
other languages required to enforce the award. The rulings of such arbitration
shall be binding and final on the Initiating Party and the Responding Party. The
Parties shall not submit any Dispute arising out of this Contract to any dispute
resolution mechanism or court other than the arbitration mechanisms provided by
Article 12 except as necessary to enforce any arbitration decision made pursuant
to Article 12 or to enforce this Article 12. The arbitration tribunal shall have
the power to order specific performance and grant interim relief. The award
shall include interest from the date (as determined by the award) of any breach
or violation of this Contract, and from the date of the award, until paid in
full, at 5 (five) percent per annum. The arbitrator shall award the prevailing
Party its reasonable legal fees and expenses incurred in prosecuting or
defending any arbitration hereunder. The award of the arbitration tribunal shall
be final and binding on the Parties and may be enforced against them in any
court of competent jurisdiction, and each Party hereby waives any right of
appeal. Each Party waives any defense from arbitration, suit, pre- or
post-judgment execution or attachment that may be available to it on the basis
of immunity.
13. OTHER TERMS
13.1 All taxes and customs duties connected with performance of the present
Contract incurred in the Republic of Kazakhstan are to be paid by the Seller,
except as provided in section 8, and the same or similar expenses incurred
beyond the territory of the Republic of Kazakhstan are to be paid by the Buyer.
13.2 The Buyer, after obtaining express written consent of the Seller and
Caspian Bank, has the right to assign its rights under the present Contract,
including but not limited by the right to accept the Goods, to a third party.
13.3 Upon notification of the Buyer pursuant to Article 14 of this
Contract, the Seller may assign its right to receive payment under this Contract
to Caspian Bank. Upon such assignment, Buyer shall undertake to make payment for
the Goods delivered hereunder directly to Caspian Bank.
13.4 The Seller shall sell the Goods only to the Buyer, except in those
cases provided for in Section 13.4.2.
13.4.1 If Seller's monthly production of the Goods at South Alibek oil
field exceeds 3,000 metric tons, any sale of such additional quantities of Goods
to a party other than Buyer shall require the written consent of Caspian Bank.
The Buyer shall have a priority right to enter into a contract for the purchase
of these additional quantities of Goods except in those cases stated in Section
13.4.2.
13.4.2 If Buyer declines the purchase of the additional quantities of the
Goods, Buyer shall no longer have a priority right to purchase the Goods and
Seller may sell the Goods to other buyer(s) subject to the written consent of
the Caspian Bank which consent shall not be unreasonably withheld.
13.5 Any amendments and supplements to the present Contract shall be valid
only if made in writing and signed by duly authorized representatives of both
Parties, and consented to in writing by Caspian Bank.
13.6 The present Contract has been executed in two originals, one for the
Buyer and one for the Seller. In the event of any inconsistency between the
English and Russian versions of the Contract, the Russian version shall be
deemed controlling when construing any such inconsistent provision. Subsequent
to execution of this Agreement two copies of a Kazakh language version of this
Contract will be signed by the Parties. In any arbitration under Article 12 or
any administrative or court proceeding, the Kazakh language version of this
Contract will not have any force or effect and will not be presented to the
tribunal.
13.7 The present Contract shall be governed by and construed in accordance
with the laws of England and Wales without giving effect to those conflict of
law rules that would refer an issue to the law of another jurisdiction.
14. NOTIFICATION
All notices and other communications hereunder to either Party shall be in
writing and either: (i) delivered in person; (ii) transmitted by telefax (in
which case the sender shall contemporaneously mail a copy to the addressee on
the address provided herein); or (iii) sent by registered mail, postage prepaid,
to the applicable address set forth below, or at such other address as may have
been specified by like notice:
Seller:
SOJSC Caspi Neft TME
67 Aiteke bi Street
Almaty, 480091
Republic of Kazakhstan
Fax: 1 (281) 591-4778
Buyer:
So Cal Energy Inc
3276 Kitchen Drive
Carson City, Nevada 89702
USA
Fax: 7 (3272) 50-9976
15. SIGNED For Seller:
/s/ Nurzhan s. Kurmanov
---------------------------------------
Nurzhan S. Kurmanov,
General Director, OJSC Caspi Neft TME
For Buyer:
/s/ Steve Mason
---------------------------------------
Steve Mason,
President of So Cal Energy Inc.
Addendum 1
To Contract No. 007-01 Dated August 27, 2001.
London, ___________, 2001
The capitalized terms used in this Addendum 1 shall have the same meaning as
assigned to them in the above referenced Contract.
In accordance with Article 3 of the above referenced Contract, the Parties have
agreed that the quantity of crude oil to be delivered by the Seller and accepted
by the Buyer in the month of October 2001 is 3,000 (three thousand) metric
tons +/-5%.
In accordance with Article 4 of the above referenced Contract, the Parties have
agreed that the Provisional Payment and Final Price shall be determined as
follows:
The Provisional Payment shall be 80% (eighty percent) of the provisional invoice
value of the Goods delivered. The provisional invoice value shall be calculated
by multiplying the quantity of Goods shipped, as evidenced on the provisional
invoice and confirmed by the respective railway bills, times a provisional unit
price per net U.S. barrel delivered FCA Emba Station, Kazakhstan. The
provisional unit price per net U.S. barrel delivered FCA Emba Station,
Kazakhstan shall be the average of available quotations for "Brent (Dtd)" as
published in Platts on the railway bill date (date as per stamp in box number 46
on the railway bill) minus a discount of 13.00 (thirteen) U.S. Dollars per net
U.S. barrel. In the event Platts does not publish quotations for "Brent (Dtd)"
on the railway bill date, the unit price shall be the average of available
quotations for "Brent (Dtd)" as published by Platts on the most recent date
preceding the respective railway bill date.
The Final Price, to be paid by Buyer for the Goods, shall be calculated by
multiplying the
quantity of Goods delivered by a unit price per net U.S. barrel delivered FCA
Emba Station, Kazakhstan. The unit price per net U.S. barrel delivered FCA Emba
Station, Kazakhstan shall be calculated as the mean of the means of available
quotations for "Brent (Dtd)" as published in Platts under the heading "Platts
Crude Oil Assessments" for the calendar month of loading, minus a discount of
13.00 (thirteen) U.S. Dollars per net U.S. barrel.
All other terms and conditions not stipulated by this Addendum shall be as per
Contract No. ____ date August 27, 2001.
Buyer
Seller
ADDENEUM 2
TO CONTRACT NO. 007-01 DATED August ____, 2001
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Characteristics Unit of measurement Values*
--------------------------------------------------------------------------------
1. Density at 20 C(Degree), kg/m3 835
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2. Sediment content % mass 0.0065
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3. Sulfur content % mass 0.8
--------------------------------------------------------------------------------
4. Concentration of:
H2S sulfur % mass No
Mercaptan sulfur % mass 0.1242
--------------------------------------------------------------------------------
5. Water content % vol. NA
--------------------------------------------------------------------------------
6. Chlorous salts content Mg/lt NA
--------------------------------------------------------------------------------
7. Paraffin content % mass 4.3
--------------------------------------------------------------------------------
8. Sulfurous tars % mass NA
--------------------------------------------------------------------------------
9. Fractional distillation
Boiling point (Degree)C 55
--------------------------------------------------------------------------------
100 (Degree)C vol. % 7.0
--------------------------------------------------------------------------------
120 (Degree)C vol. % 11.0
--------------------------------------------------------------------------------
150 (Degree)C vol. % 18.0
--------------------------------------------------------------------------------
160 (Degree)C vol. % 20.0
--------------------------------------------------------------------------------
180 (Degree)C vol. % 25.0
--------------------------------------------------------------------------------
200 (Degree)C vol. % 30.0
--------------------------------------------------------------------------------
220 (Degree)C vol. % 33.0
--------------------------------------------------------------------------------
240 (Degree)C vol. % 38.0
--------------------------------------------------------------------------------
260 (Degree)C vol. % 41.0
--------------------------------------------------------------------------------
280 (Degree)C vol. % 45.0
--------------------------------------------------------------------------------
300 (Degree)C vol. % 49.0
--------------------------------------------------------------------------------
* These Values may vary +/-5%.
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘SB-2/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 10/1/01 | | 2 | | | | | None on these Dates |
| Filed on: | | 9/6/01 |
| | 8/27/01 | | 1 | | 12 |
| List all Filings |
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