As filed with the Securities and Exchange Commission on October 23, 1998
Registration Statement No. 333-51937
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________
XCL LTD.
(Exact name of registrant as specified in its charter)
Delaware 1311 51-0305643
(State or other jurisdiction of (Primary Standard (IRS Employer
incorporation or organization) Indutrial Classification Identification No.)
Code Number)
110 Rue Jean Lafitte, 2nd Floor
Lafayette, Louisiana 70508
(318) 237-0325
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
____________________
Benjamin B. Blanchet
XCL Ltd.
110 Rue Jean Lafitte, 2nd Floor
Lafayette, Louisiana 70508
(318) 237-0325
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
____________________
Copy to:
Peter A. Basilevsky, Esq.
Satterlee Stephens Burke & Burke LLP
230 Park Avenue
New York, New York 10169
(212) 818-9200
____________________________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=================================================================================================
Title of Each Class of Amount To Be Offering Price Aggregate Amount of
Securities To Be Registered Registered Per Share Offering Price Registration Fee
- --------------------------- ------------- -------------- -------------- -----------------
=================================================================================================
<S> <C> <C> <C> <C> <C>
Amended Series A, Cumulative
Convertible Preferred Stock,
$1.00 par value per share 1,163,115 $85.00 (1)(2) $98,864,775.00 $29,165.11
Amended Series A, Cumulative
Convertible Preferred Stock,
$1.00 par value per share 56,084 $85.00 (1)(2) $4,767,140.00 $1,325.26 (6)
Common Stock, $.01 par value
per share 1,731,285 $4.125 (3) $7,141,550.63 $2,106.76
Common Stock, $.01 par value
per share 170,383 $4.125(3) $702,829.88 $207.33
===============================================================================================
Common Stock, $.01 par value
issuable upon conversion or
exercise of:
Amended Series A Preferred
Stock 13,181,970 $7.50 (1)(5) $98,864,775.00 $29,165.11
Amended Series A Preferred
Stock 862,285 $7.50 (1)(4) $6,467,137.50 $1,797.86 (6)
Amended Series B Preferred
Stock 991,262 $4.75 (1)(4) $4,708,494.50 $1,389.01
Amended Series B Preferred
Stock 30,738 $4.75 (1)(4) $146,005.50 $40.59 (6)
$3.0945 Warrants expiring
November 1, 2000 109,900 $3.0945 (1)(5) $340,085.55 $100.33
$3.0945 Warrants expiring
May 20, 2004 13,765,284 $3.0945 (1)(5) $42,596,671.34 $12,566.02
$3.75 Warrants expiring
December 31, 2001 205,000 $3.5122 (1)(5) $720,001.00 $212.40
$7.50 Warrants expiring
December 21, 2000 196,000 $7.0246 (1)(5) $1,376,821.60 $406.16
$5.25 Warrants expiring
April 22, 2001 64,000 $5.1739 (1)(5) $331,129.60 $97.68
$5.25 Warrants expiring
December 21, 2000 148,000 $5.1739 (1)(5) $765,737.20 $225.89
$7.50 Warrants expiring
December 28, 2000 60,000 $7.50 (1)(5) $450,000.00 $132.75
$7.50 Warrants expiring
January 2, 2001 28,888 $7.50 (1)(5) $216,660.00 $63.91
$7.50 Warrants expiring
5 years after first exercise 50,000 $7.50 (1)(5) $375,000.00 $110.63
$4.65 Warrants expiring
December 21, 2000 46,400 $4.601 (1)(5) $213,486.40 $62.98
$3.75 Warrants expiring
March 7, 2001 13,600 $3.7105 (1)(5) $50,462.80 $14.89
$3.75 Warrants expiring
April 22, 2001 12,000 $3.7105 (1)(5) $44,526.00 $13.14
$3.75 Warrants expiring
July 30, 2001 100,000 $3.1522 (1)(5) $351,220.00 $103.61
$3.75 Warrants expiring
August 13, 2001 63,467 $3.7105 (1)(5) $235,494.30 $69.47
$3.75 Warrants expiring
December 31, 1998 20,000 $3.1522 (1)(5) $70,244.00 $20.72
$1.875 Warrants expiring
December 31, 1999 48,891 $1.8478 (1)(5) $90,340.79 $26.65
$3.75 Warrants expiring
December 31, 1999 124,964 $3.7105 (1)(5) $463,678.92 $136.79
$0.15 Warrants expiring
April 9, 2002 683,723 $0.15 (1)(5) $102,558.45 $30.25
$2.8125 Warrants expiring
August 13, 2001 100,000 $2.7816 (1)(5) $278,160.00 $82.06
$3.75 Warrants expiring
February 20, 2002 13,333 $3.7105 (1)(5) $49,472.10 $14.59
$0.15 Warrants expiring
December 31, 2001 153,333 $0.15 (1)(5) $22,999.95 $6.78
$5.50 Warrants expiring
March 2, 2002 250,000 $5.50 (1)(5) $1,375,000.00 $405.63
$3.75 Warrants expiring
June 30, 2003 17,000 $3.75 (1)(5) $63,750.00 $17.72 (6)
$2.50 Warrants expiring
September 30, 1998 351,015 $2.50 (1)(5) $877,537.50 $243.96 (6)
================================================================================================
TOTAL 33,592,721 $273,123,745.50 $80,362.04
================================================================================================
(1) Pursuant to Rule 416 there are also being registered
such additional shares of Common Stock as may become issuable
pursuant to applicable anti-dilution provisions.
(2) Estimated solely for the purposes of calculating the
registration fee using the proposed offering price of the
Amended Series A Preferred Stock, as required by Rule 457 (i).
(3) Estimated solely for the purpose of calculating the
registration fee using the average of the high and low prices
reported on the American Stock Exchange ("AMEX") on April 23,
1998, as required by Rule 457(c).
(4) Estimated solely for the purpose of calculating the
registration fee using the conversion price of the Preferred
Stock, as required by Rule 457(g)(1), as adjusted for the
reverse stock split.
(5) Estimated solely for the purpose of calculating the
registration fee using the exercise price of the Warrants, as
required by Rule 457(g)(1), as adjusted for the reverse stock
split and applicable anti-dilution adjustments.
(6) Calculated using the revised fee rate of $278 per
$1,000,000 (.000278).
</TABLE>
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
hereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may
determine.
<PAGE>
SUBJECT TO COMPLETION, DATED OCTOBER 23, 1998
PROSPECTUS
XCL LTD.
1,219,199 SHARES OF 9.50%
AMENDED SERIES A, CUMULATIVE CONVERTIBLE PREFERRED STOCK
33,592,721 SHARES OF COMMON STOCK
This Prospectus offers for resale in transactions
registered under the Securities Act of 1933, as amended (the
"Securities Act"), 1,219,199 issued and outstanding shares
of 9.50% Amended Series A, Cumulative Convertible Preferred
Stock (the "Amended Series A Preferred Stock") of XCL Ltd.
(the "Company"). These shares of Amended Series A Preferred
Stock were originally issued in transactions intended to
qualify for an exemption from registration under the
Securities Act.
This Prospectus also offers for resale in transactions
registered under the Securities Act, 33,592,721 shares of
Common Stock of the Company which have been or will be
issued in transactions intended to qualify for an exemption
from registration under the Securities Act. These shares
include shares originally issued in transactions intended to
qualify for an exemption from registration under the
Securities Act, shares the Company is contractually
obligated to issue and shares that may be issued if holders
of convertible preferred stock convert that stock or if
holders of various warrants exercise those warrants.
In this Prospectus, the shares of Common Stock being
registered that will be issued when various warrants are
exercised are referred to as the "Warrant Shares," and the
warrants are referred to as the "Warrants." The shares of
Common Stock that will be issued when the Company's
convertible preferred stock is converted into Common Stock
are referred to as the "Conversion Stock." The shares of
Common Stock that the Company is contractually required to
issue are referred to as the "Contract Stock." The Amended
Series A Preferred Stock, Warrant Shares, Conversion Stock
and Contract Stock are collectively referred to as the
"Securities."
This Prospectus is intended for use by the holders (the
"Selling Security Holders") of the Securities in resale
transactions registered under the Securities Act. The
Company will not receive any proceeds from the sale of the
Securities (other than proceeds upon exercise of the
Warrants). See "Selling Security Holders" and "Use of
Proceeds." The Company will pay the costs of registering
sales of the Securities covered by this Prospectus under the
Securities Act and related costs (although the Selling
Security Holders will pay all applicable stock transfer
taxes, brokerage commissions or other transaction charges or
expenses). The Company estimates that its expenses in
making this offering will be approximately $152,000.
The Common Stock is quoted on the American Stock
Exchange (the "AMEX") under the symbol "XCL" and on the
London Stock Exchange. On September 30, 1998, the last
reported closing price of the Common Stock on the AMEX was
$3.00.
See "Risk Factors" beginning on page [] of this
Prospectus for a discussion of certain factors that should
be considered in evaluating an investment in the Securities.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is _______________, 1998.
[The following legend appears in the left margin of the
Prospectus cover page.]
Information contained herein is subject to completion or
amendment. A registration statement relating to these
securities has been filed with the Securities and Exchange
Commission. These securities may not be sold nor may offers
to buy be accepted prior to the time the registration
statement becomes effective. This prospectus shall not
constitute an offer to sell or the solicitation of an offer
to buy nor shall there be any sale of these securities in
any state in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the
securities laws of any such state.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
files reports, proxy and information statements and other information
with the U.S. Securities and Exchange Commission (the "Commission").
Such reports, proxy and information statements and other information can
be inspected and copied at the public reference facilities maintained by
the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the following regional offices of the Commission:
Seven World Trade Center, Suite 1300, New York, New York 10048 and
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of such materials can be obtained by mail from the
Public Reference Section of the Commission, at Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In
addition, the Commission maintains a site on the Word Wide Web that
contains reports, proxy and information statements and other information
filed electronically by the Company with the Commission. These can be
accessed over the Internet at http://www.sec.gov. The Company's Common
Stock is listed on the AMEX. Reports, proxy and information statements
and other information relating to the Company can be inspected at the
offices of the AMEX at 86 Trinity Place, New York, NY 10006-1881.
This Prospectus constitutes part of a registration statement on
Form S-1 (together with all amendments and exhibits referred to in this
Prospectus as the "Registration Statement") filed by the Company with
the Commission under the Securities Act. This Prospectus omits some of
the information contained in the Registration Statement. Consult the
Registration Statement and its exhibits for further information about
the Company and the Securities covered hereby. Statements made herein
about the provisions of contracts or other documents are not necessarily
complete; each such statement is qualified in its entirety by reference
to the copy of the applicable contract or other document filed with the
Commission. Copies of the Registration Statement and its exhibits are on
file at the offices of the Commission and may be obtained upon payment
of the fee prescribed by the Commission, or may be examined without
charge at the public reference facilities of the Commission described
above.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE
IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE
HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION
OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN
WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO
DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus includes (or incorporates by reference) "forward-
looking statements." All statements made in this Prospectus, other than
historical facts (whether set forth or incorporated by reference), are
forward-looking statements. Although the Company believes such
statements are reasonable, it can give no assurance that they will prove
to be correct.
It is difficult to estimate quantities of proved oil and natural
gas reserves and to project future rates of production, the timing of
development costs and future net revenues. Those estimates depend upon
many factors the Company cannot control. Reserve engineering involves
estimating underground accumulations of oil and natural gas that cannot
be measured in an exact way. The accuracy of any reserve estimate
depends on the quality of available data, the interpretation of that
data and the judgment of the reserve engineers. As a result, estimates
made by different engineers are often different. Because reserve
estimates are only estimates, the actual amounts of oil and natural gas
recovered are usually different from the estimates. Results of drilling,
testing and production subsequent to the date of an estimate may require
reserve estimates to be revised and may change the schedule of
production and development drilling.
Additional important factors that could cause actual results to
differ materially from the Company's expectations are disclosed under
"Risk Factors" and elsewhere in this Prospectus.
PROSPECTUS SUMMARY
Because this is a summary, it does not contain all the
information that may be important to you. You should carefully
read the whole Prospectus and its appendices, as well as the
information incorporated by reference into this Prospectus.
Usually in this Prospectus, the terms "XCL" or the "Company"
refer to XCL Ltd. and all of its subsidiaries. Except as
otherwise noted, the reported reserve data are based on reserve
estimates made by the Company's independent petroleum engineers.
See "Glossary of Terms" for definitions of certain oil and gas
terminology.
The Company
-----------
XCL is principally engaged in the exploration for and
development of oil and gas in the Zhao Dong Block (the "Zhao Dong
Block") located in the shallow waters of the Bohai Bay in the
People's Republic of China ("China"). The Company obtained a
second production sharing contract covering the Zhang Dong Block
(the "Zhang Dong Block"), also in the shallow waters of Bohai
Bay, effective October 1, 1998. To date the Company has not
generated any profits from these operations. The Company's only
historic revenues were derived from its financing activities and
properties currently held for sale or investment or previously
sold. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations." The Company is in the
development stage with respect to its operations in China and has
not generated any revenues from operations related to its
properties and interests in China.
The Zhao Dong Block is located in one of China's major oil-
producing basins. Geologic information suggests that a portion of
the Zhao Dong Block is an extension of the onshore Dagang oil
field complex to the west. Approximately 700 million barrels
have already been produced from that field and it is still under
production. The Zhao Dong Block is also about 40 miles northwest
of the Shengli oil field, the largest in the basin, from which
about 4 billion barrels have already been produced. The Shengli
oil field is still under production as well. Of course,
production in those fields does not ensure that there will be
production from the Zhao Dong Block.
In early 1993, XCL became the first foreign company to enter
into an onshore Production Sharing Agreement (the "Contract"),
with China National Oil and Gas Exploration and Development
Corporation ("CNODC") (which is a Chinese state enterprise). The
Contract provides for exploration, development, and production of
the Zhao Dong Block. CNODC is the arm of the China National
Petroleum Company ("CNPC"), also a state enterprise, in charge of
all onshore exploration and production activity in China out to
five meters in water depth. CNODC operates in this area through
its subsidiary, Dagang Oilfield (Group) Co. Ltd. ("Dagang").
The Contract provides that the "Foreign Contractor" (the
Company and Apache Corporation ("Apache") as a group, working
through a participation agreement) is to pay all exploration
costs. The Contract also states that, when a commercial discovery
is made, CNODC may choose to participate in development, with up
to 51% of all development and operating costs and allocable
remainder oil and gas production allocated to CNODC and the
remaining interest to the Foreign Contractor. The Foreign
Contractor's share is divided equally between XCL and Apache.
See "Business -- The Contract" and "Business -- Apache Farmout."
XCL and Apache have successfully tested six of ten wells
drilled to date on the Zhao Dong Block, with total test rates
exceeding 39,500 barrels of oil per day. Of the four wells not
tested, one (the D-3) was proven productive by wire line samples
and tests in several sands but was not drill-stem tested, while a
second (the F-1) was drilled but not fully evaluated. Drilling
activities on the F-1 have been abandoned. Development of the C-
D Field for production is now proceeding.
Based on the report of H.J. Gruy and Associates ("Gruy"),
the Company's independent petroleum engineers, net proved
reserves in the C-D Field are estimated to be 11.76 million
barrels as of January 1, 1998, and the estimated present value of
future pre-tax net cash flows is $64.8 million. The standardized
measure of discounted future net cash flows determined in
accordance with the rules prescribed by FASB No. 69 is $53.8
million. Future reserve values are based on year end prices and
operating costs, production and future development costs based on
current costs with no escalation. See "Business -- Oil and Gas
Reserves" and "Supplemental Oil and Gas Information" in the Notes
to the Consolidated Financial Statements.
The Company's Development Program
---------------------------------
The C-D Field was discovered by the drilling of the C-1 and
D-1 Wells. The Field has been appraised by the C-2, C-2-2, C-2-2
sidetrack, C-3, D-2, and D-3 Wells. On the basis of the
calculated reserves, Apache and XCL have prepared an Overall
Development Plan ("ODP") for the Field. The ODP presently
projects the drilling of 45 wells, of which 32 are producers, 8
are water injection wells for the purpose of reservoir pressure
maintenance to achieve higher levels of recovery of ultimate
reserves and 5 are water disposal wells. The ODP has been
approved by the Joint Management Committee ("JMC"), which
oversees operations on the Zhao Dong Block, and has been approved
by CNPC subject to certain modifications that XCL and Apache are
studying. CNODC has given notice that it will participate as to
its full 51% share in the C-D Field.
XCL, Apache and CNODC are currently collaborating on
engineering studies to refine the ODP, both to reduce capital
commitments for development and to accelerate production, and
have, as a result, suggested some revisions to the original ODP.
It is expected that these studies will assist the parties in
determining the most efficient method for development, including
the practicability of beginning production before all development
operations have been completed. The Company has been informed by
CNODC that they desire that production on the Zhao Dong Block
begin as soon as practicable and the parties are assessing how
that would be commercially feasible. Initial results indicate
that 1999 production is possible and the Company, Apache and
CNODC have decided to attempt to commence initial production in
1999.
XCL's current estimate (which is subject to revision as the
project moves forward) of the costs to develop the reserves in
the C-D Field that are identified in the ODP by Apache (the
"Operator") (which XCL understands are higher than the reserves
identified by XCL's petroleum engineers) is approximately $185
million (of which XCL's share would be approximately $45.3
million). This is less than amounts projected by the Operator in
the original ODP for several reasons. Cost reductions are
expected in part based on design changes that would eliminate one
drilling platform and one production platform from the ODP.
While formal Chinese approval for these changes has not yet been
obtained, all parties believe that such approval can be secured.
Further, cost reductions are expected as a result of preliminary
bids that suggest that cost estimates in the ODP have been too
high. In addition, the initial ODP included estimates of
contingencies larger than the industry standard. Finally, cost
reductions from the Operator's projections are also based on the
assumption that if the project moves forward with dispatch, the
current weakness of certain Asian currencies could result in
substantial reductions in the costs of steel and fabrication for
the project.
The revised ODP design anticipates that once production and
loading facilities have been installed in the field, wells will
be placed on production as they are drilled. In this case, cash
flow from this production would be available to fund part of
XCL's capital requirements for the development of the C-D Field.
The Company's financial plans include the use of such cash flow
as part of the Company's source of funds.
Production tests of the C-4 Well, announced by XCL on
October 7, 1997, indicate a combined daily rate from 8 zones of
15,359 barrels per day, and 6,107 Mcf of gas, plus a ninth zone
daily rate of 4,600 Mcf and 14 barrels of condensate. This well
suggests a new field discovery on the Zhao Dong Block. In August
1998, CNODC, XCL, and Apache commenced drilling a well to
appraise the C-4 Well. If this drilling proves successful, early
production from the two initial wells in the C-4 Well area may
begin by mid-1999; initial feasibility studies indicate that this
is possible. The capital costs attributable to such early
production are not included in the 1998 work program and budget.
Successful appraisal of the C-4 Well could also cause XCL and
Apache to move promptly toward development of this area.
The Company's Additional Ventures
---------------------------------
The Company is also proceeding with certain other energy
related ventures in China, including a joint venture with CNPC
United Lube Oil Corporation to engage in the manufacturing,
distribution and marketing of lubricating oil in China and
Southeast Asian markets and a cooperative venture with the China
National Administration of Coal Geology to explore and develop
coalbed methane in two areas of China. See "Organizational
Chart" below and "Business -- United/XCL Lube Oil Joint Venture"
and "-- Coalbed Methane Project." Further, in August 1998 the
Company, through its wholly owned subsidiary XCL-Cathay Ltd.,
signed a production sharing contract with CNODC for the 12,000-
acre Zhang Dong Block which was approved in September 1998,
effective October 1, 1998. See "Management's Discussion and
Analysis of Financial Condition and Results of Operation --
Liquidity, Capital Resources and Management's Plans."
Securities the Resale of Which are Being Registered
---------------------------------------------------
This Prospectus offers for resale the following issued and
outstanding Securities and Securities to be issued upon exercise
or conversion of certain outstanding Securities and Warrants.
See "Selling Security Holders."
Amended Series A Preferred Stock
- --------------------------------
o 294,118 Shares issued in an Equity Offering on May 20,
1997 in which the Company offered privately
294,118 units, each consisting of one share of
Amended Series A Preferred Stock and one warrant
to buy 21.8 shares of Common Stock (the "Equity
Warrants").
o 11,816 Shares issued in partial payment of interest
payable on the Company's Secured Subordinated
Notes due April 5, 2000 (the "Subordinated Debt"),
which were paid in full on October 15, 1997.
o 726,905 Shares issued on recapitalization of the
Company's Series A, Cumulative Convertible
Preferred Stock ("Series A Preferred Stock") into
shares of Amended Series A Preferred Stock and the
payment of accrued and unpaid dividends thereon.
o 63,706 Shares issued on recapitalization of the
Company's Series E, Cumulative Convertible
Preferred Stock ("Series E Preferred Stock") into
shares of Amended Series A Preferred Stock and the
payment of accrued and unpaid dividends thereon.
o 12,917 Shares issued in payment of dividends on the
Amended Series A Preferred Stock payable November
1, 1997.
o 53,442 Shares issued in payment of dividends on the
Amended Series A Preferred Stock payable May 1,
1998.
o 56,295 Shares issuable in payment of dividends on the
Amended Series A Preferred Stock payable November
2, 1998.
_________
1,219,199 Shares of Amended A Preferred Stock being
registered for resale (including in each case
listed above shares, if any, not yet issued
attributable to fractional shares and tax
withholding).
Common Stock
- ------------
o 1,731,285 Shares of Common Stock currently outstanding
issued in private placement transactions between
April 1996 and September 30, 1998 as follows:
o 451,172 Shares issued in payment of interest
payable on Subordinated Debt.
o 4,858 Shares issued in payment of a
finders fee for Regulation S Offerings
conducted in Europe in December 1995,
March 1996 and April 1996.
o 584,696 Shares issued upon exercise of
various stock purchase warrants.
o 30,000 Shares issued in settlement of
litigation.
o 26,666 Shares issued in partial payment of
a consulting fee.
o 633,893 Shares issued upon conversion of all
the outstanding shares of the Company's
Series F, Cumulative Convertible
Preferred Stock ("Series F Preferred
Stock").
o 170,383 Shares issuable to meet various contractual
obligations of the Company.
o 14,044,255 Shares issuable upon conversion of the
outstanding Amended Series A Preferred Stock.
o 6,084,772 Shares issuable upon exercise of the Equity
Warrants issued in the Equity Offering on May 20,
1997.
o 6,400,000 Shares issuable upon exercise of warrants (the
"Note Warrants") that were issued in a Note
Offering on May 20, 1997 in which the Company
privately offered 75,000 units, each unit
consisting of one 13.50% Senior Secured Note due
May 1, 2004 in the principal amount of $1,000
(collectively, the "Notes") and one Note Warrant
to purchase 1,280 shares of Common Stock.
o 1,280,512 Shares issuable upon the exercise of Warrants
issued to Jefferies & Co., Inc. ("Jefferies") as
an investment banking fee in connection with the
Equity and the Note Offerings on May 20, 1997.
o 2,859,514 Shares issuable upon exercise of various
outstanding Warrants with exercise prices ranging
from $.15 per share to $7.50 per share.
o 1,022,000 Shares issuable upon conversion of Amended
Series B, Cumulative Convertible Preferred Stock
("Amended Series B Preferred Stock").
__________
33,592,721 Shares of Common Stock being registered for
resale (including an indeterminable number of
shares issuable in respect of anti-dilution
adjustments applicable to the Amended Series A and
Amended Series B Preferred Stock and the
Warrants).
Terms of the Securities
-----------------------
Common Stock
- -------------
Common Stock Issued and
Outstanding................. 22,995,804 shares
(See "Description of Capital Stock -
- Common Stock")
Amended Series A Preferred Stock
- --------------------------------
Amended Series A Preferred Stock
Outstanding........................ 1,181,614 shares
Dividends................. Dividends are cumulative from May 20, 1997
(the "Issue Date") at the annual
rate of $8.075 per share.
Dividends are payable on each May 1
and November 1, when, as and if
declared by the Board of Directors.
Dividends are payable in additional
shares of Amended Series A
Preferred Stock (valued at $85.00
per share) through November 1,
2000, and thereafter in cash or, at
the election of the Company, in
shares of Amended Series A
Preferred Stock (valued at $85.00
per share). See "Description of
Capital Stock -- Preferred Stock -
- Amended Series A Preferred Stock
-- Dividend Rights."
Liquidation Preference........ $85.00 per share, plus accrued
and unpaid dividends. See
"Description of Capital Stock --
Preferred Stock -- Amended Series
A Preferred Stock -- Liquidation
Rights."
Conversion Rights.............Convertible at any time after May 20,
1998, at the option of the holder,
unless previously redeemed, into
shares of Common Stock at a
conversion price of $7.50 per share
of Common Stock. (This is
equivalent to a conversion rate of
11.333 shares of Common Stock per
share of Amended Series A Preferred
Stock.) Conversion price is subject
to adjustment upon the occurrence
of certain events. See "Description
of Capital Stock -- Preferred Stock
--- Amended Series A Preferred
Stock -- Conversion Rights."
Mandatory Conversion Right......... The Company may, at its
election, require the conversion of
all the outstanding shares of
Amended Series A Preferred Stock at
any time after November 20, 1997
that the Common Stock has traded
for 20 trading days during any 30
consecutive trading days at a
Market Price (as defined below)
equal to or greater than 150% of
the prevailing conversion price.
See "Description of Capital Stock -
- Preferred Stock -- Amended
Series A Preferred Stock --
Mandatory Conversion Rights."
Special Conversion Rights......... The conversion price of the
Amended Series A Preferred Stock
will be reduced for a limited
period in certain circumstances. In
general, the reduction will occur
if a Change of Control (as defined
below) or a Fundamental Change (as
defined below) occurs at a time
when the Market Value of the Common
Stock is below the then prevailing
conversion price. No adjustment
will occur upon a Fundamental
Change if a majority of the
consideration received by the
holders of Common Stock consists
solely of Marketable Stock (as
defined below) and under certain
other circumstances. See
"Description of Capital Stock --
Preferred Stock -- Amended Series A
Preferred Stock -- Special
Conversion Rights."
Optional Redemption.......... Redeemable, in whole or in part, at
the option of the Company, on or
after May 1, 2002, initially at a
redemption price of $90.00 per
share and, thereafter, at prices
declining to $85.00 per share on
and after May 1, 2006, plus all
accrued and unpaid dividends, if
any, to the redemption date. See
"Description of Capital Stock --
Preferred Stock -- Amended Series A
Preferred Stock -- Optional
Redemption."
Mandatory Redemption..........Mandatorily Redeemable, in whole,
on May 1, 2007, at a redemption
price of $85.00 per share, plus
accrued and unpaid dividends to the
redemption date, payable in cash
or, at the election of the Company,
in Common Stock. See "Description
of Capital Stock -- Preferred Stock
-- Amended Series A Preferred Stock
-- Mandatory Redemption."
Voting Rights................ In addition to any special voting rights
granted by law, each share of
Amended Series A Preferred Stock
entitles the holder thereof to cast
the same number of votes as the
shares of Common Stock then
issuable upon conversion thereof on
any matter subject to the vote of
the Common Stockholders (currently
11 votes per share), and (i) the
holders of the Amended Series A
Preferred Stock will be entitled to
vote as a separate class to elect
two directors if the equivalent of
three semi-annual dividends payable
on the Amended Series A Preferred
Stock (whether consecutive or not)
are in arrears, which rights will
continue until the dividend
arrearage has been paid in full,
and (ii) the approval of the
holders of two-thirds of the then
outstanding Amended Series A
Preferred Stock will be required
for the issuance of any class or
series of stock ranking prior to
the Amended Series A Preferred
Stock as to dividends or
liquidation rights and for certain
amendments to the Company's Amended
and Restated Certificate of
Incorporation that adversely affect
the rights of holders of the
Amended Series A Preferred Stock.
See "Description of Capital Stock -
- Preferred Stock -- Amended Series
A Preferred Stock -- Voting
Rights."
Priority of Amended Series A
Preferred Stock..........The Amended Series A Preferred
Stock has priority over the Common
Stock with respect to the payment
of dividends and upon liquidation,
dissolution or winding up of the
Company.
For additional information regarding the Common Stock and
Amended Series A Preferred Stock, see "Description of Capital
Stock -- Common Stock" and "-- Preferred Stock -- Amended Series
A Preferred Stock."
Risk Factors
------------
See "Risk Factors" for a discussion of certain factors that
should be considered in evaluating an investment in the
Securities.
Summary Historical Financial Information
----------------------------------------
The following table represents summary historical
consolidated financial data of the Company. The balance sheet
data as of the five years ended December 31, 1997, has been
derived from the audited consolidated financial statements of the
Company. The balance sheet data as of the six month periods
ended June 30, 1998 and 1997 has been derived from the unaudited
consolidated financial statements of the Company. The
information in this table should be read in conjunction with
"Management's Discussion and Analysis of Financial Condition and
Results of Operations," "Selected Consolidated Financial Data,"
the Consolidated Financial Statements and the notes thereto
included elsewhere in this Prospectus.
<TABLE>
<CAPTION>
Six Months
Year Ended December 31 Ended June 30
---------------------------------------------------------------- --------------------
1993(a) 1994(b) 1995(c) 1996(e) 1997(g)(j) 1997(j) 1998(j)
------- ------- ------- ------- ---------- ------- -------
(In thousands, except per share data) (Unaudited)
<S> <C> <C> <C> <C> <C> <C> <C>
Statement of Operations Data:
Revenues $ 8,499 $ 4,336 $ 2,480 $ 1,136 $ -- $ -- $ --
Operating expenses 2,449 1,341 985 342 -- -- $ --
General and administrative expenses 3,840 4,553 4,551 3,487 5,167 1,562 2,915
Depreciation, depletion and
amortization 5,788 3,292 2,266 579 -- -- --
Other, net -- -- -- -- 2,891 28 72
Operating loss (12,518) (33,875) (85,673) (9,793) (8,058) (1,590) (2,987)
Net interest expense 1,329 1,831 2,998 2,415 8,450 1,646 1,852
Interest income 141 508 133 8 2,212 498 718
Net loss (15,197) (36,622) (87,837) (12,074) (13,994) (2,426) (4,120)
Net loss attributable to common stock (19,978) (41,529) (92,658) (17,430) (27,722) (5,742) (8,999)
Net loss per common share
Basic (2.52) (3.14) (5.77) (0.98) (1.36) (.29) (.40)
Diluted (2.52) (3.14) (5.77) (0.98) (1.36) (.29) (.40)
Weighted average common
shares outstanding - basic 7,933 13,220 16,047 17,705 20,451 19,511 22,622
Weighted average common
shares outstanding - diluted 7,933 13,220 16,047 17,705 20,451 19,511 22,622
Deficiency of earnings to combined
fixed charges and preferred
stock dividends (i) (i) (i) (i) (i) (i) (i)
Balance Sheet Data (at end of
period):
Total working capital (deficit) $(15,562) $ (1,563) $ (24,239) $ (46,705) $ 22,399 $ (34,468) $ 5,972
Total assets 157,377 149,803 72,336 60,864 119,089 151,890 117,204
Long-term debt, net of current
maturities 53,965 (d) 41,607(d) 15,644 -- (f) 61,310(h) -- (f) 62,384(h)
Stockholders' equity 84,609 95,200 16,900 11,041 40,825 34,824 37,799
____________
(a) Includes provision for impairment of domestic oil and gas
properties of $8 million.
(b) Includes provision for impairment of domestic oil and gas
properties of $25.9 million and provision for write-down of
other assets of $2.2 million and an extraordinary loss of
$1.7 million.
(c) Includes provision for impairment of domestic oil and gas
properties of $75.3 million and provision for write-down of
other assets of $4.5 million.
(d) Includes non-recourse debt of an aggregate $0.7 million
and $3.7 million as of December 31, 1994 and 1993,
respectively, included in the Lutcher Moore Debt. (See
"Business -- Domestic Properties -- Lutcher Moore Tract").
(e) Includes provision for impairment of domestic oil and gas
properties of $3.85 million; provision for write-down of
investment of $2.4 million; and loss on sale of investments
of $0.7 million.
(f) All of the Company's debt of $38.02 million at December
31, 1996 and $104.3 million at June 30, 1997 was classified
as currently due.
(g) Includes extraordinary loss for early extinguishment of
debt of $551,000.
(h) Long term debt is net of unamortized discount of $13.7
million and $12.6 million as of December 31, 1997 and June
30, 1998, respectively, associated with the value allocated
to the stock purchase warrants issued with the Company's
13.50% Senior Secured Notes due May 1, 2004.
(i) The earnings were inadequate to cover combined fixed
charges and Preferred Stock dividends. The dollar amount of
the coverage deficiency was $21.3 million in 1993; $43.3
million in 1994; $95.7 million in 1995; $19.8 million in
1996; $36.1 million in 1997; $7.4 million for the six months
ended June 30, 1997; and $10.9 million for the six months
ended June 30, 1998.
(j) Revenues and operating expenses associated with oil and
gas properties held for sale have become insignificant and,
accordingly, are recorded in other costs and operating
expenses in the accompanying consolidated statements of
operations.
Organizational Chart
--------------------
[Organizational Chart]
XCL Ltd. (1) (Parent Company)
XCL-China Ltd. (Wholly owned subsidiary)
XCL-China LubeOil, Ltd. (3) (Wholly owned subisiary)
XCL-China Coal Methane, Ltd. (4) (Wholly owned subsidiary)
XCL-Cathay Ltd. (5) (Wholly owned subsidiary)
XCL-Texas, Inc. (Wholly owned subsidiary)
XCL-Acquisitions, Inc. (Wholly owned subsidiary)
The Exploration Company of Louisiana, Inc. (2) (Wholly owned subsidiary)
XCL-Land Ltd. (2) (Wholly owned subsidiary)
L.M. Holding Associates, L.P., a Louisiana Partnership in Commendam (2)
_________________
(1) XCL holds one-half of the Foreign Contractor's interest under a
Production Sharing Contract covering the Zhao Dong Block; Apache Corporation
holds the other one-half of the Foreign Contractor's interest; CNPC holds an
interest of up to 51% of any fields developed under the Production Sharing
Contract.
(2) The Exploration Company of Louisiana, Inc. holds a 50% interest and is a
limited partner and XCL-Land Ltd. holds a 50% interest and is a general partner
in L.M. Holding Associates, L.P., a Louisiana Partnership in Commendam.
(3) XCL-China LubeOil, Ltd. holds a 49% interest in a joint venture with
CNPC United LubeOil Corporation for the production and sale of lubricants.
(4) XCL-China Coal Methane, Ltd. holds a Memorandum of Understanding with
the China National Administration of Coal Geology (CNACG) regarding the
exploration, evaluation, development and utilization of the coalbed methane
resource in the Hancheng and Tiafa mining areas.
(5) XCL-Cathay Ltd. holds a Production Sharing Contract covering the Zhang
Dong Block; CNPC holds an interest up to 51% of any fields developed under such
contract.
RISK FACTORS
In addition to the other information in this Prospectus, the
following factors should be carefully evaluated before buying any
securities covered by this Prospectus. See also the discussion on
page [3] entitled "Disclosure Regarding Forward-Looking
Statements."
High Degree of Leverage
- -----------------------
The Company is currently highly leveraged. Future
operations will be significantly affected by its level of
indebtedness. Much of its cash flow from operations will be
dedicated to interest payments. Large amounts of money will be
required to continue its operations in China. Covenants in the
Indenture (the "Indenture") governing the Company's 13.50% Senior
Secured Notes due May 1, 2004 (the "Notes") require the Company
to meet certain financial tests and limit the Company's ability
to dispose of assets or to borrow additional funds. These
covenants may affect the Company's business flexibility, and
could possibly limit acquisition activity. The Company's
interest in the Zhang Dong Block, which is held by XCL-Cathay
Ltd., may not be subject to all of the foregoing restrictions.
The Company's earnings to fixed charges ratio and preferred
stock is insufficient to cover preferred dividend payments and
payments on the Notes. The Company's ability to meet its debt
service obligations and to reduce its indebtedness will depend
upon its future performance. This, in turn, will depend upon
successful completion of the activities called for in the ODP,
the Company's access to additional capital, general economic
conditions, as well as on financial, business, and other factors,
many of which are beyond the Company's control.
Restrictions Imposed by Terms of the Company's Indebtedness
- -----------------------------------------------------------
The Indenture restricts, among other things, the Company's
ability to incur additional debt, incur liens, pay dividends, or
make certain other restricted payments. It also limits the
Company's ability to consummate certain asset sales, enter into
certain transactions with affiliates, enter into mergers or
consolidations, or dispose of substantially all the Company's
assets. The Company's ability to comply with such covenants may
be affected by events beyond its control. The breach of any of
these covenants could result in a default. A default could allow
holders of the Notes to declare all amounts outstanding and
accrued interest immediately due and payable. Absent such
payment, the holders could proceed against any collateral granted
to them to secure such indebtedness, which includes all of the
stock of the Company's principal operating subsidiary, XCL-China
Ltd. ("XCL-China"), which has guaranteed such indebtedness with a
full and unconditional guaranty. A foreclosure on the stock of
XCL-China could trigger Apache's right of first refusal under the
Participation Agreement to purchase such stock or its option to
purchase the Company's interest in the Contract. There can be no
assurance that the assets of the Company and XCL-China (a
"Subsidiary Guarantor"), or any other Subsidiary Guarantors (if,
in the future, there are others) would be sufficient to fully
repay the Notes and the Company's other indebtedness. See
"Description of Existing Debt."
Oil and Gas Properties; Capital Expenditures
- --------------------------------------------
The Company's total reserves, as of December 31, 1997 and
June 30, 1998, were all classified as proved and undeveloped, on
a BOE basis. Recovery of such reserves will require both
significant capital expenditures and successful drilling,
completion and production operations. The Company will also have
additional capital expenditures for exploration activity on the
Zhao Dong Block and for activity on the Zhang Dong Block.
The Company plans to generate the additional cash needed
through the sale or financing of its domestic assets held for
sale, a financing involving the Lutcher Moore Tract, the Zhao
Dong Block or the Zhang Dong Block or the completion of
additional equity, debt or joint venture transactions. There is
no assurance, however, that the Company will be able to sell or
finance such assets or to complete other transactions in the
future on commercially reasonable terms, if at all, or that it
will be able to meet its future contractual obligations. The
Indenture limits the Company's ability to obtain additional debt financing, and
there can be no assurance that additional debt or equity financing, or
additional cash from operations, will be available. If funds are raised on an
equity basis, there may be a dilutive effect to current shareholders.
If production from the oil and gas properties commences by mid-1999,
as currently anticipated, the Company's proportionate share of
the related cash flow will be available to help satisfy cash
requirements. However, there is likewise no assurance that such
development will be successful and production will commence, and
that such cash flow will be available. See "Management's
Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity, Capital Resources and Management's
Plans" and "Use of Proceeds." The Company's failure to meet
certain financial obligations under the Joint Operating Agreement
between the Company and Apache (in addition to certain other
actions) may trigger Apache's option to purchase the Company's
interest in the Contract. See "Business -- Apache Farmout" and "-
- - Domestic Properties -- Lutcher Moore Tract."
Reliance on Estimates of Proved Reserves and Future Net Revenue
- ----------------------------------------------------------------
The reserve data included in this Prospectus are only
estimates and may not prove to be correct. In addition,
estimates of future net revenue from proved reserves are also
estimates that may not prove to be correct. In particular,
estimates of crude oil and natural gas reserves, and future net
revenue from proved reserves described in this Prospectus are
based on the assumption that the Zhao Dong Block is developed in
accordance with the ODP, modified to accelerate production and
reduce costs, and that future crude oil prices for production
from the Zhao Dong Block remain at least at the levels assumed
for December 31, 1997. These assumptions include an assumption
that the Company will receive a premium for the C-D Field oil
because of its potential for use as a lubricating oil base stock,
the Company's 49% ownership in the CNPC lubricating oil joint
venture and the Company's right under the joint venture to market
both lubricating oil and lubrication oil feed stock. These
assumptions may prove to be inaccurate. See "Management's
Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity, Capital Resources and Management's
Plans" and "Business -- Oil and Gas Reserves."
Foreign Operations
- ------------------
The Company's future operations and earnings will depend
upon the results of the Company's operations in China. If these
operations are not successful, the Company's financial position,
results of operations and cash flows will suffer greatly.
The success of the Company's operations is subject to many
matters beyond management's control, like general and regional
economic conditions, prices for crude oil and natural gas,
competition, and changes in regulation. Also, since the Company
is dependent on international operations, specifically those in
China, it will be subject to various additional political,
economic and other uncertainties. The Company's operations will
be subject to the risks of restrictions on transfer of funds;
export duties, quotas and embargoes; domestic and international
customs and tariffs; and changing taxation policies, foreign
exchange restrictions, political conditions, and governmental
regulations.
The United States government has publicly criticized China
from time to time with respect to various matters. The Company
cannot predict whether political developments like these will
adversely affect the Company's Chinese operations. The Company
believes that neither the Chinese nor the U.S. government wants
to impair U.S.-Chinese commercial relations. The Company has
excellent relations with Chinese governmental authorities in
charge of the development of China's energy resources.
In recent months there have been substantial disruptions in
several Asian financial markets and many Asian currencies have
undergone significant devaluations. These events can be expected
to have negative near, and possibly long term, effects on the
flow of investment capital into and out of Asian currency
denominated assets. It is impossible to predict the ultimate
outcome of these events and their possible negative effect on the
Company's investments in China.
First Onshore Production Sharing Agreement Between CNODC and a
Foreign Company
- ---------------------------------------------------------------
In early 1993 the Company became the first foreign company
to enter into an onshore production agreement with CNODC
(although since that time a number of other foreign companies
have also done so). Because XCL was the first foreign company
to enter into such a contract, there was some uncertainty as to
how it would be administered.
Currency/Exchange Rate Fluctuations
- -----------------------------------
For the foreseeable future the Company's only material
revenues will be from its oil and gas activities. These
revenues will be in U.S. dollars. To the extent that at some
future time revenues are paid to the Company in Chinese Renminbi
rather than in dollars, the Company's earnings, operations and
cash flows would then be subject to currency and exchange rate
fluctuations and to restrictions imposed by the Chinese
government on the transfer and exchange of funds. If that
occurs the Company will evaluate the currency requirements of
each venture and, if possible, enter into forward exchange
contracts to hedge foreign currency transactions. There can be
no assurance, however, that such forward exchange contracts will
be available at the time of any such occurrence. The Company
does not intend to engage in currency speculation. Renminbi
earnings, if any, must be converted to pay dividends or to make
other payments to the Company in U.S. dollars or other freely
convertible currencies. As of December 1, 1996, as to foreign
investment enterprises, the Renminbi became fully convertible
for current account items, including profit distributions,
interest payments and receipts and expenditures from trade.
Conversion into U.S. dollars is based on the rate set by The
People's Bank of China (which is based on the previous day's PRC
interbank foreign exchange market rate and with reference to
currency exchange rates on the world financial markets). Certain
ministerial approvals are needed to acquire foreign exchange for
a current account transaction. Strict foreign exchange controls
continue for capital account transactions (including repayment
of loan principal and return of direct capital investments and
transactions in investments in negotiable securities). In the
past, there have been shortages of U.S. dollars or other foreign
currency available for conversion of Renminbi, and it is
possible such shortages could recur, or that restrictions on
conversion could be reimposed in the future at times when the
Company is seeking to convert Renminbi. Prior to 1994, the
Renminbi experienced a significant net devaluation against most
major currencies, and during certain periods, significant
volatility in the market-based exchange rate. Since the
beginning of 1994, the Renminbi to U.S. dollar exchange rate has
largely stabilized. However, there can be no assurance that the
Chinese government will not devalue the Renminbi, that such
exchange rate will otherwise remain stable (particularly in
light of the recent currency crisis experienced by a number of
other Asian countries), that the Company will continue to be
able to remit foreign currency abroad or that the Company will
be able to convert sufficient amounts of Renminbi in China's
foreign exchange markets to meet its future needs. Additionally,
there can be no assurance that approvals for exchange
transactions will be available in the future or, if available,
will be granted to the Company. The Chinese government has
issued certain international loan procedures (the "Procedures")
that apply to foreign invested enterprises, including Chinese-
foreign equity and cooperative joint ventures. The Procedures
may require the approval of China's State Administration of
Exchange ("SAFE") for certain international loans to foreign
invested enterprises extended in connection with project finance
transactions, as well as the terms of such transactions. The
Company plans to obtain funds for certain development projects
through project finance transactions. There can be no assurance
that SAFE approval for such transactions, if necessary, can be
obtained at all or on terms advantageous to the Company. The
failure of the Company to obtain SAFE approval for such
transactions, if required, could adversely affect the Company's
ability to fund its operations.
History of Losses
- -----------------
The Company has experienced recurring losses. For the years
ended December 31, 1993, 1994, 1995, 1996 and 1997, the Company
recorded net losses of approximately $15.2 million, $36.6
million, $87.8 million, $12.1 million and $14 million,
respectively. See "Selected Consolidated Financial Data." There
can be no assurance that the Company will be profitable in the
future. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and the Company's
Consolidated Financial Statements and the notes thereto included
elsewhere in this report.
Qualified Accountants' Report
- -----------------------------
In reporting on the Company's audited consolidated
financial statements and XCL-China's audited financial
statements as of and for the fiscal years ended December 31,
1997 and 1996, the report of the Company's independent
1998 accountants contained an explanatory paragraph
indicating factors which create substantial doubt about the
Company's and XCL-China's ability to continue as a going concern.
Such factors include the Company's ability to generate additional
cash flows to satisfy its development and exploratory
obligations with respect to its China properties.
Volatility of Oil and Gas Prices; Impact on Company's
Profitability
- -----------------------------------------------------------------
The Company's revenue, profitability and future rate of
growth are substantially dependent upon prevailing prices for
crude oil and natural gas. Crude oil and natural gas prices can
be extremely volatile and in prior years have been depressed by
excess total supplies. Prices are also affected by actions of
the United States and foreign governments and international
cartels. Further, prices are often seasonal. There can be no
assurance that current levels for crude oil and natural gas
prices can be sustained. Any substantial or extended decline in
such prices would have a material adverse effect on the Company's
financial condition and results of operations, including reduced
cash flow and borrowing capacity.
Operating Hazards; Uninsured Risks
- ----------------------------------
The nature of the crude oil and natural gas business
involves many operating hazards such as crude oil and natural gas
blowouts, explosions, encountering formations with abnormal
pressures, cratering and crude oil spills and fires, and
inclement weather. Any of these could result in damage to or
destruction of crude oil and natural gas wells, destruction of
producing facilities, damage to life or property, suspension of
operations, environmental damage and possible liability to the
Company. In accordance with customary industry practices, the
Company maintains insurance against some, but not all, of such
risks and losses. The Company does not maintain any insurance
against the risks of expropriation and nationalization of its
business interests in China. The occurrence of such an event not
fully covered by insurance could have a material adverse effect
on the financial condition and results of operations of the
Company.
Competition
- -----------
The oil and gas industry is marked by strong competition
from major oil companies and independent operators in acquiring
properties and leases for the exploration for, and production of,
crude oil and natural gas. Competition is particularly intense
with respect to the acquisition of desirable undeveloped crude
oil and natural gas properties. The Company anticipates such
competition in connection with any expansion of its activities in
China. The principal competitive factors in the acquisition of
such undeveloped crude oil and natural gas properties include the
staff and data necessary to identify, investigate and acquire
interests in such properties, close working relationships with
governmental authorities who control acquisition, exploration,
production and marketing activities in China, and the financial
resources necessary to acquire and develop such properties. Many
of the Company's competitors have substantially greater financial
resources, staff and facilities.
The principal raw materials and resources necessary for the
exploration and production of crude oil and natural gas are
interests in prospective properties, drilling rigs and related
equipment to explore for such reserves and knowledgeable
personnel to conduct all phases of crude oil and natural gas
operations. The Company must compete for such raw materials and
resources with both major integrated energy companies and
independent operators. Although the Company believes that its
current operating and financial resources are adequate to
preclude any significant disruption of its operations in the
immediate future, the continued availability of such materials
and resources to the Company cannot be assured.
Depletion of Reserves
- ---------------------
The rate of production from crude oil and natural gas
properties declines as reserves are depleted. Except to the
extent the Company acquires additional properties containing
proved reserves, conducts successful exploration and development
activities or, through engineering studies, identifies additional
behind-pipe zones or secondary recovery reserves, the proved
reserves of the Company will decline as reserves are produced.
Future crude oil and natural gas production is therefore highly
dependent upon the Company's level of success in acquiring or
finding additional reserves.
Government Regulation
- ---------------------
The Company's business is subject to certain Chinese and
United States federal, state, and local laws and regulations
relating to the exploration for and development, production and
marketing of crude oil and natural gas, as well as environmental
and safety matters. In addition, the Chinese government
regulates various aspects of foreign company operations in China.
Such laws and regulations have generally become more stringent in
recent years in the United States, often imposing greater
liability on a larger number of potentially responsible parties.
It is not unreasonable to expect that the same trend will be
encountered in China. Because the requirements imposed by such
laws and regulations are frequently changed, the Company is
unable to predict the ultimate cost of compliance. There is no
assurance that laws and regulations enacted in the future will
not adversely affect the Company's financial condition and
results of operations.
Dependence on Key Personnel
- ---------------------------
The Company depends to a large extent on Marsden W. Miller,
Jr., its Chairman of the Board and Chief Executive Officer, for
its management and business and financial contacts in China and
its relationship with Chinese authorities. The Company does not
have an employment contract with Mr. Miller or with any other
officer or employee, other than employment agreements or similar
arrangements with certain operational employees of the Company's
subsidiaries. See "Management." The unavailability of Mr. Miller
would have a material adverse effect on the Company's business.
The Company's success is also dependent upon its ability to
retain skilled technical personnel. While the Company has not to
date experienced difficulties in employing or retaining such
personnel, its failure to do so in the future could adversely
affect its business. The Company does not maintain key man life
insurance on any of its executives or other personnel.
Limitations on the Availability of the Company's Net Operating
Loss Carryforwards
- ----------------------------------------------------------------
The Company has incurred net operating loss ("NOL")
carryforwards as at December 31, 1997 of $183 million. Use of
the NOLs by the Company are subject to limitations under Section
382 of the Internal Revenue Code of 1986 relating to ownership
changes. The various stock offerings made by the Company may have
triggered those limits. Also uncertainties as to the future use
of the NOLs exist under the criteria set forth in Financial
Accounting Standards Board ("FASB") Statement No. 109,
"Accounting for Income Taxes." The Company established a
valuation allowance of $81.1 million and $83.6 million for
deferred tax assets at December 31, 1996 and 1997, respectively.
Lack of Public Market
- ---------------------
There is no current public market for the Amended Series A
Preferred Stock other than the limited trading through the
Private Offering, Resales and Trading through Automated Linkage
("PORTAL") Market of the National Association of Securities
Dealers, Inc. and none is expected to develop.
Possible Volatility of Price of the Common Stock
- ------------------------------------------------
The market price of the Common Stock and Amended Series A
Preferred Stock could be subject to wide fluctuations in response
to quarterly variations in the Company's results of operations,
changes in earnings estimates by analysts, conditions in the oil
and gas industry or general market or economic conditions.
No Cash Dividends
- -----------------
The Company has not paid any cash dividends to date on the
Common Stock and there are no plans for cash dividend payments on
its Preferred Stock or Common Stock in the foreseeable future.
The Indenture also limits cash dividends on the Company's equity
securities. Dividends on the Company's Preferred Stock have been
paid in kind. In the event of dividend defaults on the
outstanding shares of Preferred Stock, under the terms of such
Stock the Company would be restricted from paying cash dividends
on the Common Stock for so long as such dividend defaults
continued. See "Price Range of Common Stock," "Dividend Policy,"
"Description of Existing Debt" and "Description of Capital Stock
- -- Preferred Stock."
Possible Delisting of Common Stock
- ----------------------------------
The AMEX has, since November 1996, continued to review the
Company's listing eligibility since the Company has not met
certain financial requirements for continued listing. The Company
intends to try to satisfy the Exchange's concerns. In the event
the Common Stock is delisted from the AMEX, the liquidity of the
Securities and the Company's ability to continue funding its
activities through the sale of securities may be significantly
impaired.
Certain Anti-takeover Provisions
- --------------------------------
A Change of Control or other Fundamental Change gives
holders of Amended Series A Preferred Stock special conversion
rights for 45 days. These rights are intended to provide those
holders with limited loss protection in certain circumstances.
The rights may also render more costly or otherwise discourage
certain takeovers or other business combinations. See
"Description of Capital Stock -- Preferred Stock -- Amended
Series A Preferred Stock -- Special Conversion Rights."
The Company's Amended and Restated Certificate of
Incorporation contains provisions that the Board of Directors
believes may impede or discourage a takeover of the Company
without the support of the incumbent Board. See "Description of
Capital Stock -- Common Stock -- Special Charter and By-Law
Provisions."
Year 2000 Compliance
- --------------------
The Company has conducted a review of its computer systems
to identify the systems that could be affected by the "Year 2000"
issue and has upgraded certain of its software to software that
purports to be Year 2000 compliant. The Year 2000 problem is the
result of computer programs being written using two digits
(rather than four) to define the applicable year and equipment
with time-sensitive embedded components. Any of the Company's
programs that have time-sensitive software or equipment that has
time-sensitive embedded components may recognize a date using
"00" as the year 1900 rather than the year 2000. This could
result in a major system failure or miscalculations. Although no
assurance can be given because of the potential wide scale
manifestations of this problem which may affect the Company's
business, the Company presently believes that the Year 2000
problem will not pose significant operational problems for its
computer systems. The Company is not able to estimate the total
costs of undertaking Year 2000 remedial activities, if they will
be required. However, based upon information developed to date,
it believes that the total cost of Year 2000 remediation will not
be material to the Company's cash flow, results of operation or
financial condition. The Company also may be vulnerable to other
companies' Year 2000 issues. The Company's current estimates of
the impact of the Year 2000 problem on its operations and
financial results do not include costs that may be incurred as a
result of any vendors' or customers' failure to become Year 2000
compliant on a timely basis. The Company intends to initiate
formal communications with all of its significant vendors and
customers with respect to such persons' Year 2000 compliance
programs and status in the fourth quarter of 1998. The Company
expects to complete its Year 2000 review and, if required,
remediation efforts within a time frame that will enable its
computer-based and embedded chip systems to function without
significant disruption in the Year 2000. However, there can be
no assurance that such other companies will achieve Year 2000
compliance or that any conversions by such companies to become
Year 2000 compliant will be compatible with the Company's
computer system. The inability of the Company or any of its
principal vendors or customers to become Year 2000 compliant in a
timely manner could have a material adverse effect on the
Company's financial condition or results of operations.
FINANCIAL RESTRUCTURING
The Company has recently taken steps to simplify its capital
structure. Effective November 10, 1997, the Company recapitalized
and combined the Series A and E Preferred Stock into an aggregate
of 790,613 shares of Amended Series A Preferred Stock (including
accrued and unpaid dividends paid in kind). As of September 30,
1998 there were 1,181,614 shares of Amended Series A Preferred
Stock issued and outstanding with an aggregate liquidation
preference of approximately $100 million. Effective January 16,
1998, the Series F Preferred Stock was mandatorily converted into
an aggregate of 633,893 shares of Common Stock. On March 3, 1998,
the Company settled litigation instituted by the holder of its
Series B, Cumulative Preferred Stock (the "Series B Preferred
Stock"). The holder revoked and withdrew its redemption notice
and sold its shares of Series B Preferred Stock and accompanying
warrants. The purchasers exchanged the stock and warrants for
44,465 shares of Amended Series B, Cumulative Convertible
Preferred Stock ("Amended Series B Preferred Stock") and warrants
to purchase 250,000 shares of Common Stock, subject to
adjustment, and received 2,620 shares of Amended Series B
Preferred Stock in payment of all accrued and unpaid dividends on
the Series B Preferred Stock. See "Business -- Litigation." As
of September 30, 1998, there were 48,405 shares of Amended Series
B Preferred Stock issued and outstanding with an aggregate
liquidation preference of approximately $4.8 million. For a
description of the material terms of the Amended Series A
Preferred Stock and the Amended Series B Preferred Stock, see
"Description of Capital Stock -- Preferred Stock -- Amended
Series A Preferred Stock" and "--Amended Series B Preferred
Stock."
USE OF PROCEEDS
Each Selling Security Holder will receive all of the net
proceeds from the sale of the Securities owned by such Selling
Security Holder. The Company will not receive any proceeds from
the sale of any Securities, although the Company will receive the
proceeds from any exercise of the Warrants. However, there can
be no assurance that the Warrants will be exercised. Assuming
all of the Warrants are exercised, the net proceeds to the
Company would be approximately $63 million. The proceeds from
such Warrant exercises, if any, will be used by the Company to
fund its China projects and for general working capital purposes.
CAPITALIZATION
The following table sets forth the total consolidated
capitalization of the Company at June 30, 1998. This table
should be read in conjunction with the Consolidated Financial
Statements of the Company and the notes thereto and the other
financial information included elsewhere in this Prospectus.
(in thousands)
Lutcher Moore Group limited recourse debt $ 2,074
Total debt, including current maturities:
13.50% Senior Secured Notes due May 1, 2004,
net of unamortized discount 62,384
-------
Total debt $ 64,458
-------
Shareholders' equity:
Preferred stock
Amended Series A Preferred Stock $ 1,182
Amended Series B Preferred Stock 48
Common Stock (1) 230
Treasury stock (69,470 shares) (1)
Unearned compensation (2) (11,702)
Additional paid-in capital 304,195
Accumulated deficit (256,153)
-------
Total shareholders' equity $ 37,799
-------
Total capitalization $ 102,257
=======
_______________________
(1) Excludes shares of Common Stock issuable upon conversion
of Preferred Stock or exercise of outstanding options and
warrants at June 30, 1998. See "Description of Capital
Stock."
(2) Represents unearned compensation related to employee
stock option awards and is being amortized over the period
earned. (See Note 9 to the Consolidated Financial Statements
for the year ended December 31, 1997.)
PRICE RANGE OF COMMON STOCK
The Common Stock trades on the AMEX under the symbol "XCL"
and on the London Stock Exchange. The following table shows the
range of the quarterly high and low sales prices on the AMEX to
date during 1998 and for each quarter during 1997 and 1996. On
December 17, 1997 the Company effected a one-for-fifteen reverse
stock split of its Common Stock (the "Reverse Stock Split"). The
high and low prices for the periods shown have been adjusted to
reflect that Reverse Stock Split.
1998 High Low
- ---- ---- ----
First Quarter $ 6.50 $ 3.50
Second Quarter 5.00 3.31
Third Quarter 4.13 2.75
1997
- ----
First Quarter $ 5.63 $ 2.81
Second Quarter 4.69 2.81
Third Quarter 6.56 2.81
Fourth Quarter 13.13 3.85
1996
- ----
First Quarter $ 6.60 $ 2.85
Second Quarter 7.50 2.85
Third Quarter 5.70 1.95
Fourth Quarter 3.75 1.95
On September 30, 1998, the closing price for the Common
Stock on the AMEX was $3.00. As of September 30, 1998, the
Company had approximately 3,480 shareholders of record with
respect to its Common Stock.
DIVIDEND POLICY
XCL has not paid any cash dividends on the Common Stock to
date and has no plans for Common Stock cash dividend payments in
the foreseeable future. The payment of future dividends will
depend on the Company's future earnings and financial condition.
The Company is restricted from paying cash dividends on its
equity securities under the terms of the Indenture. Dividends on
the Company's Preferred Stock have been paid in kind. In the
event of dividend defaults on the outstanding shares of Preferred
Stock, under the terms of such Stock the Company would be
restricted from paying cash dividends on the Common Stock for so
long as such dividend defaults continued. See "Risk Factors --
No Cash Dividends," "Description of the Existing Debt" and
"Description of Capital Stock -- Preferred Stock" herein.
OIL AND GAS EXPLORATION
AND PRODUCTION PROPERTIES AND RESERVES
Production, Sales and Cost Data
- -------------------------------
The following table sets forth certain information regarding
the production volumes, revenues, average prices received and
average production costs associated with the Company's sale of
oil and gas from properties held for sale for the periods
indicated.
Year Ended December 31,
-------------------------
1997 1996 1995
------ ------ ------
Net Production: (a)
Gas (MMcf) 72 467 1,474
Oil (MBbl) 4 9 19
Gas equivalent (MMcfe) 95 522 1,588
Oil and gas sales ($ in 000's)(b)
Gas $ 166 $ 955 $ 1,953
Oil and other 70 181 527
---- ----- ------
Total oil and gas sales $ 236 $ 1,136 $ 2,480
===== ====== =====
Average sales price:
Gas ($ per Mcf) 2.28 1.84 1.33
Oil ($ per Bbl) 18.34 19.80 19.58
Gas equivalent ($ per Mcfe) 2.47 2.18 1.56
Oil and gas costs ($ per Mcfe):
Production expenses and taxes 2.41 0.74 0.71
Depreciation, depletion and
amortization of oil and gas
properties 0.81 0.96 1.23
________________
(a) Excludes gas consumed in operations.
(b) Includes plant products recovered from treating and
processing operations.
The following table shows the 1997 production of oil and
natural gas liquids and natural gas by major fields. All of the
Company's net production was attributable to the Cox Field and
the Frenier Field located on the Lutcher Moore Tract. (See
"Business -- Domestic Properties").
1997 Net Production
--------------------------
(MBbls) (MMcf)
----------- -----------
Field Oil % Gas %
- ------ ----- ---- ---- ----
Cox Field -- -- 72 100
Frenier Field 4 100 -- --
Oil and Gas Acreage
- -------------------
The oil and gas acreage in which the Company has leasehold
or other contractual interests at December 31, 1997, and which
are not classified as assets held for sale are summarized in the
following table. "Gross" acres are the total number of acres
subject to the Contract. "Net" acres are gross acres multiplied
by the Company's fractional share of the costs of production
after taking into account CNODC's 51% reversionary interest with
respect to the 5,911 acres in the C-D Initial Development Area
(in which CNODC has elected to participate) and before CNODC's
51% reversionary interest in the remaining gross acres (in which
CNODC has not yet elected to participate).
Undeveloped
-----------------
Gross Net (a)
----- -------
The People's Republic of China 48,677 22,831
_________________
(a) Net undeveloped acreage would be 11,926 acres if CNODC
elects to participate for its 51% reversionary interest in
the entire Zhao Dong Block.
Drilling Activity
- -----------------
The following tables set forth wells drilled by the Company
in the periods indicated.
Year Ended December 31,
-------------------------------------------------
1997 1996 1995
------------- ------------- ------------
United States Gross Net Gross Net Gross Net
- ------------- ----- --- ----- --- ----- ---
Exploratory:
Productive -- -- -- -- -- --
Nonproductive -- -- -- -- -- --
---- ---- ---- ---- ---- ----
Total -- -- -- -- -- --
Development:
Productive -- -- -- -- 1 .2
Nonproductive -- -- -- -- -- --
---- ---- ---- ---- ---- ----
Total -- -- -- -- 1 .2
Year Ended December 31,
----------------------------------------------------
1997 1996 1995 (a)
------------- -------------- --------------
The People's
Republic of China Gross Net Gross Net Gross Net
- ------------------- ----- --- ----- --- ----- ---
Exploratory:
Productive 2 1.0 1 .5 2 1.0
Nonproductive 1 0.5 -- -- 1 .5
---- ---- ----- ---- ---- ----
Total 3 1.5 1 .5 3 1.5
Development:
Productive -- -- -- -- -- --
Nonproductive -- -- -- -- -- --
---- ---- ---- ---- ---- ----
Total -- -- -- -- -- --
____________
(a) Pursuant to the Second Participation Agreement dated May
10, 1995, between XCL and Apache, Apache's interest in the
Zhao Dong Block was increased from 33% to 50% of the Foreign
Contractor's interest.
Producing Well Data
- -------------------
At December 31, 1997, the Company had interests in 4
producing gas wells (3.45 net) in the Cox Field, which are
included in assets held for sale.
Summary of Oil and Gas Reserve Data
- -----------------------------------
The following table sets forth summary information with
respect to the Company's estimated proved undeveloped oil
reserves and the estimated future net cash flows attributable
thereto. Unless otherwise noted, all information in this
Prospectus relating to oil reserves and the estimated future net
cash flows attributable thereto are based on estimates prepared
by the Company's independent petroleum engineers and are shown
net to the Company's interest. The estimated future undiscounted
net cash flows and the present value of estimated future net cash
flows were prepared using constant prices as of the calculation
dates. The present value of estimated future net cash flows were
discounted at 10% per annum on a pre-tax basis. The following
table also sets forth, for comparison purposes, the standardized
measure of discounted future net cash flows determined in
accordance with the rules prescribed by FASB No. 69.See "Risk
Factors -- Reliance on Estimates of Proved Reserves and Future
Net Revenue" and "Supplemental Oil and Gas Information" in the
Notes to the Consolidated Financial Statements.
Crude Oil (MBLs)
---------------------------------
1997(1) 1996 (1) 1995 (1)
------- -------- --------
Oil and Condensate 11,762 10,579 58
======= ======= ======
Estimated future pre-tax net
revenues (in thousands) $119,049 $142,860 $46,835
======== ======= ======
Present value of estimated
future net pre-tax revenues
(in thousands) $ 64,821 $ 79,062 $26,040
======= ======== ======
Standardized measure of
discounted future net cash
flows (in thousands) $ 53,848 $ 62,606 $26,040
======= ======= ======
_________________
(1) 1997 and 1996 represent China properties only. 1995
represents U.S. properties being held for sale only.
SELECTED CONSOLIDATED FINANCIAL DATA
The following table sets forth selected consolidated
financial data of the Company for and at the end of each of the
five years ended December 31, 1997 derived from the audited
financial statements of the Company included elsewhere in this
Prospectus (except for 1994 and 1993 which are not included
herein) and from the unaudited financial statements for the six
months ended June 30, 1998 and 1997, which have been prepared on
the same basis as the audited statements and, in the opinion of
Management, reflect all adjustments, consisting of normal
recurring adjustments, necessary for a fair presentation of that
information. The following table should also be read in
conjunction with "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and the
Consolidated Financial Statements and notes thereto included
elsewhere herein.
</TABLE>
<TABLE>
<CAPTION>
Six Months
Year Ended December 31 Ended June 30
---------------------------------------------------------------- ---------------------
1993(a) 1994(b) 1995(c) 1996(e) 1997(g)(j) 1997(j) 1998(j)
------- ------- ------- ------- ---------- ------- -------
(In thousands, except per share data) (Unaudited)
<S> <C> <C> <C> <C> <C> <C> <C>
Statement of Operations Data:
Revenues $ 8,499 $ 4,336 $ 2,480 $ 1,136 $ -- $ -- $ --
Operating expenses 2,449 1,341 985 342 -- -- --
General and administrative expenses 3,840 4,553 4,551 3,487 5,167 1,562 2,915
Depreciation, depletion and
amortization 5,788 3,292 2,266 579 -- -- --
Other, net -- -- -- -- 2,891 28 72
Operating loss (12,518) (33,875) (85,673) (9,793) (8,058) (1,590) (2,987)
Net interest expense 1,329 1,831 2,998 2,415 8,450 1,646 1,852
Interest income 141 508 133 8 2,212 498 718
Net loss (15,197) (36,622) (87,837) (12,074) (13,994) (2,426) (4,120)
Net loss attributable to common stock (19,978) (41,529) (92,658) (17,430) (27,722) (5,742) (8,999)
Net loss per common share
Basic (2.52) (3.14) (5.77) (0.98) (1.36) (.29) (.40)
Diluted (2.52) (3.14) (5.77) (0.98) (1.36) (.29) (.40)
Weighted average common
shares outstanding - basic 7,933 13,220 16,047 17,705 20,451 19,511 22,622
Weighted average common
shares outstanding - diluted 7,933 13,220 16,047 17,705 20,451 19,511 22,622
Deficiency of earnings to combined
fixed charges and preferred
stock dividends (i) (i) (i) (i) (i) (i) (i)
Balance Sheet Data (at end of
period):
Total working capital (deficit) $(15,562) $ (1,563) $ (24,239) $ (46,705) $ 22,399 $ (34,468) $ 5,972
Total assets 157,377 149,803 72,336 60,864 119,089 151,890 117,204
Long-term debt, net of current
maturities 53,965 (d) 41,607(d) 15,644 -- (f) 61,310(h) -- (f) 62,384(h)
Stockholders' equity 84,609 95,200 16,900 11,041 40,825 34,824 37,799
___________
(a) Includes provision for impairment of domestic oil and gas
properties of $8 million.
(b) Includes provision for impairment of domestic oil and gas
properties of $25.9 million and provision for write-down of
other assets of $2.2 million and an extraordinary loss of
$1.7 million.
(c) Includes provision for impairment of domestic oil and gas
properties of $75.3 million and provision for write-down of
other assets of $4.5 million.
(d) Includes non-recourse debt of an aggregate $0.7 million
and $3.7 million as of December 31, 1994 and 1993,
respectively, included in the Lutcher Moore Debt.
(e) Includes provision for impairment of domestic oil and gas
properties of $3.85 million; provision for write-down of
investment of $2.4 million; and loss on sale of investments
of $0.7 million.
(f) All of the Company's debt of $38.02 million at December 31,
1996 and $104.3 million at June 30, 1997 was classified as
currently due.
(g) Includes extraordinary loss for early extinguishment of
debt of $551,000.
(h) Long term debt is net of unamortized discount of $13.7
million and $12.6 million as of December 31, 1997 and June
30, 1998, respectively, associated with the value allocated
to the stock purchase warrants issued with the Notes.
(i) The earnings were inadequate to cover fixed charges.
The dollar amount of the coverage deficiency was $16.5
million in 1993; $38.5 million in 1994; $90.8 million in
1995; $14.5 million in 1996; and $22.4 million in 1997; $4.1
million for the six months ended June 30, 1997; and $6.0
million for the six months. ended June 30, 1998.
(j) Revenues and operating expenses associated with oil and
gas properties held for sale have become insignificant and,
accordingly, are recorded in other costs and operating
expenses in the accompanying consolidated statements of
operations.
</TABLE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
The following discussion and analysis should be read
together with the Consolidated Financial Statements, the notes
thereto and the supplemental data included in this Prospectus.
References to Notes in this section of the Prospectus are to the
notes to the audited Consolidated Financial Statements. See also
the discussion on page [3] entitled "Disclosure Regarding Forward-
Looking Statements."
Liquidity, Capital Resources and Management's Plans
- ---------------------------------------------------
Background
----------
The Company's management decided in the fourth quarter of
1995 to focus on the Company's operations in China and to sell
its other assets. The excellent well test results on the Zhao
Dong Block and the Company's reserve assessments support this
decision. The Company has focused on (i) raising funds to meet
capital requirements for Chinese operations, (ii) selling its
other properties and (iii) simplifying its capital structure to
make it easier to raise capital. The Company intends to continue
these activities and to work with Apache and CNODC to refine the
ODP to reduce expenditures and accelerate production. The
Company's only historic revenues have been from the Company's
financing activities and from properties previously sold and
those currently held for sale or investment. The Company is in
the development stage with respect to its operations in China and
has not generated any revenues from operations related to its
properties and interests in China.
The Company has made significant capital expenditures since
acquiring its interest in the Zhao Dong Block in 1992. Despite
incurring losses since 1992, the Company, because of the high
quality of the Zhao Dong Block, has been able to obtain all
required funds for the exploration and development of the Zhao
Dong Block.
On August 20, 1998, the Company entered into a production
sharing contract with CNODC for the 12,000-acre Zhang Dong Block
and on September 15, 1998, the contract was approved by the
Ministry of Foreign Trade and Economic Cooperation of China,
effective October 1, 1998.
Liquidity and Capital Resources
-------------------------------
The Company offered and sold $75 million of Notes and $25
million of equity on May 20, 1997. During 1997 such funds were
used to pay costs of the offering, the Company's 1997 exploration
and development costs and $38 million of debt. At June 30, 1998,
the Company had an unrestricted operating cash balance of $11.4
million and restricted cash held in escrow for the payment of
interest on the Notes of $5.2 million. The Company had net
working capital of $6.0 million. These cash balances are not
sufficient to cover the Company's working capital requirements
and capital expenditure obligations on the Zhao Dong Block during
the remainder of 1998 and through 1999.
As a result of the Company's decision to focus on China and
sell its U.S. assets, the Company presently has no source of
material revenues. Revenues for 1997 were $0.2 million versus
$1.1 million in 1996. The Company incurred a loss for fiscal
1997 of $14.0 million and expects to incur a loss in 1998 as well
because production and related cash flow from the Zhao Dong and
Zhang Dong Blocks are not expected until 1999. For the six
months ended June 30, 1998, the Company had a net loss of $4.1
million.
Management's Plan
-----------------
The Company's unrestricted cash will be required for working
capital and exploration, development and production expenditures
on the Zhao Dong and Zhang Dong Blocks.
With respect to the Zhao Dong Block, CNODC has given written
notice that it will participate as to its full 51% share of the C-
D Field and has urged that production begin as soon as reasonably
practicable. Except for certain exploratory wells on which
Apache has an obligation to pay for the Company's costs, the
Company is required to fund 50% of all exploration expenditures
and 24.5% of all development and production expenditures. The
Company estimates that its share of actual development
expenditures for the C-D Field for the remainder of 1998 will be
approximately $2.0 million. The Company estimates that its share
of unpaid exploration expenses for the remainder of 1998 will be
approximately $5.0 million. The Company estimates that its share
of development expenses for 1999 will be approximately $22
million. The Company estimates its share of exploration expenses
of the remaining two obligatory wells to be drilled in 1999 is
approximately $6.0 million. The Company anticipates that in
addition to the two obligatory exploration wells to be drilled in
1999, additional exploration wells may be drilled during 1999.
The Company presently projects and plans that these funds will be
available from the sale or refinancing of domestic oil and gas
properties held for sale and/or investment in land, project
financing, increasing the amount of senior secured notes,
supplier financing, additional equity, including the exercise of
currently outstanding warrants to buy common stock, joint
ventures with other oil companies and proceeds from production.
Based on continuing discussions with major stockholders,
investment bankers, potential purchasers and other oil companies,
the Company believes that such required funds will be available.
However, there is no assurance that such funds will be available
and, if available, on commercially reasonable terms. Any new
debt could require approval of the holders of the Company's Notes
and there is no assurance that such approval could be obtained.
See "Risk Factors."
Due to the successful results of the D-3 and C-4 Wells, the
1998 work program and budget exceed the Company's initial
preliminary projections earlier in 1997. This results from the
necessity of drilling at least one appraisal well offsetting the
C-4 exploratory well and the decision to extend the Contract into
its third exploratory period because of the successful drilling
of the D-3 and C-4 wells. XCL, Apache, and CNODC are working
together to reduce capital costs for the Zhao Dong Block and to
determine whether the commencement of production from the C-4
Well area can be accelerated into the first half of 1999. This
work has already resulted in reductions of estimated capital
costs of approximately $35 million based on a change in the
conceptual design, and a determination that it is possible to
commence production from the C-4 well area in the first half of
1999. It is the Company's understanding that the Company, Apache
and CNODC have now all agreed to make every effort to achieve
initial production in the first half of 1999. The $28 million
estimated to be necessary for exploration and development in 1999
does not include the entire cost of accelerating production from
the C-4 Well area into the first part of 1999. The Company
estimates this would require additional expenditures of
approximately $960,000, which the Company believes it can obtain
from the sources described above.
The Company is the operator of the Zhang Dong Block and, as
such, is required to cover the costs of initial appraisal
drilling, upgrading production facilities and additional studies
of seismic data. The contract commits the Company to drill at
least one well during the first year. Under the contract, the
Company is entitled to 49% of the production. The Company
estimates that its minimum capital requirements over the next
year to satisfy the terms of the Zhang Dong contract are
approximately $8 million. Funds are expected to come from the
previously mentioned sources.
Longer term liquidity is dependent upon the Company's future
performance, including commencement of production in China, as
well as continued access to capital markets. In addition, the
Company's efforts to secure additional financing could be
impaired if its Common Stock is delisted from the AMEX.
If funds for the purposes described above are not available,
the Company may be required substantially to curtail its
operations or to sell or surrender all or part of its interest in
the Zhao Dong or the Zhang Dong Blocks and/or its other interests
in China in order to meet its obligations and continue as a going
concern.
The Company is not obligated to make any additional
capital payments to its lubricating oil and coalbed methane
projects. The Company is in discussions with the Chinese about
expansion of their lube oil venture. If these discussions are
successfully concluded, additional capital investments will be
required by the Company; however, at this time it is not known
what the extent or timing for such investments might be.
Similarly, if the Company's coalbed methane project becomes
active and is successful, the Company may make additional
investments in that business. Again, the extent and timing of
such investment, if any, is unknown at this time.
Other General Considerations
- ----------------------------
Pursuant to the Company's December 17, 1997 shareholders'
meeting, whereby several compensation plans were approved, the
Company recorded unearned compensation of approximately $12.8
million. This amount will be amortized ratably over future
periods of up to five years and is recorded as a non-cash expense
in the Statement of Operations. Because certain of these awards
are based on market capitalization there may be additional
amounts which may become payable. Approximately $0.9 million of
compensation expense was recorded in connection with these awards
during 1997. An additional $0.7 million of compensation expense
was recorded in the first six months of 1998.
The Company believes that inflation has had no material
impact on its sales, revenues or income during the reporting
periods. In light of increased oil and gas exploration activity
worldwide, and in the Bohai Bay in particular, increased rates
for equipment and services, and limited rig availability may have
an impact in the future.
The Company is subject to existing domestic and Chinese
federal, state and local laws and regulations governing
environmental quality and pollution control. Although management
believes that such operations are in general compliance with
applicable environmental regulations, risks of substantial costs
and liabilities are inherent in oil and gas operations, and there
can be no assurance that significant costs and liabilities will
not be incurred.
New Accounting Pronouncements
- -----------------------------
In June 1997, the FASB issued SFAS No. 130, "Reporting
Comprehensive Income," which is effective for the Company's year
ending December 31, 1998. SFAS No. 130 establishes standards for
the reporting and displaying of comprehensive income and its
components. The Company will be analyzing SFAS No. 130 during
1998 to determine what, if any, additional disclosures will be
required.
In June 1997, the FASB Issued SFAS No. 131, "Disclosures
about Segments of an Enterprise and Related Information," which
is effective for the Company's year ended December 31, 1998.
This statement establishes standards for reporting of information
about operating segments. The Company will be analyzing SFAS No.
131 during 1998 to determine what, if any, additional disclosures
will be required.
Results of Operations
- ---------------------
The six month period ended June 30, 1998 compared to the six
month period ended June 30, 1997
- ------------------------------------------------------------------
During the six months ended June 30, 1998 and June 30, 1997,
the Company incurred net losses of $4.1 million and $2.4 million,
respectively.
Revenues and operating expenses associated with oil and gas
properties held for sale have become insignificant and
accordingly, are recorded in other costs and operating expenses
in the accompanying consolidated statement of operations.
Interest expense increased during the six months ended June
30, 1998, when compared with the same period in 1997, because of
increased debt and interest rates. Also included in interest
expense was amortization of warrant costs and debt issue costs on
the Senior Secured Notes issued in May 1997. Interest
capitalized for the comparable periods in 1998 and 1997 increased
because the oil and gas property base was larger, thus, reducing
net interest expense for the periods.
Preferred Stock dividends were $4.9 million for the six
months ended June 30, 1998, as compared to $3.3 million for the
same period in 1997. The increase is the result of the issuance
of additional shares in the equity offering concluded in May
1997. These dividends are paid in additional shares of Preferred
Stock at the option of the Company.
Interest income for the six months ended June 30, 1998 and
1997 was $0.7 million and $0.5 million, respectively. The
increase of $0.2 million in 1998 resulted from the short-term
investment of cash still available from the May 1997 debt and
equity offerings.
General and administrative expenses were $2.9 million for
the six months ended June 30, 1998, as compared to $1.6 million
for the same period in 1997. The increase of $1.3 million during
the six month period ended June 30, 1998, was primarily due to
increases in non-cash compensation charges related to stock and
appreciation options of $0.7 million (approved by shareholders in
December 1997), $0.4 million in legal and professional fees, and
$0.2 million in public company expenses. Legal and professional
fees increased because of additional services and public company
expenses associated with holding two shareholder meetings.
1997 compared to 1996
- ---------------------
The Company incurred a loss of $14 million in 1997, as
compared with a loss of $12 million in 1996. Included in the
loss for 1997 is a charge of $0.9 million for non-cash
compensation charges, related to stock and appreciation options,
which are classified in general and administrative expenses. In
addition, 1997 includes a $2.8 million provision for estimated
settlements in connection with various disputes and litigation
matters. Such amount is reflected in Other in the Statement of
Operations. In addition, $0.6 million of non-cash charges relate
to early extinguishment of debt.
Interest expense, net of amounts capitalized, increased $6.0
million in 1997 primarily as a result of increased borrowings and
higher interest rates on the new debt. In addition, interest
expense includes amortization of $1.3 million relating to the
value assigned to warrants issued with the $75 million debt
offering completed in May 1997.
The net loss for 1996 includes a $3.85 million noncash
charge for the provision of impairment of domestic oil and gas
properties classified as held for sale. The loss in 1996 also
reflects the effect of a $2.4 million write-down and $0.7 million
loss on sale of the Company's investments.
Oil and gas revenues from properties held for sale for the
year ended December 31, 1997 were approximately $0.2 million,
compared to approximately $1.1 million during 1996. Revenues will
continue to decline as the Company completes its announced program
of selling substantially all of its U.S. producing properties.
Interest income increased $2.2 million during the year ended
December 31, 1997, compared with 1996. The primary reason for
this increase was the interest earned on the $75 million held
in escrow from the Note Offering.
As the Company continues to focus its resources on
exploration and development of the Zhao Dong and Zhang Dong
Blocks, future oil and gas revenues will initially be directly
related to the degree of drilling success experienced. The
Company does not anticipate significant increases in its oil and
gas production in the short-term and expects to incur operating
losses until such time as net revenues from the China projects
are realized.
General and administrative expenses increased $1.4 million
during 1997 as compared with 1996, as reflected in the following
table.
1997 1996
---- ----
(thousands)
Payroll, benefits and travel $ 1,554 $ 1,683
Non-cash compensation cost 853 --
Legal and professional 1,284 510
Public company and corporate expenses 574 539
Lafayette office expense 304 374
Corporate insurance 341 381
------ ------
$ 4,910 $ 3,487
====== ======
The increase in legal and professional fees of approximately
$0.8 million were principally related to fees of approximately
$0.2 million on one lawsuit, an increase of approximately $0.3
million for outside consulting and the remainder of the increase
for general and corporate legal and accounting services.
1996 compared to 1995
---------------------
The Company reported a net loss for fiscal 1996 of $12.1
million before preferred dividends of $5.4 million, or a total of
$0.98 per share, compared to a net loss for fiscal 1995 of $87.8
million before preferred dividends of $4.8 million, or $5.77 per
share (as adjusted for the Reverse Stock Split). The net loss
for 1996 includes a $3.85 million noncash charge for impairment
of domestic oil and gas properties, classified as assets held for
sale. The loss in 1996 also reflects a $2.4 million write-down
and $0.7 million loss on the sale of the Company's investments.
The net loss for 1995 includes a $75.3 million noncash
charge for the provision of impairment of domestic oil and gas
properties. The carrying amounts of the Company's properties in
Texas were written down by $16.5 million during 1995, in order to
comply with the ceiling limitation prescribed by the Commission.
This was principally due to downward revisions in estimated
reserves in the second quarter and reduced present values of
reserves attributable to delays in development drilling scheduled
in the third quarter. During the fourth quarter, to reflect the
expected results of its announced program to divest itself of its
U.S. oil and gas properties, the Company recorded an additional
$58.8 million noncash write-down, reducing the recorded value of
its domestic oil and gas properties to their estimated fair
market value. The loss in 1995 also reflects the effects of a
$4.5 million write-down of the Company's other assets and
investments.
Oil and gas revenues from properties held for sale in 1996
were $1.1 million as compared to $2.5 million in 1995, primarily
due to continued reduction in volume sold. The Company does not
anticipate material revenues until mid-1999 at the earliest when
production in China may commence.
General and administrative expenses for 1996 were $3.5
million as compared to $4.6 million in 1995. General and
administrative costs are expected to remain relatively unchanged
during the upcoming year. Operating costs are expected to
decline due to the further disposition of domestic oil and gas
properties.
Interest expense decreased in 1996, due primarily to the
Company's principal payments on its institutional debt in the
first quarter of 1996.
Subsequent Events
- -----------------
Since June 30, 1998, the Company entered into a production
sharing contract with CNODC for the 12,000-acre Zhang Dong Block.
See "Management's Plans" above. In addition, on August 26, 1998,
the Company, Apache and CNODC began drilling the C-5 exploration
well on the Zhao Dong Block and on August 26, 1998, they began
drilling the C-4-2 appraisal well on the Zhao Dong Block.
In September 1998, the Company exchanged (i) 15,000 Equity
Warrants from the May 20, 1997 Equity Offering, exercisable on or
after May 20, 1998 and before May 20, 2004, and entitling the
holder to purchase 351,015 shares of Common Stock at a price of
$3.09 per share and (ii) 24,015 Warrants issued on May 20, 1997,
in connection with interest payable on the Secured Subordinated
Notes due April 15, 2000, exercisable between May 20, 1998 and
November 1, 2000, at an exercise price of $3.09 per share, held
by an institutional holder, for new Warrants exercisable on or
before September 30, 1998 and entitling the holder to purchase
351,015 shares of restricted Common Stock at a price of $2.50 per
share. On September 17, 1998, the new Warrants were exercised,
as a result of which the Company received approximately $0.9
million and is to issue 351,015 shares of its restricted Common
Stock in an exempt private placement. The Warrant Exchange
Agreement provides that if at any time on or before March 15,
1999, any other holder of Equity Warrants from the May 20, 1997
Equity Offering is offered an exchange of such Warrants or an
amendment to such Warrants to provide for a more favorable
exercise provision than offered in the Warrant Exchange
Agreement, the party to the Warrant Exchange Agreement shall be
entitled to purchase additional shares of Common Stock at a price
of $0.01 per share in an amount that will make its effective
exercise price under the Warrant Exchange Agreement equivalent to
that provided to such other Warrant holder.
Year 2000 Compliance
- --------------------
The Company has conducted a review of its computer systems
to identify the systems that could be affected by the "Year 2000"
issue and has upgraded certain of its software to software that
purports to be Year 2000 compliant. The Year 2000 problem is the
result of computer programs being written using two digits
(rather than four) to define the applicable year and equipment
with time-sensitive embedded components. Any of the Company's
programs that have time-sensitive software or equipment that has
time-sensitive embedded components may recognize a date using
"00" as the year 1900 rather than the year 2000. This could
result in a major system failure or miscalculations. Although no
assurance can be given because of the potential wide scale
manifestations of this problem which may affect the Company's
business, the Company presently believes that the Year 2000
problem will not pose significant operational problems for its
computer systems. The Company is not able to estimate the total
costs of undertaking Year 2000 remedial activities, if they will
be required. However, based upon information developed to date,
it believes that the total cost of Year 2000 remediation will not
be material to the Company's cash flow, results of operations or
financial condition.
The Company also may be vulnerable to other companies' Year
2000 issues. The Company's current estimates of the impact of
the Year 2000 problem on its operations and financial results do
not include costs that may be incurred as a result of
any vendors' or customers' failure to become Year 2000 compliant
on a timely basis. The Company intends to initiate formal
communications with all of its significant vendors and customers
with respect to such persons' Year 2000 compliance programs and
status in the fourth quarter of 1998. The Company expects to
complete its Year 2000 review and, if required, remediation
efforts within a time frame that will enable its computer-based
and embedded chip systems to function without significant
disruption in the Year 2000. However, there can be no assurance
that such other companies will achieve Year 2000 compliance or
that any conversions by such companies to become Year 2000
compliant will be compatible with the Company's computer system.
The inability of the Company or any of its principal vendors or
customers to become Year 2000 compliant in a timely manner could
have a material adverse effect on the Company's financial
condition or results of operations.
BUSINESS
The Company's principal business is the exploration for and
development and production of crude oil and natural gas. Building
on the success of its first such project in China, the joint
venture on the Zhao Dong Block (see "Prospectus Summary -- The
Company"), the Company's strategy is to expand those operations
and, selectively, to enter into additional energy-related joint
ventures. Published information shows that the undeveloped
energy resources of China are extensive and that China's energy
needs are growing at a high rate. The Chinese government,
further, has recently encouraged foreign participation in the
development of its energy resources, and has demonstrated a
willingness to include independent oil and gas exploration
companies such as the Company in additional energy-related joint
ventures. The Company's excellent relationship with the Chinese
energy-related industry representatives should assist it in
remaining competitive in that country. See "The Zhao Dong Block,"
below. On August 20, 1998, the Company entered into a production
sharing contract with CNODC, effective October 1, 1998, for the
12,000-acre Zhang Dong Block. See "Zhang Dong Block," below.
To expand its energy-related activities in China, on July
17, 1995 the Company signed a contract with CNPC United Lube Oil
Corporation to engage in the manufacturing, distribution, and
marketing of lubricating oil in China and in southeast Asian
markets. See "United/XCL Lube Oil Joint Venture," below. And on
December 14, 1995, the Company signed a Memorandum of
Understanding with the China National Administration of Coal
Geology ("CNACG"), pursuant to which the parties have begun
cooperative exploration and development of coalbed methane in two
areas of China. See "Coalbed Methane Project," below.
Corporate History; Address; Employees
- -------------------------------------
Before 1993, the Company operated primarily in the Gulf
Coast area of the United States. Formerly The Exploration Company
of Louisiana, Inc., XCL Ltd. was incorporated in Delaware in
1987. It is the successor to a Louisiana corporation of the same
name, incorporated in 1981. The Company's principal executive
offices are at 110 Rue Jean Lafitte, 2nd Floor, Lafayette,
Louisiana 70508. Its telephone number is (318) 237-0325.
As of June 30, 1998, the Company's employees totaled 26. No
employees are subject to any union contracts. The Company
believes it maintains good relations with its employees.
The Zhao Dong Block
- -------------------
Geology
-------
The Zhao Dong Block extends from the shoreline of the Dagang
oil field complex on Bohai Bay to water depths of approximately 5
meters. It encompasses approximately 197 square km (roughly
50,000 gross acres). Geologic information suggests that a portion
of the Zhao Dong Block is a seaward extension of the Dagang oil
field complex which is one of China's largest. According to
statistics published by Wood McKenzie in the Southeast Asia
Report, Dagang has produced over 700 million barrels of oil and
has an estimated ultimate recovery of substantially more. The
Company has not verified this published information.
Tertiary formations constitute a major portion of the Zhao
Dong Block's production, its geology being in many respects
similar to the U.S. Gulf Coast. Bohai Bay sediments are however
non-marine and oil prone, while the U.S. Gulf Coast sediments are
open-marine and gas and condensate prone. Seismic and subsurface
data appear to indicate a thick, structured sedimentary section
in the contract area. Proximity to producing fields and highly
productive test results from the wells which have been drilled
suggest excellent source rock.
Seismic
-------
Seismic data were acquired in and around the Zhao Dong Block
by shallow water and transition zone seismic crews from 1986 to
1988. While the original processing of the data was fair in
reflection continuity, the Company's initial evaluation involved
reprocessing 721 km, resulting in dramatic improvement for both
structural and stratigraphic interpretation. This reprocessing,
plus 390 km of new seismic data (outlined below), make available
a current total of 1,111 km of 2D seismic data in and around the
Zhao Dong Block.
From 1993 through 1995 the Company acquired an additional
390 km of 2D seismic data shot by Dagang Geophysical, a Chinese
firm, all of which assisted the Company in assessing the Zhao
Dong Block's potential.
A 1997 3-D seismic program was designed to delineate
development well locations in the C-D Field and to better define
exploration prospects on the remainder of the Zhao Dong Block.
The program covered approximately 100 square km and cost
approximately $5.5 million; the Company's share was approximately
$2.75 million. A similar program (at a comparable cost) will be
undertaken in 1998 to cover most of the rest of the Zhao Dong
Block.
Drilling Results
----------------
Mapping of seismic events on shallow, medium, and deep
reflections delineated possibly productive lead areas. Subsequent
exploratory drilling resulted in three successful discoveries
along the Zhao Bei fault system. Appraisal tests have
structurally and stratigraphically delineated the aerial extent
of both the "C" and the "D" segments of the C-D Field.
Hydrocarbons have been found in the Lower Minghuazhen (Pliocene),
the Guantao (Miocene), and the Shahejie (Oligocene) formations.
Appraisal drilling commenced in 1998 to delineate the extent of
the 1997 C-4 discovery located northeast of the C-D Field. The C-
4 well is productive from the Shahejie Formation and,
additionally, from Jurassic and Permian Age sediments.
The Company's drilling programs, year by year, have been as
follows:
1994 Drilling
-------------
Zhao Dong C-1. The first of three Phase 1 exploratory
wells, C-1 was spudded in April 1994, and drilled to a depth
of 9,843 feet. Oil was tested in two Pliocene sands of the
Lower Minghuazhen Formation, from perforations shot between
4,278 and 4,462 feet, and yielded a combined test rate of
2,160 BOPD with no water. Total net pay for the zones tested
was 97 feet.
Zhao Dong C-2. Spudded and drilled in October 1994, the
C-2 appraisal well was drilled to a depth of 7,134 feet and
confirmed the C-1 discovery. Tested from four intervals,
between 4,267 and 4,481 feet, the combined rate of three of
the zones was 3,640 BOPD with no water. Total net pay for
the zones tested was 47 feet.
1995 Drilling
-------------
Zhao Dong C-2-2. Drilled directionally in April 1995 to
a measured depth of 5,625 feet (5,034 feet true vertical
depth), the C-2-2 appraisal was shaled out for prospective
sands in the Minghuazhen and then plugged back and
sidetracked as C-2-2A.
Zhao Dong C-2-2A. After plugging and abandoning the
bottom section of the C-2-2 well, the C-2-2A sidetrack well
was drilled structurally updip of the original wellbore to a
measured depth of 5,084 feet (4,956 true vertical depth).
Although Minghuazhen prospective sands were present and not
shaled out, the objective sands were water wet. Accordingly,
the well was plugged and abandoned.
Zhao Dong D-1. Designed to test the Ordovician
Carbonate section, the D-1 exploratory well reached a depth
of 8,784 feet in June 1995. Although no hydrocarbon
potential was found in the Ordovician Carbonates, oil was
found in the Lower Minghuazhen, proving this shallower
section to be productive upthrown to the Zhao Bei fault
system. Drill-stem testing, with perforations at 4,185 to
4,205 feet, confirmed hydrocarbons with an initial rate of
1,330 BOPD. The net pay for this zone was 20 feet.
Although the D-1 was designed primarily to test deeper
Paleozoic objectives, from 3,523 to 6,268 feet it yielded
another 15 sands ranging in age from Pliocene Minghuazhen to
Permian with hydrocarbon shows in mudlogs and/or sidewall
cores. One Permian sand tested water with a trace of 30
gravity oil; one Minghuazhen sand tested water with 2% oil.
Located on the eastern edge of the C-D structural
complex, the D-1 was not optimally placed to explore the
shallower hydrocarbon-containing sands. But the fact that it
tested 1,330 BOPD from one sand, tested water with smaller
amounts of oil from two other sands, and had shows in
numerous additional sands, suggests proximity to the limits
of a significant oil accumulation. Accordingly, the D-2
well, discussed under 1996 Drilling, below, was designed to
appraise the D-1 discovery at a much higher structural
position. See also the discussion, immediately below, of a
parallel relationship between and among the C-3, C-2, and C-
1 wells.
Zhao Dong C-3. Although scheduled to be drilled to
5,004 feet, this appraisal well, drilled in July 1995,
reached a total depth of 6,773 feet. Analysis of geological
information during drilling had shown that the C-3 was
structurally higher than both the C-1 and C-2, and so
drilling continued to test the Shahejie Formation until, at
approximately 6,595 feet, the Zhao Bei fault was crossed.
Eight different sands had drill-stem tests; seven were found
to be productive, as compared to only three and two for the
C-2 and C-1. (The C-1 and C-2 did however have oil shows in
several sands found to be productive in the C-3.) Cumulative
rate potential was 5,830 BOPD and 460 Mcfpd; one Shahejie
sand tested oil at 1,356 BOPD until water production began.
(Initial analysis indicates the water was coned due to
pressure draw-down during testing.) Total net pay for the
zones tested was 143 feet.
The C-3 thus indicates that Shahejie Formation sands
are oil productive with significant appraisal and
exploration potential, both in the C-D Field and over much
of the as yet undrilled portion of the Zhao Dong Block.
Initial seismic stratigraphic analysis indicates additional
lacustrine fan systems could be present downdip.
1996 Drilling
-------------
Zhao Dong D-2. Spudded in November 1996, the D-2
appraisal well was designed to test the Minghuazhen
(Pliocene) and Guantao (Miocene) sands upthrown to the Zhao
Bei fault system, as well as the Shahejie (Oligocene)
Formation downthrown to a bifurcated fault of the same fault
system. It was drilled to a measured depth of 7,501 feet
(6,180 feet true vertical depth), on an upthrown fault
closure approximately 1.5 km west of and structurally higher
than the D-1 discovery well.
Five intervals (six drill-stem tests) from perforations
at 3,285 to 5,445 feet (3,277 to 4,950 feet true vertical
depth) tested at a combined rate of 11,571 BOPD, confirming
the lateral productivity of several sands previously seen
productive and, in the Guantao Formation, establishing
production in several new sands. This well also demonstrated
much higher initial flow rates without the need for
artificial lift, one zone flowing 4,370 BOPD with 774 Mcfpd
of gas, and a second zone flowing 2,471 BOPD with 168 Mcfpd
of gas.
Sands seen productive in this well appear to be present
over the entire area, adding significantly to the overall
potential of the C-D Field as well as the rest of the Zhao
Dong Block. Total net pay for the zones tested was 243
feet.
1997 Drilling
-------------
Zhao Dong F-1. Planned as an exploratory well to
fulfill Phase I drilling commitments, the F-1 was designed
to test an 1,800+ foot thick section of the Shahejie
Formation on a four-way dip structural closure. This
exploratory well was spudded in October 1996 and
directionally drilled, from a drill pad built at the
shoreline, to a measured depth of 14,501 feet (10,968 true
vertical depth). Severe mechanical problems prevented the
well from being fully evaluated, and two sidetrack attempts
were unsuccessful. Drilling operations under a turnkey
contract have been abandoned. A number of Shahejie sands
were encountered, with some apparent oil shows.
Zhao Dong D-3. The second appraisal well for the D-1
discovery, and located approximately 1 km north of the D-1,
the D-3 was spudded in June 1997 and drilled to a depth of
5,740 feet. Although no drill-stem tests were performed
(since the data collected were sufficient to confirm the
productive nature of the reservoirs and since the rig was
needed to drill the C-4 Well), using wireline tools, oil was
recovered from several sands, most of which had tested oil
in the D-2 and D-1 wells, as well as from three new
productive sands for the "D" segment. Total net pay for the
productive zone was 89 feet. The D-3 Well thus solidified
structural interpretation and confirmed productive areas.
Zhao Dong C-4. An exploratory well designed to test Pre-
Tertiary and Shahejie Formations, the C-4 was spudded in
July 1997, on a separate structure approximately 2 km
northeast of the C-1, and was drilled to a depth of 8,993
feet. Eight zones tested at a combined rate of 15,349 BOPD,
6,107 Mcfpd of gas, and 14 barrels of condensate per day.
Total net pay for the zones tested was 209 feet.
The C-4 proved the presence and productivity of
multiple Oligocene Age Shahejie sands on the Zhao Dong
Block's northern portion. The C-4 also found multiple high-
quality Cretaceous and Jurassic sands, not encountered in
previous drilling, present and productive, indicating that
such sands may be present and prospective elsewhere.
Significantly, the Shahejie, Cretaceous and Jurassic sands
contained higher gravity oil (28 to 38 degree API) and more
gas, indicating higher reservoir energy than previously
encountered. All zones tested exhibited natural flow.
1998 Drilling
-------------
Zhao Dong C-4-2. An appraisal well for the C-4 (the C-
4-2), located approximately 1.3 km south of the C-4, was
spudded in August 1998. The C-4-2 well is being drilled to
delineate the size of the reservoir encountered in the C-4
well. The well is expected to be drilled to a depth of
approximately 9,700 feet to test the Shahejie, Cretaceous
and Jurassic Sands encountered in the C-4 well.
Zhao Dong C-5. Also in August 1998, the C-5
exploration well located approximately 3 km southwest of the
D-2 well commenced drilling. The C-5 well was drilled to a
depth of 7,646 feet. No commercial oil and gas was
encountered and the well was plugged and abandoned.
Exploration Potential
- ---------------------
Reconnaissance seismic surveys on the Zhao Dong Block have
led the Company's independent petroleum engineers to identify, in
addition to the C-D Field and the C-4 discovery, twenty-six
prospective areas with exploratory potential. Seismic data over
these prospective areas have been analyzed and the potential
reserves are being evaluated.
Future Drilling Plans
- ---------------------
The Company, Apache, and CNODC have approved a five-well
drilling program for 1998, which will include an appraisal well
(the Zhao Dong C-4-2, referred to above, which commenced drilling
in August 1998) to appraise the C-4 discovery and four
exploratory wells, at least two of which will be in the "C" and
"D" segments (and one of which was the Zhao Dong C-5, referred to
above. At least two of these wells are expected to be drilled
during the 1999 drilling season.
The Contract
- ------------
The Company acquired the rights to the exploration,
development and production of the Zhao Dong Block by executing a
Production Sharing Agreement with CNODC, a Chinese state
enterprise, effective May 1, 1993 (the "Contract"). The Contract
includes the following terms:
The Foreign Contractor (the Company and Apache as a group,
working through a participation agreement) must pay for all
exploration costs. If a commercial discovery is made and if
CNODC exercises its option to participate, development and
operating costs and allocable remainder oil and gas production
are shared up to 51% by CNODC and the remainder by the Foreign
Contractor.
The work under the Contract is divided into three
categories, Exploration, Development and Production.
Exploration, Development and Production operations can occur
concurrently on different areas of the Zhao Dong Block. The
Contract is not to continue beyond 30 consecutive years. All
exploration work must be completed during the Exploration Period
(which expires April 30, 2000). The Production Period for each
oil field covered by the Contract is 15 years, starting with the
date of first production for that field.
Exploration Period
------------------
Work performed and expenses incurred during this period,
consisting of three phases totaling seven contract years and
beginning as of May 1, 1993, are the exclusive responsibility of
the Foreign Contractor. The Contract mandates certain minimal
requirements for drilling, seismic and expenditures during each
phase of the Exploration Period. The Foreign Contractor has
elected to enter the third exploration phase (expiring April 30,
2000). The minimum work requirements for seismic and the minimum
expenditures for the balance of the Contract have been met. This
leaves only the drilling requirements left to be satisfied. The
Foreign Contractor is required to drill three exploratory wells
prior to the expiration of the Exploration Period. This will
complete its requirements in the Exploration Period. These three
wells are approved in the 1998 work program and budget and,
subject to rig availability (and, as to one of the wells,
location approval), are expected to be drilled in 1998 or 1999.
Development Period
-------------------
The Development Period for any field discovered during the
Exploration Period commences on the date the requisite Chinese
governmental authority approves the development plan for an oil
and/or gas field. The C-D Field is now in the Development
Period.
Production Period
-----------------
The Production Period for any oil and/or gas field covered
by the Contract (the "Contract Area") will be 15 consecutive
years (each of 12 months), commencing for each such field on the
date of commencement of commercial production (as determined
under the terms of the Contract). However, prior to the
Production Period, and during the Development Period, oil and/or
gas may be produced and sold during a long-term testing period.
Relinquishment
--------------
The Company expects that no relinquishment will be required
until Exploration Phase 3 has been concluded. After April 30,
2000, the portions of the Contract area, not including areas in
which development and/or production activities have been
undertaken, must be relinquished.
Termination of the Contract
---------------------------
The Contract may be terminated by the Foreign Contractor at
the end of each phase of the Exploration Period, without further
obligation. The parties have elected to go into the third phase
of the Exploration Period.
Post-Production Operating and Exploration Costs
-----------------------------------------------
After commercial production has begun, the operating costs
incurred in any given calendar year for an oil field shall be
recovered in kind from 60% of that year's oil production. After
recovery of operating costs, the 60% is applied to exploration
costs. Unrecovered operating costs shall be carried forward.
After recovery of operating and exploration costs for any
field, development costs shall be recovered by the Foreign
Contractor and CNODC from 60% of the remaining oil production,
plus deemed interest at 9%.
Natural gas shall be allocated according to the same general
principles, but in order to ensure reasonable benefit for the
Foreign Contractor the allocation percentages shall be adjusted
in the light of actual economic conditions.
Annual gross production ("AGP") of each oil and gas field
shall be allocated in kind in the following sequences and
percentages:
(1) 5 percent of AGP shall be allocated to pay Chinese
taxes.
(2) The Chinese government shall receive a sliding
scale royalty, determined on a field by field basis, calculated
as follows (as amended by the Ministry and State Taxation Bureau,
effective January 1, 1995):
METRIC TONS OF ANNUAL
CRUDE OIL PRODUCTION ROYALTY RATE
(One metric ton is roughly equivalent to seven
barrels of crude oil)
Up to and including 1,000,000.................. Zero
1,000,000 to 1,500,000 ........................ 4%
1,500,000 to 2,000,000 ........................ 6%
2,000,000 to 3,000,000 ........................ 8%
3,000,000 to 4,000,000 ........................ 10%
Over 4,000,000................................. 12.5%
(3) 60% of AGP shall be deemed "cost recovery oil" and
used for cost recovery, first of operating costs, and second for
exploration and development costs (including deemed interest).
Cost recovery oil shall not be reduced by any royalty due the
Chinese government.
(4) After recovery of operating, exploration, and
development costs (including deemed interest), the remainder of
AGP shall be considered "remainder oil," which shall then be
further divided into "allocable remainder oil" and "Chinese share
oil." Allocable remainder oil shall be calculated for each field,
based upon a sliding scale formula applied to each such field's
annual production, and shall be shared by the parties in
proportion to their respective interests under the Contract. All
oil remaining after the above allocations shall be designated
Chinese share oil and allocated to CNODC or other Chinese
government designee.
Administration of the Contract; Arbitration
- -------------------------------------------
The Contract is administered by the JMC, consisting of an
equal number of representatives designated by CNODC and by the
Foreign Contractor. Disputes must be resolved, first through
negotiation, and then arbitration (though CNODC may have the
right to seek resolution in Chinese courts). CNODC has not waived
sovereign immunity in any proceedings commenced in China.
If accepted by the parties, arbitration will be conducted by
the China International Economic and Trade Commission under its
provisional rules. If that is not accepted by the parties,
disputes may be arbitrated by a panel of three arbitrators, each
party to appoint one and the third appointed by the two thus
chosen or, failing such appointment, by the Arbitration Institute
of the Stockholm (Sweden) Chamber of Commerce. Arbitration shall
be conducted under the rules of the UN Commission on
International Trade Law of 1976 (subject however to such rules as
expressly provided in the Contract). Awards shall be final and
binding on the parties. The Contract is governed by Chinese law.
Apache Farmout
- --------------
In March 1994, by means of a participation agreement
("Participation Agreement"), the Company farmed out a one-third
interest in the Foreign Contractor's interest in the Zhao Dong
Block to Apache in exchange for certain cash payments and
Apache's agreement to assume its pro rata share of expenditures
and liabilities with respect to exploration and development. As
required by the Participation Agreement, in June 1994, Apache and
the Company entered into a Joint Operating Agreement (the
"Operating Agreement'). To further reduce the Company's
exploration capital requirements and accelerate the development
of the Zhao Dong Block, the Company and Apache entered into an
agreement on May 10, 1995 (the "Second Participation Agreement")
pursuant to which Apache increased its interest in the Contract
to 50% of the Foreign Contractor's interest and assumed
operatorship, obligating itself to pay 100% of the costs of
drilling and testing four exploratory wells (the "Carried Wells")
on the Zhao Dong Block. The drilling and testing of the C-3, D-
1, D-2 and F-1 wells will satisfy the obligations regarding the
four Carried Wells. All of these wells have been drilled and
tested with the exception of the F-1 Well, drilling operations on
which have been abandoned. The Company does not believe that such
operations on the F-1 Well to date satisfy Apache's obligations
to deliver a fourth Carried Well. The amounts advanced by Apache
for the Company's share of the Carried Wells are recoverable from
a portion of the Company's share of cost recovery revenues from
the Zhao Dong Block. In addition, Apache obligated itself to pay
the Company 16.667% of the value of the recoverable proved
reserves attributable to the portion of the Zhao Dong Block
delineated by the drilling of the C-1 and C-2 and C-3 wells, the
combined area designated in the agreement as the "C Field," all
as agreed to by the Company and Apache in the Second
Participation Agreement. Payment for this purchase will be
computed in accordance with evaluation methodology as set forth
in the Second Participation Agreement and made to the Company
from time to time as each segment of the field is placed on
production.
In consideration of the above described payments, Apache
assumed operatorship of the Zhao Dong Block and increased its
interest from 33.33% to 50% of the Foreign Contractor's share.
All future exploration expenditures in excess of the Carried
Wells will be borne 50% each by the Company and Apache. Under
the Operating Agreement, approval of a successor operator
requires the vote of not less than 55% of the Foreign
Contractor's interest; if the operator reduces its participating
interest to less than 25%, a committee established under the
Operating Agreement comprised of Apache and XCL (the "Operating
Committee") shall vote on whether a successor operator should be
named. The appointment of a successor or replacement operator
requires government approval. CNODC has the right to become
operator of production operations in certain circumstances
described in the Contract.
All work under the Contract must be pursuant to a work
program and budget approved by the JMC. Each year, the Operating
Committee must submit a proposed work program and budget to the
JMC. Operating Committee approval of this work program and
budget requires the vote of not less than 55% of the Foreign
Contractor's interest. If 55% of the Foreign Contractor's
interest does not vote in favor of a proposed work program and
budget, the operator must submit the minimum work program and
budget necessary to meet the contractual obligations of the
Foreign Contractor under the Contract.
Under the Participation Agreement and the Operating
Agreement, Apache and the Company each has a right of first
refusal with respect to any sale or transfer of interest in the
Foreign Contractor's share of the Contract. In addition, under
the Participation Agreement Apache and the Company each has a
right of first refusal with respect to the sale of 50% or more of
outstanding voting capital stock of their respective subsidiaries
party to the Contract and the Participation Agreement. In
addition, each party has the option to purchase the other party's
interest in the Contract upon the occurrence of certain "option
events." Option events include the failure more than twice in one
year to pay sums due under the Operating Agreement, after
receiving written notice of default and failing to cure within
any applicable cure period provided by the Operating Agreement
(if nonpayment is the subject of dispute and arbitration under
the Operating Agreement, it does not constitute a "failure to
pay" until an arbitral decision is rendered against the
nonpayor), the inability of a party to pay its debts as they fall
due or a final unappealable order by a court of competent
jurisdiction liquidating the party or appointing a receiver to
take possession of all of the party's assets, the transfer of
more than 49% of the voting shares of the Apache subsidiary
holding Apache's interest in the Zhao Dong Block or XCL-China
Ltd. ("XCL-China"), the XCL subsidiary holding XCL's interest in
the Zhao Dong Block, by their respective parents, or certain
other defaults under the Operating Agreement or the Contract.
The consideration to be paid on the exercise of the option to
purchase is the fair market value of the interest assigned. If
the parties cannot agree on the fair market value of the
interest, it is to be determined by arbitration. This option
runs only to the benefit of Apache and XCL-China and may not be
transferred by either of them to any third party.
United/XCL Lube Oil Joint Venture
- ---------------------------------
On July 17, 1995, the Company signed a contract with CNPC
United Lube Oil Corporation to form a joint venture company to
engage in the manufacturing, distribution and marketing of
lubricating oil in China and southeast Asian markets. The joint
venture has a 30-year life unless extended. The registered
capital of the joint venture is $4.9 million, with the Company to
contribute $2.4 million for its 49% interest, the last
installment of which was paid in late 1997. As its investment
for 51% of the stock, the Chinese contributed an existing
lubricating oil blending plant in Langfang, China, with a Chinese
government appraised value of $2.5 million. The registration of
the joint venture was approved by Chinese authorities and the
effective date of the joint venture is January 1, 1998. In a
letter of intent executed contemporaneously with the contract,
the parties have agreed to consider the feasibility of (i)
contributing to the joint venture a second existing plant in
southwest China and (ii) other projects, including constructing
oil terminals on the north and south coasts of China and engaging
in upgrading certain existing refineries within China.
The Langfang plant is located 50 km southeast of Beijing.
The facility is built on a 10-acre site and has been evaluated on
the basis of U.S. Gulf Coast costs at a replacement value of $7.0
million, without taking into account the land value. The plant
currently produces and markets approximately 5,000 metric tons of
lube oil per year. Approximately $1.5 million of the Company's
investment has been allocated to the physical upgrading of the
facility, including the installation of automated filling lines
and packaging systems. Upon completion of the upgrading, the
plant's production capacity will be approximately 20,000 metric
tons per year, assuming one eight hour shift, five days per week.
Additional capacity will be available by adding shifts and
expanding the work week. Further capital improvements estimated
to cost $15 million could increase capacity to approximately
100,000 metric tons per year.
It is the Company's opinion that an essential element to the
success of the lube oil business in China will be the ability to
distribute the product. In order to assure adequate distribution
of the joint venture's products, the Company has entered into a
memorandum of understanding with the Coal Ministry in China which
is expected to be reduced to a formal distribution contract. The
Coal Ministry operates 125 major integrated distribution centers
throughout China and the Company expects to market the joint
venture's products through this system.
Coalbed Methane Project
- -----------------------
On March 31, 1995, the Company signed an agreement with the
CNACG, pursuant to which the parties will commence cooperation
for the exploration and development of coalbed methane in two
areas in China. During the study period contemplated by the
agreement, the Company will evaluate the properties, after which
the parties are expected to enter into a comprehensive agreement
as to the specifically designated areas, which may provide the
basis for coalbed methane development in other areas of China.
On December 14, 1995, the Company signed a Memo of Understanding
with CNACG to develop a contract for exploration, development and
utilization of coalbed methane in the two areas. The March 31,
1995 agreement expired by its terms on December 31, 1996;
however, the Company has been informally advised that CNACG will
extend the term of the agreement.
Zhang Dong Block
- ----------------
On August 20, 1998, XCL (through its subsidiary XCL-Cathay
Ltd.) signed a production sharing contract with CNODC for the
12,000-acre Zhang Dong Block. On September 15, 1998, the contract
was approved by the Ministry of Foreign Trade and Economic
Cooperation of China, effective October 1, 1998. The Zhang Dong
Block is located North and adjacent to the Zhao Dong Block in the
offshore area of Bohai Bay. Dagang Petroleum (the subsidiary of
CNPC that operates onshore fields in this area) has drilled and
tested nine wells in the offshore block. All but one of these
wells have been drilled from an artificial island or a causeway
extending into the bay. All nine wells were tested with five
having commercial oil production rates, one well with gas
production, two wells with low oil production rates and one well
which produced water. The Company's review of production
information suggests that the wells were drilled with mud weights
that were considerably higher than necessary, which damaged the
producing formation and restricted the flow rates. Under the
contract, the Company is required in the next year at its expense
to drill one well, upgrade both the island and the causeway and
reprocess and reinterpret certain seismic data. If the Company
elects to extend the appraisal phase of the contract beyond the
first year, it may do so by committing to an additional two wells
during each of the next two-year periods (for a total commitment
of five wells over a five-year period). Development costs and
production will be shared 49% by the Company and 51% by CNODC.
XCL is designated as the operator.
Domestic Properties
- -------------------
U.S. Exploration and Production Activities. The Company has
sold substantially all of its U.S. producing properties except
for an interest in the Berry R. Cox Field (the "Cox Field") in
South Texas and is seeking to sell or joint venture its interest.
The Company holds a 60% to 100% working interest in 1,265 acres
in this field on which there are currently four producing wells
(3.45 net wells). The Company's 1997, 1996 and 1995 annual net
sales of natural gas from the Company's interest in the Cox Field
was 72,200, 467,000 and 522,000 Mcf, respectively on a sale
basis. The December 1997, 1996 and 1995 gas price for the
Company's remaining domestic properties was $2.28, $1.84 and
$1.33 per Mcf, respectively. During 1996, litigation was
instituted against the Company in connection with the Cox Field
which has effectively impeded the Company's ability to consummate
a sale of such property. Upon resolution of the litigation, the
Company will continue its efforts to divest itself of these
properties. See "-- Litigation" below.
Lutcher Moore Tract. The Company holds, in partnership with
one of its subsidiaries, a fee interest in a 62,500 acre
undeveloped tract of Louisiana fee property located in Ascension,
St. James and St. John the Baptist Parishes, Louisiana (the
"Lutcher Moore Tract"). Expressions of interest to purchase the
property have been received from several parties. The Company
is also evaluating the possibility of developing the property
into a source of wetland mitigation credits. In connection with
the acquisition of the Lutcher Moore Tract, the Company's indirect
ownership of such tract is subject to a first mortgage, with a
current principal balance of approximately $1.5 million, and a
number of sellers' notes, with an aggregate current principal
balance of approximately $0.5 million (collectively, the "Lutcher
Moore Debt"). Recourse by the holder of the first mortgage and
the holders of the sellers' notes is limited to the Lutcher Moore
Tract, with neither the Company nor its wholly-owned
subsidiaries, XCL-Land Ltd. and The Exploration Company of
Louisiana, Inc., liable for the debt.
Oil and Gas Reserves
- ---------------------
Based on the report of Gruy, the Company's independent
engineering firm, net proved reserves in the C-D Field are
estimated to be 11.76 million barrels as of January 1, 1998.
CNODC has exercised its option to pay 51% of all development
costs and receive 51% of oil production. Consequently, the
Company's present value of estimated future pre-tax net cash
flows is approximately $64.8 million. The standarized measure of
discounted future net cash flows determined in accordance with
the rules prescribed by FASB No. 69 is $53.8 million. Future
reserve values are based on year end prices and operating costs,
production and future development costs based on current costs
with no escalation. See "Risk Factors -- Reliance on Estimates
of Proved Reserves and Future Net Revenue" and "Supplemental Oil
and Gas Information" in the Notes to the Consolidated Financial
Statements.
Gruy has been preparing reserve estimates for the Company's
oil and gas reserves since August 1996. Gruy was selected by the
Company for this task based upon its reputation, experience and
expertise in this area. Gruy is an international petroleum
consulting firm with offices in Houston and Dallas, Texas. Their
staff includes petroleum engineers and geologic consultants.
Services they provide include reserve estimates, fair value
appraisals, geologic studies, expert witness testimony and
arbitration. In 1997 the Company paid Gruy approximately $68,400
in fees for reserve report valuations and other services. No
instructions were given and no limitations were imposed by the
Company on the scope of or methodology to be used in preparing
the reserve estimates.
Offices
- -------
On March 31, 1997, the Company sold its office building
located at 110 Rue Jean Lafitte, Lafayette, Louisiana for
$900,000. On the same day, the Company entered into a lease with
the purchaser for one floor (approximately 9,500 square feet) of
the two-story building for a term of 22 months with an option to
extend for an additional eight-month period, at a monthly rental
of $7,500 for the first 21 months and $6,039 for the last month
(which is offset against mortgage payments due from the new owner
of the building). The outstanding balance of the underlying
mortgage was repaid in full upon the sale of the building. In
March 1998, the Company entered into a lease for approximately
3,400 square feet of office space located at 5487 San Felipe,
Suite 2110 in Houston, Texas. The lease expires December 31,
2000 and has a monthly rental of $5,166. On July 15, 1998, the
Company entered into a lease for approximately 1,649 square feet
of office space located at No. 1013, Office Tower 1, 138 Wang Fu
Jing Da Jie, Beijing, China. The lease expires July 15, 2000
(with an option to extend for an additional two years) and has a
monthly rental of $3,297 (payable in Chinese Renminbi).
Litigation
- ----------
During December 1993, the Company and two of its wholly-
owned subsidiaries, XCL-Texas, Inc. and XCL Acquisitions, Inc.,
were sued in separate lawsuits entitled Ralph Slaughter,
Secretary of the Department of Revenue and Taxation, State of
Louisiana versus The Exploration Company of Louisiana, Inc. (15th
Judicial District, Parish of Lafayette, Louisiana, Docket No. 93-
5449); Ralph Slaughter, Secretary of the Department of Revenue
and Taxation, State of Louisiana versus XCL-Texas, Incorporated
(15th Judicial District, Parish of Lafayette, Louisiana, Docket
No. 93-5450); and Ralph Slaughter, Secretary, Department of
Revenue and Taxation vs. XCL Acquisitions, Inc. (15th Judicial
District, Parish of Lafayette, Louisiana, Docket No. 93-5337) by
the Louisiana Department of Revenue for Louisiana State corporate
franchise and income taxes for the 1987 through 1991 fiscal years
in an aggregate amount (including penalties and interest through
September 1, 1993) of approximately $2.2 million. Statutory
interest at the rate of 15% per annum on the principal will
continue to accrue from September 1, 1993 until paid. The
Louisiana Department of Revenue has also assessed additional
Louisiana State franchise tax against the Company and/or XCL
Acquisitions, Inc. for the tax years 1991 through 1996 and
additional income tax against XCL Acquisitions, Inc. for the tax
years 1991 and 1995 on the same basis as those set forth in the
lawsuits. The Company protested the assessments and small
adjustments were made by the Department of Revenue. The
additional income tax assessment for the 1991 and 1995 tax years
is $89,688 and the additional franchise tax assessment for the
tax years 1991 through 1996 totals $1.6 million plus statutory
interest of 15% per annum from the due date until paid and
penalties not to exceed 25% of the total tax due. The Company
believes that these assessments have been adequately provided for
in the consolidated financial statements. The Company has filed
answers to each of these suits and intends to defend them
vigorously. The Company intends to continue to protest the
assessments. The Company believes that it has meritorious
defenses and has instructed its counsel to contest these claims.
On July 26, 1996, three lawsuits were filed against XCL-
Texas, Inc., a wholly-owned subsidiary of the Company, entitled
Stroman Ranch Company Ltd., el al. v. XCL-Texas, Inc. (229th
Judicial District, Jim Hogg County, Texas, Cause No. 4550), Frank
Armstrong, et al. v. XCL-Texas, Inc. (229th Judicial District,
Jim Hogg County, Texas, Cause No. 4551), and Stroman Ranch
Company Ltd., et al. v. XCL-Texas, Inc. (229th Judicial District,
Jim Hogg County, Texas, Cause No. 4552). The lawsuits allege
various claims, including a claim that one of the oil and gas
leases in the Berry R. Cox Field should be terminated. The
Company believes the claims made in the lawsuits are without
merit and intends to vigorously defend itself. The lawsuits have
prevented the Company from selling its interest in the Cox Field.
In July 1997, China Investment and Development Corporation
("CIDC"), holders of the Company's Series B Preferred Stock sued
the Company and each of its directors in an action entitled China
Investment and Development Corporation vs. XCL Ltd.; Marsden W.
Miller, Jr.; John T. Chandler; David A. Melman; Fred Hofheinz;
Arthur W. Hummel, Jr.; Michael Palliser; and Francis J.
Reinhardt, Jr. (Court of Chancery of the State of Delaware in and
for New Castle County, Civil Action No. 15783-NC). The suit
alleged breach of (i) contract, (ii) corporate charter, (iii)
good faith and fair dealing and (iv) fiduciary duty with respect
to the alleged failure of the Company to redeem CIDC's Series B
Preferred shares for a claimed aggregate redemption price of
approximately $5.0 million. Effective December 31, 1997, the
Company and CIDC entered into an interim settlement agreement
pursuant to which the Company paid CIDC $1 million as a deposit
in anticipation of a final settlement and dismissal of the
lawsuit. On March 3, 1998, the final settlement took place and,
shortly thereafter, the deposit was returned to XCL. On March 9,
1998, the lawsuit was dismissed with prejudice.
On January 24, 1997, a subsidiary of the Company filed an
action captioned L.M. Holding Associates, L.P. v. LaRoche
Chemicals, Inc. (23rd Judicial District Court, St. James Parish,
Louisiana, No. 24, 338, Section A). The lawsuit claims that
LaRoche failed to properly maintain its 8" brine line that runs
10 miles across the subsidiary's property in St. James Parish,
Louisiana, discharged brine from this line onto the subsidiary's
property and no longer has the right to operate said line. In
1998, the court issued a preliminary injunction enjoining LaRoche
from discharging brine onto the subsidiary's property and
enjoining LaRoche from continued operation of the 8" brine line
without a scientific system for early detection of leaks and
without periodic monitoring of the line. The Company is seeking
damages and cancellation of LaRoche's right to operate the brine
line. No trial date has been set. The Company intends to
vigorously prosecute the lawsuit.
Other than as disclosed above, as of the date hereof, there
are no material pending legal proceedings to which either the
Company or any of its subsidiaries is a party or to which any of
their properties are subject which would have a material adverse
effect on the business or properties of the Company, taken as a
whole.
MANAGEMENT
Officers of the Company and its wholly owned subsidiaries
serve at the pleasure of the Board of Directors and are appointed
annually at the meeting of the Board of Directors immediately
following the annual meeting of shareholders. The following
individuals were officers and directors of the Company and its
subsidiaries as of October 1, 1998:
<TABLE>
<CAPTION>
Officer Director
Name Position Age Since Since
- ---------------------- -------------------------------------- ------ ----- -----
<S> <C> <C> <C> <C>
Marsden W. Miller, Jr. Chairman of the Board and Chief 57 1981 1981
Executive Officer of the Company
and Principal Accounting Officer (1)
John T. Chandler Vice Chairman of the Board of the 65 1982 1983
Company and Chairman and Chief
Executive Officer of XCL-China Ltd. (1)(4)
Danny M. Dobbs President and Chief Operating Officer 52 1991 --
of the Company and President of XCL-
China Ltd.(4)
Benjamin B. Blanchet Executive Vice President and Director 45 1997 1997
of the Company(1)
Richard K. Kennedy Vice President of Engineering of the 44 1989 --
Company
R. Carter Cline Vice President-Land of the Company 49 1990 --
Herbert F. Hamilton Executive Vice President Operations, 62 1995 --
XCL-China Ltd.(4)
Joseph T. K. Chan Vice President, XCL-China LubeOil 51 1998 --
Ltd.(5)
John H. Haslam Treasurer of the Company 56 1996 --
Lisha C. Falk Secretary of the Company 37 1997 --
Fred Hofheinz Director of the Company, Attorney at 60 -- 1991
Law(2)(3)
Arthur W. Hummel, Jr. Director of the Company, Independent 78 -- 1994
Consultant(2)(3)
Sir Michael Palliser Director of the Company, Independent 76 -- 1994
Consultant(2)(3)
Francis J. Reinhardt, Jr. Director of the Company, Partner in 68 -- 1992
Carl H. Pforzheimer & Co.(2)(3)
R. Thomas Fetters, Jr. Director of the Company, Independent 58 -- 1997
Consultant (2)(3)
Peter F. Ross Director of the Company, Chairman of 60 -- 1998
Dawnay Day Capital Markets
_______________
(1) Member of the Executive Committee. The Committee met
once during 1997 and, subject to certain statutory
limitations on its authority, has all of the powers of the
Board of Directors while the Board is not in session, except
the power to declare dividends, make and alter Bylaws, fill
vacancies on the Board or the Executive Committee, or change
the membership of the Executive Committee.
(2) Member of the Compensation Committee. The Committee met
twice in 1997. It is charged with the responsibility of
administering and interpreting the Company's stock option
plans; it also recommends to the Board the compensation of
employee-directors, approves the compensation of other
executives and recommends policies dealing with compensation
and personnel engagements.
(3) Member of the Audit Committee. The Committee met once in
1997. It reviews with the independent auditors the general
scope of audit coverage. Such review includes consideration
of the Company's accounting practices, procedures and system
of internal accounting controls. The Committee also
recommends to the Board the appointment of the Company's
independent auditors, and at least annually the Committee
reviews the services performed and the fees charged by the
independent auditors engaged by the Company.
(4) XCL-China Ltd. is an International Business Company
incorporated under the laws of the British Virgin Islands,
wholly owned by the Company, which manages the Company's oil
and gas operations on the Zhao Dong Block.
(5) XCL-China LubeOil Ltd. is an International Business
Company incorporated under the laws of the British Virgin
Islands, wholly owned by the Company, which holds a 49%
interest in a joint venture with CNPC United LubeOil
Corporation for the production and sale of lubricants.
</TABLE>
Under the Amended and Restated Certificate of Incorporation,
as amended, and Amended and Restated Bylaws of the Company, the
Board Directors is divided into three classes of directors
serving staggered three-year terms, with one class to be elected
at each annual meeting of shareholders and to hold office until
the end of their term and until their successors have been
elected and qualified. The current Class I directors, whose
terms of office expire at the 2000 annual meeting of
shareholders, are Messrs. Arthur W. Hummel, Jr., Michael Palliser
and Benjamin B. Blanchet; the current Class II directors, whose
terms of office expire at the 1998 annual meeting of
shareholders, are Messrs. Marsden W. Miller, Jr., R. Thomas
Fetters, Jr. and Francis J. Reinhardt, Jr.; and the current Class
III directors, whose terms of office expire at the 1999 annual
meeting of shareholders, are Messrs. John T. Chandler, Fred
Hofheinz and Peter F. Ross.
The Board held five meetings in 1997. The average
attendance by directors at these meetings was 100%, and all
directors attended 100% of the Board and Committee meetings they
were scheduled to attend.
Under Delaware law and the Bylaws, incumbent directors have
the power to fill any vacancies on the Board of Directors,
however occurring, whether by an increase in the number of
directors, death, resignation, retirement, disqualification,
removal from office or otherwise. Any director elected by the
Board to fill a vacancy would hold office for the unexpired term
of the director whose place has been filled except that a
director elected to fill a newly-created directorship resulting
from an increase in the number of directors, whether elected by
the Board or shareholders, would hold office for the remainder of
the full term of the class of directors in which the new
directorship was created or the vacancy occurred and until his
successor is elected and qualified. If the size of the Board is
increased, the additional directors would be apportioned among
the three classes to make all classes as nearly equal as
possible.
The holders of the Amended Series A Preferred Stock are
entitled to cast the same number of votes (voting together with
the Common Stock as a single class) as the number of shares of
Common Stock issuable upon conversion of the Amended Series A
Preferred Stock.
The holders of the Amended Series B Preferred Stock are
entitled to cast 50 votes per share (voting together with the
Common Stock as a single class).
There are no arrangements or understandings with any
directors pursuant to which they have been elected a director nor
are there any family relationships among any directors or
executive officers.
Biographical Information
- ------------------------
MARSDEN W. MILLER, JR., Chairman, has been Chief Executive
Officer and a director since the Company's incorporation in 1981.
He has engaged in the independent domestic and international oil
business since 1964 on an individual basis, as a stockholder and
officer in several companies and as a practicing attorney. In
addition to the U.S. and China, he has been involved in various
aspects of the oil business in Southeast Asia, Africa, Europe,
South America, several former Soviet Republics and Canada. Mr.
Miller graduated from Louisiana State University in 1964.
JOHN T. CHANDLER is Vice Chairman of the Board and Chairman
and Chief Executive Officer of XCL-China. He joined the Company
in June 1982, becoming a director in May 1983. From 1976 until
he joined the Company he was the Managing Partner of the Oil and
Gas Group of GSA Equity, Inc., New York and director of Executive
Monetary Management, Inc., the parent company of GSA Equity, Inc.
From 1972 to 1976, he was director and Vice President of
Exploration and Production of Westrans Petroleum, Inc. and a
director of a number of its subsidiaries. During 1971 and 1972,
he was a petroleum consultant and manager of the oil department
of Den norske Creditbank in Oslo, Norway. Mr. Chandler was Vice
President and Manager of the Petroleum Department of the Deposit
Guaranty National Bank in Jackson, Mississippi from 1969 to
August 1971 and, from 1967 to February 1969, was a petroleum
engineer first for First National City Bank (now known as
Citibank, N.A.) and then The Bank of New York. From March 1963 to
July 1967, he was employed by Ashland Oil and Refining Company as
a petroleum engineer. From 1959 to 1963, he held the same
position with United Producing Company, Inc., which was acquired
by Ashland Oil.
Mr. Chandler graduated from the Colorado School of Mines
with a Professional degree in petroleum engineering and is a
Registered Professional Engineer in the States of Colorado and
Texas, a member of the Society of Petroleum Evaluation Engineers
and a member of AIME.
DANNY M. DOBBS is the President and Chief Operating Officer
of the Company effective December 17, 1997. Mr. Dobbs
previously served as Executive Vice President and Chief Operating
Officer of the Company and prior to that as Vice President-
Exploration of XCL Exploration & Production, Inc., a wholly-owned
subsidiary of the Company, having joined the Company in 1985 as
Senior Exploration Geologist. From 1981 to 1985 Mr. Dobbs was a
consulting geologist. From 1976 to 1981, he held the position of
Exploration Geologist in the South Louisiana District for Edwin
L. Cox in Lafayette, Louisiana. He served in various geologic
positions with Texaco, Inc. from 1971 to 1976, his experience
encompassing management, structural and stratigraphic mapping,
coordination of seismic programs and budget evaluation and
preparation. Mr. Dobbs holds B.S. and M.S. degrees in geology
from the University of Alabama, Tuscaloosa, Alabama.
BENJAMIN B. BLANCHET is Executive Vice President and
director of the Company. Prior to joining the Company in August
1997, and since 1983, he was a partner in the law firm of Gordon,
Arata, McCollam & Duplantis, L.L.P. in its Lafayette, Louisiana
office. During that time, he practiced in the areas of
commercial litigation, corporate mergers and acquisitions, oil
and gas transactions, secured financings, securities, tax and
international law matters. Since 1985, he has provided
substantial legal services to the Company, and has been the
Company's lead attorney in China. He served on the Management
Committee of Gordon, Arata, McCollam & Duplantis, L.L.P. from
1991 to 1997 and as the Managing Partner of the firm for four
years from 1992 through 1995. He practiced law with the firm of
Monroe & Lemann in New Orleans from 1978 through 1983. He is a
member of the Louisiana Bar and admitted to practice before the
United States Tax Court. Mr. Blanchet holds a B.A. degree, with
highest distinction, from the University of Southwestern
Louisiana and a J.D., cum laude, from Harvard Law School.
RICHARD K. KENNEDY is Vice President of Engineering and
responsible for certain engineering aspects of the Company's oil
and gas operations. From 1987, until he joined the Company in
1989, he was an operations engineer for Wintershall Corporation.
From 1981 to 1986 he was with Borden Energy, originally as a
petroleum engineer and later as regional operations manager.
From 1979 to 1981, Mr. Kennedy was employed with Marathon Oil
Company as a reservoir engineer, then as a drilling engineer. He
was employed with Shell Oil Company as a petroleum engineer and
reservoir engineer from 1977 to 1979. Mr. Kennedy graduated from
Louisiana Tech University with a B.S. degree in petroleum
engineering. He is a registered professional engineer in the
State of Louisiana and a member of the Society of Petroleum
Engineers.
R. CARTER CLINE is Vice President-Land, having joined the
Company in October 1990. He has over 20 years of exploration and
management experience. From 1982, until joining the Company, he
was employed by Pacific Enterprises Oil Company (USA), successor
by merger to Sabine Corporation, as East Gulf Coast Regional Land
Manager in Houston, Texas. From 1979 to 1982, he served as Vice
President-Land for Dynamic Exploration, Inc. in Lafayette,
Louisiana. From 1974 to 1979, he served as Region Landman in
Dallas and Division Land Manager in Houston, Texas, for Sabine
Corporation, and from 1971 to 1974 was employed by Getty Oil
Company in Houston, Texas and New Orleans, Louisiana. Mr. Cline
holds a B.B.A. degree in Petroleum Land Management from the
University of Texas at Austin and is a Certified Petroleum
Landman.
HERBERT F. HAMILTON is Vice President Operations of XCL-
China, having joined the Company in 1995. Mr. Hamilton has more
than 30 years of experience in the fields of engineering,
construction, construction management and consulting on heavy
civil works, offshore platforms, submarine pipelines and
construction equipment in over 35 countries. From 1990 to 1993,
Mr. Hamilton served as Senior Project Manager for Earl and
Wright in Houston, Texas. From 1993 to 1994, he served as
President and a consultant to Planterra, Inc. in Houston, Texas
and from 1994 until joining the Company he was an independent
consultant. Mr. Hamilton is a Registered Professional Engineer
and holds a B.S. in Architectural Engineering from the
University of Texas at Austin.
JOSEPH T. K. CHAN is Vice President of XCL-China LubeOil
Ltd., having joined the Company in 1998. Mr. Chan has more than
20 years experience in the oil industry with major American oil
companies. From August 1994 until joining the Company, Mr. Chan
was an agent and consultant for Asian importers of U.S. made
chemical, petrochemical and industrial products. From 1991 to
1994 he was Regional Manager of Sun Oil Far East, Inc. and Head
of Technical Support of China Sun Lubeoil joint venture plant in
Skekou, China and was responsible for regional sales, marketing
and production operations in Asia and the Pacific Rim under Sun
Oil Trading, Inc., a wholly owned subsidiary of Sun Oil Corp.
From 1988 to 1990, Mr. Chan was Marketing Director to De Huns
International Ltd. with chemicals and garment manufacturing
investments and operations in China. From 1986 to 1988, he
served as General Manager of Sales & Marketing and Technical
Services for U.K. based Castrol Oil Hong Kong. Mr. Chan served as
Divisional Import Manager for Li & Fung Trading in Taiwan,
Marketing Director of CDW Manufacturing Group in Hong Kong and
Project Manager of Cha Chi Ming (China Investment) Ltd. from 1982
to 1986. From 1976 to 1981, he served as Industrial Sales &
Marketing Manager for Caltex Oil Hong Kong, a joint venture of
Chevron and Texaco in Asia. From 1975 to 1976 he was Senior
Sales Engineer and Area Sales Manager for Drew Chemical
Corporation. Mr. Chan was employed with Esso Standard Oil Hong
Kong as International Sales Supervisor from 1972 to 1975 and as a
Marine and Aviation Sales and Technical Representative from 1970
to 1972. Mr. Chan holds a Bachelor of Commercial Science degree
from CH University of Hong Kong and has completed the Masters
Study Program from Caltex Management Institute in Indonesia. Mr.
Chan has also attended comprehensive training in lubeoil
engineering from the Esso Research Center in Abington Oxford, and
leadership and refinery operations programs with Texaco and
Chevron.
JOHN H. HASLAM is Treasurer, having joined the Company in
1990. From 1988 until joining the Company, he was employed by
United Gas Pipeline as Credit Manager. From 1986 to 1988, he
served as Director of Internal Audit for TransAmerican Natural
Gas Corporation. From 1981 to 1986 he was the Audit Manager for
ENSTAR Corporation. He was with Getty Oil from 1963 until 1981,
as Audit Manager of Joint Venture Operations and various other
accounting positions. Mr. Haslam holds a B.B.A. degree in
Marketing from Baylor University.
LISHA FALK is Corporate Secretary, having joined the Company
in 1981. Since joining the Company Ms. Falk has served in various
administrative positions, most recently as Assistant Secretary.
R. THOMAS FETTERS, JR. is an independent oil and gas
consultant. He has over 25 years of exploration, production and
management experience, both domestic and foreign. From 1995 to
1997 Mr. Fetters was Senior Vice President of Exploration of
National Energy Group, Inc., Dallas, Texas, and from February
1990, until September 1995, he was Vice President of Exploration
of XCL Ltd., and President of XCL-China Ltd. During 1989, until
joining the Company, he served as Chairman and Chief Executive
Officer of Independent Energy Corporation. From 1984 to 1989, he
served as President and Chief Executive Officer of CNG Producing
Company in New Orleans, Louisiana, and from 1983 to 1984 as
General Manager of the Planning and Technology Division of
Consolidated Natural Gas Service Co. in Pittsburgh, Pennsylvania.
From 1966 to 1983, he served in various positions, from Geologist
to Exploration Manager, with several divisions of Exxon,
primarily in the Gulf Coast region of the U.S. and
internationally, in Malaysia and Australia. Mr. Fetters holds
B.S. and M.S. degrees in geology from the University of
Tennessee.
FRED HOFHEINZ is an attorney at law in Houston, Texas. From
1984 to 1987, he served as President of Energy Assets
International Corporation, a fund management company, now a
subsidiary of Torch Energy Advisors, serving as a consultant to
Torch Energy Advisors until 1989. Mr. Hofheinz also served as the
Mayor of Houston, Texas from 1974 to 1978. He, along with his
family, developed the Astrodome in Houston, and owned the Houston
Astros baseball team until 1974. He is founder and director of
United Kiev Resources, Inc., an oil and gas production company
operating in the Republic of the Ukraine in the name of its
wholly-owned subsidiary, Carpatsky Petroleum Company. Mr.
Hofheinz earned a Ph.D. degree in Economics from the University
of Texas and his law degree from the University of Houston. He
was appointed as a director by the Board at a meeting held March
21, 1991.
ARTHUR W. HUMMEL, JR., a director since April 1994, is the
former U.S. Ambassador to the People's Republic of China during
the period 1981 to 1985. Since his 1985 retirement from the
State Department, after 35 years of service, he has been active
in consulting with firms doing business in East Asia, and
participating in academic and scholarly conferences in the U.S.
and in the East Asia region. He is a member and trustee of many
academic, business, and philanthropic organizations involved in
international affairs.
Mr. Hummel was born in China. After education in the U.S.
he returned to China prior to Pearl Harbor. Interned by the
Japanese, he escaped and fought with Chinese guerrillas behind
the Japanese lines in north China until the end of the war.
He obtained an M.A. (Phi Beta Kappa) in Chinese studies from
the University of Chicago in 1949, and joined the State
Department in 1950. His early foreign assignments include Hong
Kong, Japan and Burma. He was Deputy Director of the Voice of
America in 1961-1963; Deputy Chief of Mission of the American
Embassy in Taiwan, 1965-1968; Ambassador to Burma, 1968-1970;
Ambassador to Ethiopia, 1975-1976; Ambassador to Pakistan, 1977-
1981; and Ambassador to the Peoples Republic of China, 1981-1985.
He was Assistant Secretary of State for East Asia 1976-1977. He
has received numerous professional awards from within and outside
the Government.
SIR MICHAEL PALLISER, a director since April 1994, was from
1984 to 1993 Chairman of Samuel Montagu & Co. Limited, the London
merchant bank which was owned by Midland Bank, of which he was
Deputy Chairman from 1987 to 1991, and which is now part of the
Hong Kong & Shanghai Banking Corporation. He was Vice Chairman
of Samuel Montagu from 1993 to 1996. He is a former Director of
BAT Industries, Bookers, Eagle Star, Shell and United Biscuits.
In 1947, he joined the British Diplomatic Service and served
in a variety of overseas and Foreign Office posts before becoming
head of the Planning Staff in 1964-1966, Private Secretary to the
Prime Minister, 1966-1969, Minister in the British Embassy in
Paris, 1969-1971, and the British Ambassador and Permanent
Representative to the European Communities in Brussels from 1971-
1975. He was, from 1975 until his retirement in 1982, Permanent
Under-Secretary of State in the Foreign and Commonwealth Office,
and Head of the Diplomatic Service. From April to July 1982, he
was a special adviser to the Prime Minister in the Cabinet Office
during the Falklands War. He was appointed a Member of the Privy
Council in 1983. Effective December 31, 1995, Mr. Palliser
resigned as President of the China-Britain Trade Group and a
director of the UK-Japan 2000 Group, and effective February 29,
1996, he resigned as Deputy Chairman of British Invisibles. Mr.
Palliser is a former member of the Trilateral Commission, a
director of the Royal National Theatre. He is currently Chairman
of the Major Projects Association, designed to assist in and for
the handling of major industrial projects. Mr. Palliser also
serves as Vice-Chairman of the Salzburg Seminar, a center for
intellectual exchange based in Middlebury, Vermont, with its
conference center in Salzburg, Austria.
Sir Michael Palliser was educated at Wellington College and
Merton College, Oxford. He saw wartime service in the British
Army with the Coldstream Guards.
FRANCIS J. REINHARDT, JR., is a partner in the New York
investment banking firm of Carl H. Pforzheimer & Co. Mr.
Reinhardt has been a partner in the firm for over 30 years and
has held various positions, specializing in independent oil and
gas securities, mergers and acquisitions, placements
participation and institutional sales since 1956. Mr. Reinhardt
holds a B.S. degree from Seton Hall University and received his
M.B.A. from New York University. Mr. Reinhardt is a member of
the New York Society of Security Analysts, a member of and has
previously served as president of the Oil Analysts Group of New
York, a member and past president of the National Association of
Petroleum Investment Analysts and a member of the Petroleum
Exploration Society of New York. Mr. Reinhardt also serves as a
director of Mallon Resources Corporation, a Nasdaq traded
petroleum and mining company, as well as several privately held
companies. Mr. Reinhardt was appointed as a director of the
Company at a Board meeting held December 11, 1992.
PETER F. ROSS, was appointed Chairman of Dawnay Day Capital
Markets in March 1998. Dawnay Day & Co. is a London based
private investment banking firm. Mr. Ross retired as Chairman of
Henderson Crosthwaite Institutional Brokers on December 31, 1996,
after holding that position since 1987. Under Mr. Ross' term as
Chairman, Henderson Crosthwaite became one of the leading firms
in London in the area of oil and gas placements. From 1977 to
1986 he was head of Henderson Crosthwaite's institutional sales
department, with special responsibility for the oil and gas
division, until its acquisition by Guinness Mahon Bank in 1986.
Mr. Ross was commissioned into the British Army serving with
the 5th Royal Inniskilling Dragoon Guards, his last posting being
to Libya where he retired and set up an industrial services
business. Following the Islamic Revolution in 1971, he returned
to the United Kingdom and joined London stockbrokers Northcote &
Co. In 1974, he joined George Henderson & Co., becoming a
partner in 1975, upon the merger with Fenn and Crosthwaite. Mr.
Ross was appointed as a director of the Company at a meeting of
the Board held April 7, 1998.
Executive Compensation
- ----------------------
The following table sets forth information regarding the
total compensation of the Chief Executive Officer and each of the
four most highly compensated executive officers of the Company at
the end of 1997, as well as the total compensation paid to each
such individual for the Company's two previous fiscal years.
Each of the named individuals has held his respective office
throughout the entire fiscal year.
<TABLE>
<CAPTION>
Summary Compensation Table
Long Term Compensation
-----------------------------------
Annual Compensation Awards Payouts
---------------------------- --------------------- -----------
(1) (2) (3)
Other Restricted
Name and Annual Stock Options/ LTIP All Other
Principal Salary Bonus Compen- Awards SARs Payout Compen-
Position Year ($) ($) sation($) (#) (#) ($) sation($)
---------- ----- ------- ---- -------- ---------- -------- ------- ---------
<C> <C> <C> <C> <C> <C> <C>
Marsden W. Miller, Jr. 1997 150,000 -- -- 1,000,000 -- -- --
Chairman and Chief -- 110,000
Executive Officer 1996 150,000 -- -- -- -- -- --
1995 150,000 -- -- -- -- -- --
John T. Chandler(4) 1997 150,000 -- -- 333,333 133,333 -- --
Vice Chairman; Chairman 20,000 5,000
and Chief Executive Officer 1996 150,000 -- -- -- -- -- --
of XCL-China 1995 150,000 -- -- -- 8,000 -- --
Danny M. Dobbs 1997 136,875 -- -- -- 400,000 -- --
President and Chief Operating 25,000
Officer 1996 135,000 -- -- -- 6,466 -- --
1995 116,250 -- -- -- -- -- --
Richard K. Kennedy 1997 112,500 -- -- -- 266,666 -- --
Vice President 5,000
1996 75,000 -- -- -- -- -- --
1995 75,000 -- -- -- -- -- --
Herbert F. Hamilton(5) 1997 144,000 -- -- -- -- -- --
Executive Vice President 1996 144,000 -- -- -- -- -- --
Operations, XCL-China 1995 98,800 -- -- -- 13,333 -- --
</TABLE>
_______________
(1) Excludes the cost to the Company of other compensation
that, with respect to any above named individual, does not
exceed the lesser of $50,000 or 10% of such individual's
salary and bonus.
(2) Represents grants of restricted stock awards under the
Long-Term Stock Incentive Plan as amended and restated in
1997 (adjusted as to Common Stock to give effect to the
Reverse Stock Split). The first line under 1997 reflects
restricted stock awards for shares of Common Stock and the
second line reflects restricted stock awards for shares of
Amended Series A Preferred Stock. See "Awards to
Management."
(3) Represents awards of stock options granted under the
Company's Long-Term Stock Incentive Plan as amended and
restated in 1997 (adjusted as to Common Stock to give effect
to the Reverse Stock Split). The first line under 1997
reflects non-qualified stock options for shares of Common
Stock and the second line reflects non-qualified stock
options for shares of Amended Series A Preferred Stock. See
"Awards to Management."
(4) XCL-China is a wholly-owned subsidiary of the Company
which manages the Company's operations on the Zhao Dong
Block.
(5) Mr. Hamilton commenced employment with the Company on
April 24, 1995. As part of his employment package he was
awarded options to purchase 13,333 shares of Common Stock
(adjusted to give effect to the Reverse Stock Split).
Mr. Hamilton has been granted additional options in 1998.
See "Awards to Management" below.
Stock Options
- -------------
The Company currently maintains one stock option plan which
was adopted by shareholders in 1992 and was amended and restated
in 1997. The plan is administered by the Compensation Committee
and provides for the granting of options to purchase shares of
Common Stock to key employees and directors of the Company, and
certain other persons who are not employees of the Company but
who from time to time provide substantial advice or other
assistance or services to the Company.
On June 2, 1992, shareholders approved the Long-Term Stock
Incentive Plan ("1992 LTSIP"). The 1992 LTSIP was adopted with
the view of conforming the Company's prior plans to certain
regulatory changes adopted by the Commission and affording
holders of previously granted options the opportunity to exchange
their options for equivalent options under the 1992 LTSIP. By
action of the Board of Directors, effective June 1, 1997, the
1992 LTSIP was amended and restated, and certain awards were
granted thereunder, all subject to approval by shareholders which
was secured at the Company's Special Meeting in Lieu of Annual
Meeting of Shareholders held on December 17, 1997.
1997 LTSIP Restatement
----------------------
Nature of Awards. The 1997 LTSIP Restatement makes
available to the Compensation Committee the power to grant
certain awards ("Awards") to acquire shares of the Company's
Preferred Stock as well as shares of Common Stock. In common
with the 1992 LTSIP, the 1997 LTSIP Restatement makes available
to the Compensation Committee a number of incentive devices in
addition to Incentive Stock Options ("ISOs") (which are not
available with respect to Preferred Stock) and Nonqualified Stock
Options ("NSOs"), including reload options ("ROs") (which are not
available with respect to Preferred Stock), restricted stock
awards ("RSAs"), and performance units ("PUs") or appreciation
options ("AOs") (which were not authorized under the 1992 LTSIP),
each of which is described below and in the 1997 LTSIP
Restatement. NSOs to acquire Preferred Stock, a new feature, may
include an accrued dividend feature. The Board believes that
these award alternatives will enable the Committee to tailor the
type of compensation to be granted to key personnel to meet both
the Company's and such employee's requirements in the most
efficient manner possible.
Number of Awards. For Common Stock Awards, the 1997
LTSIP Restatement authorizes an aggregate of 4 million shares (as
adjusted for the Reverse Stock Split) of Common Stock for
issuance pursuant to awards granted thereunder, including grants
to non-employee directors. For Preferred Stock Awards, the 1997
LTSIP Restatement authorizes an aggregate of 200,000 shares of
the Company's Amended Series A Preferred Stock, or any other
series of Preferred Stock of the Company as designated by the
Committee with respect to an Award.
Description of Awards. As set forth above, and like the
1992 LTSIP, the 1997 LTSIP Restatement authorizes the
Compensation Committee to grant NSOs, ISOs, ROs (i.e., the
granting of additional options, where an employee exercises an
option with previously owned stock, covering the number of shares
tendered as part of the exercise price), RSAs (i.e., stock
awarded to an employee, subject to forfeiture in the event of a
premature termination of employment, failure of the Company to
meet certain performance objectives or other conditions), PUs
(i.e., share-denominated units credited to the employee's account
for delivery or cash-out at some future date based upon
performance criteria to be determined by the Compensation
Committee), and "tax-withholding" (i.e., where the employee has
the option of having the Company withhold shares on exercise of
an award to satisfy tax withholding requirements). AOs (i.e.,
awards in which payments are based upon appreciation in shares or
other criteria determined by the Compensation Committee) are a
new feature added to the 1992 LTSIP by the 1997 LTSIP
Restatement.
Outside Director Awards. The 1997 LTSIP Restatement also
authorizes the Board to grant Awards to non-employee directors
and to set the terms and conditions of such Awards, without the
restrictions previously set forth in the 1992 LTSIP which were
required by certain federal securities law rules since abolished.
Administration of Plan. In keeping with the provisions of
the 1992 LTSIP, the Compensation Committee will develop
administration guidelines from time to time which will define
specific eligibility criteria, the types of awards to be
employed, whether such awards relate to Common Stock or Preferred
Stock, and the value of such awards. Specific terms of each
Award will be provided in individual Award agreements granted
each Award recipient. Key employees and other individuals who in
the judgment of the Committee may provide a valuable contribution
to the success of the Company and its affiliates will be
eligible. The Committee may establish different general Award
eligibility criteria for Awards involving Preferred Stock which
may require a higher level of management responsibility and
authority.
Change in Control Provisions. The 1997 LTSIP Restatement
contains change-in-control provisions which provide that the
threshold for determining if a "change in control of XCL" has
occurred as a result of a person or entity acquiring Company
stock has been lowered from 30% to 20% (disregarding the
acquisition of such stock by certain shareholders of the
Company). The 1997 LTSIP Restatement retains the 1992 LTSIP's
provisions pursuant to which a "change in control of XCL" will be
deemed to occur as a result of certain contested Board of
Director elections. If a "change in control of XCL" occurs
pursuant to the provisions described above, ISOs and NSOs then
outstanding will become exercisable in full, the forfeiture
restrictions on any RSAs to the extent then applicable will lapse
and amounts payable with respect to PUs and AOs then outstanding
will become payable in full. Also, under certain Awards made
under the 1997 LTSIP Restatement (see discussion below) the
occurrence of a "change in control of XCL" could obligate the
Company with respect to making payments with respect to Awards in
cash rather than in kind, or in obligating the Company to
repurchase individuals' shares of Common Stock or Preferred Stock
received under certain 1997 LTSIP Restatement Awards. Under
certain circumstances which are unforeseen at this time, the
existence of the change in control protections for individuals
receiving Awards under the 1997 LTSIP Restatement and resulting
obligations to the Company may impede the consummation of a
change in control of the Company.
Option Exercise Price. Under the 1997 LTSIP Restatement,
the Compensation Committee shall determine the option price of
all NSOs and ISOs; provided, however, in the case of ISOs, the
option price shall not be less than the fair market value of the
Common Stock on the date of grant. Such "fair market value" is
the average of the high and low prices of a share of Common or
Preferred Stock traded on the relevant date, as reported on the
Exchange, or other national securities exchange, or an automated
quotation system, or pursuant to a good faith determination by
the Board of Directors, if not so traded in a public market.
The 1997 LTSIP Restatement does not extend the term of the
1992 LTSIP and, therefore, the 1997 LTSIP Restatement will
terminate (and no further awards thereunder will be granted
after) June 2, 2002. In view of the fact that there is no public
market for the Amended Series A Preferred Stock, the fair market
value of the Amended Series A Preferred Stock on November 10,
1997, determined in good faith by the Board of Directors based
upon the last bid price of the Amended Series A Preferred Stock
in the PORTAL Market, as reported to the Company by Jefferies,
was $80.00 per share.
Awards to Management
- --------------------
On June 5, 1997, the Board made certain Awards under the
1997 LTSIP Restatement. These Awards were approved by the
shareholders of the Company in connection with the approval of
the 1997 LTSIP Restatement voted on at the Special Meeting of
Shareholders.
Effective June 1, 1997, M. W. Miller, Jr. was granted an
Appreciation Option with respect to appreciation in the Company's
total market capitalization (as defined) from and after June 1,
1997. See "Appreciation Option for M.W. Miller, Jr." below for a
more detailed discussion of such grant.
The closing price of the Company's Common Stock on the AMEX
on a recent date is set forth on the cover page of this
Prospectus.
The following tables set forth, for those persons named in
the "Summary Compensation Table," information on stock options
granted during 1997 and all stock options outstanding as of
December 31, 1997, adjusted to reflect the Reverse Stock Split.
The closing price on the AMEX on June 2, 1997 for the Common
Stock was $0.21875 (which price is not adjusted to reflect the
Reverse Stock Split), and the fair market value of the Amended
Series A Preferred Stock, based upon last sales price information
in the PORTAL Market of the National Association of Securities
Dealers, Inc. as supplied by Jefferies, was $85.00 on June 2,
1997. Mr. Miller's Appreciation Option (described below) is not
included because of the indeterminate nature of the Award.
Option/SAR Grants in Last Fiscal Year
<TABLE>
<CAPTION>
Potential Realizable Value
at Assumed Annual Rates
of Stock Price Appreciation
Individual Grants for Option Term
____________________________
(a) (b) (c) (d) (e) (f) (g) (h)
% of Total
Options/
SARs
Granted to
Options/ Employees in Exercise or
SARs Fiscal Base Price Expiration
Name Granted(#) Year ($/Share) Date 0% ($) 5%($) 10%($)
---- ---------- ---------- ---------- ----------- ------ ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
Marsden W. Miller, Jr. (1) 110,000* 64.7 85.00 June 1, 2007 -- 5,880,165 33,601,492
John T. Chandler (2) 133,333+ 6.7 3.75 June 1, 2007 -- 212,641 1,634,758
5,000* 2.9 85.00 June 1, 2007 -- 267,280 1,527.341
Danny M. Dobbs (3) 400,000+ 20.0 3.75 June 1, 2007 -- 637,294 4,904,287
Richard K, Kennedy (4) 266,666+ 13.3 3.75 June 1, 2007 -- 425,282 3,269,516
5,000* 2.9 85.00 June 1, 2007 -- 267,280 1,527,341
Herbert F. Hamilton (5) -- -- -- -- -- -- --
*Amended Series A Preferred Stock
+Common Stock
</TABLE>
_______________
(1) Effective June 1, 1997, M. W. Miller, Jr. was
granted an NSO to purchase 110,000 shares of Amended Series A
Preferred Stock for an option exercise price of $85.00 per share
(aggregate purchase price of $9,350,000). Such NSO is
exercisable as follows: as to 27,500 shares on June 1, 2000; as
to 66,000 shares on June 1, 2001, and as to 16,500 shares on June
1, 2002. Mr. Miller's NSO will expire on June 1, 2007 or, if
earlier, the date his employment is terminated by the Company for
cause or the date he voluntarily terminates his employment
without good reason.
(2) Effective June 1, 1997, John T. Chandler was granted
an NSO to purchase 133,333 shares of Common Stock (adjusted for
the Reverse Stock Split) for an option exercise price (adjusted
for the Reverse Stock Split) of $3.75 per share (aggregate
purchase price of approximately $500,000) and an NSO to purchase
5,000 shares of Amended Series A Preferred Stock for an option
exercise price of $85.00 per share (aggregate purchase price of
$425,000). Such Common Stock NSO is exercisable as follows: as
to 44,445 shares on June 1, 1999; as to 44,444 shares on June 1,
2000, and as to 44,444 shares on June 1, 2001. Such Amended
Series A Preferred Stock NSO is exercisable as follows: as to
1,250 shares on June 1, 2000; as to 1,750 shares on June 1, 2001;
and as to 2,000 shares on June 1, 2002. Mr. Chandler's Common
Stock NSO and his Amended Series A Preferred Stock NSO will each
expire on June 1, 2007 or, if earlier, the date his employment is
terminated by the Company for cause or the date he voluntarily
terminates his employment without good reason.
(3) Effective June 1, 1997, Danny M. Dobbs was granted
an NSO to purchase 400,000 shares of Common Stock (adjusted for
the Reverse Stock Split) for an option exercise price (adjusted
for the Reverse Stock Split) of $3.75 per share (aggregate
purchase price of $1,500,000) and an NSO to purchase 25,000
shares of Amended Series A Preferred Stock for an option exercise
price of $85.00 per share (aggregate purchase price of
$2,125,000). Such Common Stock NSO is exercisable as follows:
as to 133,334 shares on June 1, 1999; as to 133,333 shares on
June 1, 2000; and as to 133,333 shares on June 1, 2001. Such
Amended Series A Preferred Stock NSO is exercisable as follows:
as to 6,250 shares on June 1, 2000; as to 8,750 shares on June 1,
2001; and as to 10,000 shares on June 1, 2002. Mr. Dobbs' Common
Stock NSO and his Amended Series A Preferred Stock NSO will each
expire on June 1, 2007 or, if earlier, the date his employment is
terminated by the Company for cause or the date he voluntarily
terminates his employment without good reason.
(4) Effective June 1, 1997, Mr. Richard Kennedy was
granted an NSO to purchase 266,666 shares of Common Stock
(adjusted for the Reverse Stock Split) at an exercise price
(adjusted for the Reverse Stock Split) of $3.75 per share
(aggregate purchase price of approximately $1,000,000), and an
NSO to purchase 5,000 shares of Amended Series A Preferred Stock
at an exercise price of $85.00 per share (aggregate purchase
price of $425,000). Such Common Stock NSO is exercisable as
follows: as to 88,890 shares on June 1, 1999; as to 88,888
shares on June 1, 2000; and as to 88,888 shares on June 1, 2001.
Mr. Kennedy's Common Stock NSO will expire on June 1, 2007 or, if
earlier, the date his employment is terminated by the Company for
cause or the date he voluntarily terminates his employment
without good reason. Such Amended Series A Preferred Stock NSO
is exercisable as follows: as to 1,250 shares on June 1, 2000;
as to 1,750 shares on June 1, 2001; and as to 3,000 shares on
June 1, 2002. Mr. Kennedy's Amended Series A Preferred Stock NSO
will expire on August 1, 2007 or, if earlier, the date his
employment is terminated by the Company for cause or the date he
voluntarily terminates his employment without good reason.
(5) Effective June 30, 1998, Mr. Hamilton was granted an NSO to
purchase 150,000 shares of Common Stock at an exercise price of
$3.75 per share. These options are not included in the table
shown above.
<TABLE>
<CAPTION>
Aggregated Option/SAR Exercises in Last Fiscal Year
and Fiscal Year-End Option/SAR Values
(a) (b) (c) (d) (e)
Shares Number of Securities Value of Unexercised
Acquired Underlying Unexercised in-the-Money
on Value Options/SARs at Options/SARs
Name Exercise Realized Fiscal Year-End(#) Fiscal Year-End($)(4)(5)
----- --------- -------- ------------------------- --------------------------
Exercisable Unexercisable Exercisable Unexercisable
----------- ------------- ------------ --------------
<S> <C> <C> <C> <C> <C> <C>
Marsden W. Miller, Jr. -- -- 334,994 (1) -- -- --
-- -- -- (2) 110,000 (2) -- --
160,000 (3) -- -- --
John T. Chandler -- -- 75,330 (1) 133,333 (1) -- --
-- -- -- (2) 5,000 (2) -- 558,332
74,999 (3) -- -- --
Richard K. Kennedy -- -- 16,629 (1) 266,666 (1) -- 1,116,664
-- -- -- (2) 5,000 (2) -- --
Danny M. Dobbs -- -- 22,653 (1) 402,155 (1) -- 1,675,000
-- -- -- (2) 25,000 (2) -- --
38,799 (3) -- -- --
Herbert F. Hamilton -- -- 13,332 (1) -- -- --
</TABLE>
_____________
(1) Represents options to purchase shares of Common Stock
exercisable under the Company's stock option plans at
December 31, 1997 (as adjusted to reflect the Reverse Stock
Split).
(2) Represents options to purchase shares of Amended Series A
Preferred Stock exercisable under the Company's 1997 LTSIP
Restatement at December 31, 1997.
(3) Represents the aggregate number of five-year stock
purchase warrants, received (a) upon surrender of an
employment agreement with the Company, determined based upon
a formula whereby each of the individuals was to be offered
a warrant, based upon the length of time of employment with
the Company, for a maximum of two shares of Common Stock for
each dollar of compensation remaining to be paid to such
individual under his agreement (based upon the product of
his highest monthly base salary and the number of months
remaining under his contract), at an exercise price of
$18.75 per share, and (b) for each dollar of salary
reduction for the 15-month period commencing January 1, 1993
through March 31, 1994, as based on the same formula and at
the same exercise price used in the granting of warrants
upon surrender of employment agreements. See "Employment
Agreements; Termination of Employment and Change-in-Control
Arrangements" below.
(4) At December 31, 1997, the Company's Common Stock price
was lower than the option and/or warrant exercise prices (as
adjusted to reflect the Reverse Stock Split) with the
exception of options granted effective June 1, 1997.
(5) At December 31, 1997, the Company's Amended Series A
Preferred Stock price was equal to the option exercise
price.
These options were all awarded under the Company's stock
option plans or the exchange of stock purchase warrants for the
surrender of employment agreements, all of which are described
above. Additional options have been granted to Mr. Hamilton in 1998.
Appreciation Option for M.W. Miller, Jr.
----------------------------------------
Pursuant to the 1997 LTSIP Restatement, the Board approved
an Appreciation Option for M. W. Miller, Jr., which was approved
by shareholders at the December 17, 1997 Special Meeting of the
Shareholders. The Board determined that the Appreciation Option
to M. W. Miller, Jr. was in the best interests of the Company and
its shareholders, and is required in order to retain the services
of Mr. Miller, who has been instrumental in developing the
Company's China activities and in successfully concluding the
Company's Offerings. The Appreciation Option would also provide
Mr. Miller with additional incentive to increase the value of the
Company based upon its market capitalization, thereby directly
benefiting the shareholders of the Company by increasing the
value of their investments in the Company.
<TABLE>
<CAPTION>
Long-Term Incentive Plans
Awards in Last Fiscal Year
Estimated Future Payouts
Under Non-Stock Price Based Plans
----------------------------------
(a) (b) (c) (d) (e) (f)
Performance or
Number of Other Period
Shares, Units Until Maturation Threshold Target Maximum
Name or Other Rights or Payout ($ or #) ($ or#) ($ or #)
----- --------------- ---------------- --------- ------ --------
<S> <C> <C> <C> <C> <C>
Marsden W. Miller, Jr. (1) (1) (1) (1) (1)
</TABLE>
____________
(1) The Appreciation Option Agreement provides Mr. Miller
with the right, upon his payment of the Exercise Price (as
defined below), to additional compensation (payable in cash or in
shares of Common Stock or Preferred Stock or a combination
thereof, as elected by the Company) based upon 5% of the
difference between the market capitalization of the Company as of
June 1, 1997 and the market capitalization of the Company as of
the date that Mr. Miller exercises the Appreciation Option. For
purposes of the Appreciation Option, the Company's market
capitalization is the total fair market value of the Company's
outstanding shares of Common Stock, Preferred Stock and
outstanding options and warrants. In general, fair market value
is determined based on the trading price of marketable securities
and by the Board of Directors as to the fair market value for
securities for which there is no ready market. Fair market value
as of the date of exercise of the Option is based on the average
fair market value of the 30-day period immediately preceding the
date of the Appreciation Option exercise. On June 1, 1997 and
December 31, 1997, the aggregate market capitalization of the
Company was $161,547,223 and $177,572,416, respectively. Upon
exercise of his Option, in the event the Company elects to settle
the Option with shares of Stock, Mr. Miller must pay the Company
twenty percent (20%) of the amount he is entitled to receive upon
exercise of the Appreciation Option (before any reduction as
hereinafter set forth), or any increment thereof, up to an
aggregate maximum of $5 million (the "Exercise Price") in cash.
In the event the Company elects to settle the Option in cash, the
amount of cash Mr. Miller will receive will be reduced by the
amount of the Exercise Price. Because Mr. Miller's Appreciation
Option contemplates compensation determined with reference to
increases in the Company's market capitalization without
restriction, there is no effective limit on the amount of
compensation which may become payable thereunder. Mr. Miller may
exercise his Appreciation Option as of any June 1 or December 1
commencing June 1, 2002, upon 45 days written notice, in whole or
in 10% increments. In the event that Mr. Miller exercises his
Appreciation Option for less than the total amount available
thereunder, the percentage increment as to which it is exercised
will cease to be available to create additional compensation
opportunity for Mr. Miller based upon subsequent appreciation in
the Company's market capitalization. Mr. Miller's Appreciation
Option expires on June 1, 2007 and will remain exercisable at any
time prior to such expiration notwithstanding his termination of
employment with the Company unless such employment is terminated
by the Company for "cause" or is terminated by Mr. Miller without
"good reason." In keeping with the provisions of the 1997 LTSIP
Restatement discussed in "1997 LTSIP Restatement - Change of
Control Provisions," in the event of a "change in control of XCL"
the Appreciation Option will become immediately exercisable and
the Company will be obligated to pay Mr. Miller, in cash, upon
any exercise of his Appreciation Option, at least 40% of the net
amount payable. This obligation may impede the consummation of a
change of control of the Company.
Material Federal Income Tax Effects
- -----------------------------------
The following is a general summary of the material federal
income tax effects to the Company under current law of the
various awards which may be granted under the 1997 LTSIP
Restatement. These descriptions do not purport to cover all
potential tax consequences.
Section 162(m) of the Internal Revenue Code of 1986, as
amended (the "Code"), limits deductibility of certain
compensation for the Company's Chief Executive Officer and the
additional four executive officers of the Company who are highest
paid and employed at year end to $1 million per year unless
certain conditions are met which result in compensation being
characterized as "performance-based." Awards under the Plan will
not satisfy the conditions necessary to cause the compensation
earned under them to qualify as "performance-based" compensation,
which is not subject to the deductibility limit of Section 162(m)
of the Code. It is the position of the Board of Directors that
the approach necessary for the design of incentive compensation
that will satisfy the criteria under Section 162(m) of the Code
would compromise the best interests of the Company and its
shareholders.
Certain provisions in the 1997 LTSIP Restatement may afford
the recipient of an Award under the 1997 LTSIP Restatement with
special protections or payments which are contingent upon a
change in the ownership or effective control of the Company or in
the ownership of a substantial portion of the Company's assets.
To the extent that they are triggered by the occurrence of any
such event, these special protections or payments may constitute
"parachute payments" which, when aggregated with other "parachute
payments" received by the recipient, could result in the
recipient receiving "excess parachute payments." The Company
would not be allowed a deduction for any such "excess parachute
payments" and the recipient of such "excess parachute payments"
would be subject to a nondeductible 20% excise tax upon such
payments in addition to income tax otherwise owed with respect to
such payments.
Section 401(k) Plan
- -------------------
In 1989, the Company adopted an employee benefit plan under
Section 401(k) of the Internal Revenue Code for the benefit of
employees meeting certain eligibility requirements. The Company
has obtained a favorable determination from the Internal Revenue
Service regarding the tax-favored status of this plan. Employees
can contribute up to 10% of their compensation. The Company, at
its discretion and subject to certain limitations, may contribute
up to 75% of the contributions of each participant. The Company
did not make any contributions to the 401(k) Plan in 1997.
Compensation of Directors and Other Arrangements
- ------------------------------------------------
The Company reimburses its directors for travel and lodging
expenses incurred in attending meetings of the Board of
Directors. Effective January 1, 1990, directors (other than
Messrs. Hummel and Palliser and those directors who are officers
of the Company) were paid an annual retainer of $18,000 plus a
fee of $1,000 for each Board meeting attended. In addition, such
directors were paid a fee of $1,000 for each committee meeting
attended.
In April 1994, the Company entered into separate consulting
agreements with Messrs. Hummel and Palliser, upon their becoming
directors. Each of the agreements is terminable by either of the
parties thereto upon written notice and provides that the
individuals will render consulting services to the Company in
their respective areas of expertise. Pursuant to the terms of
the agreements, each of those directors receives compensation at
the rate of $50,000 per annum, which includes the compensation
they would otherwise be entitled to receive as directors and for
attending meetings of the Board. In addition, pursuant to the
terms of the 1992 LTSIP, Messrs. Hummel, Palliser, Reinhardt and
Hofheinz, each a non-employee director, were each granted stock
options for 6,666 shares of Common Stock exercisable at prices
ranging from $18.75 to $31.59 per share (adjusted for the Reverse
Stock Split).
In June 1997, the Company entered into a consulting
agreement with Mr. Fetters, a director of the Company. The
agreement is for a one-year term ending July 31, 1998, to
continue thereafter on a month to month basis. The agreement may
be terminated by either party on thirty days written notice.
Pursuant to the terms of the agreement, Mr. Fetters is to consult
with the Company on all aspects of the Company's exploration,
development and production projects. For his services Mr. Fetters
is to receive $30,000 per annum, which is in addition to the
compensation he receives as a director for attending meetings of
the Board. In addition to the above compensation, Mr. Fetters is
entitled to receive a finder's fee on certain specifically
identified projects.
Effective June 1, 1997, Messrs. Hummel, Palliser, Reinhardt,
Hofheinz and Fetters were each granted nonqualified stock options
to purchase 66,666 shares of Common Stock (adjusted for the
Reverse Stock Split) exercisable at $3.75 (adjusted for the
Reverse Stock Split) per share under the 1997 LTSIP Restatement.
See "Stock Options - 1997 LTSIP Restatement - Awards to
Management" herein.
Benjamin B. Blanchet, in his capacity as Executive Vice
President, is entitled to a salary of $80,000 per year for up to
80 hours per month of services.
Effective August 1, 1997, the Company entered into a
Services Agreement with Mr. Blanchet. The Agreement is
terminable by either party at any time without cause. Under the
Agreement, Mr. Blanchet is engaged to act as counsel to the
Company to perform from time to time such services as the Company
may request of him in that capacity. In general, compensation
for services under the Services Agreement will be at the rate of
$175 per hour for up to 80 hours per month. Also, under the
Services Agreement, the Company has agreed to provide Mr.
Blanchet with office space, supplies, secretarial assistance, a
library allowance, professional liability insurance,
reimbursement for continuing legal education expenses and bar
dues. Under the Services Agreement, Mr. Blanchet may, except as
prohibited by law or the Louisiana Rules of Professional
Responsibility, represent other clients and engage in business
for his own account.
In connection with his employment by the Company, Mr.
Blanchet received from the Company a $100,000 loan to replace
benefits that he forfeited when he withdrew as a partner of
Gordon, Arata, McCollam & Duplantis, L.L.P. to become Executive
Vice President of the Company. The loan is to be repaid over
eight years from annual bonus payments equal to interest, at the
rate of 6.5% per annum, plus one-eighth of the original principal
balance to be paid by the Company to Mr. Blanchet each year and
shall be forgiven in its entirety if (i) the Company shall fail
to pay timely any such bonus payment, shall breach the Services
Agreement or shall terminate his employment without "cause" or
(ii) Mr. Blanchet terminates his employment with "good reason,"
in either case as such terms are defined in the note evidencing
such loan. In January 1998 a bonus payment of $12,500 was paid
to Mr. Blanchet and used by him to pay the first installment on
the note.
Effective August 1, 1997, Benjamin B. Blanchet was granted
an NSO to purchase 400,000 shares of Common Stock for an option
exercise price of $3.75 per share (aggregate purchase price of
$1,500,000.00). Such Common Stock NSO is exercisable as to
133,334 shares on August 1, 1999; as to 133,333 shares on August
1, 2000 and as to 133,333 shares on August 1, 2001. On that same
date Mr. Blanchet was granted an NSO to purchase 25,000 shares of
Amended Series A Preferred Stock for an option exercise price of
$85.00 per share (aggregate purchase price of $2,125,000). Such
Amended Series A Preferred Stock NSO is exercisable as to 6,250
shares on August 1, 2000; as to 8,750 shares on August 1, 2001
and as to 10,000 shares on August 1, 2002. Mr. Blanchet's NSOs
will expire on August 1, 2007 or, if earlier, the date his
employment is terminated by the Company for cause or the date he
voluntarily terminates his employment without good reason.
Effective June 30, 1998, Mr. Ross was granted nonqualified
stock options to purchase 66,666 shares of Common Stock
exercisable at $3.75 per share under the 1997 LTSIP Restatement.
During 1997 all regular employees were provided health
insurance, a portion of the premium for which is paid by the
Company, and life and disability insurance based upon a factor of
the employee's base salary.
Employment Agreements; Termination of Employment and Change-in-
Control Arrangements
- ---------------------------------------------------------------
Effective April 1, 1994, Messrs. M.W. Miller, Jr., J.T.
Chandler, D.M. Dobbs, and R.C. Cline, in their capacities as
executive and administrative officers of the Company and its
various subsidiaries, agreed to surrender their employment
agreements in consideration of the issuance of five-year warrants
to purchase Common Stock at an exercise price of $18.75 per share
(adjusted for the Reverse Stock Split), subject to customary anti-
dilution adjustments. The number of warrants issued to such
individuals was determined based upon a formula whereby each of
the individuals was offered a warrant to purchase, based upon the
length of time of employment with the Company, a maximum of two
shares of Common Stock for each dollar of compensation remaining
to be paid to such individual under his agreement (based upon the
product of his highest monthly base salary and the number of
months remaining under his agreement). Accordingly, Mr. Miller
received warrants to purchase 125,000 shares; Mr. Chandler,
68,333 shares; Mr. Dobbs, 38,333 shares; and Mr. Cline, 16,666
shares, all adjusted for the Reverse Stock Split.
Effective January 1, 1989, the Company adopted a policy
addressing severance upon separation from the Company. Under
this policy benefits due upon a change-in-control as therein
defined range from three months salary for employees with less
than one year of service to 24 months salary for employees with
more than 10 years of service.
Report on Repricing of Options/SARs
- -----------------------------------
During the fiscal year ended December 31, 1997, there were
no repricings of stock options awarded to any of the named
executive officers.
Compensation Committee Interlocks and Insider Participation
- -----------------------------------------------------------
For the year ended December 31, 1997, the following
nonexecutive directors of the Company, served as members of the
Compensation Committee of the Board of Directors: Messrs. M.
Palliser, A.W. Hummel, Jr., F. Hofheinz (Chairman) and F.J.
Reinhardt, Jr. None of the members of the Compensation Committee
were formerly, nor are any members currently, officers or
employees of the Company or any of its subsidiaries.
Compensation Committee Report on Executive Compensation
-------------------------------------------------------
The Compensation Committee of the Board of Directors
("Committee") establishes the general compensation policies of
the Company, establishes the compensation plans and specific
compensation levels for executive officers and certain other
managers, and administers the Stock Option Plans and Long Term
Stock Incentive Plan. The Committee currently consists of four
independent, nonemployee directors: Messrs. F. Hofheinz, who
serves as Chairman, M. Palliser, Arthur W. Hummel, Jr. and
Francis J. Reinhardt, Jr.
Compensation Policies and Philosophy
- ------------------------------------
The Committee has determined that the compensation program
of the Company should not only be adequate to attract, motivate
and retain executives, key employees and other individuals who
the Company believes may make significant contributions to the
Company's results, but should also be linked to the value
delivered to shareholders as reflected in the price of the
Company's Common Stock.
The Committee believes that the cash compensation of
executive officers, as well as other key employees, should be
competitive with other similarly situated companies while, within
the Company, being fair and discriminating on the basis of
personal performance. In general, in establishing total cash
compensation for its executives, the Committee has taken into
account the median cash compensation of executives employed by
competitors including some of the companies reflected in the peer
group identified in the Performance Graph set forth below, which
the Committee believes represent the Company's most direct
competition for executive talent. The Committee receives
recommendations from management as to executive compensation and,
in light of the Company's performance and the economic conditions
facing the Company, determines appropriate compensation levels
for recommendation to the Board of Directors. The Committee does
not assign relative weights to individual factors and criteria
used in determining executive compensation and does not use
quantifiable targets in determining compensation. For 1997, the
Company did not retain the services of a compensation consulting
firm.
Awards of stock options are intended both to retain
executives, key employees and other individuals who the Company
believes may make significant contributions to the Company's
results and to motivate them to improve long-term stock market
performance. Options are granted at or above the prevailing
market price and will have value only if the price of the
Company's Common Stock increases.
Effective January 1, 1994, Section 162(m) of the Internal
Revenue Code of 1986 (the "Code") generally denies a tax
deduction to any publicly held corporation for compensation that
exceeds $1 million paid to certain senior executives in a taxable
year, subject to an exception for "performance-based
compensation" as defined in the Code and subject to certain
transition provisions. Gains on the exercise of nonqualified
stock options granted through December 31, 1994, will be tax
deductible under the transition rules. Restricted stock awards
by definition granted after February 17, 1993, are not
deductible. At present the Committee does not intend to recommend
amendment to the Stock Option Plans to meet the restrictive
requirements of the Code.
The Committee believes that annual incentive awards should
be commensurate with performance. It further believes that in
order to meet this objective it needs to have the ability to
exercise its judgment or discretion to evaluate performance
against qualitative criteria. It is the Committee's opinion that
the benefits to the Company of the use of a qualitative approach
to the compensation of senior executives such as the Chairman
outweigh the nonmaterial loss of a portion of the deductions
associated with that compensation.
In recognition of the efforts and sacrifices of management
that had enabled the Company in mid-1997 to be on track to meet
its 1997 goals, the need to retain existing management and the
need to attract qualified and competent personnel, in June 1997,
the Board of Directors reassessed the need for adjusting
management's compensation to provide for additional incentives to
management. As a result of this reassessment, the Board of
Directors approved amendments to and a restatement of the
Company's 1992 LTSIP subject to shareholders approval, which was
obtained on December 17, 1997. These amendments generally made
available to the Committee the authority to grant Awards to
executives employed by the Company entitling such executives to
acquire shares of the Company's Preferred Stock and Common Stock.
They also made available to the Committee the authority to grant
appreciation awards. As described in greater detail in "Awards
to Management," the Board of Directors made, subject to the
approval of the shareholders of the Company, which was obtained
on December 17, 1997, certain Awards under the 1997 LTSIP
Restatement effective as of June 1, 1997 (except for awards to
the CFO and an Executive Vice President which were effective
October 6 and August 1, 1997, respectively). The Committee
believes that the 1997 LTSIP Restatement and the Awards granted
thereunder effectively encourage retention and continuity of
management, appropriately reward management for its past
performance and align the interests of management with those of
the Company's shareholders by providing management with the
opportunity to share in the creation of the Company's value.
On December 17, 1997, the Committee reviewed the Company's
1997 financial results and 1997 nonfinancial goals and determined
that, in light of (i) the Company's continued successful drilling
results in the Zhao Dong Block in the Bohai Bay in China, (ii)
the fact that top officials in China's oil industry have
indicated that the Company will be offered additional exploration
and development rights in China and (iii) the Company's
successful placement in May 1997 of $100 million of Preferred
Stock and Notes, the proceeds of which allowed the Company to
commence achieving its objectives in China, the Company's
financial and operating goals for 1997 had been met and exceeded.
Company Performance and Chief Executive Officer Compensation
- ------------------------------------------------------------
The Committee, in connection with determining the
appropriate compensation for Marsden W. Miller, Jr. as Chief
Executive Officer ("CEO"), took into account the financial
condition of the Company, including its liquidity requirements.
It determined that the CEO had been successful in disposing of
assets and raising capital throughout the year. Taking into
consideration the performance of the CEO, as well as the
Company's current cash position and near term requirements, the
adoption of the 1997 LTSIP Restatement and the NSO and
Appreciation Option awarded to the CEO under the 1997 LTSIP
Restatement, the Committee decided that the 1997 awards should
serve in lieu of a cash salary increase or bonus to the CEO for
the present time.
Compensation of Other Executive Officers
- ----------------------------------------
The Committee, in consultation with the CEO, applied the
information and other factors outlined above in reviewing and
approving the compensation of the Company's other executive
officers.
December 17, 1997 COMPENSATION COMMITTEE
Fred Hofheinz, Chairman
Arthur W. Hummel
Michael Palliser
Francis J. Reinhardt, Jr.
Shareholder Return Performance Presentation
- -------------------------------------------
Set forth below is a line graph comparing the percentage
change in the cumulative total shareholder return on the
Company's Common Stock against the AMEX Market Value Index for
the years 1993 through 1997, with a peer group selected by the
Company for the past five fiscal years. The peer group consists
of the same independent oil and gas exploration and production
companies used in last year's comparison, namely: Alta Energy
Corporation; Amerac Energy Corporation (formerly Wolverine
Exploration Company); Bellwether Exploration Company; Brock
Exploration Corporation; Tom Brown, Inc.; Caspen Oil, Inc.;
Chemfirst Inc. (formerly First Mississippi Corporation); Cobb
Resources Corporation; Coda Energy, Inc.; Comstock Resources,
Inc.; Crystal Oil Company; DeKalb Energy Company; Edisto
Resources Company; Energen Corporation; Forest Oil Corporation;
Geodyne Resources, Inc.; Global Natural Resources, Inc.; Goodrich
Petroleum Corporation (formerly Patrick Petroleum Company);
Hallador Pete Company; Hondo Oil & Gas Company; Kelley Oil & Gas
Partners; Louis Dreyfus Natural Gas (formerly American
Exploration Company); Magellan Petroleum Corporation; Maynard Oil
Company; Monterey Resources, Inc. (formerly McFarland Energy,
Inc.); MSR Exploration Limited; Numac Energy, Inc.; Pacific
Enterprises; Penn Virginia Corporation; Plains Resources, Inc.;
Presidio Oil; Wainoco Oil Corporation; Wichita River Oil; and
Wiser Oil Company. The relevant information with respect to the
peer group was furnished by Standard & Poors Compustat Service.
The graph assumes that the value of the investment in the
Company's Common Stock and the peer group stocks were $100 on
January 1, 1992 and that all dividends were reinvested.
[Shareholder Return Performance Presentation Graph]
1993 1994 1995 1996 1997
Return Return Return Return Return
------ ------ ------- ------ ------
XCL 49.96 72.18 27.73 16.62 24.82
Peer Group 121.87 121.48 153.45 183.12 217.52
AMEX 119.52 108.63 137.32 146.10 171.48
SECURITY OWNERSHIP
OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Security Ownership of Certain Beneficial Owners
- -----------------------------------------------
The following table sets forth as of September 30, 1998, the
individuals or entities known to the Company to own more than
5 percent of the Company's outstanding shares of voting
securities. As of that date there were 22,926,333 shares of
Common Stock, excluding 69,471 shares held as treasury stock;
1,181,614 shares of Amended Series A Preferred Stock; and
48,405 shares of Amended Series B Preferred Stock issued and
outstanding. Except as otherwise indicated, all shares are
owned both of record and beneficially.
<TABLE>
<CAPTION>
Amended Series A Amended Series B
Common Stock (1) Preferred Stock(2) Preferred Stock (3)
---------------------- ---------------------- ----------------------
Name and Address Number of Percent Number of Percent Number of Percent
of Beneficial Owner Shares of Class Shares of Class Shares of Class
- ---------------------- ------------ -------- --------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Cumberland Associates 2,070,669 (4) 8.30 146,793 12.42 -- --
1114 Avenue of the Americas
New York, New York 10036
KAIM Non-Traditional, L.P. 4,248,406(4)(5) 16.11 275,256(6) 23.29 48,405 100
1800 Avenue of the Stars,
2nd Floor
Los Angeles, California 90026
Mitch Leigh 1,987,539 (4)(7) 10.03 -- -- -- --
29 West 57th Street
New York, New York 10019
Marsden W. Miller, Jr. 1,665,713 (4)(8) 7.11 -- -- -- --
110 Rue Jean Lafitte, 2nd Floor
Lafayette, Louisiana 70508
Putnam Investment
Management, Inc. 8,882,773 (4)(9) 27.79 195,869 16.58 -- --
25 Braintree Hill Office Park
Braintree, MA 02184
_______________
(1) This table includes shares of Common Stock issuable upon
conversion of the shares of Amended Series A Preferred
Stock. Each share of Amended Series A Preferred Stock is
convertible into approximately 11 shares of Common Stock.
(2) The holders of Amended Series A Preferred Stock are
entitled to cast the same number of votes as the shares of
Common Stock then issuable upon conversion thereof
(currently 11 votes) on any matter subject to the vote of
Common Stockholders.
(3) Each share of Amended Series B Preferred Stock is
convertible into approximately 26.3 shares of Common Stock,
if the Common Stock issuable on conversion has not been
registered and 21 shares of Common Stock, if the Common
Stock issuable on conversion has been registered, subject to
adjustment, on or after August 31, 1998. Each share of
Amended Series B Preferred Stock is entitled to 50 votes per
share.
(4) Includes shares issuable upon the exercise of
outstanding stock purchase warrants exercisable within the
next 60 days.
(5) Includes 16,874 shares owned by Richard A. Kayne, a
director, CEO and President of Kayne Anderson Investment
Management, Inc., the general partner of KAIM Non-
Traditional, L.P. ("KAIM LP"). The shares over which Mr.
Kayne has sole voting and dispositive power are held by him
directly or by accounts for which he serves as trustee or
custodian. The shares over which Mr. Kayne and KAIM LP have
shared voting and dispositive power are held by accounts for
which KAIM LP serves as investment adviser (and, in some
cases as general partner). KAIM LP disclaims beneficial
ownership of these shares, except to the extent that they
are held by it or attributable to it by virtue of its
general partner interests in certain limited partnerships
holding such shares. Mr. Kayne disclaims beneficial
ownership of the shares reported, except those shares
attributable to him by virtue of his limited and general
partner interests in such limited partnerships and by virtue
of his indirect interest in the interest of KAIM LP in such
limited partnerships.
(6) Includes 2,610 shares owned by Richard Kayne, a director,
CEO and President of Kayne Anderson Investment Management,
Inc., the general partner of KAIM Non-Traditional, L.P.
("KAIM LP") The shares over which Mr. Kayne has sole voting
and dispositive power are held by him directly or by
accounts for which he serves as trustee or custodian. The
shares over which Mr. Kayne and KAIM LP have shared voting
and dispositive power are held by accounts for which KAIM LP
serves as investment adviser (and, in some cases as general
partner). KAIM LP disclaims beneficial ownership of these
shares, except to the extent that they are held by it or
attributable to it by virtue of its general partner
interests in certain limited partnerships holding such
shares. Mr. Kayne disclaims beneficial ownership of the
shares reported, except those shares attributable to him by
virtue of his limited and general partner interests in such
limited partnerships and by virtue of his indirect interest
in the interest of KAIM LP in such limited partnerships.
(7) Includes 118,732 shares owned by Mr. Leigh's wife. Does
not include shares and warrants held in custodial and trust
accounts for Mr. Leigh's minor children, which Mr. Leigh
does not control. Mr. Leigh disclaims beneficial ownership
of all shares held by his wife and minor children.
(8) Includes shares issuable upon the exercise of stock options
exercisable within the next 60 days; and 1,000,000 shares of
restricted stock subject to certain forfeiture provisions.
(9) Putnam Investment Management, Inc. has shared voting and
investment power over securities held by accounts for which
Putnam Investment Management, Inc. serves as investment
adviser.
</TABLE>
Security Ownership of Management
- --------------------------------
The following table sets forth information concerning the
shares of the Company's Common Stock owned beneficially by each
director of the Company, and all directors and executive officers
as a group as of September 30, 1998. As of that date there were
22,926,333 shares of Common Stock issued and outstanding,
excluding 69,741 shares of Common Stock held as treasury stock,
and 1,181,614 shares of Amended Series A Preferred Stock issued
and outstanding. The mailing address for all such individuals is
XCL Ltd., 110 Rue Jean Lafitte, 2nd Floor, Lafayette, Louisiana
70508.
<TABLE>
<CAPTION>
Common Stock Amended Series A Preferred Stock
_____________________________ ______________________________
Number Percent Number Percent
Name of Beneficial Owner of Shares of Class of Shares of Class
- ------------------------ ------------------ --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Marsden W. Miller, Jr. 1,665,713 (1)(2)(3)(4) 7.11 -- --
John T. Chandler 533,709 (1)(2)(3)(4) 2.31 20,000 (2) 0.02
Benjamin B. Blanchet 200 (5) -- -- --
Fred Hofheinz 23,332 (3) 0.10 -- --
Arthur W. Hummel, Jr. 23.332 (3) 0.10 -- --
Sir Michael Palliser 23,332 (3) 0.10 -- --
Francis J. Reinhardt, Jr. 57,464 (3)(6) 0.25 -- --
R. Thomas Fetters, Jr. 79,365 (4) 0.34 -- --
Peter F. Ross -- (3) -- -- --
All directors and officers of the
Company as a group (17 persons) 2,810,427 (1-6) 12.24 20,000 (2) 0.02
____________
(1) Includes 133,333 shares which are subject to an option
granted under agreement dated October 1, 1985 in favor of
John T. Chandler. Such shares are also included in Mr.
Chandler's holding inasmuch as the option is presently
exercisable. For purposes of the total holdings of the
group, the shares are included solely in Mr. Miller's share
holdings.
(2) Includes shares of restricted stock awarded to Messrs.
Miller and Chandler which are subject to certain forfeiture
provisions.
((3) Includes shares of Common Stock which may be acquired
pursuant to options which are exercisable within 60 days.
(4) Includes shares of Common Stock which may be acquired
pursuant to stock purchase warrants exercisable within 60
days.
(5) Represents shares of Common Stock owned by Mr. Blanchet's
children. Mr. Blanchet disclaims beneficial ownership of
these shares.
(6) Includes 6,666 shares of Common Stock owned by Carl H.
Pforzheimer & Co. of which Mr. Reinhardt is a general
partner and 13,333 shares owned by Petroleum and Trading
Corporation of which Mr. Reinhardt is an officer and
director. Mr. Reinhardt disclaims beneficial ownership of
the shares owned by Petroleum and Trading Corporation.
</TABLE>
DESCRIPTION OF EXISTING DEBT
General
- -------
The Company's only outstanding long-term indebtedness is
represented by the Notes issued in connection with the Note
Offering concluded on May 20, 1997. The Notes are limited in
aggregate principal amount to $75 million. The Notes represent
senior obligations of the Company and rank pari passu in right of
payment with all indebtedness of the Company and senior to any
indebtedness that is expressly subordinated to the Notes. The
Notes are secured by (i) a pledge of all the capital stock of XCL-
China and any other future restricted subsidiary and (ii) the
subsidiary guarantees of XCL-China (which has given a full and
unconditional guaranty) and any other Subsidiary Guarantor. The
Notes will mature on May 1, 2004. The Notes bear interest at the
rate of 13.50% per annum, payable semiannually on May 1 and
November 1 of each year, commencing November 1, 1997.
The Notes were issued pursuant to the terms of the Indenture
with Fleet National Bank as the original Trustee. The Trustee is
now State Street Bank and Trust Company of Connecticut N.A. The
terms of the Indenture are also governed by certain provisions
contained in the Trust Indenture Act of 1939, as amended. The
Indenture contains customary representations and warranties by
the Company as well as certain affirmative and negative covenants
briefly described elsewhere in this Prospectus. See "Risk
Factors -- Restrictions Imposed by Terms of the Company's
Indebtedness."
The Company also had $2.1 million in limited recourse debt
outstanding as of June 30, 1998, which was collateralized by the
Lutcher Moore Tract. Expressions of interest to purchase the
property have been received from several parties and the Company
is presently evaluating such proposals with the possible intent
to sell the property. The Company is also evaluating the
possibility of developing the property into a source of wetland
mitigation credits. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations," "Business --
Domestic Properties -- Lutcher Moore Tract."
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of XCL consists of 500,000,000
shares of common stock, par value $0.01 per share ("Common
Stock"), and 2,400,000 shares of preferred stock, par value $1.00
per share ("Preferred Stock"), 70,000 of which have been
designated Amended Series B, Cumulative Convertible Preferred
Stock, and 2,085,000 of which have been designated Amended Series
A, Cumulative Convertible Preferred Stock.
Common Stock
-------------
General
- -------
As of September 30, 1998, there were 22,926,333 shares of
Common Stock outstanding, excluding 69,471 shares held in
treasury, held by approximately 3,480 stockholders of record.
Common Stock is not redeemable, does not have any conversion
rights and is not subject to call. Holders of shares of Common
Stock have no preemptive right to maintain their percentage of
ownership in future offerings or sales of stock of XCL. Holders
of shares of Common Stock have one vote per share in all
elections of directors and on all other matters submitted to a
vote of stockholders of XCL. The holders of Common Stock are
entitled to receive dividends, if any, as and when declared from
time to time by the Board of Directors of XCL out of funds
legally available therefor (subject to restrictions in the
Indenture and any credit agreement). Upon liquidation,
dissolution, or winding up of the affairs of XCL, the holders of
Common Stock will be entitled to participate equally and ratably,
in proportion to the number of shares held, in the net assets of
XCL available for distribution to holders of Common Stock. The
shares of Common Stock currently outstanding are, and the shares
of Common Stock underlying the Warrants offered hereby when
issued will be, fully paid and nonassessable.
Effective December 17, 1997, the Company effected a one-for-
fifteen reverse stock split of its outstanding shares of Common
Stock.
The United States registrar and transfer agent for the
Common Stock is ChaseMellon Shareholder Services, L.L.C.,
Overpeck Centre, 85 Challenger Road, Ridgefield Park, New Jersey
07660 (Telephone No. 1-800-851-9677). The transfer agent for
the Common Stock in the United Kingdom is IRG plc, Balfour House,
390/398 High Road, Ilford, Essex IG1 1NQ, England (Telephone No.
0181-478-8241).
Special Charter and By-Law Provisions
- -------------------------------------
General Effect. The Board of Directors of the Company
believes that certain provisions in its Amended and Restated
Certificate of Incorporation, as amended ("Certificate of
Incorporation") and the Amended and Restated By-Laws of XCL (the
"By-Laws") will effectively reduce the possibility that a third
party could effect a sudden or surprise change of majority
control of the Company's Board of Directors or successfully
complete a takeover of XCL without the support of the incumbent
Board of Directors.
Certain provisions in the Certificate of Incorporation and
By-Laws of XCL may have significant effects on the ability of the
stockholders of XCL to change the composition of the incumbent
Board of Directors and to benefit from certain transactions that
are opposed by the incumbent Board of Directors.
XCL has adopted a number of provisions in its Certificate of
Incorporation and By-Laws that might discourage certain types of
transactions that involve an actual or threatened change of
control of XCL. The provisions may make it more difficult and
time consuming to change majority control of the Board of
Directors, and thus reduce the vulnerability of XCL to an
unsolicited offer to acquire XCL, particularly an offer that does
not contemplate the acquisition of all of XCL's outstanding
shares. As more fully described below, the Board believes that,
as a general rule, such unsolicited offers are not in the best
interests of XCL and its stockholders at this time.
The Board of Directors of XCL believes that the threat of
removal of XCL's management, in the case of a takeover bid,
severely curtails its ability to negotiate effectively with a
potential purchaser of XCL or its subsidiaries. In such a
situation, management is deprived of the time and information
necessary to evaluate the takeover proposal, to study alternative
proposals, and to help ensure that the best transaction involving
XCL is ultimately undertaken. The Board believes a takeover of
XCL without prior negotiation with XCL's management would be
detrimental to XCL and its stockholders. Consequently, the Board
thinks that the benefits of protecting its ability to negotiate
with the proponent of an unfriendly or unsolicited proposal to
take over or restructure XCL outweigh the disadvantages of
discouraging such proposals. The Certificate of Incorporation
makes it more difficult for a holder of a substantial block of
Common Stock to acquire control of, or to remove, the incumbent
Board and could thus have the effect of entrenching incumbent
management. At the same time, the anti-takeover provisions help
ensure that the Board, if confronted by a surprise proposal from
a third party who has recently acquired a block of Common Stock,
will have sufficient time to review the proposal and alternatives
to it and to seek better proposals for its stockholders,
employees, suppliers, customers, and others.
The anti-takeover provisions are intended to encourage
persons seeking to acquire control of XCL to initiate such an
acquisition through arm's-length negotiations with XCL's
management and Board of Directors. The Certificate of
Incorporation could have the effect of discouraging a third party
from making a tender offer or otherwise attempting to obtain
control of XCL, even though such an attempt might be beneficial
to XCL and its stockholders.
Fair Price Provision. The purchaser in corporate takeovers
often pays cash to acquire a controlling equity interest in a
corporation and then arranges a transaction to acquire the
balance of the shares for a lower price or less desirable
consideration (frequently securities of the purchaser that do not
have an established trading market at the time of issue) or both.
This practice is known as "two-tier pricing" and tends (and may
be designed) to cause stockholders to accept the initial offer
for fear of becoming minority stockholders in a controlled
corporation or being forced to accept a lower price or less
favorable consideration for their shares. To alleviate this
problem, XCL has included in its Certificate of Incorporation a
provision (the "Fair Price Provision") designed to assure that
all stockholders of XCL will receive substantially the same price
for their shares in transactions in which XCL is acquired in two
or more steps.
The Fair Price Provision discourages two-step acquisitions
of XCL by requiring that mergers and certain other business
combinations involving XCL and any Interested Stockholder (as
hereinafter defined) either (1) meet certain minimum price and
procedural requirements, (2) be approved by a majority of the
members of XCL's Board of Directors who are unaffiliated with the
Interested Stockholder and who were directors before the
Interested Stockholder became a 20% stockholder, (3) be approved
by the favorable vote of at least 67% of the voting power of the
Voting Stock and a majority of the outstanding shares of Voting
Stock (as hereinafter defined) held by persons who are neither
Interested Stockholders nor affiliates of Interested
Stockholders, or (4) be approved by the holders of at least 80%
of the outstanding shares of Voting Stock.
The Fair Price Provision is designed to prevent a purchaser
from utilizing two-tier pricing and similar tactics in an
attempted takeover of XCL. It has the overall effect of making
it more difficult to acquire and exercise control of XCL and may
provide officers and directors with enhanced ability to retain
their position in the event of a takeover bid. It is not
designed to prevent or discourage all tender offers for control
of XCL. The Fair Price Provision does not preclude an offeror
from making a tender offer for some of the shares of XCL's stock
without proposing a Business Combination (as defined below) in
which the remaining shares of stock are purchased. Except for
the restrictions on Business Combinations, the Fair Price
Provision will not prevent a holder of a controlling interest of
the XCL Common Stock from exercising control over XCL or
increasing its interest in XCL. The Board will support or oppose
any future takeover proposal, whether or not the proposal
satisfies the fair price requirements for the Fair Price
Provision, if the Board determines that its support or opposition
is in the best interests of XCL's stockholders.
The Fair Price Provision will not limit the ability of a
third party to effect a Business Combination, as long as such
third party owns (or can obtain the affirmative votes of) at
least 80% of the outstanding shares of all classes of capital
stock entitled to vote generally in the election of directors
(the "Voting Stock").
Certain Definitions Used in the Fair Price Provision. An
"Interested Stockholder" is defined in the Fair Price Provision
as anyone who is the beneficial owner of 20% or more of the
Voting Stock, and includes any person who, in a transaction not
involving a public offering, is an assignee of or has succeeded
to any shares of Voting Stock of XCL that were at any time within
the prior two-year period beneficially owned by an Interested
Stockholder. The term "beneficial owner" includes persons
directly and indirectly owning or having the right to acquire or
vote the stock. The Board of Directors of XCL considers that a
20% holding, which is four times the minimum ownership
requirement imposed in connection with various reporting
requirements under the Exchange Act for stockholders of public
companies, is appropriate to define an Interested Stockholder.
A "Business Combination" includes the following
transactions: (1) a merger or consolidation of XCL or any
subsidiary with an Interested Stockholder or with any other
company or entity that is, or after such merger or consolidation
would be, an affiliate of an Interested Stockholder; (2) the sale
or other disposition by XCL or a subsidiary of assets having an
aggregate fair market value equal to 10% or more of the net
assets of XCL or more if an Interested Stockholder (or an
affiliate thereof) is a party to the transaction; (3) the
issuance or transfer of stock or other securities of XCL or of a
subsidiary to a person or entity that, immediately before such
issuance, is an Interested Stockholder (or an affiliate thereof)
in exchange for cash or property (including stock or other
securities) having an aggregate fair market value equal to 10% or
more of the net assets of XCL; (4) the adoption of any plan or
proposal for the liquidation or dissolution of XCL proposed by or
on behalf of an Interested Stockholder (or an affiliate thereof);
or (5) any reclassification of securities, recapitalization,
merger with a subsidiary or other transaction that has the
effect, directly or indirectly, of increasing the proportionate
share of the outstanding stock (or securities convertible into
stock) of any class of XCL or any of its subsidiaries owned by an
Interested Stockholder or affiliate.
A "Disinterested Director" is a member of the Board of
Directors of XCL who is not affiliated with or a nominee of an
Interested Stockholder and was a director of XCL immediately
before the time the Interested Stockholder became an Interested
Stockholder, and any successor to such Disinterested Director who
is not affiliated with or a nominee of an Interested Stockholder
and was recommended for nomination or election to the Board by a
majority of the Disinterested Directors then on the Board.
Requirements for Certain Business Combinations Without the
Fair Price Provision. If XCL's Certificate of Incorporation did
not include the Fair Price Provision, mergers, consolidations,
the sale of substantially all of the assets of XCL, the adoption
of a plan of dissolution of XCL and reclassification of
securities and recapitalizations of XCL involving amendments to
the Certificate of Incorporation would require approval by the
holders of a majority of the voting power of the Voting Stock.
Certain other transactions, such as sales of less than
substantially all of the assets of XCL, certain mergers involving
a wholly owned subsidiary of XCL and recapitalizations and
reclassifications not involving amendments to the Certificate of
Incorporation would not require stockholder approval.
Requirements for Certain Business Combinations Under the
Fair Price Provision. Under the Fair Price Provision, it will be
a condition to a Business Combination with an Interested
Stockholder that the transaction either (1) meet certain price
criteria and procedural requirements (discussed below), or (2) be
approved by a majority of the Disinterested Directors, or (3) be
approved by the favorable vote of at least 67% of the voting
power of the Voting Stock and a majority of the outstanding
shares of Voting Stock held by persons who are neither Interested
Stockholders or affiliates of Interested Stockholders, or (4) be
approved by the favorable vote of at least 80% of the voting
power of the Voting Stock. If the minimum price criteria and
procedural requirements are met or the requisite approval of the
Disinterested Directors is obtained with respect to a particular
Business Combination, then the normal requirements of Delaware
law will apply, and only a majority vote of the outstanding
Voting Stock will be required or, for certain transactions as
noted above, no stockholder vote will be necessary. If the
minimum price criteria and procedural requirements are not met or
the requisite approval of the Disinterested Directors is not
obtained, or the requisite vote of shareholders not affiliated
with the Interested Stockholder is not obtained, then a Business
Combination with an Interested Stockholder will require an 80%
stockholder vote. One consequence of the Fair Price Provision,
therefore, is that additional time and expense would be required
to effect certain Business Combinations due to the need to hold a
special stockholders' meeting.
Exceptions to Higher Vote Requirements under the Fair Price
Provision. The 80% affirmative stockholder vote contemplated by
the Fair Price Provision will be required only if (1) the minimum
price criteria and procedural requirements described under (a)
and (b) below are not satisfied or (2) the transaction is not
approved by a majority of the Disinterested Directors or (3) the
requisite vote of shareholders not affiliated with the Interested
Stockholder is not obtained.
(a) Minimum Price Criteria. In a Business Combination
involving cash or other consideration paid to XCL's stockholders,
the consideration must be either cash or the same type of
consideration used by the Interested Stockholder in acquiring the
largest portion of its Voting Stock before the first public
announcement of the terms of the proposed Business Combination
(the "Announcement Date"). In addition, the fair market value
(calculated in accordance with the Fair Price Provision) of the
consideration to be paid on the date the Business Combination was
consummated (the "Consummation Date") must meet certain minimum
price criteria described herein.
In the case of payments to holders of Common Stock and
Preferred Stock, the fair market value per share of such payments
must be at least equal in value to the higher of (1) the highest
price per share (including brokerage commissions, transfer taxes
and soliciting dealers' fees) paid by the Interested Stockholder
in acquiring any shares of such class or series of stock during
the two years before the Announcement Date (even if the
Interested Stockholder was not an Interested Stockholder at the
time of any such acquisitions) or in the transaction in which it
became an Interested Stockholder (whichever is higher), or (2)
the fair market value per share of such class or series of stock
on the Announcement Date or on the date on which the Interested
Stockholder became an Interested Stockholder (the "Determination
Date"), whichever is higher; provided, however, the holders of
Preferred Stock shall be entitled to receive an amount at least
equal to the highest preferential amount payable upon
dissolution, liquidation or winding up of XCL applicable thereto
if the Interested Stockholder has not previously purchased shares
of Preferred Stock or such price paid for Preferred Stock is
lower than such preferential amount. If the Interested
Stockholder purchased any shares of Common Stock during the two-
year period before the Announcement Date, the minimum price might
be fixed based on a purchase occurring as long as two years
before the Announcement Date. If the Determination Date was more
than two years before the Announcement Date, then the minimum
price could be set as of such earlier date. If the Interested
Stockholder did not purchase any shares of Common Stock during
the two-year period before the Announcement Date or in the
transaction on the Determination Date in which it became an
Interested Stockholder (e.g., if it became an Interested
Stockholder through the acquisition of shares of another class of
Voting Stock), the minimum price would be as determined under (2)
above.
For example, if the acquisition by an Interested Stockholder
of its Common Stock interest was by cash purchases in open market
transactions and the highest price paid per share of Common Stock
during the previous two years (including in the transaction in
which it became an Interested Stockholder) was $5.00, and
assuming that the fair market values per share of Common Stock on
the Determination Date and on the Announcement Date were $4.00
and $4.50, respectively, the amount required to be paid to the
holders of Common Stock would be the amount per share in cash
equal to the higher of (1) $5.00 (the highest price paid), and
(2) $4.50 (fair market value on the Announcement Date).
Accordingly, in order to comply with the Fair Price Provision's
minimum price criteria, the Interested Stockholder would be
required to pay at least $5.00 per share in cash to holders of
Common Stock in the Business Combination. If the Interested
Stockholder did not purchase any shares of Common Stock during
the two-year period before becoming an Interested Stockholder
(e.g., if it became an Interested Stockholder through the
acquisition of shares of another class of Voting Stock), the
minimum price payable under the Fair Price Provision for shares
of Common Stock would be the fair market value on the
Announcement Date or on the Determination Date, whichever is
higher, resulting in a price, in the foregoing example, of $4.50
per share in cash. All such prices shall be subject to an
appropriate adjustment in the event of any stock dividend, stock
split, subdivision, combination of shares or similar event.
In the case of payments to holders of any class or series of
XCL's Voting Stock other than Common Stock, the fair market value
per share of such payments must be at least equal to the higher
of (a) the highest price per share determined with respect to
such class or series of stock in the same manner as described in
clauses (1) and (2) of the preceding paragraphs, or (b) the
highest preferential amount per share to which the holders of
such class or series of Voting Stock are entitled in the event of
a voluntary or involuntary liquidation of XCL.
Under the minimum price requirements, the fair market value
of non-cash consideration to be received by holders of shares of
any class of Voting Stock in a Business Combination is to be
determined in good faith by the Board of Directors of XCL.
Under the Fair Price Provision, the Interested Stockholder
is required to meet the minimum price with respect to each class
of stock before proposing the Business Combination. If the
minimum price criteria and the procedural requirements (discussed
below) are not met with respect to each class of Voting Stock,
then an 80% vote of stockholders will be required to approve the
Business Combination unless the transaction is approved by the
favorable vote of at least 67% of the voting power of the Voting
Stock and a majority of the outstanding shares of Voting Stock
held by persons who are neither Interested Stockholders nor
affiliates of Interested Stockholders, or by a majority of the
Disinterested Directors.
If the proposed Business Combination does not involve
receipt by the other stockholders of XCL of cash or other
property, such as a sale of assets or an issuance of XCL's
securities to an Interested Stockholder, then the price criteria
discussed above will not apply and an 80% vote of stockholders
will be required unless the transaction is approved by the
favorable vote of at least 67% of the voting power of the Voting
Stock and a majority of the outstanding shares of Voting Stock
held by persons who are neither Interested Stockholders nor
affiliates of Interested Stockholders, or by a majority of the
Disinterested Directors.
(b) Procedural Requirements. Under the Fair Price
Provision, unless the Business Combination is approved by a
majority of the Disinterested Directors, the Business Combination
will be subject to the 80% stockholder vote requirement, even if
it satisfies the minimum price criteria, in each of the following
situations:
(1) If XCL, after the Interested Stockholder became
an Interested Stockholder, (i) reduced the rate of dividends
paid on the Common Stock (unless such reduction was
necessary to reflect any subdivision of the Common Stock),
or (ii) failed to increase the rate of dividends as
necessary to reflect any reclassification (including any
reverse stock split), recapitalization, reorganization or
any similar transaction which has the effect of reducing the
number of outstanding shares of Common Stock, unless such
reduction was approved by a majority of the Disinterested
Directors. This provision is designed to prevent an
Interested Stockholder from attempting to depress the market
price of the Common Stock before proposing a Business
Combination by reducing dividends on the Common Stock, and
thereby reducing the consideration required to be paid
pursuant to the minimum price provisions of the Fair Price
Provision.
(2) If the Interested Stockholder acquired any
additional shares of Voting Stock except in the transaction
pursuant to which it became an Interested Stockholder. This
provision is intended to prevent an Interested Stockholder
from purchasing additional shares of Voting Stock without
compliance with the provisions of the Fair Price Provision.
(3) If the Interested Stockholder, at any time
after it became an Interested Stockholder, whether in
connection with the proposed Business Combination or
otherwise, received the benefits of any loss or other
financial assistance or tax advantage provided by XCL (other
than proportionately as a stockholder). This provision is
intended to deter an Interested Stockholder from self-
dealing or otherwise taking advantage of its equity position
in XCL by using XCL's resources to finance the proposed
Business Combination or otherwise for its own purposes in a
manner not proportionately available to all stockholders.
Under the Fair Price Provision, unless the Business
Combination is approved by a majority of the Disinterested
Directors, to avoid the 80% stockholder vote requirement even if
the other conditions described above are met, a proxy or
information statement disclosing the terms and conditions of the
proposed Business Combination and complying with the requirements
of the proxy rules promulgated under the Exchange Act will have
to be mailed to all stockholders of XCL at least 30 days before
the consummation of a Business Combination. This provision is
intended to ensure that XCL's stockholders will be fully informed
of the terms and conditions of the proposed Business Combination
even if the Interested Stockholder is not otherwise legally
required to disclose such information to stockholders.
NONE OF THE MINIMUM PRICE OR PROCEDURAL REQUIREMENTS
DESCRIBED ABOVE WILL APPLY IN THE CASE OF A BUSINESS COMBINATION
APPROVED BY A MAJORITY OF THE DISINTERESTED DIRECTORS OR THE
FAVORABLE VOTE OF 67% OF THE OUTSTANDING SHARES AND A MAJORITY OF
THE SHARES HELD BY PERSONS WHO ARE NEITHER THE INTERESTED
STOCKHOLDER NOR AFFILIATES OF THE INTERESTED STOCKHOLDER, AND, IN
THE ABSENCE OF SUCH APPROVAL, ALL OF SUCH REQUIREMENTS WILL HAVE
TO BE SATISFIED TO AVOID THE 80% STOCKHOLDER VOTE REQUIREMENT.
Classified Board. XCL's Board of Directors is divided into
three classes of directors serving staggered three-year terms,
with one class of directors to be elected at each annual meeting
of shareholders to hold office until the end of their term or
until their successors have been elected and qualified. Directors
may not be removed without cause except upon the affirmative vote
of the holders of 67% of the outstanding shares of Voting Stock.
This provision makes it more difficult to effect an involuntary
change in incumbent management.
No Cumulative Voting. Neither the Certificate of
Incorporation nor the By-Laws permit cumulative voting. Thus, a
purchaser of a block of Common Stock representing less than a
majority of the outstanding shares will have no assurance of
proportional representation on the Board of Directors.
No Action by Stockholder Consent. Delaware law provides
that, unless a corporation's certificate of incorporation denies
the right, stockholders may act by a written consent executed by
the holders of a majority of the outstanding shares of voting
stock without holding a special or annual meeting of
stockholders. The Certificate of Incorporation prohibits action
that is required or permitted to be taken at any annual or
special meeting of stockholders of XCL from being taken by the
written consent of stockholders without a meeting unless
authorized by a majority of the Disinterested Directors. The
intent of this provision is to provide an open forum at a
stockholders' meeting for all stockholders to have a chance to
attend and be heard. This provision could have an anti-takeover
effect and tend to entrench management by forcing the holder or
holders of a majority of the outstanding stock to exercise their
prerogatives of majority ownership only by voting at a
stockholders' meeting rather than by written consent.
Supermajority Voting. The Fair Price Provision may be
altered, amended, or repealed only if the holders of 80% or more
of the outstanding shares of Voting Stock entitled to vote
thereon or 67% or more of the outstanding shares voting together
with a majority of the outstanding shares held by persons other
than the Interested Stockholder and its affiliates, vote in favor
of such action. The other anti-takeover provisions and certain
other provisions in the Certificate of Incorporation may be
altered, changed, amended, or repealed only if the holders of 67%
or more of the outstanding shares of voting stock of XCL entitled
to vote thereon vote in favor of such action. Without this
supermajority voting, the beneficial effects of the provisions
requiring such greater percentage of vote could be nullified by
subsequent amendments approved by a vote of the holders of only a
majority of Common Stock.
Preferred Stock
---------------
General
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Under the Certificate of Incorporation, the Board of
Directors of XCL may direct the issuance of up to 2,400,000
shares of Preferred Stock, in one or more series and with rights,
preferences, privileges, and restrictions, including, without
limitation, dividend rights, voting rights, conversion rights,
terms of redemption, and liquidation preferences, that may be
fixed or designated by the Board of Directors without any further
vote or action by XCL's stockholders. The following description
of Preferred Stock sets forth certain general terms and
provisions of the two series of Preferred Stock which are
currently issued and outstanding. As discussed elsewhere in this
Prospectus, effective November 10, 1997, the Company amended,
recapitalized and combined the outstanding shares of Series A
Preferred Stock and Series E Preferred Stock into shares of
Amended Series A Preferred Stock which, together with the Amended
Series A Preferred Stock issued in the Equity Offering,
constituted a single class of approximately $93 million (in
aggregate liquidation preference) of Amended Series A Preferred
Stock at that time. The shares of Amended Series A Preferred
Stock currently outstanding have an aggregate liquidation
preference of approximately $101 million. Effective January 16,
1997, the Series F Preferred Stock was mandatorily converted into
633,893 shares of Common Stock. On March 3, 1998, the Series B
Preferred Stock was sold by the holder thereof, and the
purchasers exchanged the shares of Series B Preferred Stock for
an aggregate 44,465 shares of Amended Series B Preferred Stock.
In addition, such purchasers were issued an additional 2,620
shares (in the aggregate) of Amended Series B Preferred Stock in
payment of accrued and unpaid dividends on the Series B Preferred
Stock. The shares of Amended Series B Preferred Stock currently
outstanding have an aggregate liquidation preference of
approximately $4.8 million. The description of Preferred Stock
set forth below and the description of the terms of a particular
series of Preferred Stock do not purport to be complete and are
qualified in their entirety by reference to the Certificate of
Incorporation and the certificate of designation relating to that
series.
The rights, preferences, privileges, and restrictions of the
Preferred Stock of each series shall be as stated in the
Certificate of Incorporation and, to the extent not stated
therein, may be fixed by the certificate of designation relating
to such series, which shall specify the terms of the Preferred
Stock as follows:
(a) the maximum number of shares to constitute the
series and the distinctive designations thereof;
(b) the annual dividend rate, if any, on shares of
the series and the date or dates from which dividends shall
commence to accrue or accumulate, and whether dividends
shall be cumulative;
(c) the price at and the terms and conditions on
which the shares of the series may be redeemed, including
the time during which shares of the series may be redeemed,
the premium, if any, over and above the par value thereof,
and any accumulated dividends thereon that the holders of
shares of the series shall be entitled to receive upon the
redemption thereof, which premium may vary at different
dates and may also be different with respect to shares
redeemed through the operation of any retirement or sinking
fund;
(d) the liquidation preference, if any, over and
above the par value thereof, and any accumulated dividends
thereon, that the holders of shares of the series shall be
entitled to receive upon the voluntary or involuntary
liquidation, dissolution, or winding up of the affairs of
XCL;
(e) whether or not the shares of the series shall
be subject to operation of a retirement or sinking fund,
and, if so, the extent and manner in which any such
retirement or sinking fund shall be applied to the purchase
or redemption of the shares of the series for retirement or
for other corporate purposes, and the terms and provisions
relative to the operations of such retirement or sinking
fund;
(f) the terms and conditions, if any, on which the
shares of the series shall be convertible into, or
exchangeable for, shares of any other class or classes of
capital stock of XCL or any series of any other class or
classes, or of any other series of the same class, including
the price or prices or the rate or rates of conversion or
exchange and the method, if any, of adjusting the same,
provided that shares of such series may not be convertible
into shares of a series or class that has prior or superior
rights and preferences as to dividends or distribution of
assets of XCL upon voluntary or involuntary dissolution or
winding up of the affairs of XCL;
(g) the voting rights, if any, on the shares of the
series; and
(h) any or all other preferences and relative,
participating, optional, or other special rights, or
qualifications, limitations, or restrictions thereof.
Amended Series A Preferred Stock
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On May 20, 1997, the Company issued 294,118 shares of
Amended Series A Preferred Stock in connection with the Equity
Offering. In subsequent transactions through September 30, 1998,
the Company has issued an additional 887,507 shares of Amended
Series A Preferred Stock including shares issued in payment of
dividends on the Amended Series A Preferred Stock.
Dividend Rights
---------------
Holders of the Amended Series A Preferred Stock are entitled
to receive when, as and if declared by the Board of Directors,
out of the funds of the Company legally available therefor, an
annual dividend of $8.075 per share, payable semi-annually on May
1 and November 1 in each year, commencing November 1, 1997.
Dividends are payable in additional shares of Amended Series A
Preferred Stock (valued at $85.00 per share) through November 1,
2000, and thereafter in cash, or at the Company's election, in
shares of Amended Series A Preferred Stock (valued at $85.00 per
share). Dividends on the Amended Series A Preferred Stock are
cumulative from May 20, 1997, and will be payable, when, as and
if declared, to holders of record on the applicable record date
as shall be fixed by the Board of Directors. Dividends in arrears
may be declared and paid at any time, without reference to any
regular dividend payment date, to holders of record on such date
not exceeding 60 days preceding the payment date thereof, as may
be fixed by the Board of Directors. Accrued but unpaid dividends
will not bear interest. Dividends payable for any partial semi-
annual period will be calculated on the basis of a 360-day year
consisting of twelve 30-day months.
If dividends are not paid in full on all outstanding shares
of the Amended Series A Preferred Stock and any other capital
stock of the Company ranking on a parity with the Amended Series
A Preferred Stock as to dividends, all dividends declared on the
Amended Series A Preferred Stock and such other parity stock may
only be declared and paid pro rata so that in all cases the
amount of dividends declared per share on the Amended Series A
Preferred Stock and such other parity stock will bear to each
other the same ratio that accrued and unpaid dividends per share
on the shares of the Amended Series A Preferred Stock and such
other parity stock bear to each other. So long as they are
outstanding, the Company's existing shares of Series B Preferred
Stock shall rank on a parity with the Amended Series A Preferred
Stock as to dividends or upon liquidation, dissolution and
winding up. Unless full cumulative dividends on all outstanding
shares of the Amended Series A Preferred Stock have been paid, no
dividends (other than in Common Stock or other stock ranking
junior to the Amended Series A Preferred Stock as to dividends
and upon liquidation, dissolution or winding up) may be paid,
declared or set aside for payment, or any other distributions
made on the Common Stock or on any other stock of the Company
ranking junior to the Amended Series A Preferred Stock as to
dividends or upon liquidation, dissolution or winding up, nor may
any Common Stock or any other stock of the Company ranking junior
to or on a parity with the Amended Series A Preferred Stock be
redeemed, purchased or otherwise acquired for any consideration
by the Company (except by conversion into or exchange for stock
of the Company ranking junior to the Amended Series A Preferred
Stock as to dividends and upon liquidation, dissolution or
winding up).
Under Delaware law, the Company may declare and pay
dividends or make other distributions on its capital stock only
out of surplus, as defined in the Delaware General Corporation
Law (the "DGCL"). On June 30, 1998, the Company had available
surplus of approximately $48 million. The payment of dividends
and any future operating losses will reduce such surplus of the
Company, which may adversely affect the ability of the Company to
continue to pay dividends on the Amended Series A Preferred
Stock. In addition, no dividends or distributions may be
declared, paid or made if the Company is or would be rendered
insolvent by virtue of such dividend or distribution, and the
Indenture limits the Company's ability to pay cash dividends. See
"Dividend Policy."
Conversion Rights
-----------------
The holder of any shares of Amended Series A Preferred Stock
will have the right, at the holder's option, to convert any or
all of such shares into Common Stock at any time after the
Initial Conversion Date at a conversion price ("Conversion
Price") of, initially, $0.50 per share (subject to adjustment as
described below), or an initial effective conversion rate
("Conversion Rate") of 170 shares of Common Stock for each share
of Amended Series A Preferred Stock (subject to adjustment as
described below), except that if the Amended Series A Preferred
Stock is called for redemption, the conversion right will
terminate as to the shares called for redemption at 5:00 p.m.,
New York City time, on the business day prior to the date fixed
for such redemption. Except as provided in the next paragraph,
no payments or adjustments in respect of dividends on shares of
Amended Series A Preferred Stock surrendered for conversion,
whether paid or unpaid and whether or not in arrears, or on
account of any dividend on the Conversion Stock issued upon
conversion, shall be made by the Company upon the conversion of
any shares of Amended Series A Preferred Stock, at the option of
the holder, including any conversion described under "-- Special
Conversion Rights" below. The holder of record of shares of
Amended Series A Preferred Stock on a dividend record date who
surrenders such shares for conversion during the period between
such dividend record date and the corresponding dividend payment
date will be entitled to receive the dividend on such dividend
payment date notwithstanding the conversion of such shares;
provided, however, that, unless such shares, prior to such
surrender, had been called for redemption on a redemption date
during the period between such dividend record date and such
dividend payment date, such shares must be accompanied, upon
surrender for conversion, by payment from the holder to the
Company of an amount equal to the dividend payable on such shares
on that dividend payment date. No fractional shares of Common
Stock will be issued upon conversion but, in lieu thereof, an
appropriate amount will be paid in cash based on the Market Price
(as defined below) for the shares of Common Stock on the day of
such conversion. No adjustment in the Conversion Price will be
required unless such adjustment would require an increase or
decrease of at least one percent (1%) in the Conversion Price;
provided, however, that any adjustment which is not made will be
carried forward and taken into account in any subsequent
adjustment.
If the Company, by dividend or otherwise, declares or makes
a distribution on its Common Stock referred to in clause (d) or
(e) of the next paragraph, the holders of Amended Series A
Preferred Stock, upon the conversion thereof subsequent to the
close of business on the date fixed for the determination of
stockholders entitled to receive such distribution and prior to
the effectiveness of the Conversion Price adjustment in respect
of such distribution, will be entitled to receive for each share
of Common Stock into which Amended Series A Preferred Stock is so
converted the portion of the evidences of indebtedness, shares of
capital stock, cash and assets so distributed applicable to one
share of Common Stock; provided, however, that the Company may,
with respect to all holders so converting, in lieu of
distributing any portion of such distribution not consisting of
cash or securities of the Company, pay such holder cash equal to
the fair market value thereof (as determined by the Board of
Directors).
The Conversion Price and the Conversion Rate will be subject
to adjustment in certain events including, without duplication,
(a) dividends (and other distributions) payable in Common Stock
to all holders of Common Stock; (b) the issuance to all holders
of Common Stock of rights or warrants, entitling holders of such
rights or warrants to subscribe for or purchase Common Stock at
less than the current Market Price; (c) subdivisions and
combinations of Common Stock; (d) distributions to all holders of
Common Stock of evidences of indebtedness of the Company, shares
of capital stock, cash or assets (including securities, but
excluding those rights, warrants, dividends and distributions
referred to above and dividends and distributions paid
exclusively in cash); and (e) distributions to all holders of
Common Stock consisting of cash, but excluding (i) cash that is
part of a distribution referred to in (d) above and (ii) any
quarterly cash dividend to the extent it does not exceed the
amount per share of Common Stock of the next preceding quarterly
cash dividend (as adjusted to reflect any of the events referred
to in clauses (a) through (d) of this sentence), or all of any
such quarterly cash dividend if the amount thereof per share of
Common Stock multiplied by four does not exceed 15% of the
current Market Price of the Common Stock on the trading day next
preceding the date of declaration of such dividend. As a result
of the Reverse Stock Split, effective December 17, 1997 the
initial Conversion Price and the initial Conversion Rate were
adjusted to $7.50 and 11.333 shares, respectively.
The Company from time to time may voluntarily reduce the
Conversion Price (or increase the Conversion Rate) by any amount
for any period of at least 20 days, in which case the Company
will give at least 15 days' notice of such reduction (or
increase), if the Board of Directors of the Company has made a
determination that such reduction (or increase) would be in the
best interests of the Company, which determination will be
conclusive.
If the Company is party to any transaction pursuant to which
the Common Stock is converted into the right to receive other
securities, cash or other property, including by way of
recapitalization or reclassification (other than changes in par
value, subdivisions or combinations of outstanding shares),
consolidation, merger or sale of all or substantially all of its
assets to, any person, then upon consummation of such transaction
the Amended Series A Preferred Stock shall be convertible for the
kind and amount of shares of stock and other securities and
property that the holder of the Amended Series A Preferred Stock
would have owned immediately after any such transaction if the
holder had converted his shares immediately prior to the
effective date thereof (which shares of stock and other
securities and property may not necessarily be of equal value to
the Common Stock).
The term "Market Price" of the Common Stock for any day
means the last reported sale price, regular way, on such day, or,
if no sale takes place on such day, the average of the reported
closing bid and asked prices on such day, regular way, in either
case reported on the AMEX Consolidated Transaction Tape, or, if
the Common Stock is not listed or admitted to trading on the AMEX
on such day, on the principal national securities exchange on
which the Common Stock is listed or admitted to trading, if the
Common Stock is listed on a national securities exchange, or the
National Market Tier of The NASDAQ Stock Market ("NASDAQ NSM")
or, if not listed or admitted to trading on such quotation
system, on the principal quotation system on which the Common
Stock may be listed or admitted to trading or quoted or, if not
listed or admitted to trading or quoted on any national
securities exchange or quotation system, the average of the
closing bid and asked prices of the Common Stock in the over-the-
counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or similar generally accepted
reporting service, or, if not so available in such manner, as
furnished by any AMEX member firm selected from time to time by
the Board of Directors of the Company for that purpose or, if not
so available in such manner, as otherwise determined in good
faith by the Board of Directors of the Company.
Mandatory Conversion Rights
---------------------------
The Amended Series A Preferred Stock may be converted, in
whole and not in part, at the election of the Company, at the
then prevailing Conversion Price at any time after November 20,
1997, provided that the Company is current in the payment of
dividends to the conversion date, that the Common Stock shall
have been traded on the AMEX or other national securities
exchange on which the Common Stock is then listed or on the
Nasdaq NSM for 20 trading days during any 30 consecutive trading
day period at a Current Market Price (as defined below) equal to
or greater than 150% of the prevailing Conversion Price, subject
to adjustment in the same manner and for the same events as the
Conversion Price. The term "Current Market Price" of the Common
Stock for any day means the reported closing bid price, regular
way, on such day, as reported on the AMEX, or, if the Common
Stock is not listed or admitted to trading on the AMEX on such
day, on the principal national securities exchange on which the
Common Stock is listed or admitted to trading, if the Common
Stock is listed on a national securities exchange, or the NASDAQ
NSM or, if the Common Stock is not quoted or admitted to trading
on such quotations system, on the principal quotation system in
which the Common Stock may be listed or admitted to trading or
quoted or, if not listed or admitted to trading or quoted on any
national securities exchange or quotation system, the average of
the closing bid and asked prices of the Common Stock in the over-
the-counter market on the day in question as reported by the
National Quotation Bureau Incorporated, or similar generally
accepted reporting service, or, if not so available in such
manner, as furnished by any AMEX member firm selected from time
to time by the Board of Directors of the Company for that purpose
or, if not so available in such manner, as otherwise determined
in good faith by the Board of Directors of the Company, which
determination shall be conclusive.
Special Conversion Rights
-------------------------
The Amended Series A Preferred Stock has a special
conversion right that becomes effective upon the occurrence of
certain types of significant transactions affecting ownership or
control of the Company or the market for the Common Stock. The
purpose of the special conversion right is to provide (subject to
certain exceptions) loss protection upon the occurrence of a
Change in Control (as defined below) or a Fundamental Change (as
defined below) at a time when the Market Value (as defined below)
of the Common Stock is less than the then prevailing Conversion
Price. In such situations, the special conversion right would,
for a limited period, reduce the then prevailing Conversion Price
to the Market Value of the Common Stock.
The special conversion right is intended to provide loss
protection to investors in certain circumstances while not giving
holders a veto power over significant transactions affecting
ownership or control of the Company. Although the special
conversion right may render more costly or otherwise inhibit
certain proposed transactions, its primary purpose is not to
inhibit or discourage takeovers or other business combinations.
Each holder of Amended Series A Preferred Stock will be entitled
to a special conversion right if a Change of Control or
Fundamental Change occurs. A Change of Control will occur if a
person or group acquires more than 50% of the Common Stock. A
Fundamental Change is, generally, a sale of all or substantially
all of the Company's assets or a transaction in which at least
66% of the Common Stock is transferred for, or is converted into,
any other assets. However, if the majority of the value of the
consideration received in a transaction by holders of Common
Stock is Marketable Stock or if the holders of Common Stock hold
a majority of the voting stock of the Company's successor, the
transaction will not be a Fundamental Change, and holders of the
Amended Series A Preferred Stock will not have special conversion
rights as a result of such transaction. In addition, the special
conversion right arising upon a Change of Control shall only be
applicable with respect to the first Change of Control that
occurs after the first date of issuance of any shares of Amended
Series A Preferred Stock. The full definitions of the terms
"Change of Control" and "Fundamental Change" appear below.
A special conversion right will permit a holder of Amended
Series A Preferred Stock, at the holder's option during the 30-
day period described below, to convert all, but not less than
all, of the holders' Amended Series A Preferred Stock at a
Conversion Price equal to the Market Value of the Common Stock. A
holder exercising a special conversion right will receive Common
Stock if a Change of Control occurs and, if a Fundamental Change
occurs, will receive the same consideration received for the
number of shares of Common Stock into which the holder's Amended
Series A Preferred Stock would have been convertible at the
Market Value of the Common Stock. In either case, however, the
Company or its successor may, at its option, elect to provide the
holder with cash equal to the Market Value of the number of
shares of Common Stock into which the holder's Amended Series A
Preferred Stock is convertible.
The Company will mail to each registered holder of Amended
Series A Preferred Stock a notice setting forth details of any
special conversion right occasioned by a Change of Control or
Fundamental Change within 30 days after the event occurs. A
special conversion right may be exercised only within the 30-day
period after the notice is mailed and will expire at the end of
that period. Exercise of a special conversion right is
irrevocable, and all Amended Series A Preferred Stock tendered
for conversion will be converted at the end of the 30-day period
mentioned in the preceding sentence.
Amended Series A Preferred Stock that is not converted
pursuant to a special conversion right will continue to be
convertible pursuant to the general conversion rights described
above.
The special conversion right is not intended to, and does
not, protect holders of Amended Series A Preferred Stock in all
circumstances that might affect ownership or control of the
Company or the market for the Common Stock, or otherwise
adversely affect the value of an investment in the Amended Series
A Preferred Stock. The ability to control the Company may be
obtained by a person even if that person does not, as is required
to constitute a Change of Control, acquire a majority of the
Company's voting stock. The Company and the market for the Common
Stock may be affected by various transactions that do not
constitute a Fundamental Change. In particular, transactions
involving transfer or conversion of less than 66% of the Common
Stock may have a significant effect on the Company and the market
for the Common Stock, as could transactions in which holders of
Common Stock receive primarily Marketable Stock or continue to
own a majority of the voting securities of the successor to the
Company. In addition, if the special conversion right arises as
the result of a Fundamental Change, the special conversion right
will allow a holder exercising a special conversion right to
receive the same type of consideration received by the holders of
Common Stock and, thus, the degree of protection afforded by the
special conversion right may be affected by the type of
consideration received.
As used herein, a "Change of Control" with respect to the
Company shall be deemed to have occurred at the first time after
the first issuance of any Amended Series A Preferred Stock that
any person (within the meaning of Sections 13(d)(3) and 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) including a group (within the meaning of Rule 13d-5 under
the Exchange Act), together with any of its Affiliates or
Associates (as defined below), files or becomes obligated to file
a report (or any amendment or supplement thereto) on Schedule 13D
or 14D-1 pursuant to the Exchange Act disclosing that such person
has become the beneficial owner of either (a) 50% or more of the
shares of Common Stock then outstanding or (b) securities
representing 50% or more of the combined voting power of the
Voting Stock (as defined below) of the Company then outstanding,
provided that a Change of Control shall not be deemed to have
occurred with respect to any transaction that constitutes a
Fundamental Change. An "Affiliate" of a specified person is a
person that directly or indirectly controls or is controlled by
or is under common control with, the person specified. An
"Associate" of a person means (i) any corporation or organization
other than the Company or any subsidiary of the Company, of which
the person is an officer or partner or is, directly or
indirectly, the beneficial owner of 10% or more of any class of
equity securities; (ii) any trust or estate in which the person
has a substantial beneficial interest or as to which the person
serves as trustee or in a similar fiduciary capacity; and (iii)
any relative or spouse of the person or any relative of the
spouse, who has the same home as the person or who is a director
or officer or the person or any of its parents or subsidiaries.
As used herein, a "Fundamental Change" with respect to the
Company means (a) the occurrence of any transaction or event in
connection with which all or substantially all of the Common
Stock is exchanged for, converted into, acquired for or
constitutes solely the right to receive cash, securities,
property or other assets (whether by means of an exchange offer,
liquidation, tender offer, consolidation, merger, combination,
reclassification or otherwise) or (b) the conveyance, sale,
lease, assignment, transfer or other disposal of all or
substantially all of the Company's property, business or assets;
provided, however that a Fundamental Change shall not be deemed
to have occurred with respect to either of the following
transactions or events: (i) any transaction or event in which
more than 50% (by value as determined in good faith by the Board
of Directors of the Company) of the consideration received by
holders of Common Stock consists of Marketable Stock (as defined
below) or (ii) any consolidation or merger of the Company in
which the holders of Common Stock immediately prior to such
transaction own, directly or indirectly, (1) 50% or more of the
common stock of the sole surviving corporation (or of the
ultimate parent of such sole surviving corporation) outstanding
at the time immediately after such consolidation or merger and
(2) securities representing 50% or more of the combined voting
power of the surviving corporation's Voting Stock (or the Voting
Stock of the ultimate parent of such surviving corporation)
outstanding at such time. The phrase "all or substantially all"
as used in this definition in reference to the Common Stock means
66% or more of the aggregate outstanding amount. Depending upon
the circumstances, there may be some uncertainty under Delaware
law as to whether a specific transaction constitutes a sale of
"all or substantially all" of the property, business or assets of
a company. This uncertainty may make it difficult for a holder to
determine whether or not a "Fundamental Change" has occurred, and
thus whether such holder is entitled to a special conversion
right in respect of the shares of Amended Series A Preferred
Stock held by such holder.
As used herein, "Voting Stock" means, with respect to any
person, capital stock of such person having general power under
ordinary circumstances to elect at least a majority of the board
of directors, managers or trustees of such persons (irrespective
of whether or not at the time capital stock or any other class or
classes shall have or might have voting power by reason of the
happening of any contingency).
As used herein , "Market Value" of the Common Stock or any
other Marketable Stock is the average of the last reported sales
prices of the Common Stock or such other Marketable Stock, as the
case may be, for the five business days ending on the last
business day preceding the date of the Fundamental Change or
Change of Control; provided, however, that if the Marketable
Stock is not traded on any national securities exchange or
similar quotation system as described in the definition of
"Marketable Stock" during such period, then the Market Value of
such Marketable Stock is the average of the last reported sales
prices per share of such Marketable Stock during the first five
business days commencing on the day after the date on which such
Marketable Stock was first distributed to the general public and
traded on the New York Stock Exchange ("NYSE"), the AMEX, the
NASDAQ NSM or any similar system of automated dissemination of
quotations of securities prices in the United States.
As used herein, "Marketable Stock" means Common Stock or
common stock of any corporation that is the successor (or the
ultimate parent of such successor) to all or substantially all of
the business or assets of the Company as a result of a
Fundamental Change, which is (or will, upon distribution thereof,
be) listed or quoted on the NYSE, the AMEX, the NASDAQ NSM or any
similar system of automated dissemination of quotations or
securities prices in the United States.
Liquidation Rights
-------------------
In the event of any liquidation, dissolution or winding up
of the Company, after payment or provision for payment of the
debts and other liabilities of the Company, the holders of the
Amended Series A Preferred Stock shall be entitled to receive,
out of the remaining net assets of the Company available for
distribution to stockholders, liquidating distributions in the
amount of $85.00 per share, plus an amount equal to all dividends
accrued and unpaid on each such share (whether or not declared)
to the date fixed for distribution, before any distribution is
made to holders of the Common Stock or any other class of stock
of the Company ranking junior to the Amended Series A Preferred
Stock. After receiving payment of the full amount of the
liquidating distribution to which they are entitled, the holders
of shares of Amended Series A Preferred Stock will not be
entitled to any further participation in any remaining assets of
the Company. If upon liquidation, dissolution or winding up of
the Company, the amounts payable with respect to the Amended
Series A Preferred Stock and any other capital stock ranking as
to such distribution on a parity with the Amended Series A
Preferred Stock with respect to such distributions ("Parity
Stock") are not paid in full, the holders of the Amended Series A
Preferred Stock and of such other Parity Stock will share ratably
in any such distribution of assets in proportion to the full
respective preferential amounts to which they are entitled.
Currently, the Amended Series B Preferred Stock constitutes
Parity Stock. See "-- Description of Existing Capital Stock --
Preferred Stock." Neither the consolidation or merger of the
Company with another corporation nor a sale, conveyance, lease,
transfer or exchange of all or substantially all of the Company's
assets will be considered a liquidation, dissolution or winding
up of the Company for these purposes.
Optional Redemption
-------------------
The Amended Series A Preferred Stock will not be redeemable
prior to May 1, 2002. On or after such date, the Amended Series A
Preferred Stock may be redeemed for cash, in whole or in part, at
the option of the Company at any time or from time to time, on
not less than 30 nor more than 60 days' notice, at the following
prices per share during the 12-month period beginning on May 1 of
the year indicated:
Redemption
Year Price
---- ----------
2002 $90.00
2003 88.75
2004 87.50
2005 86.25
2006 and thereafter 85.00
together, in each case, with an amount equal to all dividends
(whether or not declared) accrued and unpaid to the date of
redemption.
If fewer than all the outstanding shares of Preferred Stock
are to be redeemed, the Company will select those to be redeemed
ratably or by lot in a manner determined by the Board of
Directors. All dividends upon the shares of Preferred Stock
called for redemption shall cease to accrue and all rights of the
holders thereof as shareholders of the Company (except the right
to receive the redemption price, including any accrued and unpaid
dividends to the date of redemption, without interest upon the
presentation of certificates representing the redeemed shares)
shall terminate on the date of redemption.
Mandatory Redemption
--------------------
The Amended Series A Preferred Stock will be mandatorily
redeemed, in whole, on May 1, 2007, upon not less than 30 nor
more than 60 days' notice, at a redemption price of $85.00 per
share, plus accrued and unpaid dividends (whether or not
declared) to the redemption date, payable in cash or, at the
election of the Company, in shares of Common Stock, valued at the
average of the Market Price over the 20 trading days preceding
the date of notice of redemption.
Voting Rights
-------------
In addition to any special voting rights granted by law and
the class voting rights described in the following two
paragraphs, the holders of Amended Series A Preferred Stock will
be entitled to vote with the holders of Common Stock on all
matters on which the holders of Common Stock are entitled to
vote. Further, each share of the Amended Series A Preferred
Stock will entitle the holder thereof to cast the same number of
votes as the full shares of Common Stock then issuable upon
conversion thereof.
Whenever dividends on the Amended Series A Preferred Stock
are in arrears in an amount equal to or exceeding three semi-
annual dividends (whether or not consecutive and whether payable
in cash or shares of Amended Series A Preferred Stock), the
number of directors of the Company will automatically be
increased by two and the holders of the Amended Series A
Preferred Stock (voting separately as a class) will be entitled
to elect the additional two directors until all dividends that
were accrued and unpaid have been paid or declared and funds or
shares, as the case may be, set aside to provide for payment in
full. Upon any termination of such rights to vote for directors,
the term of office of all directors so elected shall terminate.
Without the affirmative vote or consent of the holders of at
least two-thirds of the number of shares of Amended Series A
Preferred Stock then outstanding, the Company may not (a) create
or issue or increase the authorized number of shares of any class
or classes or series of stock ranking senior to the Amended
Series A Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or (b) alter, change or
repeal any of the powers, rights or preferences of the holders of
the Amended Series A Preferred Stock so as to affect adversely
such powers, preferences or rights of the Amended Series A
Preferred Stock. Accordingly, the voting rights of the holders of
Amended Series A Preferred Stock could, under certain
circumstances, operate to restrict the flexibility the Company
would otherwise have in connection with any future issuances of
equity securities or changes to its capital structure.
Miscellaneous
-------------
The Preferred Stock, when designated, issued and paid for,
will be fully paid and nonassessable. The Preferred Stock has no
preemptive rights and is not subject to any sinking fund.
Amended Series B Preferred Stock
- --------------------------------
On March 4, 1998, in connection with settlement of
litigation instituted by the holder of the Company's Series B
Preferred Stock, the holder thereof sold its 44,465 shares of
Series B Preferred Stock and associated warrants. The
purchasers, in a simultaneous transaction exchanged the shares of
Series B Preferred Stock for Amended Series B Preferred Stock and
warrants to purchase 250,000 shares of Common Stock, subject to
adjustment. The Amended Series B Preferred Stock is entitled to
50 votes per share on all matters on which Common Stockholders
are entitled to vote and separately as a class on certain
matters; has a liquidation preference of $100 per share plus
accumulated dividends and ranks senior to the Common Stock and
pari passu with the Amended Series A Preferred Stock with respect
to the payment of dividends and distributions on liquidation; is
convertible by the holders thereof at any time after the earlier
of the effective date of the registration under the Securities
Act of the conversion stock or August 31, 1998, at $4.75 if the
conversion stock has been registered or at $3.80 if the
conversion stock is unregistered; is redeemable at the option of
the holder at any time after December 20, 2001 at $100.00 per
share plus accrued and unpaid dividends, payable at the Company's
election in shares of Common Stock; and bears a fixed cumulative
dividend at an annual rate of $9.50 per share, payable semi-
annually in either cash, shares of Common Stock, or additional
shares of Amended Series B Preferred Stock, at the Company's
option.
Shares Eligible for Future Sale
- -------------------------------
As of September 30, 1998, there were reserved an aggregate
of (i) 4,991,691 shares of Common Stock subject to outstanding
options; (ii) 14,840,593 shares issuable upon conversion of the
Company's outstanding Amended Series A Preferred Stock; (iii)
1,250,000 shares issuable upon conversion of the Company's
outstanding Amended Series B Preferred Stock; (iv) 17,060,604
shares issuable upon exercise of the Company's outstanding
warrants; (v) 104,375 shares reserved for sale to fund working
capital for the Company's China projects; (vi) 60,690 reserved
for sale to fund general working capital requirements of the
Company; and (vii) 387,388 shares issuable in connection with
contractual obligations. The Company would receive a total of
approximately $63.2 million if all options and warrants were
exercised and all stock reserved for sale was sold at $3.00 per
share.
Additionally, the Company will have approximately 438
million shares of Common Stock available for issuance at such
times and upon such terms as may be approved by the Company's
Board of Directors. No prediction can be made as to the effect,
if any, that future sales or the availability of shares for sale
will have on the market price of the Common Stock prevailing from
time to time. Nevertheless, sales of substantial amounts of
Common Stock of the Company in the public market could adversely
affect the prevailing market price of the Common Stock and could
impair the Company's ability to raise capital through sales of
its equity securities.
Approximately 6.8 million shares of Common Stock (including
shares issuable upon exercise of outstanding options and warrants
and conversion of convertible securities, the "Restricted
Shares") are held by executive officers and directors of the
Company and affiliates of the Company and may be sold pursuant to
an effective registration statement covering such shares or
pursuant to Rule 144 of the Securities Act, subject to the
restrictions described below.
In general, under Rule 144, as currently in effect, a person
(or persons whose shares are aggregated), including an affiliate,
who has beneficially owned Restricted Shares for a least one
year, is entitled to sell within any three-month period, a number
of shares that does not exceed the greater of (i) 1% of the then
outstanding shares of the Company's Common Stock or (ii) an
amount equal to the average weekly reported volume of trading in
such shares during the four calendar weeks preceding the date on
which notice of such sale is filed with the Commission. Sales
under Rule 144 are also subject to certain manner of sale
limitations, notice requirements and the availability of current
public information about the Company. Restricted Shares properly
sold in reliance on Rule 144 are thereafter freely tradable
without restrictions or registration under the Securities Act,
unless thereafter held by an affiliate of the Company. In
addition, affiliates of the Company must comply with the
restrictions and requirements of Rule 144, other than the one-
year holding period requirement, in order to sell shares of
Common Stock which are not Restricted Shares. As defined in Rule
144, an "affiliate" of an issuer is a person that directly, or
indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, such issuer. If
two years have elapsed since the later of the date of any
acquisition of Restricted Shares from the Company or from any
affiliate of the Company, and the acquiror or subsequent holder
thereof is deemed not to have been an affiliate of the Company at
any time during the three months preceding a sale, such person
would be entitled to sell such shares in the public market
pursuant to Rule 144(k) without regard to volume limitations,
manner of sale restrictions, or public information or notice
requirements.
MATERIAL UNITED STATES INCOME TAX CONSIDERATIONS
The following discussion is a summary of material federal
income tax considerations relevant to the purchase, ownership and
disposition of the Amended Series A Preferred Stock and the
Common Stock, but does not purport to be a complete analysis of
all the potential tax effects thereof. The discussion is based
upon the Internal Revenue Code of 1986 (the "Code"), Treasury
regulations, and Internal Revenue Service ("IRS") rulings and
judicial decisions now in effect, all of which are subject to
change at any time by legislative, judicial or administrative
action. No information is provided herein with respect to state
and local taxes or estate and gift tax considerations. This
information is directed to the original investors who hold the
Amended Series A Preferred Stock and the Common Stock as "capital
assets" within the meaning of Section 1221 of the Code. In
addition, this discussion does not address the tax consequences
to certain holders as to whom special rules apply (including life
insurance companies, tax exempt organizations, banks and dealers
in securities). The Company has not sought, nor does it intend
to seek an opinion from tax counsel, or a ruling from the IRS
that the tax consequences described in the following discussion
will be accepted by the IRS. This discussion does not purport to
address all federal income tax aspects that may be relevant to
holders in light of their particular circumstances. Each
prospective investor should consult and should rely on his own
tax advisor concerning the tax consequences to him of the
purchase, ownership and disposition of the Amended Series A
Preferred Stock and the Common Stock.
Taxation of the Amended Series A Preferred Stock and Common Stock
- -----------------------------------------------------------------
Dividends on Amended Series A Preferred Stock or Common
Stock
----------------------------------------------------------
Dividends paid on the Amended Series A Preferred Stock or
Common Stock will be taxable under Section 301 of the Code as
ordinary income to the extent of the Company's current and
accumulated "earnings and profits" (as defined in the Code).
Dividends received by corporate holders of the Amended Series A
Preferred Stock or Common Stock out of such earnings and profits
generally will qualify, subject to the limitations under Sections
246(c) and 246A of the Code, for the 70% dividends received
deduction allowable to corporations under Section 243 of the Code
(although the benefits of such deduction may be reduced or
eliminated by the corporate alternative minimum tax). Under
Section 246(c) of the Code, to be eligible for the dividends
received deduction, a corporate holder must hold its shares of
Amended Series A Preferred Stock or Common Stock for at least 46
days during the 90-day period beginning 45 days before the date
on which the shares became ex-dividend (91 days during the 180-
day period beginning 90 days before the shares became ex-dividend
in the case of a preferred dividend attributable to a period or
periods aggregating more than 366 days). A taxpayer's holding
period for these purposes is suspended during any period in which
the taxpayer has an option to sell, is under a contractual
obligation to sell, has made (and not closed) a short sale of, or
has granted an option to buy, substantially identical stock or
securities, or holds one or more other positions with respect to
substantially similar or related property that diminish the risk
of loss from holding such stock. Under Section 246A of the Code,
the dividends received deduction may be reduced or eliminated if
a holder's shares of Amended Series A Preferred Stock or Common
Stock are debt financed.
Section 1059 of the Code requires a corporate stockholder to
reduce its basis (but not below zero) in the Amended Series A
Preferred Stock or Common Stock by the nontaxed portion
(generally the portion eligible for the dividends received
deduction described above) of any "extraordinary dividend" if the
Amended Series A Preferred Stock or Common Stock has not been
held for more than two years before the date of announcement or
agreement with respect to such dividend. In addition, a
corporate holder of Amended Series A Preferred Stock or Common
Stock would recognize additional gain on the disposition of such
stock equal to any nontaxed portions of any extraordinary
dividend that would have reduced such holder's basis but for the
limitation on reducing basis below zero. An "extraordinary
dividend" generally is a dividend that (a) equals or exceeds 5%
in the case of preferred stock, or 10% in the case of common
stock, of the holder's adjusted basis in such stock, treating all
dividends having ex-dividend dates within a period of 85
consecutive days as one dividend or (b) exceeds 20 percent of the
holder's basis in such stock, treating all dividends having ex-
dividend dates within a period of 365 consecutive days as one
dividend, provided that in either case fair market value of the
stock on the day before the ex-dividend date, if it can be
established by the holder, may be substituted for the stock
basis. In addition, an amount treated as a dividend in the case
of a redemption of the Amended Series A Preferred Stock that is
either non-pro rata as to all stockholders or in partial
liquidation would also constitute an "extraordinary dividend"
without regard to the length of time the Amended Series A
Preferred Stock has been held. Special rules apply with respect
to a "qualified preferred dividend," which would include any
fixed dividend payable with respect to the Amended Series A
Preferred Stock, provided it is not in arrears as to dividends
when acquired and the actual rate of return on the Amended Series
A Preferred Stock does not exceed 15% calculated by reference to
the lower of the holder's basis in the Amended Series A Preferred
Stock or its liquidation preference. The extraordinary dividend
rules will not apply to a qualified preferred dividend if the
holder has held the Amended Series A Preferred Stock for more
than five years. If the holder disposes of the Amended Series A
Preferred Stock before it has been held for more than five years,
the aggregate reduction in basis will not exceed the excess of
the qualified preferred dividends paid during the period the
Amended Series A Preferred Stock was held by the holder over the
qualified preferred dividends which would have been paid during
such period on the basis of the Amended Series A Preferred
Stock's stated rate of return calculated by reference to the
lower of the holder's basis in the Amended Series A Preferred
Stock or its liquidation preference.
To the extent that a distribution on Amended Series A
Preferred Stock or Common Stock exceeds the current and
accumulated earnings and profits of the Company, such
distribution will be treated as a nontaxable return of capital
which reduces the holder's basis in its Amended Series A
Preferred Stock or Common Stock. Any such distribution in excess
of a holder's basis will be treated as short-term or long-term
capital gain, depending on whether the Amended Series A Preferred
Stock or Common Stock has been held for more than one year.
At the present time, the Company has no accumulated earnings
and profits for federal income tax purposes, and it is uncertain
whether and to what extent the Company will have current or
accumulated earnings and profits in the future. Accordingly,
there can be no assurance that distributions to corporate holders
of the Amended Series A Preferred Stock or Common Stock will
qualify for the dividends received deduction.
Redemption Premium on Amended Series A Preferred Stock
------------------------------------------------------
Under Section 305 of the Code and applicable Treasury
regulations, if the redemption price of redeemable preferred
stock exceeds its issue price and part (or all) of such excess is
considered an unreasonable redemption premium, the entire amount
of such excess is treated as distributed over the period during
which the preferred stock cannot be redeemed. The amount treated
as distributed each year would be determined on a constant yield
to maturity basis that would result in the allocation of a lesser
amount of distributions to the early years and a greater amount
to the later years of such period. Any such constructive
distribution would be classified as a dividend, a non-taxable
recovery of basis or an amount received in exchange for the
Amended Series A Preferred Stock pursuant to the rules summed up
under " -- Dividends on Amended Series A Preferred Stock or
Common Stock." Any such constructive distribution would be taken
into account for proposes of applying the extraordinary dividend
rules discussed above.
Under recently issued Treasury Regulations, a redemption
premium that would be paid in the event of an issuer call is
considered unreasonable only if, based on all the facts and
circumstances as of the issue date, redemption pursuant to the
call is more likely than not to occur. Even if a redemption is
considered more likely than not to occur, the redemption premium
is not subject to the current inclusion rule if it is solely in
the nature of a penalty for premature redemption. A redemption
premium is considered a penalty for premature redemption only if
it is paid as a result of changes in economic or market
conditions over which neither the issuer nor the holder has legal
or practical control.
Under a safe harbor, a redemption is not treated as more
likely than not to occur if (i) the issuer and holder are not
"related," (ii) there are no plans, arrangements, or agreements
that effectively require or are intended to compel the issuer to
redeem the stock (other than a mandatory redemption right
exercisable by the holder), and (iii) exercise of the call right
would not reduce the yield of the stock, as determined under
principles similar to the principles of section 1272(a) of the
Code and the Treasury Regulations under sections 1271 through
1275. The Company anticipates that any call of the Amended Series
A Preferred Stock will fall within this safe harbor, although no
assurance can be given that it will fall within the safe harbor.
Assuming that the redemption does not fall within the safe
harbor discussed above, the Company believes, based upon the
facts and circumstances existing at the time of issuance, that it
is not more likely than not that the redemption will occur. The
Company further believes that, even if the IRS were to treat the
redemption as more likely than not to occur, the redemption
premium should be considered a penalty paid for premature
redemption of the Amended Series A Preferred Stock.
Redemption or Sale of Amended Series A Preferred Stock
------------------------------------------------------
A redemption of Amended Series A Preferred Stock for cash
will be treated, under Section 302 of the Code, as (i) a
distribution treated as a taxable dividend, (ii) a nontaxable
recovery of basis, or (iii) an amount received in exchange for
the Amended Series A Preferred Stock pursuant to the rules
described under " -- Dividends on Amended Series A Preferred
Stock or Common Stock," unless the redemption (a) results in a
"complete termination" of the stockholder's interest in the
Company under Section 302(b)(3) of the Code; (b) is
"substantially disproportionate" with respect to the stockholder
under Section 302(b)(2) of the Code; or (c) is "not essentially
equivalent to a dividend" under Section 302(b)(1) of the Code. In
determining whether any of these tests have been met, shares
considered to be owned by the stockholder by reason of certain
constructive ownership rules in Sections 302(c) and 318(a) of the
Code, as well as shares actually owned, must be taken into
account. If any of these tests are met, the redemption of the
Amended Series A Preferred Stock for cash would be treated as a
sale or exchange for tax purposes.
A redemption will be "not essentially equivalent to a
dividend" as to a particular stockholder if it results in a
meaningful reduction in that stockholder's interest in the
Company. If, as a result of the redemption of the Amended Series
A Preferred Stock, a stockholder of the Company, whose relative
interest in the Company is minimal and who exercises no control
over corporate affairs, suffers a reduction in his proportionate
interest in the Company (taking into account shares
constructively owned by the stockholder and, in certain events,
dispositions of the stock that occur contemporaneously with the
redemption), that stockholder should be regarded as having
suffered a meaningful reduction in his interest in the Company.
If, under the foregoing rules, a redemption of Amended
Series A Preferred Stock is treated as a sale or exchange, rather
than as a distribution, or if the Amended Series A Preferred
Stock is sold, the holder would recognize taxable gain or loss
equal to the difference between the amount realized and the
holder's tax basis in the Amended Series A Preferred Stock. For
these purposes, the amount realized will generally be measured by
the amount of cash and the fair market value of any other
property received. The holder's initial cost basis in the Amended
Series A Preferred Stock will be that portion of the initial
Equity Unit price that is allocated to the Amended Series A
Preferred Stock based upon the relative fair market values of the
Amended Series A Preferred Stock and the Warrants. Each holder
should consult his tax adviser regarding the determination of the
initial cost basis of the Securities comprising the Units.
If a redemption of Amended Series A Preferred Stock is
treated as a distribution, the amount of the distribution will
generally be measured by the amount of cash and the fair market
value of any other property received. The stockholder's basis in
the redeemed Amended Series A Preferred Stock will be transferred
to any remaining stockholdings in the Company.
A distribution to a corporate stockholder in redemption of
Amended Series A Preferred Stock that is treated as a dividend
may also be considered an "extraordinary dividend" under Section
1059 of the Code. See " -- Dividends on Amended Series A
Preferred Stock or Common Stock." A redemption that is treated as
a dividend that is not pro rata as to all stockholders may be
treated as an extraordinary dividend without regard to the period
during which the stockholder held the Amended Series A Preferred
Stock.
Conversion of Amended Series A Preferred Stock Into Common
Stock
-----------------------------------------------------------
In general, no gain or loss will be recognized for federal
income tax purposes on conversion of Amended Series A Preferred
Stock solely into shares of Common Stock, except with respect to
any cash received in lieu of fractional shares of Common Stock.
If dividends on the Amended Series A Preferred Stock are in
arrears at the time of conversion, however, a portion of the
Common Stock received in exchange for Amended Series A Preferred
Stock could be viewed under Section 305(c) of the Code as a
distribution with respect to the Amended Series A Preferred
Stock, taxable as a dividend. The tax basis for Common Stock
received on conversion will be equal to the tax basis of the
Amended Series A Preferred Stock converted, reduced by the
portion of basis allocable to any fractional share exchanged for
cash. The holding period of the shares of Common Stock will
include the holding period of such Amended Series A Preferred
Stock.
Adjustment of Conversion Price
------------------------------
Section 305 of the Code treats holders of convertible
securities as having received a constructive distribution
(taxable as a dividend to the extent of the issuing corporation's
current or accumulated earnings and profits) when certain
adjustments are made to the conversion price and conversion ratio
of such securities. For example, a constructive distribution
results when the conversion price is adjusted to reflect certain
taxable distributions with respect to the stock into which
preferred stock is convertible. Adjustment of the Conversion
Price and the Conversion Ratio at which the Amended Series A
Preferred Stock can be converted (which may occur under certain
circumstances) could cause the holders thereof to be viewed under
Section 305 of the Code as having received a deemed distribution
taxable as a dividend whether or not such holders exercise their
conversion rights.
Foreign Holders
- ---------------
The following discussion is a summary of material United
States federal income tax consequences to a Foreign Person that
holds a Security. The Company has not sought, nor does it intend
to seek, an opinion from tax counsel or a ruling from the IRS
with respect to the matters addressed in the following
discussion. The term "Foreign Person" means a nonresident alien
individual or foreign corporation, but only if the income or gain
on the Security is not "effectively connected with the conduct of
a trade or business within the United States." If the income or
gain on the Security is "effectively connected with the conduct
of a trade or business within the United States," then the
nonresident alien individual or foreign corporation will be
subject to tax on such income or gain in essentially the same
manner as a United States citizen or resident or a domestic
corporation, as discussed herein, and in the case of a foreign
corporation, may also be subject to the branch profits tax.
In general, gain (to the extent it is not "effectively
connected with the conduct of a trade or business within the
United States") recognized by a Foreign Person upon the
redemption, sale, exchange or other taxable disposition of a
share of Amended Series A Preferred Stock or of shares of Common
Stock will not be subject to United States federal income tax
unless such Foreign Person is an individual present in the United
States for 183 days or more during the taxable year in which the
disposition occurs and certain other requirements are met, or
unless the Company was a United States real property holding
corporation at any time during the five years preceding the
disposition while the Foreign Person held an interest in the
Company. Although the Company has previously been treated as a
United States real property holding corporation for United States
federal income tax purposes because of its ownership of
substantial real estate assets in the United States, the Company
believes that it is not presently a United States real property
holding corporation because the fair market value of its United
States real property interests now constitutes less than 50% of
the total fair market value of its real estate assets, including
its Chinese assets. If the Company were again to become a United
States real property holding corporation in the future, either
because of a change in the fair market values of its current
properties or through acquisitions of real property interests, a
Foreign Person who holds Amended Series A Preferred Stock or
Common Stock would generally be subject to United States federal
income tax on any gain recognized from sale or other disposition
of Amended Series A Preferred Stock or Common Stock, unless the
Common Stock is traded on an established securities market and a
Foreign Person does not directly or constructively own Amended
Series A Preferred Stock or Common Stock with a fair market value
on the date of acquisition of more than 5% of the fair market
value of the outstanding Common Stock on such date. If subject to
United States federal income tax, the gain would be treated as
effectively connected with the conduct of a trade or business
within the United States and the sale or other disposition
generally would be subject to withholding tax equal to 10% of the
amount realized therefrom.
Distributions paid on the Amended Series A Preferred Stock
or Common Stock to a Foreign Person (other than distributions
that constitute income effectively connected with a United States
trade or business) will be subject to United States federal
income tax withholding at a rate of 30% of the amount of the
distribution (unless the rate is reduced by an applicable tax
treaty). If the Company derives at least 80% of its gross income
from the active conduct of a trade or business outside the United
States for a period of three years prior to the taxable year of
the distribution (or for the taxable year of the distribution if
the Company has no gross income for such three-year period), then
distributions to Foreign Holders of Amended Series A Preferred
Stock or Common Stock will not be subject to withholding.
Any Foreign Person that recognizes gain upon the redemption,
sale, exchange or other taxable disposition of a share of Amended
Series A Preferred Stock or of shares of Common Stock or receives
a dividend on the Common Stock that is "effectively connected
with the conduct of a trade or business with the United States"
will be subject to tax in essentially the same manner as a U.S.
person, as discussed above. A Foreign Person that is a foreign
corporation engaged in a U.S. trade or business also may be
subject to the branch profits tax with respect to such gain or
dividend.
Backup Withholding
- ------------------
A noncorporate holder may be subject, under certain
circumstances, to backup withholding at a 31% rate with respect
to payments received with respect to the Amended Series A
Preferred Stock and the Common Stock. This withholding generally
applies only if the holder (i) fails to furnish his, her or its
social security or other taxpayer identification number ("TIN"),
(ii) furnishes an incorrect TIN, (iii) is notified by the IRS
that he, she or it has failed to report properly payments of
interest and dividends and the IRS has notified the Company that
he, she or it is subject to backup withholding, or (iv) fails,
under certain circumstances, to provide a certified statement,
signed under penalty of perjury, that the TIN provided is his,
her or its correct number and that he, she or it is not subject
to backup withholding. Any amount withheld from a payment to a
holder under the backup withholding rules is allowable as a
credit against such holder's federal income tax liability,
provided that the required information is furnished to the IRS.
Certain holders (including, among others, corporations and
foreign individuals who comply with certain certification
requirements) are not subject to backup withholding. Holders
should consult their tax advisors as to their qualification for
exemption from backup withholding and the procedure for obtaining
such an exemption.
SELLING SECURITY HOLDERS
An aggregate of up to 1,219,199 shares of Amended Series A
Preferred Stock may be offered by certain Selling Security
Holders. As of July 31, 1998, the Selling Security Holders, none
of whom has a material relationship with the Company or any of
its predecessors or affiliates except as set forth herein, were
as follows: [TO BE COMPLETED BY AMENDMENT]
<TABLE>
<CAPTION>
Shares of Amended Series
Shares of Amended Series A Maximum Number A Preferred Stock
Preferred Stock Beneficially of Shares to be Beneficially Owned After
Name of Selling Security Holder Owned Prior to the Offering Sold in the Offering the Offering
- ------------------------------- ---------------------------- -------------------- -------------------------
Number Percent Number Percent
------ ------- ------ -------
<S> <C> <C> <C> <C> <C>
Arbco Associates, L.P. 113,567 9.31 113,567 -- 0.00%
The Bank of New York Nominees 28,418 2.33 28,418 -- 0.00%
Cumber International 15,138 1.24 15,138 -- 0.00%
Cumberland Partners 153,765 12.61 153,765 -- 0.00%
Evanston Insurance Company 16,758 1.37 16,758 -- 0.00%
Foremost Insurance Company 19,502 1.60 19,502 -- 0.00%
Hallco, Inc. 29,317 2.40 29,317 -- 0.00%
Hare & Co. 14,079 1.15 14,079 -- 0.00%
Kayne Anderson Non-Traditional
Investments, L.P. 85,949 7.05 85,949 -- 0.00%
Lone Star Partners, L.P. 20,828 1.71 20,828 -- 0.00%
Longview Partners 24,236 1.99 24,236 -- 0.00%
Mees Pierson Nominees UK Limited 29,676 2.43 29,676 -- 0.00%
J. Edgar Monroe Foundation 12,234 0.99 12,234 -- 0.00%
MSS Nominees Limted 23,776 1.95 23,776 -- 0.00%
Offense Group Associates, L.P. 54,290 4.45 54,290 -- 0.00%
Opportunity Associates, L.P. 34,530 2.83 34,530 -- 0.00%
Putnam Advisory Company 14,892 1.22 14,892 -- 0.00%
Putnam Investment Management Inc. 205,172 16.83 205,172 -- 0.00%
TCW Shared Opportunity Fund II L.P. 28,924 2.37 28,924 -- 0.00%
Topa Insurance Company 15,685 1.29 15,685 -- 0.00%
T. Rowe Price Strategic Partners
II Fund 59,915 4.91 59,915 -- 0.00%
Vidacos Nominees Limited A/C BAR 11,870 11,870 -- 0.00%
Less than 1% holders -- 0.00%
Total 1,219,199
</TABLE>
An aggregate of up to 33,592,721 shares of Common Stock may
be offered by certain Selling Security Holders. As of July 31,
1998, the Selling Security Holders, none of whom has a material
relationship with the Company or any of its predecessors or
affiliates except as set forth herein, were as follows: [TO BE
COMPLETED BY AMENDMENT]
<TABLE>
<CAPTION>
Shares of Common Stock Maximum Number Shares of Common Stock
Beneficially Owned of Shares to be Beneficially Owned
Name of Selling Security Holder Prior to the Offering Sold in the Offering After the Offering
- ------------------------------- ----------------------- --------------------- ----------------------
Number Percent Number Percent
--------- -------- ------- -------
<S> <C> <C> <C> <C> <C>
Arbco Associates, L.P. 2,047,549 8.30 2,021,388 26,161 0.11
The Bank of New York Nominees
Boland Machine & Manufacturing Co. 21,705 0.09 21,705 -- --
Butler Partners 27,777 0.12 27,777 -- --
Construction Specialists, Inc. 108,526 0.47 108,526 -- --
Patrick B. Collins
Daniel O. Conwill, IV 136,447 0.59 136,447 -- --
Cumber International 171,559 0.74 171,559 -- --
Cumberland Partners 1,798,619 7.19
Dornbush Family, L.P. 35,838 0.16 35,838 -- --
EnCap Investments, L.P. 62,675 0.27 4,858 57,817 0.25
Evanston Insurance Company 208,136 0.90 208,136 -- --
Fidelity Summer Street Trust 347,593 1.49 347,593 -- --
Foremost Insurance Company 307,239 1.33 305,026 2,213 0.01
Hallco, Inc. 332,250 1.43 332,250 -- --
Hare & Co.
Darlene F. Hart 8,000 0.03 4,000 4,000 0.02
ING (U.S.) Capital Corporation 633,333 2.71 466,666 166,667 0.71
JEFCO 653,053 2.77 653,053 -- --
Kayne Anderson Non-Traditional
Investments, L.P. 1,615,464 6.64 1,648,193 240,706 0.99
Kayne Anderson Offshore Limited 154,700 0.67 111,290 43,410 0.19
Shauvik Kundagrami 10,240 0.04 10,240 -- --
Abby Leigh
David Leigh Trust 14,444 0.06 14,444 -- --
Mitch Leigh
Rebecca Leigh Trust 14,444 0.06 14,444 -- --
Lone Star Partners, L.P. 278,710 1.20 278,710 -- --
Longhorn Partners 27,777 0.12 27,777 -- --
Longview Partners 274,667 1.18 274,667 -- --
Joseph L. Maly, Jr. 20,480 0.09 20,480 -- --
Robert H. Matthews 4,000 0.02 4,000 -- --
Kathy Costner-McIlhenny 20,000 0.09 20,000 -- --
Mees Pierson Nominees UK Limited
J. Edgar Monroe Foundation 161,335 0.70 160,353 982 --
Estate of J. Edgar Monroe 88,491 0.38 65,116 23,375 0.10
Morgan Stanley Dean Witter
Diversified Investment Trust 173,791 0.75 173,791 -- --
MSS Nominees Limited
Offense Group Associates, L.P. 1,117,196 4.68 1,115,353 1,843 0.01
Opportunity Associates, L.P. 641,941 2.74 641,941 -- --
Putnam Advisory Company 774,505 3.27 774,505 -- --
Putnam Fiduciary Trust Company 384,286 1.67 384,286 -- --
Putnam Investment Management Inc. 8,928,135 28.03 8,928,135 -- --
David P. Quint 1,684 0.01 1,684 -- --
Rauscher Pierce & Clark
(Guernsey) Ltd. 50,399 0.22 50,399 -- --
Arthur Rosenbloom & Nancy
Rosenbloom Living Trust 157,990 0.69 144,151 13,839 0.06
John W. Sinders, Jr. 65,280 0.28 65,280 -- --
Target Trust
TCW Leveraged Income Investment
Trust L.P. 656,331 2.80 554,665 101,666 0.43
TCW Shared Opportunity Fund II LP 980,871 4.12 864,347 101,666 0.43
Topa Insurance Company 240,877 1.04 205,046 35,831 0.15
Valux S.A. Luxembourg 24,000 0.10 12,000 12,000 0.05
Vidacos Nominees Limited A/C BAR
William Wang
Donald & Joanne Westerberg 16,110 0.07 16,110 -- --
Kurt Wettenschwiler 18,533 0.08 12,000 6,533 0.03
Less Than 1% Holders of Amended Series
A Preferred Stock
Total 33,592,721
</TABLE>
The Company is registering the Securities on behalf of the
Selling Security Holders. As used herein, "Selling Security
Holders" includes pledgees, donees, transferrees or other
successors in interest to be named Selling Security Holder after
the date of this Prospectus. The Securities may be sold from
time to time on one or more exchanges or in the over-the-counter
market or in private transactions or otherwise, at prices and at
terms then prevailing or at prices related to the then current
market price, or in negotiated transactions. The Securities may
be sold in one or more of the following: negotiated
transactions; a block trade in which the broker-dealer so engaged
will attempt to sell the shares as agent but may position and
resell a portion of the block as principal to facilitate the
transaction; purchases by a broker-dealer as principal and resale
by such broker-dealer for its account pursuant to this
Prospectus; an exchange distribution in accordance with the rules
of such exchange; and ordinary brokerage transactions and
transactions in which the broker solicits purchasers. Such
transactions may or may not involve brokers or dealers. In
effecting sales, broker-dealers engaged by the Selling Security
Holders may arrange for other broker-dealers to participate in
the resales.
In connection with distributions of the Securities or
otherwise, the Selling Security Holders may enter into hedging
transaction with broker-dealers or others. In connection with
such transactions, Selling Security Holders, broker-dealers or
others may engage in put and call options and in short sales of
the shares registered hereunder in the course of hedging the
positions they assume. The Selling Security Holders may also
sell shares short and redeliver the shares to close out such
short positions. The Selling Security Holders may also enter
into option or other transactions with broker-dealers which
require the delivery to the broker-dealer of the Securities
registered hereunder, which the broker-dealer may resell or
otherwise transfer pursuant to this Prospectus. The Selling
Security Holders may also loan or pledge the Securities
registered hereunder to a broker-dealer or other third party and
the broker-dealer and such other third party may sell the
Securities so loaned or upon a default the broker-dealer or other
third party may effect sales of the pledged Securities pursuant
to this Prospectus.
Broker-dealers or agents may receive compensation in the
form of commissions, discounts or concessions from Selling
Security Holders in amounts to be negotiated in connection with
the sale. Such broker-dealers and any other participating broker-
dealers may be deemed to be "underwriters" within the meaning of
the Securities Act, in connection with such sales and any such
commission, discount or concession received by broker-dealers may
be deemed to be underwriting discounts or commissions under the
Securities Act. In addition, any Securities covered by this
Prospectus which qualify for sale pursuant to Rules 144, 144A or
904 may be sold under such Rules rather than pursuant to this
Prospectus.
The Selling Security Holders may agree to indemnify any
broker-dealer or agent that participates in transactions
involving sales of the Securities against certain liabilities,
including liabilities arising under the Securities Act. The
Company and certain of the Security Holders have agreed to
indemnify certain persons including broker-dealers or agents
against certain liabilities in connection with the offering of
the Securities, including liabilities arising under the
Securities Act. Because Selling Security Holders may be deemed
to be "underwriters" within the meaning of Section 2(11) of the
Securities Act, the Selling Security Holders will be subject to
the prospectus delivery requirements of the Securities Act, which
may include delivery through the facilities of the AMEX pursuant
to Rule 153 under the Securities Act. The Company has informed
the Selling Security Holders that the anti-manipulative
provisions of Regulation M promulgated under the Exchange Act may
apply to their sales in the market.
Upon the Company being notified by a Selling Security Holder
that any material arrangement has been entered into with a broker-
dealer for the sale of the Securities through a block trade,
special offering, exchange distribution or secondary distribution
or a purchase by a broker or dealer, a supplement to this
Prospectus will be filed, if required, pursuant to Rule 424(b)
under the Securities Act, disclosing (i) the name of each such
Selling Security Holder and of the participating broker-
dealer(s), (ii) the number of shares involved, (iii) the price at
which such shares were sold, (iv) the commissions paid or
discounts or concessions allowed such broker-dealer(s), where
applicable, (v) that such broker-dealer(s) did not conduct any
investigation to verify the information set out or incorporated
by reference in this Prospectus and (vi) other facts material to
the transaction. In addition, upon the Company being notified by
a Selling Security Holder that a donee or pledgee intends to sell
more than 500 shares, a supplement to this Prospectus will be
filed.
On May 20, 1997, the Company entered into two Registration
Rights Agreements (collectively, the "Registration Agreements")
with Jefferies as the initial purchaser in the Offerings.
Pursuant to the Registration Agreements, the initial purchaser
and all subsequent holders of Amended Series A Preferred Stock
and Equity Warrants issued in the Offerings were granted certain
registration rights with respect to the Amended Series A
Preferred Stock and the Common Stock issuable upon conversion of
the Amended Series A Preferred Stock.
In addition, the Company is registering certain outstanding
shares of Common Stock previously issued in certain private
placements, as well as Common Stock issuable on exercise of
certain outstanding warrants, pursuant to certain "piggy back"
registration covenants and other contractual agreements to which
the Company is subject.
Pursuant to such Registration Agreements and other
contractual arrangements, the Company has agreed to indemnify the
Selling Security Holders against certain liabilities, including
liabilities under the Securities Act.
The Company is registering the Securities at its expense
including paying all filing, printing, legal and accounting fees
in connection therewith; provided, however, the Selling Security
Holders will pay all applicable stock transfer taxes, brokerage
commissions, discounts or other transaction charges and expenses.
Jefferies has performed and may in the future perform
various investment banking services for the Company.
LEGAL MATTERS
Certain legal matters with respect to the Securities will be
passed upon for the Company by Satterlee Stephens Burke & Burke
LLP, New York, NY.
EXPERTS
The consolidated balance sheets of the Company and XCL-China
Ltd. as of December 31, 1997 and 1996 and the consolidated
statements of operations, shareholders' equity, and cash flows
for each of the three years in the period ended December 31, 1997
included in this Prospectus have been included herein in reliance
on the reports, both of which include an explanatory paragraph
regarding the Company's ability to continue as a going concern,
of PricewaterhouseCoopers LLP, independent accountants, given on
the authority of that firm as experts in accounting and auditing.
ENGINEERS
The estimate of the oil and gas reserves as of January 1,
1998, for the Company's interests in the Zhao Dong Block as
prepared by H.J. Gruy and Associates, Inc. referenced in this
Prospectus has been included herein in reliance upon the
authority of such firm as experts with respect to the matters
contained in such firm's report.
GLOSSARY OF TERMS
Unless otherwise indicated in this Prospectus, natural gas
volumes are stated at the legal pressure base of the State or
area in which the reserves are located at 60 degrees Fahrenheit.
Natural gas equivalents are determined using the ratio of six Mcf
of natural gas to one barrel of crude oil, condensate or NGLs.
The following definitions shall apply to the technical terms
used in this Prospectus.
"Bbl" means barrel or barrels.
"Bcf" means billion cubic feet.
"BOE" means barrel of crude oil equivalent.
"BOPD" means barrel per day.
"DD&A" means depletion, depreciation and amortization.
"Developed acreage" means acreage which consists of
acres spaced or assignable to productive wells.
"Developed well" means a well drilled within the proved
area of a crude oil or natural gas reservoir to the depth of
stratigraphic horizon (rock layer or formation) known to be
productive for the purpose of extraction of proved crude oil
or natural gas reserves.
"Dry hole" means an exploratory or development well
found to be incapable of producing either crude oil or gas
in sufficient quantities to justify completion as a crude
oil or natural gas well.
"EBITDA" means earnings from continuing operations
before income taxes, interest expense, DD&A and other non-
cash charges.
"Exploratory well" means a well drilled to find and
produce crude oil or natural gas in an unproved area, to
find a new reservoir in a field previously found to be
producing crude oil or natural gas in another reservoir, or
to extend a known reservoir.
"Farmout" means a leasehold held by the owner thereof
under an agreement between operators, whereby a lease owner
not desirous of drilling at the time agrees to assign the
lease, or some portion of it (in common or in severalty) to
another operator who is desirous of drilling the tract.
"Finding cost", expressed in dollars per BOE, is
calculated by dividing the amount of total exploration and
development capital expenditures (excluding any amortization
with respect to deferred financing fees) by the amount of
proved reserves added during the same period (including
the effect on proved reserves of reserve revisions).
"G&A" means general and administrative.
"Gross" natural gas and crude oil wells or "gross"
wells or acres is the number of wells or acres in which the
Company has an interest.
"LOE" means lease operating expenses and production
taxes.
"MBbl" means thousand barrels.
"MBOE" means thousand barrels of crude oil equivalent.
"Mcf" means thousand cubic feet.
"Mcfpd" means thousand cubic feet per day.
"MMBbls" means million barrels of crude oil.
"MMBOE" means million barrels of crude oil equivalent.
"MMBTU" means million British Thermal Units.
"MMcf" means million cubic feet.
"MMcfpd" means million cubic feet per day.
"Net" natural gas and crude oil wells or "net" acres
are determined by multiplying "gross" wells or acres by the
Company's working interest in such wells or acres.
"NGL" means natural gas liquid.
"Production costs" means lease operating expenses and
taxes on natural gas and crude oil production.
"Productive wells" means producing wells and wells
capable of production.
"Proved developed reserves" means reserves that can be
expected to be recovered through existing wells with
existing equipment and operating methods and those reserves
that exist behind the casing of existing wells when the cost
of making such reserves available for production is
relatively small compared to the cost of a new well.
"Proved reserves" or "reserves" means the estimated
quantities of crude oil, natural gas, and NGLs which
geological and engineering data demonstrate with reasonable
certainty to be recoverable in future years from known
reservoirs under existing economic and operating conditions,
i.e., prices and costs as of the date the estimate is made.
Prices include consideration of changes in existing prices
provided only by contractual arrangements, but not on
escalations based upon future conditions.
"Proved undeveloped reserves" means reserves that are
expected to be recovered from new wells on undrilled
acreage, or from existing wells where a relatively major
expenditure is required for recompletion. Reserves on
undrilled acreage shall be limited to those drilling units
offsetting productive units that are reasonably certain of
production when drilled. Proved reserves for other
undrilled units can be claimed only where it can be
demonstrated with certainty that there is continuity of
production from the existing productive formation. Under no
circumstances should estimates for proved undeveloped
reserves be attributable to any acreage for which an
application of fluid injection or other improved recovery
technique is contemplated, unless such techniques have been
proved effective by actual tests in the area and in the same
reservoir.
"Service well" is a well used for water injection in
secondary recovery projects or for the disposal of produced
water.
"Undeveloped acreage" means leased acres on which wells
have not been drilled or completed to a point that would
permit the production of commercial quantities of crude oil
and natural gas, regardless whether or not such acreage
contains proved reserves.
INDEX TO FINANCIAL STATEMENTS
Page
XCL Ltd.
- -------
Report of Independent Accountants
Consolidated Balance Sheets as of December 31, 1997 and
December 31, 1996
Consolidated Statements of Operations for each of the three
years in the period ended December 31, 1997
Consolidated Statements of Shareholders' Equity for each of
the three years in the period ended December 31, 1997
Consolidated Statements of Cash Flows for each of the three
years in the period ended December 31, 1997
Notes to Consolidated Financial Statements
Supplemental Information
Schedule II - Valuation and Qualifying Accounts
Unaudited Consolidated Balance Sheet as of June 30, 1998
Unaudited Consolidated Statements of Operations for the six
months ended June 30, 1998 and 1997
Unaudited Consolidated Statements of Shareholders' Equity
for the six months ended June 30, 1998
Unaudited Consolidated Statements of Cash Flow for the six
months ended June 30, 1998 and 1997
Notes to Unaudited Consolidated Financial Statements
XCL-China Ltd.
- --------------
Report of Independent Accountants
Balance Sheets as of December 31, 1997 and December 31, 1996
Statements of Operations for each of the three years in the
period ended December 31, 1997
Statements of Shareholders' Deficit for each of the three
years in the period ended December 31, 1997
Statements of Cash Flows for each of the three years in the
period ended December 31, 1997
Notes to Financial Statements
Supplemental Information
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders of XCL Ltd.
We have audited the consolidated financial statements and the
financial statement schedule of XCL Ltd. and Subsidiaries listed
in the Index on page F-1. These consolidated financial
statements and financial statement schedule are the
responsibility of the Company's management. Our responsibility is
to express an opinion on these consolidated financial statements
and financial statement schedule based on our audits.
We conducted our audits in accordance with generally accepted
auditing standards. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether
the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that
our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above
present fairly, in all material respects, the consolidated
financial position of XCL Ltd. and Subsidiaries as of December
31, 1997 and 1996, and the consolidated results of their
operations and their cash flows for each of the three years in
the period ended December 31, 1997, in conformity with generally
accepted accounting principles. In addition, in our opinion, the
financial statement schedule referred to above, when considered
in relation to the basic consolidated financial statements taken
as a whole, presents fairly, in all material respects, the
information required to be included therein.
The accompanying consolidated financial statements have been
prepared assuming that the Company will continue as a going
concern. As discussed in Note 2 to the consolidated financial
statements, the Company is generating minimal revenues and
although the Company has cash (including its restricted cash) in
the amount of approximately $32 million as of December 31, 1997,
and a positive working capital position, it must generate
additional cash flows to satisfy its development and exploratory
obligations with respect to its China properties. There is no
assurance that the Company will be able to generate the necessary
funds to satisfy these contractual obligations and to ultimately
achieve profitable operations, which creates substantial doubt
about its ability to continue as a going concern. Managements'
plans in regard to these matters are described in Note 2. The
consolidated financial statements do not include any adjustments
that might result from the outcome of this uncertainty.
/S/ PRICEWATERHOUSECOOPERS LLP
Miami, Florida
April 10, 1998
<PAGE>
December 31
-------------------
A S S E T S 1997 1996
----------- ---- ----
Current assets:
Cash and cash equivalents $ 21,952 $ 113
Cash held in escrow (restricted) 10,263 --
Accounts receivable, net 101 23
Refundable deposits 1,200 --
Other 451 212
-------- ------
Total current assets 33,967 348
-------- ------
Property and equipment:
Oil and gas (full cost method):
Proved undeveloped properties, not being
amortized 21,172 13,571
Unevaluated properties 33,132 21,238
------- -------
54,304 34,809
Land, at cost -- 135
Other 1,163 2,492
------- -------
55,467 37,436
Accumulated depreciation, depletion and
amortization (1,000) (1,491)
------- -------
54,467 35,945
------- -------
Investments 4,173 2,383
Assets held for sale 21,155 21,058
Debt issue costs, less amortization 4,268 950
Other assets 1,059 180
------- ------
Total assets $ 119,089 $ 60,864
======== =======
L I A B I L I T I E S A N D S H A R E H O L D E R S' E Q U I T Y
-------------------------------------------------------------------
Current liabilities:
Accounts payable and accrued costs $ 2,727 $ 3,901
Due to joint venture partner 4,504 4,202
Dividends payable 1,813 928
Current maturities of long term debt 2,524 38,022
-------- -------
Total current liabilities 11,568 47,053
-------- -------
Long-term debt, net of current maturities 61,310 --
Other non-current liabilities 5,386 2,770
Commitments and contingencies (Notes 2 and 11)
Shareholders' equity:
Preferred stock-$1.00 par value; authorized
2.4 million shares at December 31, 1997
and 1996; issued shares of 1,196,236 at
December 31, 1997 and 669,411 at
December 31, 1996 - liquidation preference
of $103 million at December 31, 1997 1,196 669
Common stock-$.01 par value; authorized 500
million shares at December 31, 1997
and 1996; issued shares of 21,710,257 at
December 31, 1997 and 285,754,151 at
December 31, 1996 217 2,858
Common stock held in treasury - $.01 par value;
69,470 shares at December 31, 1997
and 1,042,065 shares at December 31, 1996 (1) (10)
Unearned compensation (12,021) --
Additional paid-in capital 298,588 226,956
Accumulated deficit (247,154) (219,432)
-------- -------
Total shareholders' equity 40,825 11,041
-------- -------
Total liabilities and
shareholders'equity $ 119,089 $ 60,864
======== =======
The accompanying notes are an integral part of these financial statements.
<PAGE>
<TABLE>
XCL Ltd. and Subsidiaries
CONSOLIDATED STATEMENTS OF OPERATIONS
(In Thousands, Except Per Share Amounts)
Year Ended December 31
--------------------------
1997 1996 1995
---- ---- ----
<CAPTION>
<S> <C> <C> <C>
Oil and gas revenues from properties held for sale $ 236 $ 1,136 $ 2,480
------ ------ ------
Costs and operating expenses:
Operating 210 342 985
Depreciation, depletion and amortization 126 579 2,266
Provision for impairment of oil and gas
properties -- 3,850 75,300
Writedown of other assets and investments -- 2,444 4,461
General and administrative costs 4,910 3,487 4,551
Other 3,048 227 590
------ ------ -------
8,294 10,929 88,153
------ ------ -------
Operating loss (8,058) (9,793) (85,673)
------ ------ -------
Other income (expense):
Interest expense, net of amounts capitalized (8,450) (2,415) (2,998)
Gain (loss) on sale ofinvestments/assets -- (661) 613
Interest income 2,212 8 133
Other, net 853 787 88
------ ------- -------
(5,385) (2,281) (2,164)
------ ------- -------
Loss before extraordinary item (13,443) (12,074) (87,837)
Extraordinary charge for early extinguishment of
debt (551) -- --
------ ------ -------
Net loss (13,994) (12,074) (87,837)
Preferred stock dividends (13,728) (5,356) (4,821)
------- ------ -------
Net loss attributable to common stock $(27,722) $(17,430) $ (92,658)
======= ======= =======
Loss per share (basic):
Net loss before extraordinary item $ (1.33) $ (.98) $ (5.77)
Extraordinary item (.03) -- --
------- ------ -------
Net loss per share $ (1.36) $ (.98) $ (5.77)
======= ====== =======
Loss per share (diluted):
Net loss before extraordinary item $ (1.33) $ (.98) $ (5.77)
Extraordinary item (.03) -- --
------- ------ -------
Net loss per share $ (1.36) $ (.98) $ (5.77)
======= ====== =======
Average number of shares used in per share computations:
Basic 20,451 17,705 16,047
Diluted 20,451 17,705 16,047
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE>
<TABLE>
XCL Ltd. and Subsidiaries
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
(Thousands of Dollars)
Total
Preferred Common Treasury Paid-In Accumulated Unearned Shareholders'
Stock Stock Stock Capital Deficit Compensation Equity
--------- ------ -------- ------- ----------- ------------ -----------
<CAPTION>
<S> <C> <C> <C> <C> <C> <S> <C>
Balance, December 31, 1994 $ 649 $ 2,372 $ (35) $206,241 $(114,027) $ - $ 95,200
Net loss - - - - (87,837) - (87,837)
Dividends - - - - (4,821) - (4,821)
Preferred shares issued 32 - - 5,092 - - 5,124
Preferred shares subscribed 4 - - - - - 4
Common shares issued - 189 - 7,936 - - 8,125
Treasury shares purchased - - (25) (1,232) - - (1,257)
Treasury shares issued - - 35 2,327 - - 2,362
----- ------ ----- ------- -------- ------ ---------
Balance, December 31, 1995 685 2,561 (25) 220,364 (206,685) - 16,900
Net loss - - - - (12,074) - (12,074)
Dividends - - - - (673) - (673)
Preferred shares issued 10 - - 128 - - 138
Preferred shares subscribed (4) - - - - - (4)
Preferred shares converted
to common shares (22) 5 - 17 - - -
Common shares issued - 292 - 6,339 - - 6,631
Treasury shares purchased - - (3) (138) - - (141)
Treasury shares issued - - 18 246 - - 264
------ ------ ----- ------- ------- ------ ------
Balance, December 31, 1996 669 2,858 (10) 226,956 (219,432) - 11,041
Net loss - - - - (13,994) - (13,994)
Dividends - - - - (13,728) - (13,728)
Preferred shares issued 507 - - 36,521 - - 37,028
Common shares issued - 198 - 4,395 - - 4,593
Issuance of stock purchase
warrants - - - 15,032 - - 15,032
Unearned compensation 20 13 - 12,841 - (12,021) 853
Reverse stock split 1 for 15 - (2,852) 9 2,843 - - -
----- ----- ---- ------- -------- -------- -------
Balance, December 31, 1997 $1,196 $ 217 $ (1) $298,588 $ (247,154) $(12,021) $40,825
===== ===== ===== ======= ======== ======= ======
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE>
XCL Ltd. and Subsidiaries
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Thousands of Dollars)
Year Ended December 31
---------------------------------
1997 1996 1995
---- ---- ----
Cash flows from operating activities:
Net loss $ (13,994) $ (12,074) $ (87,837)
------- ------- ------
Adjustments to reconcile net loss
to net cash used in
operating activities:
Depreciation, depletion and
amortization 126 579 2,266
Provision for impairment of oil
and gas properties -- 3,850 75,300
Extraordinary charge for early
extinguishment of debt 551 -- --
(Gain) loss on sale of
investments/assets -- 661 (613)
Amortization of discount on senior
secured notes 1,342 -- --
Writedown of other assets and
investments -- 2,444 4,461
Stock compensation programs 853 -- --
Other 796 -- --
Change in assets and liabilities:
Accounts receivable (78) 799 875
Refundable deposits (1,200) -- --
Accounts payable and accrued
costs (132) 575 (765)
Non-current liabilities and
other 2,655 12 803
------- ------- -------
Total adjustments 4,913 8,920 82,327
------- ------- -------
Net cash used in operating
activities (9,081) (3,154) (5,510)
------- ------- -------
Cash flows from investing activities:
Capital expenditures (16,097) (1,489) (8,458)
Investments (1,790) (491) (1,624)
Proceeds from sales of assets and
investments 797 9,210 2,655
Other -- 4 64
------- ------- ------
Net cash (used in) provided
by investing activities (17,090) 7,234 (7,363)
------- ------- ------
Cash flows from financing activities:
Proceeds from sales of common stock 652 1,766 3,553
Proceeds from issuance of preferred
stock 25,000 144 3,068
Proceeds from sale of treasury stock -- 264 2,487
Proceeds from Senior Secured Notes 75,000 -- --
Loan proceeds 6,100 315 --
Payment of long-term debt (35,503) (8,344) (522)
Payment of notes payable (6,100) -- --
Proceeds from exercise of options and
warrants 1,590 691 874
Payment of preferred stock dividends -- -- (250)
Payment for treasury stock -- (141) (1,257)
Stock/note issuance costs and other (8,466) (272) (221)
------- ------ ------
Net cash provided by
(used in) financing
activities 58,273 (5,577) 7,732
------- ------ ------
Net increase (decrease) in cash and cash
equivalents 32,102 (1,497) (5,141)
Cash and cash equivalents at beginning of
year 113 1,610 6,751
------ ------ ------
Cash and cash equivalents at end of year $32,215 $ 113 $ 1,610
====== ====== =====
Supplemental information:
Cash paid for interest, net of amounts
capitalized $ 7,441 $ 1,591 $ 2,602
====== ====== ======
The accompanying notes are an integral part of these financial statements.
<PAGE>
XCL Ltd. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(1) Summary of Significant Accounting Policies:
Principles of Consolidation:
---------------------------
The consolidated financial statements include the accounts
of XCL Ltd. and its wholly owned subsidiaries ("XCL" or the
"Company") after the elimination of all significant intercompany
accounts and transactions. Certain reclassifications have been
made to prior year financial statements to conform to current
year presentation. These reclassifications had no effect on net
loss, cash flows or shareholders' equity.
Use of Estimates in the Preparation of Financial Statements:
- -----------------------------------------------------------
The preparation of the Company's financial statements, in
conformity with generally accepted accounting principles,
requires management to make estimates and assumptions that affect
reported amounts of assets, liabilities, revenues and expenses,
and disclosure of contingent assets and liabilities. Actual
results could differ from those estimates.
Cash and Cash Equivalents:
-------------------------
The Company considers deposits which can be redeemed on
demand and investments which have original maturities of less
than three months, when purchased, to be cash equivalents. As of
December 31, 1997, the Company's cash and cash equivalents were
deposited primarily in three financial institutions.
Concentration of Credit Risk:
----------------------------
The Company operates exclusively in the oil and gas industry
and receivables are due from other producers who may be affected
by economic conditions in the industry. The Company has not
experienced any material credit losses.
The Company's financial instruments that are exposed to
concentrations of credit risk consist primarily of cash
equivalents/short-term investments and trade receivables.
The Company believes that no single short-term investment
exposes the Company to significant credit risk. Additionally,
creditworthiness of its counterparties, which are major financial
institutions, are monitored. As of December 31, 1997, the Company
had cash in financial institutions in excess of the insured
amounts.
Fair Value of Financial Instruments:
-----------------------------------
For the purposes of disclosure requirements pursuant to
Statement of Financial Accounting Standards No. 107 "Disclosures
About Fair Market Value of Financial Instruments," fair value of
current assets and liabilities approximate carrying value, due to
the short-term nature of these items. The Company believes the
fair value of long-term debt approximates carrying value. Fair
value of such financial instruments is not necessarily
representative of the amount that could be realized or settled.
Oil and Gas Properties:
----------------------
The Company accounts for its oil and gas exploration and
production activities using the full cost method of accounting.
Accordingly, all costs associated with acquisition, exploration,
and development of oil and gas reserves, including appropriate
related costs, are capitalized. The Company capitalizes internal
costs that can be directly identified with its acquisition,
exploration and development activities and does not capitalize
any costs related to production, general corporate overhead or
similar activities.
The capitalized costs of oil and gas properties, including
the estimated future costs to develop proved reserves, are
amortized on the unit-of-production method based on estimates of
proved oil and gas reserves. The Company's domestic oil and gas
reserves were estimated by Company engineers in 1997 and 1996,
and foreign reserves in 1997 and 1996 by independent petroleum
engineers. Investments in unproved properties and major
development projects are not amortized until proved reserves
associated with the projects can be determined or until
impairment occurs. If the results of an assessment indicate that
properties are impaired, the amount of the impairment is added to
the capitalized costs to be depleted. The Company capitalizes
interest on expenditures made in connection with exploration and
development projects that are not subject to current
amortization. Interest is capitalized for the period that
activities are in progress to bring these projects to their
intended use.
During the fourth quarter of 1995, the Company decided to
concentrate on the development of its China investments, and
decided to dispose of its domestic properties. Accordingly, the
recorded value of the Company's domestic properties was reduced
to their estimated fair market value and the resulting balances
were transferred to assets held for sale.
The Company reviews the carrying value of its oil and gas
properties each quarter on a country-by-country basis, and limits
capitalized costs of oil and gas properties to the present value
of estimated future net revenues from proved reserves, discounted
at 10 percent, plus the lower of cost or fair value of unproved
properties as adjusted for related tax effects and deferred tax
reserves. If capitalized costs exceed this limit, the excess is
charged to depreciation, depletion and amortization expense
("DD&A") in the period in which it occurs.
Proceeds from the sale of proved and unproved properties are
accounted for as reductions to capitalized costs with no gain or
loss recognized unless such sales would significantly alter the
relationship between capitalized costs and proved reserves of oil
and gas. Abandonments of properties are accounted for as
adjustments of capitalized costs with no loss recognized.
The Company accounts for site restoration, dismantlement and
abandonment costs in its estimated future costs of proved
reserves. Accordingly, such costs are amortized on a unit of
production basis and reflected with accumulated depreciation,
depletion and amortization. The Company identifies and estimates
such costs based upon its assessment of applicable regulatory
requirements, its operating experience and oil and gas industry
practice in the areas within which its properties are located.
To date the Company has not been required to expend any material
amounts to satisfy such obligations. The Company does not expect
that future costs will have a material adverse effect on the
Company's operations, financial condition or cash flows. The
standardized measure of discounted future net cash flows includes
a deduction for any such costs.
Other Property and Equipment:
----------------------------
Other property and equipment primarily consists of furniture
and fixtures, equipment and software. Major renewals and
betterments are capitalized while the costs of repairs and
maintenance are charged to expense as incurred. The costs of
assets retired or otherwise disposed of and the applicable
accumulated depreciation are removed from the accounts, and the
resulting gain or loss is reflected in operations. Other
property and equipment costs are depreciated using the straight-
line method over the estimated useful lives of the assets, which
range from 3 to 15 years.
Capitalized Interest and Amortized Debt Costs:
---------------------------------------------
During fiscal 1997, 1996 and 1995, interest and associated
costs of approximately $5.8 million, $2.8 million and $3.1
million, respectively were capitalized on significant investments
in oil and gas properties that are not being currently
depreciated, depleted, or amortized and on which exploration or
development activities are in progress. Deferred debt issue
costs and discount on senior secured notes are amortized on the
straight-line basis over the term of the related debt agreement.
The discount on senior secured notes is the amount attributable
to the detachable Common Stock purchase warrants.
Income Taxes:
------------
The Company accounts for income taxes in compliance with
Statement of Financial Accounting Standards No. 109 (SFAS No.
109) "Accounting for Income Taxes." Requirements by this standard
include recognition of future tax benefits, measured by enacted
tax rates, attributable to: deductible temporary differences
between financial statement and income tax bases of assets and
liabilities; and, net operating loss carryforwards. Recognition
of such tax assets are limited to the extent that realization of
such benefits is able to be reasonably anticipated.
Revenue Recognition:
-------------------
Oil and gas revenues are recognized using the accrual method
at the price realized as production and delivery occurs. Amounts
which are contingently receivable are not recognized until
realized.
Foreign Operations
------------------
The Company's future operations and earnings will depend
upon the results of the Company's operations in China. There can
be no assurance that the Company will be able to successfully
conduct such operations, and a failure to do so would have a
material adverse effect on the Company's financial position,
results of operations and cash flows. Also, the success of the
Company's operations will be subject to numerous contingencies,
some of which are beyond management's control. These
contingencies include general and regional economic conditions,
prices for crude oil and natural gas, competition and changes in
regulation. Since the Company is dependent on international
operations, specifically those in China, the Company will be
subject to various additional political, economic and other
uncertainties. Among other risks, the Company's operations will
be subject to the risks of restrictions on transfer of funds;
export duties, quotas and embargoes; domestic and international
customs and tariffs; and changing taxation policies, foreign
exchange restrictions, political conditions and governmental
regulations.
Stock Based Compensation:
------------------------
Statement of Financial Accounting Standards No. 123
"Accounting for Stock-Based Compensation," ("SFAS No. 123")
encourages, but does not require companies to record compensation
costs for stock-based compensation plans at fair value. The
Company has chosen to continue to account for stock-based
employee compensation using the intrinsic value method prescribed
in Accounting Principles Board Opinion No. 25, "Accounting for
Stock Issued to Employees." Accordingly, compensation cost for
stock options, awards and warrants is measured as the excess, if
any, of the quoted market price of the Company's stock at the
date of the grant over the amount an employee must pay to acquire
the stock.
Earnings Per Share:
------------------
During 1997, the Company adopted Statement of Financial
Accounting Standards No. 128 "Earnings Per Share" ("SFAS No.
128") and has restated all years presented in accordance
therewith. SFAS No. 128 requires a dual presentation of basic
and diluted earnings per share ("EPS") on the face of the
statement of operations. Basic EPS is computed by dividing income
available to common stockholders by the weighted average number
of common shares for the period. Diluted EPS reflects the
potential dilution that could occur if securities or other
contracts to issue common stock were exercised or converted into
common stock or resulted in the issuance of common stock that
would then share in earnings.
Environmental Expenditures
--------------------------
Environmental expenditures relating to current operations
are expensed or capitalized, as appropriate, depending on whether
such expenditures provide future economic benefits. Liabilities
are recognized when the expenditures are considered probable and
can be reasonably estimated. Measurement of liabilities is based
on currently enacted laws and regulations, existing technology
and undiscounted site-specific costs. Generally, such
recognition coincides with the Company's commitment to a formal
plan of action.
Common Stock Reverse Split
--------------------------
Effective December 17, 1997, the Company amended and
restated its Certificate of Incorporation to effect a one-for-
fifteen reverse split of the Company's Common Stock. All share
amounts presented herein have been adjusted to reflect the
reverse split.
Recent Accounting Pronouncements
--------------------------------
In June 1997, the FASB issued SFAS No. 130, "Reporting
Comprehensive Income", which is effective for the Company's year
ending December 31, 1998. SFAS No. 130 establishes standards for
the reporting and displaying of comprehensive income and its
components. The Company will be analyzing SFAS No. 130 during
1998 to determine what, if any, additional disclosures will be
required.
In June 1997, the FASB Issued SFAS No. 131, "Disclosures
about Segments of an Enterprise and Related Information", which
is effective the Company's year ended December 31, 1998. This
statement establishes standards for reporting of information
about operating segments. The Company will be analyzing SFAS No.
131 during 1998 to determine what, if any, additional disclosures
will be required.
(2) Liquidity and Management's Plan
The Company, in connection with its 1995 decision to dispose
of its domestic properties, is generating minimal annual revenues
and is devoting all of its efforts toward the development of its
China properties. Although the Company has cash available in the
amount of approximately $32 million as of December 31, 1997
(including restricted cash of approximately $10 million) and a
positive working capital position, management anticipates that
additional funds will be needed to meet all of its development
and exploratory obligations until sufficient cash flows are
generated from anticipated production to sustain its operations
and to fund future development and exploration obligations.
Management plans to generate the additional cash needed
through the sale or financing of its domestic assets held for
sale and the completion of additional equity, debt or joint
venture transactions. There is no assurance, however, that the
Company will be able to sell or finance its assets held for sale
or to complete other transactions in the future at commercially
reasonable terms, if at all, or that it will be able to meet its
future contractual obligations. If production from the China
properties commences in late 1998 or the first half of 1999, as
anticipated, the Company's proportionate share of the related
cash flow will be available to help satisfy cash requirements.
However, there is likewise no assurance that such development
will be successful and production will commence, and that such
cash flow will be available.
(3) Supplemental Cash Flow Information
There were no income taxes paid for the years ended December
31, 1997, 1996 and 1995.
The Company completed the following noncash transactions in
1997 and prior years in order to conserve cash for use in its
core activities and to meet other obligations while honoring
restrictions on cash use imposed by its bank agreement. Such
transactions not reported elsewhere herein are as follows:
1997
----
On January 9, 1997, the Company accepted subscriptions for
an aggregate of 21,057 shares of Series F Preferred Stock, issued
in February to three individuals for 18,448 shares; 1,731 shares
and 878 shares, respectively, at $65.00/share, in exchange for
$225,000 in cash, cancellation of a consulting agreement,
surrender of Common Stock and Warrants issued in connection with
a consulting agreement, surrender of rights to acquire units of
registered Common Stock and Warrants, surrender of certain
registration rights covering 3,000,000 shares; and surrender of
certain shares of Common Stock and Warrants issued in connection
with compensation for past fundraising activities, surrender of
rights to acquire units of registered Common Stock and Warrants
and certain registration rights covering 75,000 shares.
On May 20, 1997, the Company issued 11,816 shares of Amended
Series A Preferred Stock and 133,914 warrants to acquire shares
of Common Stock, in respect of approximately $1.0 million of
accrued interest payable to those institutional holders of
Secured Subordinated Debt who purchased $8 million of Amended
Series A Preferred Stock. The shares of Amended Series A
Preferred Stock were valued at $85.00 per share. The warrants
issued are first exercisable on May 20, 1998, at an exercise
price of $3.0945 per share, and expire on November 1, 2000.
In October, 1997, the Company issued 30,000 shares of Common
Stock and granted .003215% in aggregate Net Revenue Interest on
the Zhao Dong Block to, a former employee of the Company, and her
attorneys in settlement of litigation against the Company.
In October 1997, pursuant to an agreement effective October
1, 1997, the Company issued an aggregate of 53,333 shares of
Common Stock as compensation to a resident of Taiwan who has
performed services for the Company.
On November 11, 1997, the Company issued 26,667 shares of
Common Stock and stock purchase warrants to acquire 13,333 shares
of Common Stock to a consultant, as compensation pursuant to an
agreement dated effective as of February 20, 1997.
1996
----
In March and April 1996, the Company sold units of Common
Stock and Warrants through a placement agent in a Regulation S
unit offering. As compensation for such unit offering the
Company granted warrants to acquire an aggregate of 25,600 shares
of Common Stock.
As compensation for services performed resulting in Apache
Corp. purchasing an additional interest in the Zhao Dong Block,
during the first quarter the Company issued 3,333 shares of
Common Stock to a finder and amended the finder's existing
warrants to acquire 33,333 shares of Common Stock as to exercise
price, expiration date and forced conversion feature, to conform
the terms of such warrants to the terms of warrants granted in
the Regulation S unit offering noted above.
As compensation for identifying the placement agent for the
Regulation S unit offering, the finder earned a four percent
stock fee of the gross proceeds of the offering. In payment of
this fee, the Company during the first quarter, issued 17,817
shares of Common Stock in connection with the initial closing
and during the second quarter issued an aggregate 8,192 shares of
Common Stock as compensation for the subsequent closings.
Effective March 1, 1996, the terms of warrants issued to a
financial advisor were amended as partial consideration for
introducing to the Company the purchaser of the Gonzalez Gas
Unit, comprising a portion of the Berry R. Cox Field. The
warrant exercise price was reduced from $15.00 to $7.50 and the
term of the warrant was extended for three years to March 1,
1999.
During August 1996, the Company issued to a finder 18,666
warrants to purchase 18,666 shares of Common Stock, as
compensation for the placement with their clients of 186,666
units, comprised of shares of Common Stock and warrants to
purchase Common Stock.
During October 1996, the Company issued approximately 93,333
shares of Common Stock plus warrants to acquire 166,666 shares of
Common Stock, as compensation to an individual in consideration
for a consulting arrangement, whereby the consultant would
introduce persons interested in investing in China through the
Company. During February 1997, the consultant canceled the
consultant agreement and returned to the Company the shares and
warrants issued in connection therewith.
During October 1996, the Company issued 100,000 warrants to
acquire 100,000 shares of Common Stock, as compensation to an
individual for past fund raising services.
1995
----
During the first quarter of 1995, the Company issued 1,247
shares of Common Stock in payment of interest on funds escrowed
in advance of purchase of Series D Preferred Stock.
During September 1995, the Company issued 3,333 units, each
unit comprised of one share of Common Stock and a five-year
warrant to purchase one share of Common Stock, plus an additional
five-year warrant on the same terms as the unit warrant to
purchase 3,333 shares of Common Stock as compensation to an
individual who assisted the Company with a private placement of
approximately 200,000 units.
(4) Receivables
The Company's trade accounts receivable at December 31,
1997, arise primarily from business transactions with entities in
the oil and gas industry, mostly located in Texas. An oil and gas
purchaser with which the Company has contractual arrangements
accounted for approximately 76 percent of oil and gas revenue
receivables in 1997, 76 percent in 1996 and 67 percent in 1995.
(5) Assets Held for Sale and Investments
Assets Held for Sale
--------------------
Domestic Oil and Gas Properties
--------------------------------
During 1996, the Company was engaged in attempts to sell its
remaining domestic oil and gas properties and had a contract in
place for the sale of the property. Prior to the sale being
consummated, the Company received service of three lawsuits filed
by lessors of the most productive remaining leases, effectively
thwarting the Company's ability to consummate the sale by casting
doubt as to the Company's rights to certain interests in the
leases and demanding damages. While the Company believes that
the charges are without merit, it is of the opinion that the
property cannot be sold until such time as the litigation is
concluded or settled. In response to a request by the lessors'
counsel, the Company has granted the lessors an extension of time
to respond to discovery demands made by the Company and to allow
sufficient time to pursue settlement of this litigation (see Note
11). As a result of these lawsuits the Company took an
additional writedown of these properties aggregating $3.85
million during 1996.
Lutcher Moore Tract
-------------------
During 1993, the Company completed the acquisition of a
group of corporations which together owned 100 percent of an
unevaluated 62,500-acre tract in southeastern Louisiana (the
"Lutcher Moore Tract"). This property is pledged as collateral
for the Lutcher Moore limited recourse debt (see Note 6). This
property is being held for sale.
Investments
- -----------
Lube Oil Investment
--------------------
On July 17, 1995, the Company signed a contract with CNPC
United Lube Oil Corporation to form a joint venture company to
engage in the manufacturing, distribution and marketing of
lubricating oil in China and southeast Asian markets. As of
December 31, 1997, the Company has invested approximately $3.3
million in the project.
Coalbed Methane Project
-----------------------
During 1995, the Company signed an agreement with the China
National Administration of Coal Geology, pursuant to which the
parties have commenced cooperation for the exploration and
development of coalbed methane in two areas in China. As of
December 31, 1997, the Company has invested approximately $0.6
million in the project.
(6) Debt
Long-term debt consists of the following (000's):
December 31
------------------
1997 1996
----- -----
Senior secured notes, net of unamortized discount $ 61,310 $ --
Collateralized credit facility -- 17,279
Subordinated debt -- 15,000
Office building mortgage loan -- 652
------- -------
61,310 32,931
Lutcher Moore Group Limited Recourse Debt 2,524 5,091
------- -------
63,834 38,022
Less current maturities:
Lutcher Moore Group Limited Recourse Debt (2,524) (5,091)
Collateralized credit facility -- (17,279)
Subordinated Debt -- (15,000)
Other current maturities -- (652)
------- ------
$ 61,310 $ --
======= ======
Substantially all of the Company's assets collateralize
these borrowings. Accounts payable and accrued costs include
accrued interest at December 31, 1997 and 1996 of $1.8 million
and $1.5 million, respectively.
Senior Secured Notes
--------------------
On May 20, 1997, the Company sold in an unregistered
offering to qualified institutional buyers and accredited
institutional investors (the "Note Offering") 75,000 Note Units,
each consisting of $1,000 principal amount of 13.5% Senior
Secured Notes due May 1, 2004 (collectively, the "Notes") and one
Common Stock Purchase Warrant (collectively the "Note Warrants")
to purchase 85 shares of the Company's common stock, par value
$0.01 per share (the "Common Stock"), at an exercise price of
$3.09 per share, first exercisable after May 20, 1998. Total
funds received of $75 million were allocated, $15 million to the
Note Warrants and $60 million to the Notes. The value allocated
to the Note Warrants is being amortized to interest expense over
the term of the Notes. At December 31, 1997, the unamortized
discount on the Notes is approximately $13.7 million.
Interest on the Notes is payable semi-annually on May 1 and
November 1, commencing November 1, 1997. The Notes will mature
on May 1, 2004. The Notes are not redeemable at the option of the
Company prior to May 1, 2002, except that the Company may redeem,
at its option prior to May 1, 2002, up to 35% of the original
aggregate principal amount of the Notes, at a redemption price of
113.5% of the aggregate principal amount of the Notes, plus
accrued and unpaid interest, if any, to the date of redemption,
with the net proceeds of any equity offering completed within 90
days prior to such redemption; provided that at least $48.75
million in aggregate principal amount of the Notes remain
outstanding. On or after May 1, 2002, the Notes are redeemable
at the option of the Company, in whole or in part, at an initial
redemption price of 106.75% of the aggregate principal amount of
the Notes until May 1, 2003, and at par thereafter, plus accrued
and unpaid interest, if any, to the date of redemption. Upon the
occurrence of a change of control, as defined, the Company will
be obligated to make an offer to purchase all outstanding Notes
at a price equal to 101% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of purchase.
Total interest expense incurred on the Notes was approximately
$6.2 million for the year ended December 31, 1997.
The Senior Secured Notes restrict, among other things, the
Company's ability to incur additional debt, incur liens, pay
dividends, or make certain other restricted payments. It also
limits the Company's ability to consummate certain asset sales,
enter into certain transactions with affiliates, enter into
mergers or consolidations, or dispose of substantially all the
Company's assets. The Company's ability to comply with such
covenants may be affected by events beyond its control. The
breach of any of these covenants could result in a default. A
default could allow holders of the Notes to declare all amounts
outstanding and accrued interest immediately due and payable.
Absent such payment, the holders could proceed against any
collateral granted to them to secure such indebtedness, which
includes all of the stock of the Company's principal operating
subsidiary, XCL-China, which has guaranteed such indebtedness. A
foreclosure on the stock of XCL China could trigger Apache's
right of first refusal under the Participation Agreement to
purchase such stock or its option to purchase the Company's
interest in the Contract. There can be no assurance that the
assets of the Company and XCL-China (a "Subsidiary Guarantor"),
or any other Subsidiary Guarantors would be sufficient to fully
repay the Notes and the Company's other indebtedness.
(7) Shareholders' Equity
Preferred Stock
---------------
As of December 31, 1997 and 1996, the Company had the
following shares of Preferred Stock issued and outstanding:
<TABLE>
<CAPTION>
Preference in 1997 Dividends
Shares Liquidation at (In Thousands)
1997 1996 December 31, 1997 Declared Accrued Total
---- ---- ----------------- ------------- ------- -----
<S> <C> <C> <C> <C> <C> <C>
Series A -- 577,803 $ -- $ 9,678 $ -- $ 9,678
Series B 44,465 44,954 4,446,500 262 186 448
Series E -- 46,654 -- 750 -- 750
Series F 22,318 -- 2,231,800 127 133 260
Amended Series A 1,129,453 -- 96,003,505 1,098 1,494 2,592
----------- ------ ----- ------
$102,681,805 $11,915 $1,813 $13,728
=========== ====== ===== ======
</TABLE>
Amended Series A Preferred Stock
--------------------------------
On May 20, 1997, the Company sold, in an unregistered
offering to qualified institutional buyers and accredited
institutional investors (the "Equity Offering") 294,118 Equity
Units, each consisting of one share of Amended Series A,
Cumulative Convertible Preferred Stock, par value $1.00 per share
("Amended Series A Preferred Stock"), and one Common Stock
Purchase Warrant (collectively, the "Equity Warrants") to
purchase approximately 22 shares of the Company's Common Stock,
at an initial exercise price of $3.09 per share, first
exercisable on May 20, 1998.
Each share of Amended Series A Preferred Stock has a
liquidation value of $85.00, plus accrued and unpaid dividends.
Dividends on the Amended Series A Preferred Stock are cumulative
from May 20, 1997 and are payable semi-annually, commencing
November 1, 1997, at an annual rate of $8.075 per share.
Dividends are payable in additional shares of Amended Series A
Preferred Stock (valued at $85.00 per share) through November 1,
2000, and thereafter in cash, or at the election of the Company,
in additional shares of Amended Series A Preferred Stock. The
Amended Series A Preferred Stock is convertible into Common
Stock, at any time after the first anniversary of the issue date,
at the option of the holders thereof, unless previously redeemed,
at an initial conversion price of $7.50 per share of Common Stock
(equivalent to a rate of 11 shares of Common Stock for each share
of Amended Series A Preferred Stock), subject to adjustment under
certain conditions. The Company is entitled to require
conversion of all the outstanding shares of Amended Series A
Preferred Stock, at any time after November 20, 1997 if the
Common Stock shall have traded for 20 trading days during any 30
consecutive trading day period at a market value equal to or
greater than 150% of the prevailing conversion rate.
The Amended Series A Preferred Stock is redeemable at any
time on or after May 1, 2002, in whole or in part, at the option
of the Company initially at a redemption price of $90.00 per
share and thereafter at redemption prices which decrease ratably
annually to $85.00 per share on and after May 1, 2006, plus
accrued and unpaid dividends to the redemption date. The Amended
Series A Preferred Stock is mandatorily redeemable, in whole, on
May 1, 2007, at a redemption price of $85.00 per share, plus
accrued and unpaid dividends to the redemption date, payable in
cash, or at the election of the Company, in Common Stock.
Upon the occurrence of a change in control or certain other
fundamental changes, the conversion price of the Amended Series A
Preferred Stock will be reduced, for a limited period, in certain
circumstances in order to provide holders with loss protection at
a time when the market value of the Common Stock is less than the
then prevailing conversion price.
The Amended Series A Preferred Stock will entitle the holder
thereof to cast the same number of votes as the shares of Common
Stock then issuable upon conversion thereof on any matter subject
to the vote of the holders of the Common Stock. Further, the
holders of the Amended Series A Preferred Stock will be entitled
to vote as a separate class (i) to elect two directors if the
Company is in arrears in payment of three semi-annual dividends,
and (ii) the approval of two-thirds of the then outstanding
Amended Series A Preferred Stock will be required for the
issuance of any class or series of stock ranking prior to the
Amended Series A Preferred Stock, as to dividends, liquidation
rights and for certain amendments to the Company's Certificate of
Incorporation that adversely affect the rights of holders of the
Amended Series A Preferred Stock.
Effective November 10, 1997, by consent of in excess of 88
percent of the outstanding shares of Series A Preferred Stock
such series of preferred stock was amended, reclassified and
converted to Amended Series A Preferred Stock. As a consequence
of such consent all dividend arrearages, and accrued and unpaid
dividends were paid in additional shares of Amended Series A
Preferred Stock. This amendment resulted in approximately
726,907 shares of Amended Series A Preferred Stock being issued
in respect of such reclassification and payment of dividends.
Effective November 10, 1997, by consent of in excess of 67
percent of the outstanding Series E Preferred Stock such series
of preferred stock was amended, reclassified and converted to
Amended Series A Preferred Stock. As a consequence of such
consent all accrued and unpaid dividends were paid in additional
shares of Amended Series A Preferred Stock. This amendment
resulted in approximately 63,706 shares of Amended Series A
Preferred Stock being issued in respect of such reclassification
and payment of dividends.
Series B Preferred Stock
------------------------
The Series B, Cumulative Convertible Preferred Stock, par
value $1.00 per share (the "Series B Preferred Stock") bears a
cumulative fixed dividend at an annual rate of $10 per share,
payable semiannually, and is entitled to 50 votes per share on
all matters on which Common Stockholders are entitled to vote and
separately as a class on certain matters; ranks senior to the
Common Stock and pari passu with the Amended Series A and Series
F Preferred Stocks of the Company with respect to the payment of
dividends and distributions on liquidation; and has a liquidation
preference of $100 per share plus accumulated dividends.
On May 16, 1995, the Company received notice from the Series
B Preferred holder exercising its redemption rights. The Company
elected to redeem in shares of Common Stock and the holder
exercised its option to have the Company sell its shares of
Common Stock. The aggregate redemption price was $5 million,
plus accrued dividends from January 1, 1995 to the date of
redemption. Approximately 5,535 shares had been redeemed at
December 31, 1997, from the sale of approximately 353,333 shares
of Common Stock. In July 1997, the holder of the Series B
Preferred Stock sued the Company and each of its directors with
respect to the alleged failure of the Company to redeem the
Series B Preferred Stock in accordance with the terms of the
Purchase Agreement and Certificate of Designation. In settlement
of that lawsuit in March 1998, the holder of the Series B
Preferred Stock revoked and withdrew its redemption notice and
sold its shares of Series B Preferred Stock and accompanying
warrants. The purchasers exchanged the stock and warrants for
44,465 shares of Amended Series B Preferred Stock and warrants to
purchase 250,000 shares of Common Stock at an exercise price of
$5.50 per share, subject to adjustment, expiring March 2, 2002,
and received 2,620 shares of Amended Series B Preferred Stock in
payment of all accrued and unpaid dividends on the Series B
Preferred Stock.
Each share of Amended Series B Preferred Stock has a
liquidation value of $100, plus accrued and unpaid dividends.
Dividends on the Amended Series B Preferred Stock are cumulative
from March 3, 1998 and are payable semi-annually on June 30 and
December 31 of each year, at an annual rate of $9.50 per share if
paid in cash. In lieu of payment in cash, the Company may, at
its option, elect to pay any dividend in kind in shares of either
Common Stock or Amended Series B Preferred Stock at the option
of the holder. If such dividend is paid in shares of Amended
Series B Preferred Stock, the dividend will be 0.0475 shares of
dividend stock per share of Amended Series B Preferred Stock
held. If the dividend is paid in shares of Common Stock, the
dividend shall equal the number of shares of Common Stock equal
to the quotient obtained by dividing $4.75 by the lowest average
closing price per share of Common Stock as calculated for the
last 5, 10 and 30 trading days preceding the dividend payment
date. Fractional shares will be paid in cash or aggregated and
sold on behalf of the holders. The Amended Series B Preferred
Stock is convertible into Common Stock, at any time after the
earlier of the effective date of the registration of such Common
Stock or August 31, 1998.
Series F Preferred Stock
------------------------
In January 1998, the holders of the Series F Preferred Stock
approved an amendment to the "forced conversion" terms of the
Series F Preferred Stock. Effective January 16, 1998, the
Company forced conversion of the Series F Preferred Stock and an
aggregate of 633,893 shares of Common Stock were issued upon
conversion and in payment of accrued and unpaid dividends. In
consideration for such amendment the holders of the Series F
Preferred Stock were issued warrants to acquire an aggregate of
153,332 shares of Common Stock at an exercise price of $0.15 per
share.
Dividends
---------
Prior to November 1997, dividends with respect to the Series
A Preferred Stock were in arrearage. Effective November 10, 1997,
the Series A Preferred Stock was amended, reclassified and
converted to Amended Series A Preferred Stock. As a consequence
of such consent all dividend arrearages, and accrued and unpaid
dividends were paid in additional shares of Amended Series A
Preferred Stock.
Dividends during 1997 and 1996 on the Series B Preferred
Stock were paid from proceeds of sales of redemption stock, which
were applied first to accrued dividend then the redemption of
shares of Series B Preferred Stock. On March 3, 1998, all
accrued and unpaid dividends on the Series B Preferred Stock were
paid in shares of Amended Series B Preferred Stock.
During 1996, the Company issued 2,218 shares of Series E
Preferred Stock in payment of the June 1996 dividends payable on
the Series E Preferred Stock. During 1997, the Company issued
5,261 shares of Series E Preferred Stock in payment of the
December 31, 1996 and June 30, 1997 dividends on the Series E
Preferred Stock. Effective November 10, 1997, the Series E
Preferred Stock was amended, reclassified and converted to
Amended Series A Preferred Stock. As a consequence of such
consent all dividend arrearages, and accrued and unpaid dividends
were paid in additional shares of Amended Series A Preferred
Stock.
During 1997, the Company issued 1,261 shares of Series F
Preferred Stock in payment of the June 30, 1997 dividends payable
on the Series F Preferred Stock.
On November 3, 1997, 12,906 shares of Amended Series A
Preferred Stock were issued in respect of the dividend payable
November 1, 1997, in the amount of $1.1 million. Upon conversion
of the Series A and Series E Preferred Stocks into Amended Series
A Preferred Stock, approximately $9.23 in accrued and unpaid
dividends on Series A Preferred Stock and approximately $0.2 in
accrued and unpaid dividends on the Series E Preferred Stock were
paid through the issuance of 790,613 additional shares of Amended
Series A Preferred Stock.
Common Stock
------------
The Company issued 1,322,034, 1,888,461 and 1,264,854
shares of Common Stock during 1997, 1996 and 1995, respectively.
The Company had 20,307,454, 18,980,805 and 16,909,532 shares of
Common Stock outstanding at December 31, 1997, 1996 and 1995,
respectively.
Common Stock Warrants
---------------------
As of December 31, 1997, outstanding warrants to purchase
the Company's Common Stock are as follows:
Common Stock
Issuable Upon Warrant Exercise Proceeds if
Exercise Price Exercised
---------- --------------- ---------
Total Warrants Expiring in 1998 6,667 $11.25 $ 75,000
Total Warrants Expiring after 1998 17,820,088 $0.15 to $22.50 69,000,193
---------- ----------
Total Warrants 17,826,755 $69,075,193
========== ==========
During November 1996, the Company offered a holder of
136,000 warrants exercisable at $5.25 per share a reduction in
the exercise price of such warrants to $1.875 per share in
exchange for the immediate exercise of such warrants and the
issuance of a like number of new warrants. In January 1997,
136,000 shares of Common Stock were issued upon the exercise of
the warrants and 136,000 new warrants were issued, exercisable at
$1.875 per share. The Company received $255,000 upon exercise of
these warrants.
During February 1997, the Company offered to reduce the
exercise price on a total of 368,000 warrants issued in
connection with Regulation S offerings in December 1995 and March
1996, in exchange for their immediate exercise. The offer was
made to reduce the warrant price from $3.75 to $3.30 per share.
One holder of 176,000 warrants accepted the offer and exercised
all 176,000 warrants for which the Company received net proceeds
of $555,400. The Placement Agent agreed to accept $0.15 per
share rather than 8% of the exercise price as required under the
Placement Agent Agreement.
During April 1997, the Company issued an aggregate of
200,000 shares of Common Stock upon the exercise of warrants at
$1.875 per share and received an aggregate of $375,000 upon
exercise of such warrants.
During August and October 1997, the Company issued an
aggregate of 100,000 shares of Common Stock upon the exercise of
warrants at $2.8125 per share and received proceeds of $281,250
upon exercise of such warrants.
During October 1997, the Company issued 24,000 shares of
Common Stock upon the exercise of warrants at $1.875 per share
and received $45,000 in proceeds from such exercise.
Loss Per Share
--------------
The following table sets forth the computation of basic and
diluted loss per share.
For the Years Ended December 31,
_________________________________
1997 1996 1995
------ ----- -----
Number of shares on which basic loss per
share is calculated: 20,541 17,705 16,047
Number of shares on which diluted loss per
share is calculated: 20,541 17,705 16,047
Net loss applicable to common shareholders $(27,722) $(17,430) $(92,658)
Basic loss per share $ (1.36) $ (0.98) $ (5.77)
Diluted loss per share $ (1.36) $ (0.98) $ (5.77)
The effect of 33,902,036, 5,103,082 and 4,398,380 shares of
potential common stock were anti-dilutive in 1997, 1996 and 1995,
respectively, due to the losses in all three years.
(8) Income Taxes
The Company has significant loss carryforwards which have
been recorded as deferred tax assets. Due to realization of such
amounts being deemed uncertain with respect to the provisions of
SFAS No. 109, a valuation allowance has been recorded for the
entire amount.
The significant components of the net deferred tax expense
(benefit) for 1997 and 1996, were as follows (000's):
1997 1996
---- ----
Current year domestic net operating loss $ (4,758) $ (4,387)
Current year Chinese deferred costs (356) (829)
Prior year under accrual of Chinese deferred costs (537) --
Tax/book depreciation, depletion and amortization
difference 3,149 3,046
Oil and gas property expenditures treated as
expense for income tax purposes -- 41
Other accruals 13 (1,348)
Reserve for investments -- (855)
Increase (decrease) in valuation allowance 2,489 4,332
------- -------
$ -- $ --
======= =======
The components of the Company's deferred tax assets and
liabilities as of December 31, 1997 and 1996, were as follows (in
000's):
1997 1996
---- ----
Deferred tax assets:
Domestic net operating loss carryforwards $ 63,730 $ 58,972
Chinese deferred costs 4,439 3,546
Other liabilities and reserves 2,802 2,815
Property and equipment, net 12,593 15,742
Valuation allowance (83,564) (81,075)
------- ---------
Total deferred tax assets $ -- $ --
======== ========
At December 31, 1997, the Company had net operating loss
carryforwards for tax purposes in the approximate amount of $174
million which are scheduled to expire by the year 2012.
Additionally, the Company has available acquired net operating
loss carryforwards, in the approximate amount of $9 million,
which are scheduled to expire by the year 2000, and which are
available to offset taxable income of an acquired subsidiary. Use
of the net operating loss carryforwards is subject to limitations
under Section 382 of the Internal Revenue Code.
At December 31, 1997, the Company had alternative minimum
tax net operating loss carryforwards in the approximate amount of
$114 million which are scheduled to expire by the year 2012.
Additionally, the Company has acquired alternative minimum tax
net operating loss carryforwards in the approximate amount of $12
million which are scheduled to expire by the year 2000, and which
are available for use by an acquired subsidiary. The Company
also has $1.0 million of general business credit carryforwards
which are available until the year 2000 to offset future tax
liabilities of an acquired subsidiary. The Company also has
deferred costs associated with its Chinese operations of
approximately $13 million. The costs will be amortized and
deducted for Chinese tax purposes when the Company generates
revenue from its Chinese operations.
(9) Stock Option Plans
The Company's stock option plans, administered by the
compensation committee, provide for the issuance of incentive and
nonqualified stock options. Under these plans the Company is
authorized to grant options to selected employees, directors and
consultants to purchase shares of the Company's Common Stock at
an exercise price (for the Company's incentive stock options) of
not less than the market value at the time such options are
granted and are accounted for in accordance with Accounting
Principles Board Opinion No. 25. In June 1992, the shareholders
of the Company approved the adoption of the Company's Long-Term
Stock Incentive Plan ("LTSIP") under which the Company is
authorized to issue an aggregate of 16.5 million shares of Common
Stock pursuant to future awards granted thereunder.
In December 1997, the shareholders of the Company approved
the amendment and restatement of the Company's LTSIP, effective
as of June 1, 1997, (i) increasing the number of shares issuable
under the LTSIP by 4 million (post-split) shares of Common Stock,
(ii) authorizing 200,000 shares of preferred stock for issuance
under the LTSIP, and (iii) ratifying certain grants of non-
qualified stock options and restricted stock awards to certain
officers and directors of the Company. The LTSIP, as amended and
restated, also allows for the grant of appreciation option
awards. A grant of an appreciation option award to Mr. Miller was
ratified at that same meeting.
All of the restricted stock awards entitle the participants
to full dividend and voting rights and are restricted as to
disposition and subject to forfeiture under certain conditions.
The shares become unrestricted upon attainment of certain
increases in the market price of the Company's Common Stock
within four years from date of grant, as provided for in the
plan. Upon issuance of restricted shares, unearned compensation
is charged to shareholders' equity for the cost of restricted
stock and recognized as expense ratably over the earned period,
as applicable. The amount recognized for 1997 was not material
because the measurement date was December 17, 1997.
The appreciation option awarded to the Chairman provides him
with the right upon his payment of the exercise price (20% of
amount entitled to receive) to additional compensation payable in
cash or in shares of Common Stock based upon 5% of the difference
between the market capitalization (as defined) of the Company as
of June 1, 1997, and the date the option is exercised (no earlier
than June 1, 2002). Because the option contemplates compensation
determined with reference to increases in the market
capitalization without restriction, there is no effective limit
on the amount of compensation which may become payable
thereunder. Deferred compensation of $3.2 million was recorded in
connection with the appreciation option and is being amortized
over the service period. The appreciation option expires on June
1, 2007. Compensation expense recognized in 1997 was
approximately $373,000.
Non-qualified options granted on June 1, 1997 for an option
price of $3.75 per share resulted in compensation expense for
1997 of $481,000. The measurement date was established on
December 17, 1997, the date of shareholder approval.
A summary of the stock option plans activity for the years
ended December 31, 1997, 1996 and 1995 is as follows:
<TABLE>
<CAPTION> Weighted Average
Shares Option Price Per Share Exercise Price
------- ---------------------- ----------------
<S> <C> <C> <C>
Outstanding at December 31, 1994 831,012 $12.50 - $22.50 $18.83
Granted 45,333 $18.75 $18.75
Forfeited (104,167) $12.50 - $22.50 $18.23
--------- ---------------
Outstanding at December 31, 1995 772,178 $12.50 - $22.50 $18.91
Granted 16,133 $18.75 $18.75
Forfeited (101,467) $18.75 - $22.50 $20.14
--------- ---------------
Outstanding at December 31, 1996 686,844 $12.50 - $22.50 $18.72
Granted 2,000,000 $3.75 $3.75
Forfeited (7,238) $18.75 - $22.50 $19.12
--------- ---------------
Outstanding at December 31, 1997 2,679,606 $3.75 - $22.50 $7.55
========= ==============
Options exercisable at December 31, 1997 676,451
=======
Options exercisable at December 31, 1998 676,089
=======
Options exercisable at December 31, 1999 683,888
=======
</TABLE>
The following table summarizes information about stock
options outstanding at December 31, 1997:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
______________________________________________________________________ __________________________________
Weighted average
Range of Outstanding at remaining life Weighted average Exercisable at Weighted Average
Exercise Prices December 31, 1997 years exercise price December 31, 1997 exercise price
- --------------- ---------------- --------------- ---------------- ----------------- ---------------
<S> <C> <C> <C> <C> <C>
$3.75 2,000,000 9.5 $3.75 -- --
$18.75-$22.50 679,606 3.4 $18.72 676,451 $18.72
--------- -------- -----
2,679,606 676,451 $18.72
========= ======== =====
</TABLE>
The weighted average fair value of options granted during 1997
was $5.50.
If compensation expense for the stock options had been
determined and recorded based on the fair value on the grant date
using the Black-Scholes option pricing model to estimate the
theoretical future value of those options, the Company's net loss
per share amounts would have been reduced to the pro forma
amounts indicated below (000's, except per share data):
1997 1996 1995
---- ---- ----
Net loss as reported $ (27,722) $ (17,430) $ (92,658)
Compensation expense 1,012 126 537
------- ------- --------
Pro forma loss $ (28,734) $ (17,556) $ (93,195)
======= ======= ========
Pro forma loss per share:
Basic $ (1.40) $ (0.99) $ (5.81)
======== ======== ========
Diluted $ (1.40) $ (0.99) $ (5.81)
======== ======== ========
Weighted average shares 20,451 17,705 16,047
====== ====== ======
Due to uncertainties in these estimates, such as market prices,
exercise possibilities and the possibility of future awards and
cancellations, these pro forma disclosures are not likely to be
representative of the effects on reported income for future
years.
For pro forma purposes, the fair value of each option grant is
estimated on the date of grant with the following weighted
average assumptions:
1997 1996 1995
---- ---- ----
Expected life (years) 10 10 10
Interest rate 5.87% 6.68% 6.78%
Volatility 135.00% 100.00% 100.00%
Dividend yield -- -- --
(10) Employee Benefit and Incentive Compensation Plans
In 1989, the Company adopted an employee benefit plan under
Section 401(k) of the Internal Revenue Code, for the benefit of
employees meeting certain eligibility requirements. The Company
has received a favorable determination letter from the Internal
Revenue Service regarding the tax favored status of the 401(k)
plan. Employees can contribute up to 10 percent of their
compensation. The Company, at its discretion and subject to
certain limitations, may contribute up to 75 percent of the
amount contributed by each participant. There were no Company
contributions in 1997, 1996 or 1995.
(11) Commitments and Contingencies
Other commitments and contingencies include:
o The Company acquired the rights to the exploration,
development and production of the Zhao Dong Block by executing a
Production Sharing Agreement with CNODC in February 1993. Under
the terms of the Production Sharing Agreement, the Company and
its partner are responsible for all exploration costs. If a
commercial discovery is made, and if CNODC exercises its option
to participate in the development of the field, all development
and operating costs and related oil and gas production will be
shared up to 51 percent by CNODC and the remainder by the
Company and its partner.
The Production Sharing Agreement includes the following
additional principal terms:
The Production Sharing Agreement is basically divided
into three periods: the Exploration period, the
Development period and the Production period. Work to
be performed and expenditures to be incurred during the
Exploration period, which consists of three phases
totaling seven years from May 1, 1993, are the
exclusive responsibility of the Contractor (the Company
and its partner as a group). The Contractor's
obligations in the three exploration phases are as
follows:
1. During the first three years, the Contractor is
required to drill three wildcat wells, perform
seismic data acquisition and processing and expend
a minimum of $6 million. These obligations have
been met.
2. During the next two years, the Contractor is
required to drill two wildcat wells, perform
seismic data acquisition and processing and expend
a minimum of $4 million (The Contractor has
elected to proceed with the second phase of the
Contract. The seismic data acquisition
requirement for the second phase has been
satisfied.)
3. During the last two years, the Contractor is
required to drill two wildcat wells and expend a
minimum of $4 million.
4. The Production Period for any oil and/or gas
field covered by the Contract (the "Contract
Area") will be 15 consecutive years (each of 12
months), commencing for each such field on the
date of commencement of commercial production (as
determined under the terms of the Contract).
However, prior to the Production Period, and
during the Development Period, oil and/or gas may
be produced and sold during a long-term testing
period.
The Production Sharing Agreement may be terminated by the
Contractor at the end of each phase of the Exploration
period, without further obligation.
o The Company is in dispute over a 1992 tax assessment by the
Louisiana Department of Revenue and Taxation for the years 1987
through 1991 in the approximate amount of $2.5 million. The
Company has also received a proposed assessment from the
Louisiana Department of Revenue and Taxation for income tax years
1991 and 1992, and franchise tax years 1992 through 1996 in the
approximate amount of $3.0 million. The Company has filed written
protests as to these proposed assessments, and will vigorously
contest the asserted deficiencies through the administrative
appeals process and, if necessary, litigation. The Company
believes that adequate provision has been made in the financial
statements for any liability.
o On July 26, 1996, an individual filed three lawsuits against
a wholly owned subsidiary with respect to oil and gas properties
held for sale. One suit alleges actual damage of $580,000 plus
additional amounts that could result from an accounting of a
pooled interest. Another seeks legal and related expenses of
$56,473 from an allegation the plaintiff was not adequately
represented before the Texas Railroad Commission. The third suit
seeks a declaratory judgement that a pooling of a 1938 lease and
another in 1985 should be declared terminated and further
plaintiffs seek damages in excess of $1 million to effect
environmental restoration. The Company believes these claims are
without merit and intends to vigorously defend itself.
o The Company is subject to other legal proceedings which
arise in the ordinary course of its business. In the opinion of
Management, the amount of ultimate liability with respect to
these actions will not materially affect the financial position
of the Company or results of operations of the Company.
(12) Supplemental Financial Information
Quarterly Results of Operations (Unaudited)
Quarter
__________________________________
First Second Third Fourth Year
----- ------ ----- ------ ----
(Thousands of Dollars, Except Per Share Amounts)
1997
- ----
Oil and gas revenues $ 85 $ 53 $ 52 $ 46 $ 236
Loss from operations (816) (774) (976) (5,492) (8,058)
Net loss (1,211) (1,215) (417) (11,151) (13,994)
Net loss per share
Basic (0.15) (0.16) (0.11) (0.94) (1.36)
Diluted (0.15) (0.16) (0.11) (0.94) (1.36)
1996
- ----
Oil and gas revenues $ 576 $ 361 $ 94 $ 105 $ 1,136
Loss from operations (1,057) (1,970) (1,606) (5,160) (9,793)
Net loss (1,641) (3,062) (1,733) (5,638) (12,074)
Net loss per share
Basic (0.17) (0.20) (0.17) (0.38) (0.98)
Diluted (0.17) (0.20) (0.17) (0.38) (0.98)
Supplemental Oil and Gas Information
The following supplementary information is presented in
accordance with the requirements of Statement of Financial
Accounting Standards No. 69 - "Disclosures About Oil and Gas
Producing Activities."
Results of Operations from U.S. Oil and Gas Producing
Activities
The results of operations from oil and gas producing
activities for the three years ended December 31, 1997 are as
follows (000's):
Year Ended December 31
----------------------
1997 1996 1995
---- ---- ----
Revenues from oil and gas producing activities:
Sales to unaffiliated parties $ 236 $ 1,136 $ 2,480
----- ------- ------
Production (lifting) costs:
Operating costs (including marketing) 210 342 985
State production taxes and other 13 28 51
----- ------ ------
Production costs 223 370 1,036
Depletion and amortization 77 437 1,989
Provision for impairment of oil and gas properties -- 3,850 75,300
----- ------- -------
Total expenses 300 4,657 78,325
----- ------- -------
Pretax loss from producing activities (64) (3,521) (75,845)
Income tax expense -- -- --
----- ------- ------
Results of oil and gas producing activities
(excluding corporate overhead and interest costs) $ (64) $(3,521) $(75,845)
==== ====== =======
The depreciation, depletion and amortization (DD&A) rate
averaged $0.81, $0.96 and $1.23 per equivalent Mcf in 1997, 1996
and 1995, respectively.
Capitalized Costs
-----------------
Capitalized costs relating to the Company's proved and
unevaluated oil and gas properties, are as follows (000's):
December 31
--------------------
1997 1996
---- ----
Foreign proved and unevaluated
properties under development $ 54,304 $ 34,305
======= =======
The capitalized costs for the foreign properties represent
cumulative expenditures related to the Zhao Dong Block Production
Sharing Agreement and will not be depreciated, depleted or
amortized until production is achieved.
The Company's investment in oil and gas properties as of
December 31, 1997, includes proved and unevaluated properties
which have been excluded from amortization. Such costs will be
evaluated in future periods based on management's assessment of
exploration activities, expiration dates of licenses, permits and
concessions, changes in economic conditions and other factors. As
these properties become evaluated or developed, their cost and
related estimated future revenue will be included in the
calculation of the DD&A rate. Such costs were incurred as
follows:
Costs for foreign proved and unevaluated properties under
development were incurred as follows (000's):
Year Ended December 31
-----------------------------------
1994
Total 1997 1996 1995 and Prior
----- ---- ---- ---- --------
Property acquisition costs $ 40,616 $ 14,208 $ 4,223 $ 7,023 $ 15,162
Capitalized interest costs 13,688 5,791 2,767 2,596 2,534
------ ------ ------ ----- ------
Total foreign proved and
unevaluated properties
under development $ 54,304 $ 19,999 $ 6,990 $ 9,619 $ 17,696
====== ====== ===== ===== ======
Capitalized Costs Incurred
--------------------------
Total capitalized costs incurred by the Company with respect
to its oil and gas producing activities including those held for
sale were as follows (000's):
Year Ended December 31
------------------------
1997 1996 1995
---- ---- ----
Costs incurred:
Unproved properties acquired $ -- $ -- $ 7,209
Capitalized internal costs 2,466 822 135
Capitalized interest and amortized debt
costs 5,791 2,767 3,075
Exploration 6,833 3,401 --
Development 4,909 4 1,590
------ ----- ------
Total costs incurred $19,999 $6,994 $12,009
====== ===== ======
Proved Oil and Gas Reserves (Unaudited)
The following table sets forth estimates of the Company's
net interests in proved and proved developed reserves of oil and
gas and changes in estimates of proved reserves. The Company's
net interests in 1997 and 1996 are located in China and in 1995
were located in the United States.
Crude Oil (MBbls)
------------------------
1997 1996 1995
---- ---- ----
Proved reserves -
Beginning of year 10,579 -- 294
Discoveries 1,183 10,579 --
Revisions of previous estimates -- -- 24
Production -- -- (19)
Purchases (sales) of minerals in place -- -- (241)
Transfer of property to assets held for sale -- -- (58)
------ ------ -----
End of year 11,762 10,579 --
====== ====== =====
Proved developed reserves -
Beginning of year -- -- 126
------ ----- -----
End of year -- -- --
====== ===== =====
Natural Gas (MMcf)
------------------------
1997 1996 1995
----- ---- -----
Proved reserves -
Beginning of year -- -- 74,208
Discoveries -- -- (9,003)
Revisions of previous estimates -- -- --
Production -- -- (1,474)
Purchases (sales) of minerals in place -- -- (6,274)
Transfer of property to assets held for sale -- -- (57,457)
----- ------ ------
End of year -- -- --
====== ====== ======
Proved developed reserves -
Beginning of year -- -- 34,792
------ ------ ------
End of year -- -- --
====== ====== ======
The Company's estimated quantities of oil and gas as of
December 31, 1997 were prepared by H.J. Gruy and Associates,
Inc., independent engineers.
The revisions in the Company's estimated quantities of gas
and oil are attributable to revised estimates by Company
engineers in 1995. For fiscal 1995 significant downward
revisions were attributed to the Company's interest in the Cox
Field in Texas due largely to performance of producing wells.
Supplementary Information (Unaudited)
The supplementary information set forth below presents
estimates of discounted future net cash flows from proved oil and
gas reserves and changes in such estimates. This information has
been prepared in accordance with requirements prescribed by the
Financial Accounting Standards Board (FASB). Inherent in the
underlying calculations of such data are many variables and
assumptions, the most significant of which are briefly described
below:
Future cash flows from proved oil and gas reserves were
computed on the basis of (a) contractual prices for oil and gas -
including escalations for gas - in effect at year-end, or (b) in
the case of properties being commercially developed but not
covered by contracts, the estimated market price for gas and the
posted price for oil in effect at year-end. Probable and
possible reserves - a portion of which, experience has indicated,
generally become proved once further development work has been
conducted - are not considered. Additionally, estimated future
cash flows are dependent upon the assumed quantities of oil and
gas delivered and purchased from the Company. Such deliverability
estimates are highly complex and are not only based on the
physical characteristics of a property but also include
assumptions relative to purchaser demand. Future prices actually
received may differ from the estimates in the standardized
measure.
Future net cash flows have been reduced by applicable
estimated operating costs, production taxes and future
development costs, all of which are based on current costs.
Future net cash flows are further reduced by future income
taxes which are calculated by applying the statutory federal
income tax rate to pretax future net cash flows after utilization
of available tax carryforwards.
To reflect the estimated timing of future net cash flows,
such amounts have been discounted by the Securities and Exchange
Commission prescribed annual rate of 10 percent.
In view of the uncertainties inherent in developing this
supplementary information, it is emphasized that the information
represents approximate amounts which may be imprecise and extreme
caution should accompany its use and interpretation.
Standardized Measure of Discounted Future Net Cash Flows Related
to Proved Oil and Gas Reserves
The standardized measure of discounted future net cash flows
from proved oil and gas reserves, determined in accordance with
rules prescribed by FASB No. 69 is summarized below, and does not
purport to present the fair market value of the Company's oil and
gas assets, but does present the present value of estimated
future cash flows that would result under the assumptions used.:
The Company previously excluded from this table, the effect of
income taxes because it believed it had a tax holiday in China.
Subsequent to December 31, 1997, the Company determined that it
would be subject to future income taxes at the maximum rate of
33% in China. Accordingly, the table below has been revised to
include estimates of such income taxes.
<TABLE>
<CAPTION>
Year Ended December 31
----------------------------
1997 (a) 1996 (a) 1995 (a)
-------- -------- --------
(Thousands of Dollars)
<S> <C> <C> <C>
Future cash inflows $ 205,765 $ 222,797 $ 103,048
Future costs:
Production, including taxes (45,623) (39,033) (20,937)
Development (41,093) (40,904) (35,276)
------- ------- -------
Future net inflows before income taxes 119,049 142,860 46,835
Future income taxes (c) (22,916) (35,658) -- (b)
------- ------- ------
Future net cash flows 96,133 107,202 46,835
10% discount factor (42,285) (44,596) (20,795)
------- ------- ------
Transfer of properties to assets held for sale -- -- (26,040)
-------- ------ ------
Standardized measure of discounted net cash flows $ 53,848 $ 62,606 $ --
======== ======= =======
</TABLE>
_____________
(a) 1997 and 1996 represent China properties only. 1995
represents U.S. properties being held for sale only.
(b) No taxes have been reflected because of utilization of
net operating loss carryforwards.
(c) Future income taxes are computed by applying the maximum
tax rate in China applicable to foreign-funded enterprises
of 33%.
Changes in Standardized Measure of Discounted Future Net Cash
Flow From Proven Reserve Quantities
Year Ended December 31
-------------------------------
1997 (a) 1996 (a) 1995 (a)
-------- -------- --------
(Thousands of Dollars)
Standardized measure-beginning of year $ 62,606 $ -- $ 60,248
Increases (decreases):
Sales and transfers, net of production
costs -- -- (1,347)
Net change in sales and transfer prices,
net of production costs (16,396) -- (15,095)
Extensions, discoveries and improved
recovery, net of future costs -- 79,062 --
Changes in estimated future development
costs (219) -- (2,886)
Development costs incurred during the
period that reduced future development
costs -- -- 1,117
Revisions of quantity estimates -- -- (8,003)
Accretion of discount -- -- 6,024
Purchase (sales) of reserves in place -- -- (4,654)
Changes in production rates (timing) and
other -- -- (9,364)
Reclassification of reserves to assets
held for sale -- -- (26,040)
Net change in income taxes 7,857 (16,456) --
------- ------ -------
Standardized measure-end of year $ 53,848 $ 62,606 $ --
======= ======= =======
__________
(a) 1997 and 1996 represent China properties only. 1995
represents U.S. properties being held for sale only.
XCL Ltd. and Subsidiaries
Schedule II-Valuation and Qualifying Accounts
For the Years Ended December 31, 1997, 1996 and 1995
(thousands of dollars)
<TABLE>
<CAPTION>
Additions
-----------------------
Balance at Charged Charges Balance at
Beginning of to costs to other End of
Description Year and expenses accounts Deduction Year
- ----------- ----------- ------------ --------- --------- ----------
1997:
- ----
<S> <C> <C> <C> <C> <C>
Allowance for doubtful
trade accounts
receivable $ 101 $ -- $ -- $ 36 $ 65
======= ======= ====== ======= ======
Deferred tax valuation
allowance $ 81,075 $ 2,489 $ -- $ -- $ 83,564
======= ======= ====== ======= ======
1996:
- ----
Allowance for doubtful
trade accounts
receivable $ 103 $ -- $ -- $ 2 $ 101
======= ======= ======= ======= =======
Deferred tax valuation
allowance $ 76,743 $ 4,332 $ -- $ -- $ 81,075
======= ======= ======= ======= =======
1995:
- ----
Allowance for doubtful
trade accounts
receivable $ 113 $ - $ -- $ 10 $ 103
======= ====== ====== ======= =======
Deferred tax valuation
allowance $ 44,464 $ 32,279 $ -- $ -- $ 76,743
======= ======= ======= ====== =======
</TABLE>
<PAGE>
XCL Ltd. and Subsidiaries
CONSOLIDATED BALANCE SHEET
as of June 30, 1998
(In Thousands of Dollars)
(Unaudited)
A S S E T S
-----------
Current assets:
Cash and cash equivalents $ 11,369
Cash held in escrow (restricted) 5,239
Accounts receivable, net 188
Refundable deposits --
Other 814
-------
Total current assets 17,610
-------
Property and equipment:
Oil and gas properties (full cost method):
Proved undeveloped properties, not being amortized 26,954
Unevaluated properties 40,875
-------
67,829
Other 1,405
-------
69,234
Accumulated depreciation, depletion and amortization (941)
-------
68,293
-------
Investments 4,724
Investment in land 12,200
Oil and gas properties held for sale 9,078
Debt issue costs, less amortization 4,024
Other assets 1,275
-------
Total assets $ 117,204
=======
L I A B I L I T I E S A N D S H A R E H O L D E R S' E Q U I T Y
- -------------------------------------------------------------------
Current liabilities:
Accounts payable and accrued costs $ 925
Accrued interest 1,949
Due to joint venture partner 5,079
Dividends payable 1,611
Current maturities of long- term debt 2,074
-------
Total current liabilities 11,638
-------
Long-term debt, net of current maturities 62,384
Other non-current liabilities 5,383
Commitments and contingencies (Note 7)
Shareholders' equity:
Preferred stock-$1.00 par value; authorized 2.4
million shares; issued shares of 1,230,019 at
June 30, 1998 - liquidation preference of $105
million at June 30, 1998 1,230
Common stock-$.01 par value; authorized 500 million
shares; issued shares of 22,991,191 at
June 30, 1998 230
Common stock held in treasury - $.01 par value;
69,470 shares (1)
Additional paid-in capital 304,195
Accumulated deficit (256,153)
Unearned compensation (11,702)
-------
Total shareholders' equity 37,799
-------
Total liabilities and shareholders'
equity $ 117,204
========
The accompanying notes are an integral part of these financial statements.
<PAGE>
XCL Ltd. and Subsidiaries
CONSOLIDATED STATEMENTS OF OPERATIONS
For the Six Months Ended June 30, 1998 and 1997
(In Thousands, Except Per Share Amounts)
(Unaudited)
1998 1997
---- ----
Costs and operating expenses:
General and administrative $ 2,915 $ 1,562
Other, net 72 28
------ -------
2,987 1,590
------ -------
Operating loss (2,987) (1,590)
Other income (expense):
Interest income 718 498
Interest expense, net of amounts capitalized (1,852) (1,646)
Other, net 1 312
------ ------
(1,133) (836)
Net loss (4,120) (2,426)
Preferred stock dividends (4,879) (3,316)
------ ------
Net loss attributable to common stock $ (8,999) $ (5,742)
====== ======
Net loss per common share (basic) $ (.40) $ (.29)
====== ======
Net loss per common share (diluted) $ (.40) $ (.29)
====== ======
Weighted average number of common shares outstanding:
Basic 22,622 19,511
Diluted 22,622 19,511
The accompanying notes are an integral part of these financial statements.
</PAGE>
<PAGE>
<TABLE>
<CAPTION>
XCL Ltd. and Subsidiaries
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
(In Thousands of Dollars)
(Unaudited)
Additional Total
Preferred Common Treasury Paid-In Accumulated Unearned Shareholders'
Stock Stock Stock Capital Deficit Compensation Equity
---------- -------- -------- ---------- ----------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1997 $1,196 $ 217 $ (1) $298,588 $ (247,154) $ (12,021) $ 40,825
Net loss -- -- -- -- (4,120) -- (4,120)
Dividends -- -- -- -- (4,879) -- (4,879)
Preferred shares issued 57 -- -- 4,630 -- -- 4,687
Preferred shares converted
to common shares (23) 6 -- 17 -- -- --
Common shares issued -- 1 -- 222 -- -- 223
Exercise of stock purchase
warrants -- 6 -- 325 -- -- 331
Amortization of
unearned compensation -- -- -- -- -- 319 319
Earned Compensation -
stock options -- -- -- 413 -- -- 413
----- ----- ------ ------- --------- -------- -------
Balance, June 30, 1998 $1,230 $ 230 $ (1) $304,195 $ (256,153) $ (11,702) $ 37,799
===== ===== ====== ======= ========= ======== =======
</TABLE>
The accompanying notes are an integral part of these financial statements.
</PAGE>
<PAGE>
XCL Ltd. and Subsidiaries
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Six Months Ended June 30, 1998 and 1997
(In Thousands of Dollars)
(Unaudited)
1998 1997
---- ----
Cash flows from operating activities:
Net loss $ (4,120) $ (2,426)
Adjustments to reconcile net loss to
net cash used in operating activities:
Depreciation, depletion and amortization 50 80
Amortization of discount on senior secured notes 1,074 --
Stock compensation programs 732 --
Stock issued for outside professional services 223 --
Changes in assets and liabilities:
Accounts receivable (87) (17)
Refundable deposits 1,200 --
Accounts payable and accrued costs 15 (451)
Accrued interest 129 2,205
Other, net (162) 98
-------- -------
Total adjustments 3,174 1,915
-------- -------
Net cash used in operating activities (946) (511)
-------- -------
Cash flows from investing activities:
Change in cash held in escrow (restricted) 5,024 (75,000)
Note receivable (362) --
Capital expenditures (13,424) (5,025)
Investments (551) (388)
Proceeds from sale of assets -- 759
------- -------
Net cash used in investing activities (9,313) (79,654)
------- -------
Cash flows from financing activities:
Proceeds from sales of common stock -- 652
Proceeds from senior secured notes -- 75,000
Proceeds from issuance of preferred stock -- 25,000
Proceeds from exercise of warrants and options 331 1,184
Loan proceeds -- 3,316
Payment of long-term debt (450) (8,965)
Payment of note payable -- (2,100)
Stock/note issuance costs and other (205) (9,328)
------ -------
Net cash provided by (used in) financing
activities (324) 84,759
------ -------
Net increase (decrease) in cash and cash equivalents (10,583) 4,594
Cash and cash equivalents at beginning of period 21,952 113
------- ------
Cash and cash equivalents at end of period $ 11,369 $ 4,707
======== ======
The accompanying notes are an integral part of these financial statements.
</PAGE>
XCL Ltd. and Subsidiaries
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
June 30, 1998
(1) Basis of Presentation
The consolidated financial statements at June 30, 1998, and
for the six months then ended have been prepared by the Company,
without audit, pursuant to the Rules and Regulations of the
Securities and Exchange Commission. Certain information and
footnote disclosures normally included in financial statements
prepared in accordance with generally accepted accounting
principles have been condensed or omitted pursuant to such Rules
and Regulations. The Company believes that the disclosures are
adequate to make the information presented herein not misleading.
These consolidated financial statements should be read in
conjunction with the financial statements and the notes thereto
included in the Company's Annual Report on Form 10-K for the year
ended December 31, 1997. In the opinion of management, all
adjustments, consisting only of normal recurring adjustments,
necessary to present fairly the financial position of XCL Ltd.
and subsidiaries as of June 30, 1998, and 1997, and the results
of their operations for the six months ended June 30, 1998 and
1997, have been included. Certain reclassifications have been
made to prior period financial statements to conform to current
year presentation. These reclassifications had no effect on net
loss or shareholders' equity. The results of the Company's
operations for such interim periods are not necessarily
indicative of the results for the full year.
Revenues and operating expenses associated with oil and gas
properties held for sale have become insignificant and
accordingly, are recorded in other costs and operating expenses
in the accompanying consolidated statements of operations.
(2) Liquidity and Capital Resources
The Company, since its decision in 1995 to dispose of its
domestic properties, has generated minimal annual revenues and is
now devoting all of its efforts toward the development of its
China properties. Although the Company has cash available in the
amount of approximately $16.6 million at June 30, 1998 (including
restricted cash of approximately $5.2 million to pay interest due
November 1, 1998) and a positive working capital position,
additional funds will be needed to meet the Company's working
capital requirements and capital expenditure obligations until
sufficient cash flows are generated from anticipated production
to sustain its operations and to fund future development
obligations.
Management plans to generate the additional cash needed
through the sale or financing of its domestic oil and gas
properties assets held for sale and investment in land and the
completion of additional equity, debt or joint venture
transactions. There is no assurance, however, that the Company
will be able to sell or finance its oil and gas properties held
for sale or investment in land or to complete other transactions
in the future at commercially reasonable terms, if at all, or
that it will be able to meet its future contractual obligations.
If production from the China properties commences in late 1998 or
the first half of 1999, as anticipated, the Company's
proportionate share of the cash flow will be available to
partially satisfy its cash requirements. However, there is
likewise no assurance that such development will be successful
and production will commence as anticipated, and that such cash
flow will be available or sufficient.
(3) Supplemental Cash Flow Information
There were no income taxes paid during the six months
periods ended June 30, 1998 and 1997.
Capitalized interest for the six months ended June 30, 1998
was $5.5 million as compared to $2.6 million for the same period
in 1997. Interest paid during the six months ended June 30, 1998
amounted to $5.8 million as compared to $195,300 for the same
period in 1997.
On May 1, 1998, an interest payment in the amount of $5.3
million was made to the holders of the senior secured notes for
the interest period November 1, 1997 through May 1, 1998.
(4) Debt
As of June 30, 1998, long-term debt consists of the following
(000's):
Senior secured notes, net of unamortized discount
of $12,616 $ 62,384
Lutcher Moore Group Limited Recourse Debt 2,074
--------
64,458
Less current maturities:
Lutcher Moore Group Limited Recourse Debt (2,074)
--------
$ 62,384
========
Substantially all of the Company's assets collateralize
these borrowings.
(5) Investment in Land
The Lutcher Moore Tract previously included in oil and gas
properties held for sale has been reclassified to investment in
land in the accompanying consolidated balance sheet because the
Company is exploring alternative plans.
(6) Preferred Stock and Common Stock
As of June 30, 1998, the Company had the following shares of
Preferred Stock issued and outstanding:
1998 Dividends (In Thousands)
Liquidation -----------------------------
Shares Value Declared Accrued Total
--------- ------------ -------- ------- -----
Amended Series A 1,181,614 $ 100,437,190 $ -- $ 1,611 $ 1,611
Amended Series B 48,405 4,840,500 -- -- --
--------- ----------- ----- ------- ------
1,230,019 $ 105,277,690 $ -- $ 1,611 $ 1,611
========= =========== ===== ======= ======
Amended Series A Preferred Stock
- --------------------------------
On May 1, 1998, the Company issued an aggregate of 52,161
shares of Amended Series A Preferred Stock in payment of $4.5
million in dividends payable on that date.
Amended Series B Preferred Stock
- --------------------------------
On June 30, 1998, the Company issued an aggregate of 1,320
shares of Amended Series B Preferred Stock in payment of $0.1
million in dividends payable on that date.
Loss Per Share
- --------------
The following table sets forth the computation of basic and
diluted loss per common share (as adjusted for a one-for-fifteen
reverse stock split effected December 17, 1997).
(In thousands, except per share data)
For the Six Months Ended
June 30,
------------------------
1998 1997
---- ----
Weighted average number of common shares
outstanding (basic): 22,622 19,511
Weighted average number of common shares
outstanding (diluted): 22,622 19,511
Net loss applicable to common stock $ (8,999) $ (5,742)
Basic loss per share $ (.40) $ (.29)
Diluted loss per share $ (.40) $ (.29)
The effect of 34,627,207 and 24,046,901 shares of potential
common stock were anti-dilutive in the six months ended June 30,
1998 and 1997, respectively, due to the losses in both periods.
(7) Commitments and Contingencies
Other commitments and contingencies include:
o The Company acquired the rights to the exploration,
development and production of the Zhao Dong Block by executing a
Production Sharing Agreement (the "Agreement") with CNODC in
February 1993. Under the terms of the Agreement, the Company and
its partner are responsible for all exploration costs. If a
commercial discovery is made, and if CNODC exercises its option
to participate in the development of the field, all development
and operating costs and related oil and gas production will be
shared up to 51 percent by CNODC and the remainder by the Company
and its partner.
The Agreement includes the following additional
principal terms:
The Agreement is basically divided into three periods:
the Exploration period, the Development period and the
Production period. Work to be performed and
expenditures to be incurred during the Exploration
period, which consists of three phases totaling seven
years from May 1, 1993, are the exclusive
responsibility of the Company and its partner as a
group (the "Contractor"). The Contractor's obligations
in the three exploration phases are as follows:
1. During the first three years, the Contractor is
required to drill three wildcat wells, perform
seismic data acquisition and processing and expend
a minimum of $6 million. These obligations have
been met.
2. During the next two years, the Contractor is
required to drill two wildcat wells, perform
seismic data acquisition and processing and expend
a minimum of $4 million. (The Contractor has
elected to proceed with the second phase of the
Agreement. The seismic data acquisition
requirement for the second phase has been
satisfied.)
3. During the last two years, the Contractor is
required to drill two wildcat wells and expend a
minimum of $4 million.
4. The Production Period for any oil and/or gas
field covered by the Agreement will be 15
consecutive years (each of 12 months), commencing
for each such field on the date of commencement of
commercial production (as determined under the
terms of the Agreement). However, prior to the
Production Period, and during the Development
Period, oil and/or gas may be produced and sold
during a long-term testing period.
The Agreement may be terminated by the Contractor at the end
of each phase of the Exploration period, without
further obligation.
o The Company is in dispute over a 1992 tax assessment by the
Louisiana Department of Revenue and Taxation for the years 1987
through 1991 in the approximate amount of $2.5 million. The
Company has also received a proposed assessment from the
Louisiana Department of Revenue and Taxation for income tax years
1991 and 1992, and franchise tax years 1992 through 1996 in the
approximate amount of $3.0 million. The Company has filed written
protests as to these proposed assessments, and will vigorously
contest the asserted deficiencies through the administrative
appeals process and, if necessary, litigation. The Company
believes that adequate provision has been made in the financial
statements for any liability.
o On July 26, 1996, an individual filed three lawsuits against
a wholly owned subsidiary with respect to oil and gas properties
held for sale. One suit alleges actual damage of $580,000 plus
additional amounts that could result from an accounting of a
pooled interest. Another seeks legal and related expenses of
$56,473 from an allegation the plaintiff was not adequately
represented before the Texas Railroad Commission. The third suit
seeks a declaratory judgement that a pooling of a 1938 lease and
another in 1985 should be declared terminated, and further,
plaintiffs seek damages in excess of $1 million to effect
environmental restoration. The Company believes these claims are
without merit and intends to vigorously defend itself.
o The Company is subject to other legal proceedings which
arise in the ordinary course of its business. In the opinion of
Management, the amount of ultimate liability with respect to
these actions will not materially affect the financial position
of the Company or results of operations of the Company.
(8) XCL-China Ltd.
The following summary financial information of XCL-China
Ltd., a wholly owned subsidiary, reflects its financial position
and its results of operations for the periods presented (in
thousands of dollars):
June 30,
1998
A S S E T S -----
-----------
Current assets $ 188
Oil and gas properties (full cost method):
Proved undeveloped properties, not being amortized 26,954
Unevaluated properties 40,875
------
67,829
------
Other assets 597
------
$ 68,614
======
L I A B I L I T I E S A N D A C C U M U L A T E D D E F I C I T
- ------------------------------------------------------------------
Total current liabilities $ 5,202
Due to parent 65,960
Accumulated deficit (2,548)
-------
$ 68,614
=======
Six Months Ended
June 30,
-----------------
1998 1997
---- ----
Costs and operating expenses $ 618 $ 599
----- -----
Net loss $ (618) $ (599)
===== =====
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders of XCL-China Ltd.
We have audited the financial statements of XCL-China Ltd. listed
in the Index on page F-1. These financial statements are the
responsibility of the Company's management. Our responsibility is
to express an opinion on these financial statements based on our
audits.
We conducted our audits in accordance with generally accepted
auditing standards. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether
the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that
our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above
present fairly, in all material respects, the financial position
of XCL-China Ltd. as of December 31, 1997 and 1996, and the
results of their operations and their cash flows for each of the
three years in the period ended December 31, 1997, in conformity
with generally accepted accounting principles. In addition, in
our opinion, the financial statement schedule referred to above,
when considered in relation to the basic financial statements
taken as a whole, presents fairly, in all material respects, the
information required to be included therein.
The accompanying financial statements have been prepared assuming
that the Company will continue as a going concern. As discussed
in Note 2 to the financial statements, the Company has not
generated production revenues, is dependent on its parent to meet
its cash flow requirements and must, in conjunction with its
parent company, generate additional cash flows to satisfy its
development and exploratory obligations with respect to its oil
and gas properties. There is no assurance that the Company or its
parent will be able to generate the necessary funds to satisfy
these contractual obligations and to ultimately achieve
profitable operations, which creates substantial doubt about
their ability to continue as a going concern. Managements' plans
in regard to these matters are described in Note 2. The
financial statements do not include any adjustments that might
result from the outcome of this uncertainty.
/S/ PRICEWATERHOUSECOOPERS LLP
Miami, Florida
April 10, 1998
</PAGE>
XCL-China Ltd.
BALANCE SHEETS
(Thousands of Dollars)
- --------------
A S S E T S 1997 1996
----------- ---- ----
Current assets:
Accounts receivable, net $ 101 $ 122
Other 2 45
----- -----
Total current assets 103 167
----- -----
Property and equipment:
Oil and gas (full cost method):
Proved undeveloped properties, not
being amortized 21,172 13,571
Unevaluated properties 33,132 21,238
------- ------
54,304 34,809
Other 167 138
------ ------
54,471 34,947
Accumulated depreciation (1) --
------ ------
54,470 34,947
------ ------
Other assets 668 --
------ ------
Total assets $ 55,241 $ 35,114
====== ======
L I A B I L I T I E S A N D S H A R E H O L D E R S' E Q U I T Y
- -------------------------------------------------------------------
Current liabilities:
Accounts payable and accrued costs $ 285 $ 556
Due to joint venture partner 4,504 4,202
------ ------
Total current liabilities 4,788 4,758
------ ------
Due to parent 52,383 31,573
Commitments and contingencies (Notes 2 and 5)
Shareholders' equity:
Common stock-$.01 par value; authorized
5 million shares at December 31, 1997 and
1996; issued shares of 1,000 shares at
December 31, 1997 and 1996 -- --
Retained deficit (1,930) (1,217)
------- -------
Total shareholders' deficit (1,930) (1,217)
------- -------
Total liabilities and shareholders'
deficit $ 55,241 $ 35,114
======= ======
The accompanying notes are an integral part of these financial statements.\
<PAGE>
XCL-China, Ltd.
STATEMENTS OF OPERATIONS
(In Thousands)
Year Ended December 31
----------------------
1997 1996 1995
---- ---- ----
Revenues $ -- $ -- $ --
---- ---- -----
Costs and operating expenses:
Depreciation 1 -- --
General and administrative costs 578 702 536
---- ----- -----
579 702 536
---- ----- -----
Operating loss (579) (702) (536)
---- ----- -----
Other income (expense):
Interest expense, net of amounts
capitalized (134) -- --
Interest income -- -- 49
----- ----- -----
(134) -- 49
----- ----- -----
Net loss $ (713) $ (702) $ (487)
===== ==== ====
The accompanying notes are an integral part of these financial statements.
<PAGE>
XCL-China
STATEMENTS OF SHAREHOLDERS' DEFICIT
(Thousands of Dollars)
Balance, December 31, 1994 $ (28)
Net loss (487)
-------
Balance, December 31, 1995 (515)
Net loss (702)
-------
Balance, December 31, 1996 (1,217)
Net loss (713)
-------
Balance, December 31, 1997 $ (1,930)
=======
The accompanying notes are an integral part of these financial statements.
<PAGE>
XCL-China, Ltd.
STATEMENTS OF CASH FLOWS
(Thousands of Dollars)
Year Ended December 31
---------------------------
1997 1996 1995
---- ---- ----
Cash flows from operating activities:
Net loss $ (713) $ (702) $ (487)
----- ----- -----
Adjustments to reconcile net loss to net
cash used in operating activities:
Depreciation 1 -- --
Change in assets and liabilities:
Accounts receivable 21 (58) 624
Accounts payable and accrued costs 30 2,825 801
Other, net (625) 83 81
----- ------ -----
Total adjustments (573) 2,850 1,506
----- ------ -----
Net cash (used in) provided
by operating activities (1,286) 2,148 1,019
----- ------ -----
Cash flows from investing activities:
Capital expenditures (15,889) (4,237) (7,284)
Other -- 249 (179)
------ ------ ------
Net cash used in investing
activities (15,889) (3,988) (7,463)
------ ------ ------
Cash flows from financing activities:
Loan proceeds 6,100 -- --
Payment of long-term debt (6,100) -- --
Due to parent 17,175 1,840 4,468
------ ------ ------
Net cash provided by financing
activities 17,175 1,840 4,468
------ ------ ------
Net increase (decrease) in cash and cash
equivalents -- -- (1,976)
Cash and cash equivalents at beginning of year -- -- 1,976
------ ------ ------
Cash and cash equivalents at end of year $ -- $ -- $ --
====== ===== ======
The accompanying notes are an integral part of these financial
statements.
XCL-China Ltd.
NOTES TO FINANCIAL STATEMENTS
(1) Summary of Significant Accounting Policies:
Basis of Presentation:
---------------------
The financial statements include the accounts of XCL-China
Ltd. (the "Company"), a wholly owned subsidiary of XCL Ltd. (the
"parent").
Use of Estimates in the Preparation of Financial Statements:
-----------------------------------------------------------
The preparation of the Company's financial statements, in
conformity with generally accepted accounting principles,
requires management to make estimates and assumptions that affect
reported amounts of assets, liabilities, revenues and expenses
and disclosure of contingent assets and liabilities. Actual
results could differ from those estimates.
Oil and Gas Properties:
----------------------
The Company accounts for its oil and gas exploration and
production activities using the full cost method of accounting
for oil and gas properties. Accordingly, all costs associated
with acquisition, exploration, and development of oil and gas
reserves, including appropriate related costs, are capitalized.
The Company capitalizes internal costs that can be directly
identified with its acquisition, exploration and development
activities and does not capitalize any costs related to
production, general corporate overhead or similar activities.
The capitalized costs of oil and gas properties, including
the estimated future costs to develop proved reserves, are
amortized on the unit-of-production method based on estimates of
proved oil and gas reserves. The reserves in 1997 and 1996 were
estimated by independent petroleum engineers. Investments in
unproved properties and major development projects are not
amortized until proved reserves associated with the projects can
be determined or until impairment occurs. If the results of an
assessment indicate that properties are impaired, the amount of
the impairment is added to the capitalized costs to be depleted.
The Company capitalizes interest on expenditures made in
connection with exploration and development projects that are not
subject to current amortization. Interest is capitalized for the
period that activities are in progress to bring these projects to
their intended use.
The Company reviews the carrying value of its oil and gas
properties each quarter on a country-by-country basis, and limits
capitalized costs of oil and gas properties to the present value
of estimated future net revenues from proved reserves, discounted
at 10 percent, plus the lower of cost or fair value of unproved
properties as adjusted for related tax effects and deferred tax
reserves. If capitalized costs exceed this limit, the excess is
charged to depreciation and depletion expense.
Proceeds from the sale of proved and unproved properties are
accounted for as reductions to capitalized costs with no gain or
loss recognized unless such sales would significantly alter the
relationship between capitalized costs and proved reserves of oil
and gas. Abandonments of properties are accounted for as
adjustments of capitalized costs with no loss recognized.
The Company accounts for site restoration, dismantlement and
abandonment costs in its estimated future costs of proved
reserves. Accordingly, such costs are amortized on a unit of
production basis and reflected with accumulated depreciation,
depletion and amortization. The Company identifies and estimates
such costs based upon its assessment of applicable regulatory
requirements, its operating experience and oil and gas industry
practice in the areas within which its properties are located.
To date the Company has not been required to expend any material
amounts to satisfy such obligations. The Company does not expect
that future costs will have a material adverse effect on the
Company's operations, financial condition or cash flows. The
standardized measure of discounted future net cash flows includes
a deduction for any such costs.
Capitalized Interest:
- --------------------
During fiscal 1997, 1996 and 1995, interest and associated
costs of approximately $5.8 million, $2.8 million and $3.1
million, respectively were capitalized on significant investments
in oil and gas properties that are not being currently
depreciated, depleted, or amortized and on which exploration or
development activities are in progress.
Revenue Recognition:
-------------------
Oil and gas revenues will be recognized using the accrual
method at the price realized as production and delivery occurs.
Foreign Operations
------------------
The Company's future operations and earnings will depend
upon the results of the Company's operations in China. There can
be no assurance that the Company will be able to successfully
conduct such operations, and a failure to do so would have a
material adverse effect on the Company's financial position,
results of operations and cash flows. Also, the success of the
Company's operations will be subject to numerous contingencies,
some of which are beyond management's control. These
contingencies include general and regional economic conditions,
prices for crude oil and natural gas, competition and changes in
regulation. Since the Company is dependent on international
operations, specifically those in China, the Company will be
subject to various additional political, economic and other
uncertainties. Among other risks, the Company's operations will
be subject to the risks of restrictions on transfer of funds;
export duties, quotas and embargoes; domestic and international
customs and tariffs; and changing taxation policies, foreign
exchange restrictions, political conditions and governmental
regulations.
(2) Liquidity and Management's Plan
The Company's parent, in connection with its 1995 decision
to dispose of its domestic properties, is devoting all of its
efforts toward the development of the Company's properties. The
Company has historically relied on its parent to meet its cash
flow requirements. Although the parent has cash available in the
amount of approximately $32 million as of December 31, 1997
(including restricted cash of approximately $10 million) and a
positive working capital position, management anticipates that
the Company and its parent will need additional funds to meet all
of the development and exploratory obligations until sufficient
cash flows are generated from anticipated production to sustain
operations and to fund future development and exploration
obligations.
The parent plans to generate the additional cash needed
through the sale or financing of its domestic assets held for
sale and the completion of additional equity, debt or joint
venture transactions. There is no assurance, however, that the
parent will be able to sell or finance its assets held for sale
or to complete other transactions in the future at commercially
reasonable terms, if at all, or that the Company will be able to
meet its future contractual obligations. If production from the
Company's properties commences in late 1998 or the first half of
1999, as anticipated, the Company's proportionate share of the
related cash flow will be available to help satisfy cash
requirements. However, there is likewise no assurance that such
development will be successful and production will commence, and
that such cash flow will be available.
(3) Supplemental Cash Flow Information
There were no income taxes paid for the years ended December
31, 1997, 1996 and 1995.
(4) Income Taxes
Foreign income taxes are accounted for under the tax
structure in that country, principally China. As of December 31,
1997, the Company does not have undistributed earnings available
to its parent because of accumulated losses. Further, such
losses have provided no tax benefit to the parent company and
accordingly, there has been no tax impact. When necessary the
Company will enter into an appropriate tax sharing arrangement
with its parent.
(5) Other Commitments and Contingencies
Other commitments and contingencies include:
o The Company acquired the rights to the exploration,
development and production of the Zhao Dong Block by executing a
Production Sharing Agreement with CNODC in February 1993. Under
the terms of the Production Sharing Agreement, the Company and
its partner are responsible for all exploration costs. If a
commercial discovery is made, and if CNODC exercises its option
to participate in the development of the field, all development
and operating costs and related oil and gas production will be
shared up to 51 percent by CNODC and the remainder by the
Company and its partner.
The Production Sharing Agreement includes the following
additional principal terms:
The Production Sharing Agreement is basically divided
into three periods: the Exploration period, the
Development period and the Production period. Work to
be performed and expenditures to be incurred during the
Exploration period, which consists of three phases
totaling seven years from May 1, 1993, are the
exclusive responsibility of the Contractor (the Company
and its partner as a group). The Contractor's
obligations in the three exploration phases are as
follows:
1. During the first three years, the Contractor is
required to drill three wildcat wells, perform
seismic data acquisition and processing and expend
a minimum of $6 million. These obligations have
been met;
2. During the next two years, the Contractor is
required to drill two wildcat wells, perform
seismic data acquisition and processing and expend
a minimum of $4 million (The Contractor has
elected to proceed with the second phase of the
Contract. The seismic data acquisition
requirement for the second phase has been
satisfied.);
3. During the last two years, the Contractor is
required to drill two wildcat wells and expend a
minimum of $4 million.
4. The Production Period for any oil and/or gas
field covered by the Contract (the "Contract
Area") will be 15 consecutive years (each of 12
months), commencing for each such field on the
date of commencement of commercial production (as
determined under the terms of the Contract).
However, prior to the Production Period, and
during the Development Period, oil and/or gas may
be produced and sold during a long-term testing
period.
The Production Sharing Agreement may be terminated by the
Contractor at the end of each phase of the Exploration
period, without further obligation.
(6) Related Party Transactions
The Company has consistently borrowed money from its parent
for the acquisition and development of its oil and gas
properties. The amount due the parent as of December 31, 1997 is
approximately $52 million. All of the Common Stock of the
Company has been pledged as collateral for parent company debt
and the Company is a guarantor on certain Senior Secured Notes
described below.
Senior Secured Notes of Parent Company
--------------------------------------
On May 20, 1997, the parent company sold in an unregistered
offering to qualified institutional buyers and accredited
institutional investors 75,000 Note Units, each consisting of
$1,000 principal amount of 13.5% Senior Secured Notes due May 1,
2004 and one Common Stock Purchase Warrant to purchase 85 shares
of the parent's common stock, par value $0.01 per share (the
"Common Stock"), at an exercise price of $3.09 per share, first
exercisable after May 20, 1998.
Interest on the Notes is payable semi-annually on May 1 and
November 1, commencing November 1, 1997. The Notes will mature
on May 1, 2004. The Notes are not redeemable at the option of the
parent prior to May 1, 2002, except that the parent may redeem,
at its option prior to May 1, 2002, up to 35% of the original
aggregate principal amount of the Notes, at a redemption price of
113.5% of the aggregate principal amount of the Notes, plus
accrued and unpaid interest, if any, to the date of redemption,
with the net proceeds of any equity offering completed within 90
days prior to such redemption; provided that at least $48.75
million in aggregate principal amount of the Notes remain
outstanding. On or after May 1, 2002, the Notes are redeemable
at the option of the parent, in whole or in part, at an initial
redemption price of 106.75% of the aggregate principal amount of
the Notes until May 1, 2003, and at par thereafter, plus accrued
and unpaid interest, if any, to the date of redemption.
The Senior Secured Notes restrict, among other things, the
parent's and its subsidiaries ability to incur additional debt,
incur liens, pay dividends, or make certain other restricted
payments. It also limits the parent's ability to consummate
certain asset sales, enter into certain transactions with
affiliates, enter into mergers or consolidations, or dispose of
substantially all the parent's assets. The parent's ability to
comply with such covenants may be affected by events beyond its
control. The breach of any of these covenants could result in a
default. A default could allow holders of the Notes to declare
all amounts outstanding and accrued interest immediately due and
payable. A foreclosure on the stock of the Company could trigger
Apache's right of first refusal under the Participation Agreement
to purchase such stock or its option to purchase the parent's
interest in the Contract. There can be no assurance that the
assets of the parent and the Company, or any other Subsidiary
Guarantors would be sufficient to fully repay the Notes and the
parent's other indebtedness.
Supplemental Oil and Gas Information
The following supplementary information is presented in
accordance with the requirements of Statement of Financial
Accounting Standards No. 69 - "Disclosures About Oil and Gas
Producing Activities."
Capitalized Costs
-----------------
Capitalized costs relating to the Company's proved and
unevaluated oil and gas properties, are as follows (000's):
December 31
------------------
1997 1996
----- ----
Proved and unevaluated properties
under development $ 54,304 $ 34,305
======= =======
The capitalized costs for the oil and gas properties
represent cumulative expenditures related to the Zhao Dong Block
Production Sharing Agreement and will not be depreciated,
depleted or amortized until production is achieved.
The Company's investment in oil and gas properties as of
December 31, 1997, includes proved and unevaluated properties
which have been excluded from amortization. Such costs will be
evaluated in future periods based on management's assessment of
exploration activities, expiration dates of licenses, permits and
concessions, changes in economic conditions and other factors. As
these properties become evaluated or developed, their cost and
related estimated future revenue will be included in the
calculation of the DD&A rate. Such costs were incurred as
follows:
Costs for proved and unevaluated properties under
development were incurred as follows (000's):
Year Ended December 31
--------------------------------------
1994
Total 1997 1996 1995 and Prior
----- ---- ---- ---- ---------
Property acquisition costs $ 40,616 $ 14,208 $ 4,223 $ 7,023 $ 15,162
Capitalized interest costs 13,688 5,791 2,767 2,596 2,534
------- ------ ------- ----- ------
Total proved and
unevaluated properties
under development $ 54,304 $ 19,999 $ 6,990 $ 9,619 $ 17,696
======= ======= ====== ====== ======
Capitalized Costs Incurred
--------------------------
Total capitalized costs incurred by the Company with respect
to its oil and gas producing activities were as follows (000's):
Year Ended December 31
----------------------
1997 1996 1995
---- ---- ----
Costs incurred:
Unproved properties acquired $ -- $ -- $ 5,298
Capitalized internal costs 2,466 822 135
Capitalized interest and amortized
debt costs 5,791 2,767 2,596
Exploration 6,833 3,401 --
Development 4,909 -- 1,590
------- ----- -------
Total costs incurred $ 19,999 $ 6,990 $ 9,619
======= ====== ======
Proved Oil and Gas Reserves (Unaudited)
The following table sets forth estimates of the Company's
net interests in proved and proved developed reserves of oil and
gas and changes in estimates of proved reserves.
Crude Oil (MBbls)
----------------
1997 1996
---- ----
Proved reserves -
Beginning of year 10,579 --
Discoveries 1,183 10,579
Revisions of previous estimates -- --
Production -- --
Purchases (sales) of minerals in place -- --
Transfer of property to assets held for sale -- --
------ ------
End of year 11,762 10,579
====== ======
Proved developed reserves -
Beginning of year -- --
===== ======
End of year -- --
===== ======
The Company's estimated quantities of oil and gas as of
December 31, 1997 were prepared by H.J. Gruy and Associates,
Inc., independent engineers.
Supplementary Information (Unaudited)
The supplementary information set forth below presents
estimates of discounted future net cash flows from proved oil and
gas reserves and changes in such estimates. This information has
been prepared in accordance with requirements prescribed by the
Financial Accounting Standards Board (FASB). Inherent in the
underlying calculations of such data are many variables and
assumptions, the most significant of which are briefly described
below:
Future cash flows from proved oil and gas reserves were
computed on the basis of (a) contractual prices for oil and gas -
including escalations for gas - in effect at year-end, or (b) in
the case of properties being commercially developed but not
covered by contracts, the estimated market price for gas and the
posted price for oil in effect at year-end. Probable and
possible reserves - a portion of which, experience has indicated,
generally become proved once further development work has been
conducted - are not considered. Additionally, estimated future
cash flows are dependent upon the assumed quantities of oil and
gas delivered and purchased from the Company. Such deliverability
estimates are highly complex and are not only based on the
physical characteristics of a property but also include
assumptions relative to purchaser demand. Future prices actually
received may differ from the estimates in the standardized
measure.
Future net cash flows have been reduced by applicable
estimated operating costs, production taxes and future
development costs, all of which are based on current costs.
Future net cash flows are further reduced by future income
taxes which are calculated by applying the statutory federal
income tax rate to pretax future net cash flows after utilization
of available tax carryforwards.
To reflect the estimated timing of future net cash flows,
such amounts have been discounted by the Securities and Exchange
Commission prescribed annual rate of 10 percent.
In view of the uncertainties inherent in developing this
supplementary information, it is emphasized that the information
represents approximate amounts which may be imprecise and extreme
caution should accompany its use and interpretation.
Standardized Measure of Discounted Future Net Cash Flows Related
to Proved Oil and Gas Reserves
The standardized measure of discounted future net cash flows
from proved oil and gas reserves, determined in accordance with
rules prescribed by FASB No. 69 is summarized below, and does not
purport to present the fair market value of the Company's oil and
gas assets, but does present the present value of estimated
future cash flows that would result under the assumptions used.:
The Company previously excluded from this table, the effect of
income taxes because it believed it had a tax holiday in China.
Subsequent to December 31, 1997, the Company determined that it
would be subject to future income taxes at the maximum rate of
33% in China. Accordingly, the table below has been revised to
include estimates of such income taxes.
Year Ended December 31
--------------------
1997 1996
---- ----
(Thousands of Dollars)
Future cash inflows $ 205,765 $ 222,797
Future costs:
Production, including taxes (45,623) (39,033)
Development (41,093) (40,904)
------- -------
Future net inflows before income taxes 119,049 142,860
Future income taxes (1) (22,916) (35,658)
------- --------
Future net cash flows 96,133 107,202
10% discount factor (42,285) (44,596)
Transfer of properties to assets held for sale -- --
------- --------
Standardized measure of discounted net cash flows $ 53,848 $ 62,606
======= =======
- -------------------
(1) Future income taxws are computed by applying the maximum tax rate in China
applicable to foreign-funded enterprises of 33%.
Changes in Standardized Measure of Discounted Future Net Cash
Flow From Proven Reserve Quantities
Year Ended December 31
----------------------
1997 1996
---- ----
(Thousands of Dollars)
Standardized measure-beginning of year $ 62,606 $ --
Increases (decreases):
Sales and transfers, net of production costs -- --
Net change in sales and transfer prices, net of
production costs (16,396) --
Extensions, discoveries and improved recovery,
net of future costs -- 79,062
Changes in estimated future development costs (219) --
Development costs incurred during the period that
reduced future development costs -- --
Revisions of quantity estimates -- --
Accretion of discount -- --
Purchase (sales) of reserves in place -- --
Changes in production rates (timing) and other -- --
Reclassification of reserves to assets held for sale -- --
Net change in income taxes 7,857 (16,456)
------ -------
Standardized measure-end of year $ 53,848 $ 62,606
====== =======
Changes in and Disagreements on Accounting and Financial
Disclosure.
- -----------------------------------------------------------------
There have been no changes in and there are no disagreements
with the Company's accountants on accounting and financial
disclosure.
<PAGE>
No dealer, salesperson or any other person has been
authorized to give any information or to make any representations
in connection with the offer contained herein other than those
contained in this Prospectus, and, if given or made, such
information and representations must not be relied upon as having
been authorized by the Company or the Initial Purchaser. This
Prospectus does not constitute an offer to sell or a solicitation
of an offer to buy any security other than those to which it
relates nor does it constitute an offer to sell, or a
solicitation of an offer to buy, to any person in any
jurisdiction in which such offer or solicitation is not
authorized, or in which the person making the offer or
solicitation is not qualified to do so, or to any person to whom
it is unlawful to make such offer or solicitation. Neither the
delivery of this Prospectus nor any sale made hereunder shall,
under any circumstances, create any implication that there has
been no change in the affairs of the Company since the date
hereof or that the information contained herein is correct as of
any time subsequent to the date hereof.
------------------------
TABLE OF CONTENTS
Page
Available Information
Disclosure Regarding Forward-Looking Statements
Prospectus Summary
Risk Factors
Financial Restructuring
Use of Proceeds
Capitalization
Price Range of Common Stock
Dividend Policy
Oil and Gas Exploration and Production
Properties and Reserves
Selected Consolidated Financial Data
Management's Discussion and Analysis of Financial
Condition and Results of Operations
Significant Events Affecting the Company
Since June 30, 1998
Business
Management
Security Ownership of Certain Beneficial
Owners and Management
Description of Existing Debt
Description of Capital Stock
Material United States Income Tax Considerations
Selling Security Holders
Legal Matters
Experts
Engineers
Glossary of Terms
Index to Financial Statements
[LOGO]
XCL Ltd.
1,219,199 Shares 9.50%
Amended Series A, Cumulative
Convertible Preferred Stock
33,592,721 Shares Common Stock
_____________________________
Prospectus
_____________________________
___________, 1998
<PAGE>
PART II
Information Not Required in the Prospectus
Item 13. Other Expenses of Issuance and Distribution
Expenses in connection with the issuance and
distribution of the securities being registered are set forth in
the following table. All amounts except the registration fee are
estimated.
Expenses
--------
Registration Fee -
Securities and Exchange Commission $ 80,585
AMEX Filing Fee 17,500
Transfer Agent Fees and Expenses --
Accounting Fees and Expenses 20,000
Legal Fees and Expenses 30,000
Blue Sky Fees and Expenses --
Miscellaneous 4,000
-------
TOTAL $151,862
=======
The Company will bear all of the expenses of the
registration of the Securities being offered.
Item 14. Indemnification of Directors and Officers
The Company's Amended and Restated Certificate of
Incorporation (the "Certificate") provides that:
(A) No director of the Company will be personally
liable to the Company or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability
(i) for any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit.
(B) Each person who was or is made a party or is
threatened to be made a party to or involved in any action suit
or proceeding whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact
that he or she is or was a director, officer or employee of the
Company or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation or of
a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan,
whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer, employee
or agent, will be indemnified and held harmless by the Company to
the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended (but in the
case of any such amendment, only to the extent that such
amendment permits the Company to provide broader indemnification
rights than said law permitted the Company to provide prior to
such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, including excise
taxes with respect to an employee benefit plan, or penalties and
amounts paid in settlement) reasonably incurred or suffered by
such person in connection therewith and such indemnification will
continue as to a person who has ceased to be a director, officer,
employee or agent and will inure to the benefit of his or her
heirs, executors and administrators; provided, however, that,
except as described in (C) below, the Company will indemnify any
such person seeking indemnification in connection with a
proceeding (or part hereof) initiated by such person only if such
proceeding (or part thereof) was authorized by the board of
directors of the Company. The right to indemnification described
in this paragraph B includes the right to be paid by the Company
the expenses incurred in defending any such proceeding in advance
of its final disposition; provided, however, that if the Delaware
General Corporation Law requires, the payment of such expenses
incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a
proceeding, will be made only upon delivery to the Company of an
undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it will ultimately be determined
that such director or officer is not entitled to be indemnified
under the Certificate or otherwise.
(C) If a claim described in paragraph (B) above is
not paid in full by the Company within thirty (30) after written
claim has been received by the Company, the claimant may at any
time thereafter bring suit against the Company to recover the
unpaid amount of the claim and, if successful in whole or in
part, the claimant will be entitled to be paid also the expense
of prosecuting such claim. It will be a defense to any such
action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its
final disposition where the required undertaking, if any is
required, has been tendered to the Company) that the claimant has
not met the standards of conduct which make it permissible under
the Delaware General Corporation Law for the Company to indemnify
the claimant for the amount claimed, but the burden of proving
such defense will be on the Company. Neither the failure of the
Company (including its board of directors, independent legal
counsel, or its stockholders) to have made a determination prior
to the commencement of such action that indemnification of the
claimant is proper in the circumstances because he or she has met
the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the
Company (including its board of directors, independent legal
counsel, or its stockholders) that the claimant has not met such
applicable standard of conduct, will be a defense to the action
or create a presumption that the claimant has not met the
applicable standard of conduct.
(D) The right to indemnification and the payment of
expenses incurred in defending a proceeding in advance of its
final disposition conferred in the Certificate will not be
exclusive of any right which any person may have or hereafter
acquire under any statute, provision of the Certificate, the
Amended and Restated Bylaws of the Company (the "Bylaws"),
agreement, vote of stockholders or disinterested directors or
otherwise.
(E) The Company may maintain insurance, at its
expense, to protect itself and any director, officer, employee or
agent of the Company or another corporation, partnership, joint
venture, trust or other enterprise, including an employee benefit
plan, against any such expense, liability or loss, whether or not
the Company would have the power to indemnify such person against
such expense, liability or loss under the Delaware General
Corporation Law.
(F) Upon resolution passed by the board of
directors, the Company may establish a trust or other designated
account, grant a security interest or use other means (including,
without limitation, a letter of credit) to ensure the payment of
certain of its obligations arising under the indemnification
provisions contained in the Certificate.
(G) If any part of the indemnification provisions
contained in the Certificate will be found, in any action, suit
or proceeding or appeal therefrom or in any other circumstances
or as to any particular officer, director or employee to be
unenforceable, ineffective or invalid for any reason, the
enforceability, effect and validity of the remaining parts or of
such parts in other circumstances will not be affected, except as
otherwise required by applicable law.
The Bylaws provide that:
(i) the Company will indemnify to the full
extent permitted by, and in the manner permissible
under, the laws of the State of Delaware any person
made, or threatened to be made, a party to an action or
proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that he, his
testator or intestate is or was a director or officer
of the Company or any predecessor of the Company, or
served any other enterprise as a director or officer at
the request of the Company or any predecessor of the
Company.
(ii) the rights of indemnification described
in paragraph (i) above will be deemed to be a contract
between the Company and each director and officer who
serves in such capacity at any time while such
provision is in effect, and any repeal or modification
thereof will not affect any rights or obligations then
existing or any action, suit or proceeding theretofore
brought based in whole or in part upon any such state
of facts;
(iii) the rights of indemnification described
in paragraphs (i) and (ii) above will not be deemed
exclusive of any other rights to which any director or
officer may be entitled apart from the provisions of
Article VIII of the Bylaws (governing indemnification);
and
(iv) the board of directors in its discretion
will have power on behalf of the Company to indemnify
any person, other than a director or officer, made a
party to any action, suit or proceeding by reason of
the fact that he, his testator or intestate, is or was
an employee of the Company.
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
or persons controlling the registrant pursuant to the foregoing
provisions, the Company has been informed that in the opinion of
the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is
therefore unenforceable.
Item 15. Recent Sales of Unregistered Securities
Common Stock and Common Stock Purchase Warrants/Debt Securities
- ---------------------------------------------------------------
The following issuances which occurred prior to December 17, 1997
have not been adjusted to reflect the Company`s one-for-fifteen
reverse stock split effected on December 17, 1997.
O Effective September 17, 1998, the Company sold 351,015 (post
split) shares of Common Stock to Cumberland Partners through the
exercise of a stock purchase warrant exercisable at $2.50 per
share. The Company received $877,537 in payment of the exercise
price. The securities issued in this transaction were not
registered under the U.S. Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon the exemption provided by
Section 4(2) thereof.
O Effective August 19, 1998, the Company agreed to issue
65,622 (post split) shares of Common Stock to William Wang, a
resident of Taiwan, in respect of $222,500 payable in shares of
Common Stock pursuant to the terms of an agreement between the
Company and Mr. Wang dated October 1, 1997. The securities
issued in this transaction were not registered under the
Securities Act in reliance upon the exemption provided by
Regulation S.
O Effective June 30, 1998, the Company agreed to issue 35,000
(post split) shares of Common Stock and 17,000 (post-split)
Common Stock purchase warrants to Mr. Patrick B. Collins, as
consideration under a consulting agreement dated June 15, 1998.
The warrants are exercisable at $3.75 per share and expire on
June 30, 2003. The securities issued in this transaction were
not registered under the Securities Act in reliance upon the
exemption provided by Section 4(2) thereof.
O On March 11, 1998, the Company sold an aggregate of 128,887
(post split) shares of Common Stock, through the exercise of
stock purchase warrants to four partnerships of KAIM Non-
Traditional, L.P. The warrants were exercisable at $1.875 per
share and the Company received $241,663 in payment of the
exercise price. The securities issued in this transaction were
not registered under the Securities Act in reliance upon the
exemption provided by Section 4(2) thereof.
O On March 11, 1998, the Company sold an aggregate of 455,809
(post split) shares of Common Stock, through the exercise of
stock purchase warrants to five partnerships of KAIM Non-
Traditional, L.P. The warrants were exercisable at $0.15 per
share and the Company received $68,371 in payment of the exercise
price. The securities issued in this transaction were not
registered under the Securities Act in reliance upon the
exemption provided by Section 4(2) thereof.
O On January 23, 1998, the Company sold 11,333 (post split)
shares of Common Stock, through the exercise of stock purchase
warrants to Mr. Hans Ulrich Nadig. The warrants were exercisable
at $1.875 per share and the Company received $21,250 in payment
of the exercise price. The securities issued in this transaction
were not registered under the Securities Act in reliance upon the
exemption provided by Section 4(2) thereof.
O On January 19, 1998, the Company issued 55,625 (post split)
shares of Common Stock, to William Wang, a resident of Taiwan, in
respect of $222,500 payable in shares of Common Stock, pursuant
to the terms of an agreement between the Company and Mr. Wang
dated October 1, 1997. The securities issued in this transaction
were not registered under the Securities Act in reliance upon the
exemption provided by Regulation S thereof.
O In December 1997, the Company issued 86,190 (post split)
shares of Common Stock to certain holders of the Secured
Subordinated Notes in respect of $233,082.73 interest payable
April 1, 1997, including penalty interest thereon. The securities
issued in this transaction were not registered under the
Securities Act in reliance upon the exemption provided by Section
4(2) with respect to 21,547 shares and Regulation S with respect
to 64,643 shares.
O In December 1997, the Company issued 133,385 (post split)
shares of Common Stock to the holders of the Secured Subordinated
Notes in respect of $506,634.66 interest payable October 1, 1997,
including penalty interest thereon. The securities issued in this
transaction were not registered under the Securities Act in
reliance upon the exemption provided by Section 4(2) with respect
to 90,510 shares and Regulation S with respect to 42,875 shares.
O On November 3, 1997, the Company issued an aggregate of
12,906 shares of Amended Series A Preferred Stock in respect of
dividends payable thereon in additional shares of Amended Series
A Preferred Stock due November 1, 1997. The securities issued in
this transaction were not registered under the Securities Act in
reliance upon the exemption provided by Section 4(2) thereof.
O In November 1997, the Company issued 400,000 shares of
Common Stock and 200,000 Stock Purchase Warrants at an exercise
price of $0.25 per share on or before February 20, 2002 to
Patrick B. Collins as compensation under a Consulting Agreement
dated February 20, 1997. The securities issued in this
transaction were not registered under the Securities Act in
reliance upon the exemption provided by Section 4(2) thereof.
O On October 28 and 29, 1997, pursuant to an agreement
effective October 1, 1997, the Company issued to designees of
William Wang, who were all non-U.S. persons, an aggregate of
800,000 shares of Common Stock as compensation and to settle
certain instruments relating to prior compensation arrangements
between the Company and William Wang, a resident of Taiwan who
has performed services for the Company since 1991. The securities
issued in this transaction were not registered under the
Securities Act in reliance upon the exemption provided by
Regulation S thereof.
O On October 21, 1997, the Company sold 1,000,000 shares of
Common Stock, and on October 30, 1997, the Company sold 500,000
shares of Common Stock, both transactions through the exercise of
stock purchase warrants, to Providence Capital Limited of the
Cayman Islands. The warrants were exercisable at $0.1875 per
share and the Company received $281,250 in payment of the
exercise price. The securities issued in this transaction were
not registered under the Securities Act in reliance upon the
exemption provided by Regulation S thereof.
O On October 3, 1997, the Company sold 360,000 shares of
Common Stock, through the exercise of stock purchase warrants, to
Bank Hofmann AG of Zurich, Switzerland. The warrants were
exercisable at $0.125 per share and the Company received $45,000
in payment of the exercise price. The securities issued in this
transaction were not registered under the Securities Act in
reliance upon the exemption provided by Regulation S thereof.
O On October 3, 1997, the Company issued an aggregate of
450,000 shares of Common Stock in settlement of litigation
initiated by Ms. Kathy McIlhenny, a former employee of the
Company. Ms. McIlhenny received 300,000 shares and her
attorneys, Jacques F. Bezou and Robert H. Matthews, received
90,000 and 60,000 shares respectively. The securities issued in
this transaction were not registered under the Securities Act in
reliance upon the exemption provided by Section 4(2) thereof.
O On July 1, 1997, the Company issued 3 million stock purchase
warrants to Providence Capital Ltd. as compensation pursuant to a
Consulting Agreement entered into effective July 1, 1997, whereby
providence Capital Ltd. will assist the Company in locating
sources of financing in capital markets in Canada. The warrants
are exercisable at $0.1875 per share and expire August 13, 2001.
The securities issued in this transaction were not registered
under the Securities Act in reliance upon the exemption provided
by Regulation S thereof.
O On August 19, 1997, the Company sold in a series of private
placements in compliance with Regulation S under the Securities
Act, an aggregate of 638,000 shares of Common Stock through the
exercise of warrants previously granted to Providence Capital
Ltd. The warrants were exercisable at $0.125 per share and the
Company received $79,750 in payment of the exercise price. The
warrants were exercised outside the U.S. by persons or entities
who certified that they were non-U.S. persons as defined in
Regulation S and the shares were all delivered against payment
outside the U.S. in accordance with such Regulation.
O As set forth below, the Company sold in a series of private
placement in compliance with Regulation S under the Securities
Act, an aggregate of 870,000 shares of Common Stock through the
exercise of warrants previously granted to Sreedeswar Holdings,
Inc. These warrants were initially issued on December 22, 1995,
in connection with a series of Unit offerings conducted through
Rauscher Pierce & Clark, Inc., and its wholly-owned subsidiary,
Rauscher Pierce & Clark Ltd., as the Placement Agent, in
compliance with Regulation S of the Securities Act. The Company
agreed to reduce the exercise price of such warrants provided the
warrants were immediately exercised. Pursuant to such agreement
the initial warrant exercise prices of $0.25 per share were
reduced to $0.21 per share, net, with the Placement Agent
accepting $0.01 per share rather than 8% of the exercise price as
set forth in the Placement Agreement.
Exercise Date Warrants Exercised Shares Issued Net Consideration
------------- ------------------ ------------- -----------------
May 22, 1997 870,000 870,000 $182,700
In all instances the warrants were exercised outside the U.S.
by persons or entities who certified that they were non-U.S.
person as defined in Regulation S and the shares were all
delivered against payment outside the U.S. in accordance with
such Regulation.
O On May 20, 1997, the Company consummated (i) a private
offering of 75,000 units (the "Debt Units"), each consisting of
$1,000 principal amount of 13.50% Senior Secured Notes due May 1,
2004 and one Common Stock Purchase Warrant to purchase 1,280
shares of the Common Stock and (ii) a private offering of 294,118
units (the "Equity Units," and together with the Debt Units, the
"Units"), each consisting of one share of Amended Series A
Preferred Stock and one Warrant to purchase 327 shares of the
Company's common stock. The Units were sold to the Initial
Purchaser in transactions not registered under the Securities Act
in reliance upon Section 4(2) of the Securities Act and thereupon
offered and sold by the Initial Purchaser only to certain
qualified institutional buyers and institutional accredited
investors. The aggregate offering price of the Debt Units was
$75,000,000 and the aggregate offering price of the Equity Units
was $25,000,030. The aggregate discount to the Initial Purchaser
with respect to the Debt Units was $3,000,000 and with respect to
the Equity Units was $1,500,000.
O On April 8, 1997, the Company sold an aggregate of 276,000
shares of Common Stock to Je Hyun Lee, a non-U.S. person, for
which it received consideration of $51,750. The securities issued
in this transaction were not registered under the Securities Act
in reliance upon the exemption provided by Regulation S thereof.
O As set forth below, the Company sold in a private placement
in compliance with Regulation S under the Securities Act, an
aggregate of 3,000,000 shares of Common Stock through the
exercise of warrants previously granted to Providence Capital
Ltd. These warrants were initially issued on December 31, 1996
as incentive to exercise 4,168,000 warrants acquired in
connection with series of Unit offerings conducted through
Rauscher Pierce & Clark, Inc., and its wholly-owned subsidiary,
Rauscher Pierce & Clark Ltd., as the Placement Agent, in
compliance with Regulation S of the Securities Act.
Further, on April 22, 1997, the Company sold in a private
placement in compliance with Regulation S under the Securities
Act, 66,900 shares of Common Stock through the exercise of
warrants previously granted to Sreedeswar Holdings, Inc.
These warrants were initially issued on December 22, 1995, in
connection with a series of Unit offerings conducted through
Rauscher Pierce & Clark, Inc., and its wholly-owned
subsidiary, Rauscher Pierce & Clark Ltd., as the Placement
Agent, in compliance with Regulation S of the Securities Act.
The Company agreed to reduce the exercise price of such
warrants provided the warrants were immediately exercised.
Pursuant to such agreement the initial warrant exercise prices
of $0.25 per share were reduced to $0.21 per share, net, with
the Placement Agent accepting $0.01 per share rather than 8%
of the exercise price as set forth in the Placement Agreement.
Exercise Date Warrants Exercised Shares Issued Net Consideration
------------- ------------------ ------------- -----------------
April 18, 1997 440,289 440,289 $ 55,036
April 22, 1997 66,900 66,900 $ 14,049
April 30, 1997 2,559,711 2,559,711 $319,964
In all instances the warrants were exercised outside the U.S.
by persons or entities who certified that they were non-U.S.
persons as defined in Regulation S and the shares were all
delivered against payment outside the U.S. in accordance with
such Regulation.
O On April 10, 1997, in connection with obtaining a loan for
XCL-China Ltd. of $3.1 million, the Company granted an aggregate
of 10,092,980 warrants to a group of four limited partnerships
managed by Kayne Anderson Investment Management, Inc. ("KAIM")
(6,837,180); J. Edgar Monroe Foundation (325,580); Estate of J.
Edgar Monroe (976,740); Boland Machine & Mfg. Co., Inc.
(325,580); and Construction Specialists, Inc. d/b/a Con-Spec,
Inc. (1,627,900), entitling such lenders the right to acquire
10,092,980 shares of Common Stock at $0.01 per share, exercisable
on or before April 9, 2002. All proceeds of this financing were
applied to reduce the Company's indebtedness to Apache incurred
in connection with Zhao Dong Block operations. The securities
issued in this transaction were not registered under the
Securities Act in reliance upon the exemption provided by Section
4(2) thereof.
O Stock Purchase Warrants dated April 10, 1997, were issued to
ING (U.S.) Capital Corporation, as consideration for entering
into a Forbearance Agreement with the Company. Each warrant is
exercisable at $0.01 per share on or before April 9, 2002,
entitling ING to purchase up to 7,000,000 shares of Common Stock.
The securities issued in this transaction were not registered
under the Securities Act in reliance upon the exemption provided
by Section 4(2) thereof.
O On March 26, 1997, the Company sold 3,200,000 shares of
Common Stock to Je Hyun Lee, a non-U.S. person, for consideration
of $600,000. The securities issued in this transaction were not
registered under the Securities Act in reliance upon the
exemption provided by Regulation S thereof.
O As set forth below, the Company sold in a series of private
placements in compliance with Regulation S under the Securities
Act, an aggregate of 73,000 shares of Common Stock through the
exercise of warrants previously granted to Sreedeswar Holdings,
Inc. These warrants were initially issued on December 22, 1995,
in connection with a series of Unit offerings conducted through
Rauscher Pierce & Clark, Inc., and its wholly-owned subsidiary,
Rauscher Pierce & Clark Ltd., as the Placement Agent, in
compliance with Regulation S of the Securities Act. The Company
agreed to reduce the exercise price of such warrants provided the
warrants were immediately exercised. Pursuant to such agreement
the initial warrant exercise prices of $0.25 per share were
reduced to $0.21 per share, net, with the Placement Agent
accepting $0.01 per share rather than 8% of the exercise price as
set forth in the Placement Agreement.
Exercise Date Warrants Exercised Shares Issued Net Consideration
------------- ------------------ ------------- -----------------
March 21, 1997 73,000 73,000 $ 15,330
In all instances the warrants were exercised outside the U.S.
by persons or entities who certified that they were non-U.S.
persons as defined in Regulation S and the shares were all
delivered against payment outside the U.S. in accordance with
such Regulation.
O During February 1997, the Company sold its remaining
interest (41.089%) in the Seller Notes securing the Lutcher Moore
Tract ($217,961 in principal) to accredited investors for
$193,916 net after discount. In connection with the sale, the
Company issued stock purchase warrants to Donald A. and Joanne R.
Westerberg and T. Jerald Hanchey pursuant to which the purchasers
can acquire 1,874,467 shares of Common Stock at an exercise price
of $0.25 per share, expiring on December 31, 1999. The
securities issued by the Company in this transaction were not
registered under the Securities Act in reliance upon the
exemption provided by Section 4(2) thereof.
O As set forth below, the Company sold in a series of private
placements in compliance with Regulation S under the Securities
Act, an aggregate of 1,630,100 shares of Common Stock through the
exercise of warrants previously granted to Sreedeswar Holdings,
Inc. These warrants were initially issued on December 22, 1995,
in connection with a series of Unit offerings conducted through
Rauscher Pierce & Clark, Inc., and its wholly-owned subsidiary,
Rauscher Pierce & Clark Ltd., as the Placement Agent, in
compliance with Regulation S of the Securities Act. The Company
agreed to reduce the exercise price of such warrants provided the
warrants were immediately exercised. Pursuant to such agreement
the initial warrant exercise prices of $0.25 per share were
reduced to $0.21 per share, net, with the Placement Agent
accepting $0.01 per share rather than 8% of the exercise price as
set forth in the Placement Agreement.
Exercise Date Warrants Exercised Shares Issued Net Consideration
------------- ------------------ ------------- -----------------
February 4, 1997 1,000,000 1,000,000 $210,000
February 11, 1997 340,200 340,200 $ 71,442
February 20, 1997 184,800 184,800 $ 38,808
February 24, 1997 105,100 105,100 $ 22,071
In all instances the warrants were exercised outside the U.S.
by persons or entities who certified that they were non-U.S.
persons as defined in Regulation S and the shares were all
delivered against payment outside the U.S. in accordance with
such Regulation.
O As set forth below, the Company sold in a series of private
placements in compliance with Regulation S under the Securities
Act, an aggregate of 4,168,000 shares of Common Stock through the
exercise of warrants previously granted to Janz Financial Corp.
Ltd., now known as Providence Capital Ltd., or a designee
thereof, who certified that it was not a U.S. person as defined
in Regulation S. These warrants were initially issued on March
8, 1996, and August 14, 1996, in connection with a series of Unit
offerings conducted through Rauscher Pierce & Clark, Inc., and
its wholly-owned subsidiary, Rauscher Pierce & Clark Ltd., as the
Placement Agent, in compliance with Regulation S of the
Securities Act. By agreement dated November 19, 1996, the
Company agreed to reduce the exercise prices of such warrants
provided the warrants were immediately exercised. Pursuant to
such agreement the initial warrant exercise prices of $0.35 and
$0.25 per share were reduced to $0.125 per share.
Exercise Date Warrants Exercised Shares Issued Net Consideration
------------- ------------------ ------------- -----------------
December 27, 1996 664,000 664,000 $ 83,000
December 31, 1996 664,000 664,000 $ 83,000
December 31, 1996 800,000 800,000 $100,000
January 8, 1997 530,000 530,000 $ 66,250
January 9, 1997 1,510,000 1,510,000 $188,750
In all instances the warrants were exercised outside the U.S.
by persons or entities who certified that they were non-U.S.
persons as defined in Regulation S and the shares were all
delivered against payment outside the U.S. in accordance with
such Regulation.
O In December 1996 and January 1997, the Company issued Stock
Purchase Warrants dated December 31, 1996 (2,128,000 warrants)
and January 8, 1997 (2,040,000 warrants) to purchase up to an
aggregate of 4,168,000 shares of Common Stock at $0.125 per share
on or before August 13, 2001 to Providence Capital Ltd. as
additional consideration for the immediate exercise of 4,168,000
warrants described above at the reduced exercise price. The
securities issued in this transaction were not registered under
the Securities Act in reliance upon the exemption provided by
Regulation S thereof.
O In November 1996, the Company issued 6,271,288 shares of
Common Stock to holders of its Secured Subordinated Notes in
respect of $1,064,415.08 of interest payable October 1, 1996,
including penalty interest thereon. The securities issued in
this transaction were not registered under the Securities Act in
reliance upon the exemption provided by Section 4(2) with respect
to 5,330,594 shares and Regulation S with respect to 940,694
shares.
O In November 1996, the Company issued Stock Purchase Warrants
dated November 26, 1996, in connection with a sale of a 58.911%
interest in a 50% interest in certain promissory notes ($314,500
in principal) securing the Lutcher Moore Tract held by one of the
Company's wholly-owned subsidiaries for $250,000 in cash, net
after discount, entitling the following holders thereto to
purchase up to 2,666,666 shares of Common Stock at $0.125 per
share on or before December 31, 1999:
Warrant Holder Warrants
Opportunity Associates, L.P. 133,333
Kayne Anderson Non-Traditional
Investments, L.P. 666,666
Arbco Associates, L.P. 800,000
Offense Group Associates, L.P. 333,333
Foremost Insurance Company 266,667
Nobel Insurance Company 133,333
Evanston Insurance Company 133,333
Topa Insurance Company 200,000
The securities issued in this transaction were not
registered under the Securities Act in reliance upon the
exemption provided by Section 4(2) thereof.
O On October 30, 1996, the Company issued 33,125 shares of
Common Stock and warrants to purchase an additional 33,125 shares
of Common Stock to Mr. A. Rosenbloom issued in lieu of $14,326
cash compensation. The shares of Common Stock and the warrants
were subsequently returned to the Company by the recipient for
personal business reasons. The securities issued in this
transaction were not registered under the Securities Act in
reliance upon the exemption provided by Section 4(2) thereof.
O On October 30, 1996, the Company issued 1,325,000 shares of
Common Stock and warrants to purchase an additional 2,466,875
shares of Common Stock to Mr. Mitch Leigh in lieu of
approximately $580,000 in cash compensation under a consulting
agreement dated July 10, 1996. In February 1997, effective
October 1996, Mr. Leigh cancelled the consulting agreement and
returned the above-referenced shares of Common Stock and warrants
to the Company. The securities issued in this transaction were
not registered under the Securities Act in reliance upon the
exemption provided by Section 4(2) thereof.
O In August 1996, the Company sold 1,500,000 shares of Common
Stock in a private placement transaction to Provincial Securities
Ltd. for net consideration of $200,000. The securities issued in
this transaction were not registered under the Securities Act in
reliance upon the exemption provided by Regulation S thereof.
O In August 1996, the Company issued Common Stock Purchase
Warrants to Terrenex Acquisitions Corp. dated August 16, 1996,
entitling the holder thereof to purchase up to 300,000 shares of
Common Stock at $0.25 per share on or before December 31, 1998 as
compensation for locating a purchaser for 1,500,000 shares of
Common Stock sold to Provincial Securities Ltd. The securities
issued in this transaction were not registered under the
Securities Act in reliance upon the exemption provided by
Regulation S thereof.
O In August 1996, the Company issued 2,800,000 shares of
Common Stock and 2,800,000 Common Stock Purchase Warrants to Janz
Financial Corp. Ltd. ("Janz"), who placed the units with their
clients. Each unit was comprised of one share of Common Stock
and one five-year warrant to purchase one share of Common Stock.
The Company received $402,000 in proceeds from the placement. The
securities issued in this transaction were not registered under
the Securities Act in reliance upon the exemption provided by
Regulation S thereof.
O In August 1996, the Company issued to Janz, as compensation
for the placement of the 2,800,000 units described above, 280,000
Common Stock Purchase Warrants at an exercise price of $0.25 per
share until August 13, 2001. The securities issued in this
transaction were not registered under the Securities Act in
reliance upon the exemption provided by Regulation S thereof.
O In July 1996, the Company issued 1,500,000 Common Stock
Purchase Warrants exercisable at $.25 per share expiring five
years after the date of issuance, to Arthur Rosenbloom as
consideration for past fundraising services. The securities
issued in this transaction were not registered under the
Securities Act in reliance upon the exemption provided by Section
4(2) thereof.
O In July 1996, the Company issued 50,000 shares of Common
Stock held as treasury stock to an accredited non-U.S.
institutional investor, The Securities Management Trust Limited
A/C K, in a brokered transaction, for net proceeds after fees and
discounts of $12,875. The securities issued in this transaction
were not registered under the Securities Act in reliance upon the
exemption provided by Regulation S thereof.
O In June 1996, the Company issued 920,000 shares of Common
Stock held as treasury stock to an accredited non-U.S.
institutional investor, The Securities Management Trust Limited
A/C K, in a series of brokered transactions, for net proceeds
after fees and discounts of $133,900. The securities issued in
this transaction were not registered under the Securities Act in
reliance upon the exemption provided by Regulation S thereof.
O In May 1996, the Company issued an aggregate of 4,442,689
shares of Common Stock to the holders of its Secured Subordinated
Notes in consideration for $1,060,261.27 in interest payable
April 1, 1996, including penalty interest thereon. The securities
issued in this transaction were not registered under the
Securities Act in reliance upon the exemption provided by Section
4(2) with respect to 3,776,285 shares and Regulation S with
respect to 666,404 shares.
O On May 16, 1996, the Company issued 72,880 shares of Common
Stock to EnCap Investments, L.C. as consideration for a finders
fee of 4% ($22,775) earned in connection with the Regulation S
unit offering in Europe conducted by Rauscher Pierce & Clark, as
placement agent. The fee was based on the offering price of
$0.3125 per share. The securities issued in this transaction were
not registered under the Securities Act in reliance upon the
exemption provided by Section 4(2) thereof.
O On the following dates, the Company issued the following
numbers of Common Stock Purchase Warrants to Rauscher Pierce &
Clark in consideration for acting as placement agent for
Regulation S Units offerings conducted in Europe:
Closing Date Warrants
December 22, 1995 696,000
March 8, 1996 204,000
April 23, 1996 180,000
The securities issued in this transaction were not
registered under the Securities Act in reliance upon the
exemption provided by Regulation S thereof.
O On the following dates the Company issued units, each unit
consisting of one share of Common Stock and Stock Purchase
Warrants to acquire one share of Common Stock, in connection with
a Regulation S unit offering conducted through Rauscher Pierce &
Clark, as placement agent, as follows:
Closing Date Consideration Common Stock Warrants
December 22, 1995 $1,800,000 6,960,000 6,960,000
March 8, 1996 $ 400,000 2,040,000 2,040,000
April 23, 1996 $ 349,000 1,800,000 1,800,000
The securities issued in this transaction were not
registered under the Securities Act in reliance upon the
exemption provided by Regulation S thereof.
O On February 9, 1996, the Company sold from treasury stock
416,667 units, each unit consisting of one share of Common Stock
and one warrant to purchase Common Stock, to Longhorn Partners,
at a unit price of $0.30 per unit. The warrants are exercisable
on or before December 28, 2000 at an exercise price of $0.50 per
share. The securities issued in this transaction were not
registered under the Securities Act in reliance upon the
exemption provided by Section 4(2) thereof.
O On February 9, 1996, the Company issued to EnCap Investments
L.C. 50,000 shares of Common Stock held as treasury stock as
compensation for assisting the Company in transactions related to
the Zhao Dong Block. The securities issued in this transaction
were not registered under the Securities Act in reliance upon the
exemption provided by Section 4(2) thereof.
O On February 9, 1996, the Company issued 317,264 shares of
Common Stock to EnCap Investments, L.C. as consideration for a
finders fee of 4% ($99,145) in connection with the Regulation S
unit offering in Europe conducted by Rauscher Pierce & Clark, as
placement agent. The fee was based on the offering price of
$0.3125 per share. The securities issued in this transaction were
not registered under the Securities Act in reliance upon the
exemption provided by Section 4(2) thereof.
O In January 1996, the Company issued 2,063,686 shares of
Common Stock to the holders of the Company's Secured Subordinated
Notes in respect of $1,091,184.11 of interest payable October 1,
1995, including penalty interest thereon. The securities issued
in this transaction were not registered under the Securities Act
in reliance upon the exemption provided by Section 4(2) with
respect to 1,754,133 shares and Regulation S with respect to
309,553 shares.
O In January 1996, the Company issued to Target Benefit
Pension Trust (66,667) and Butler Partners (416,667) Common Stock
Purchase Warrants exercisable at $.50 per share and expiring
December 28, 2000 in consideration for their agreement to not
sell shares of Common Stock acquired by them from certain
institutional investors for a 90-day period following the
acquisition. The securities issued in this transaction were not
registered under the Securities Act in reliance upon the
exemption provided by Section 4(2) thereof.
O In January 1996, the Company issued to the Trust of Mitch
Leigh FBO David Leigh (216,663) and FBO Rebecca Leigh (216,667)
Common Stock Purchase Warrants exercisable at $.50 per share
expiring January 2, 2001 in connection with a January 1996, in
consideration for their agreement not to sell shares of common
Stock acquired by them from certain institutional investors for a
90-day period following the acquisition. The securities issued in
this transaction were not registered under the Securities Act in
reliance upon the exemption provided by Section 4(2) thereof.
O On December 6, 1995, the Company sold to John Chandler, from
shares of Common Stock reserved for payment to William Wang,
186,896 shares of Common Stock at $0.35 per share. The proceeds
of $65,414 were applied to reduction of Mr. Wang's receivable
with the Company. The securities issued in this transaction were
not registered under the Securities Act in reliance upon the
exemption provided by Section 4(2) thereof.
O In December 1995, the Company issued to Messrs. Steven
Gottlieb (333,334); Ron Savarese (83,334) and Tushar Ramani
(333,334) Common Stock Purchase Warrants exercisable at $.50 per
share in consideration for their agreement to not sell shares of
Common Stock acquired by them from certain institutional
investors for a 90-day period following the acquisition. The
securities issued in this transaction were not registered under
the Securities Act in reliance upon the exemption provided by
Section 4(2) thereof.
O On September 21, 1995, the Company sold 75,000 units, each
unit comprised of one share of Common Stock and warrant to
purchase Common Stock to Arthur Rosenbloom for a purchase price
of $32,438 at $0.4325 per unit. The securities issued in this
transaction were not registered under the Securities Act in
reliance upon the exemption provided by Section 4(2) thereof.
O On September 21, 1995, the Company sold 3,000,000 units,
each unit comprised of one share of Common Stock and warrants to
purchase Common Stock to Mitch Leigh for a purchase price of
$1,297,500 at $0.4325 per unit. The securities issued in this
transaction were not registered under the Securities Act in
reliance upon the exemption provided by Section 4(2) thereof.
O On September 21, 1995, the Company issued 50,000 shares of
Common Stock and 100,000 warrants to purchase Common Stock to
Arthur Rosenbloom in lieu of $22,125 of cash compensation for
placing 3,000,000 units (described below). In February 1997, Mr.
Rosenbloom returned these securities with the value of such
securities applied to Mr. Rosenbloom's subscription for Series F
Preferred Stock issued in February 1997. The securities issued in
this transaction were not registered under the Securities Act in
reliance upon the exemption provided by Section 4(2) thereof.
O In August 1995, the Company issued an aggregate of 4,266,861
shares of Common Stock to its certain holders of Series A
Preferred Stock in respect of $1.2 million in dividends payable
December 31, 1994 and $1.3 million in dividends payable June 30,
1995. The securities issued in this transaction were not
registered under the Securities Act in reliance upon the
exemptions provided by Section 4(2) and Regulation S thereof.
O In June 1995, the Company issued 1,640,602 shares of Common
Stock to the holders of the Secured Subordinated Notes in respect
of $1,074,664.07 interest payable April 1, 1995, including
penalty interest thereon. The securities issued in this
transaction were not registered under the Securities Act in
reliance upon the exemption provided by Section 4(2) with respect
to 1,394,511 shares and Regulation S with respect to 246,091
shares.
Series A Preferred Stock
------------------------
During 1990, the Company completed a rights offering of
600,000 units of 50 U.K. Pounds Sterling per "unit," each unit
consisting of 1 share of Series A, Cumulative Convertible
Preferred Stock, par value $1.00 per share ("Series A Preferred
Stock") and 10 warrants to purchase Common Stock which expired
unexercised pursuant to their terms. Until November 10, 1997 the
Series A Preferred Stock was listed on the London Stock Exchange,
and: ranked senior to Common Stock and pari passu with the
Company's Series B, Series E and Series F Preferred Stock with
respect to payment of dividends and distributions on liquidation;
had a liquidation preference of 50 U.K. Pounds Sterling per share
plus accrued and unpaid dividends; was not redeemable in certain
limited circumstances; was nonvoting as a class, except in certain
circumstances, including the right to cast 21 votes for each share
of Series A Preferred Stock held on all resolutions proposed at a
meeting of shareholders if, at the date of notice convening a meeting
of shareholders, the dividend on the Series A Preferred Stock was
six months or more in arrears. The Series A Preferred Stock was
convertible, at the holder's option, on the basis of 21 shares of
Common Stock for every one share of Series A Preferred Stock,
subject to adjustment and bore a cumulative dividend fixed at an
annual rate of 4.50 U.K. Pounds Sterling per share, payable semi-
annually in cash, or, at the Company's election, in additional
shares of Series A Preferred Stock.
During the second quarter of 1996, the Company issued
450,261 shares of Common Stock upon conversion of 21,441 shares
of Series A Preferred Stock, pursuant to the terms thereof.
During March 1997 an additional 39 shares of Series A Preferred
Stock were converted into 819 shares of Common Stock.
During February 1997, the Company sold 13,458 shares of
Series A Preferred Stock to accredited investors for $157,240.
The proceeds were used to pay the withholding taxes and
fractional interests with respect to the December 31, 1995
dividend payment. The securities issued by the Company in this
transaction were not registered under the Securities Act in
reliance upon the exemption provided by Section 4(2) thereof. In
March 1997, the Company issued an additional 50,137 shares of
Series A Preferred Stock to holders of Series A Preferred Stock
in payment of this dividend, therefore fulfilling its obligation
for such dividend period. Effective November 10, 1997, the
Company recapitalized and combined the Series A Preferred Stock
into an aggregate of 726,907 shares of Amended Series A Preferred
Stock (including approximately $900,000 in unpaid dividends
declared for June 30, 1995 and accrued and unpaid dividends from
June 30, 1996 through November 9, 1997).
Series B Preferred Stock/Amended Series B Preferred Stock
------------------------------------------------------------
The Series B, Cumulative Convertible Preferred Stock,
par value $1.00 per share (the "Series B Preferred Stock") bears
a cumulative fixed dividend at an annual rate of $10 per share,
payable semiannually, and is entitled to 50 votes per share on
all matters on which Common Stockholders are entitled to vote and
separately as a class on certain matters; ranks senior to the
Common Stock and pari passu with the Series A and Series E
Preferred Stocks of the Company with respect to the payment of
dividends and distributions on liquidation; and has a liquidation
preference of $100 per share plus accumulated dividends.
The Company had the option through May 1994, to pay the
dividend in shares of Common Stock, in which case the annual
dividend rate was $12 per share, with the holder being entitled
to require the Company to use its best efforts to sell such
shares on their behalf and to reimburse such holder for the
difference, if any, between such net proceeds and $11 per share
per annum. The Company is currently entitled to pay the
redemption price of the Series B Preferred Stock in shares of
Common Stock.
Effective June 30, 1994, the terms of the Series B
Preferred Stock were amended to permit the Company to issue
shares of Common Stock in lieu of cash dividends for so long as
the Series B Preferred Stock remains outstanding. In
consideration for this amendment, the Series B Preferred Stock
was further amended: (i) to reduce the exercise price of the
remaining 2.5 million warrants outstanding from $2.00 to $1.50
per share and to increase the number of shares of Common Stock
covered by such warrants to 3.325 million shares and (ii) to
extend the option of the holders to redeem their shares of Series
B Preferred Stock, which were only redeemable on the third,
fourth and fifth anniversaries of the dates of their issuance and
automatically upon exercise of the remaining warrants, upon
ninety days notice to the Company, at any time and from time to
time, after August 31, 1994, with the Company retaining the right
to pay the redemption price in Common Stock.
In May 1995, the holder of the Series B Preferred Stock
exercised its redemption rights. In July 1997, the holder
commenced a lawsuit against the Company and its then-directors
regarding the redemption of the shares. Effective December 31,
1997, the Company and the holder of the Series B Preferred Stock
entered into an interim settlement with respect to the action,
conditioned upon the closing of the final settlement on or before
February 27, 1998 which was later extended to March 6, 1998. The
closing of the final settlement took place on March 3, 1998, and
on that date the holder of the Series B Preferred Stock sold the
stock and accompanying warrants to Arbco Associates, L.P., Kayne
Anderson Non-Traditional Investments, L.P., Offense Group
Associates, L.P. and Opportunity Associates, L.P., each a
California limited partnership whose general partner is KAIM Non-
Traditional, L.P. The purchasers exchanged the Series B
Preferred Stock and accompanying warrants for an aggregate of
44,465 shares of Amended Series B Preferred Stock and warrants to
purchase 250,000 shares of Common Stock, subject to adjustment,
and received 2,620 shares of Amended Series B Preferred Stock in
payment of all accrued and unpaid dividends on the shares of
Series B Preferred Stock exchanged by them.
On June 30, 1998, the Company issued 1,320 shares of
Amended Series B Preferred Stock in respect of an in-kind
dividend payable on that date.
Series E Preferred Stock
------------------------
During the third quarter of 1995 and first quarter of
1996, the Company completed a private placement of up to an
aggregate of 50,000 shares of a new series of Preferred Stock
designated the Series E, Cumulative Convertible Preferred Stock,
$1.00 par value per share ("Series E Preferred Stock"). The
Company placed 44,129 shares of Series E Preferred Stock for
which it received approximately $1.9 million in cash and 2.8
million shares of its unregistered Common stock valued at $1.4
million in consideration. During 1996, the Company issued 2,525
shares of Series E Preferred Stock in payment of the December 31,
1995 and June 30, 1996 dividends. During 1997, the Company
issued 5,261 shares of Series E Preferred Stock in payment of the
December 31, 1996 and June 30, 1997 dividends. Effective
November 10, 1997, the Company recapitalized and combined the
Series E Preferred Stock into an aggregate of 63,706 shares of
Amended Series A Preferred Stock (including accrued and unpaid
dividends paid in kind).
Series F Preferred Stock
------------------------
In December 1996, XCL authorized the issuance of up to
50,000 shares of a new series of Preferred Stock designated the
Series F, Cumulative Convertible Preferred Stock, $1.00 par value
per share ("Series F Preferred Stock") to two existing
stockholders of XCL. During February 1997, the Company issued a
total of 21,057 shares of Series F Preferred Stock to Mitch
Leigh, Abby Leigh and Arthur Rosenbloom in consideration of
$225,000, assignment of 1,408,125 shares of Common Stock and
2,500,000 warrants to purchase Common Stock and the release by
the purchasers of certain claims against the Company arising from
the Company's inability to perform under the terms of existing
agreements. Each share of Series F Preferred Stock is
convertible into 400 shares of Common Stock. In July 1997, the
Company issued 1,261 shares of Series F Preferred Stock in
payment of the June 30, 1997 dividends. In January 1998, the
forced conversion feature of the Series F Preferred Stock was
amended and effective January 16, 1998, the Company exercised its
right to force conversion of the Series F Preferred Stock into
633,893 (post split) shares of Common Stock including accrued and
unpaid dividends thereon.
All of the aforementioned securities were issued in
transactions intended to qualify for an exemption from
registration under the Securities Act afforded by Section 4(2)
thereof and Regulation D and/or Regulation S promulgated
thereunder.
Item 16. Exhibits and Financial Schedules
The following instruments and documents are included as
Exhibits to this Registration Statement. Exhibits incorporated
by reference are so indicated by parenthetical information.
Exhibit No. Exhibit
3.1 Amended and Restated Certificate of Incorporation of the
Company. (S)(i)
3.2 Amended and Restated By-Laws of the Company. (A)(i)
4.1 Forms of Common Stock Certificates. (R)(i)
4.2 Form of Warrant dated January 31, 1994 to purchase
2,500,000 shares of Common Stock at an exercise price of
$1.00 per share, subject to adjustment, issued to INCC.
(D)(i)
4.3 Form of Registrar and Stock Transfer Agency Agreement,
effective March 18, 1991, entered into between the Company
and Manufacturers Hanover Trust Company (predecessor to
Chemical Bank), whereby Chemical Bank (now known as
ChaseMellon Shareholder Services) serves as the Company's
Registrar and U.S. Transfer Agent. (E)
4.4 Copy of Warrant Agreement and Stock Purchase Warrant
dated March 1, 1994 to purchase 500,000 shares of Common
Stock at an exercise price of $1.00 per share, subject to
adjustment, issued to EnCap Investments, L.C. (D)(ii)
4.5 Copy of Warrant Agreement and form of Stock Purchase
Warrant dated March 1, 1994 to purchase an aggregate 600,000
shares of Common Stock at an exercise price of $1.00 per
share, subject to adjustment, issued to principals of San
Jacinto Securities, Inc. in connection with its financial
consulting agreement with the Company. (D)(iii)
4.6 Form of Warrant Agreement and Stock Purchase Warrant
dated April 1, 1994, to purchase an aggregate 6,440,000
shares of Common Stock at an exercise price of $1.25 per
share, subject to adjustment, issued to executives of the
Company surrendering all of their rights under their
employment contracts with the Company. (C)(i)
4.7 Form of Warrant Agreement and Stock Purchase Warrant
dated April 1, 1994, to purchase an aggregate 878,900 shares
of Common Stock at an exercise price of $1.25 per share,
subject to adjustment, issued to executives of the Company
in consideration for salary reductions sustained under their
employment contracts with the Company. (C)(ii)
4.8 Form of Warrant Agreement and Stock Purchase Warrant
dated April 1, 1994, to purchase 200,000 shares of Common
Stock at an exercise price of $1.25 per share, subject to
adjustment, issued to Thomas H. Hudson. (C)(iii)
4.9 Form of Warrant Agreement and Stock Purchase Warrant
dated May 25, 1994, to purchase an aggregate 100,000 shares
of Common Stock at an exercise price of $1.25 per share,
subject to adjustment, issued to the holders of Purchase
Notes B, in consideration of amendment to payment terms of
such Notes. (C)(iv)
4.10 Form of Warrant Agreement and Stock Purchase Warrant
dated May 25, 1994, to purchase an aggregate 100,000 shares
of Common Stock at an exercise price of $1.25 per share,
subject to adjustment, issued to the holders of Purchase
Notes B, in consideration for the granting of an option to
further extend payment terms of such Notes. (C)(v)
4.11 Form of Purchase Agreement between the Company and each
of the Purchasers of Units in the Regulation S Unit Offering
conducted by Rauscher Pierce & Clark with closings as
follows:
December 22, 1995 116 Units
March 8, 1996 34 Units
April 23, 1996 30 Units (J)(i)
4.12 Form of Warrant Agreement between the Company and each
of the Purchasers of Units in the Regulation S Unit Offering
conducted by Rauscher Pierce & Clark, as follows:
Closing Date Warrants Exercise Price
December 22, 1995 6,960,000 $.50
March 8, 1996 2,040,000 $.35
April 23, 1996 1,800,000 $.35 (J)(ii)
4.13 Form of Warrant Agreement between the Company and
Rauscher Pierce & Clark in consideration for acting as
placement agent in the Regulation S Units Offering, as
follows:
Closing Date Warrants Exercise Price
December 22, 1995 696,000 $.50
March 8, 1996 204,000 $.35
April 23, 1996 180,000 $.35 (J)(iii)
4.14 Form of a series of Stock Purchase Warrants issued to
Janz Financial Corp. Ltd. dated August 14, 1996, entitling
the holders thereof to purchase up to 3,080,000 shares of
Common Stock at $0.25 per share on or before August 13,
2001. (M)(i)
4.15 Stock Purchase Agreement between the Company and
Provincial Securities Ltd. dated August 16, 1996, whereby
Provincial purchased 1,500,000 shares of Common Stock in a
Regulation S transaction. (M)(ii)
4.16 Stock Purchase Warrant issued to Terrenex Acquisitions
Corp. dated August 16, 1996, entitling the holder thereof to
purchase up to 3,000,000 shares of Common Stock at $0.25 per
share on or before December 31, 1998. (M)(iii)
4.17 Form of a series of Stock Purchase Warrants dated
November 26, 1996, entitling the following holders thereto
to purchase up to 2,666,666 shares of Common Stock at $0.125
per share on or before December 31, 1999:
Warrant Holder Warrants
Opportunity Associates, L.P. 133,333
Kayne Anderson Non-Traditional
Investments, L.P. 666,666
Arbco Associates, L.P 800,000
Offense Group Associates, L.P. 333,333
Foremost Insurance Company 266,667
Nobel Insurance Company 133,333
Evanston Insurance Company 133,333
Topa Insurance Company 200,000 (N)(i)
4.18 Form of a series of Stock Purchase Warrants dated
December 31, 1996 (2,128,000 warrants) and January 8, 1997
(2,040,000 warrants) to purchase up to an aggregate of
4,168,000 shares of Common Stock at $0.125 per share on or
before August 13, 2001. (N)(ii)
4.19 Form of Stock Purchase Warrants dated February 6, 1997,
entitling the following holders to purchase an aggregate of
1,874,467 shares of Common Stock at $0.25 per share on or
before December 31, 1999:
Warrant Holder Warrants
Donald A. and Joanne R. Westerberg 241,660
T. Jerald Hanchey 1,632,807 (N)(iii)
4.20 Form of a series of Stock Purchase Warrants dated April
10, 1997, issued as a part of a unit offered with Unsecured
Notes of XCL-China Ltd., exercisable at $0.01 per share on
or before April 9, 2002, entitling the following holders to
purchase up to an aggregate of 10,092,980 shares of Common
Stock:
Warrant Holder Warrants
Kayne Anderson Offshore L.P. 651,160
Offense Group Associates, L.P. 1,627,900
Kayne Anderson Non-Traditional
Investments, L.P. 1,627,900
Opportunity Associates, L.P. 1,302,320
Arbco Associates, L.P. 1,627,900
J. Edgar Monroe Foundation 325,580
Estate of J. Edgar Monroe 976,740
Boland Machine & Mfg. Co., Inc. 325,580
Construction Specialists, Inc.
d/b/a Con-Spec, Inc. 1,627,900 (N)(iv)
4.21 Form of Purchase Agreement dated May 13, 1997, between
the Company and Jefferies & Company, Inc. (the "Initial
Purchaser") with respect to 75,000 Units each consisting of
$1,000 principal amount of 13.5% Senior Secured Notes due
May 1, 2004, Series A and one warrant to purchase 1,280
shares of the Company's Common Stock with an exercise price
of $0.2063 per share ("Note Warrants"). (O)(i)
4.22 Form of Purchase Agreement dated May 13, 1997, between
the Company and Jefferies & Company, Inc. (the "Initial
Purchaser") with respect to 294,118 Units each consisting of
one share of Amended Series A, Cumulative Convertible
Preferred Stock ("Amended Series A Preferred Stock") and one
warrant to purchase 327 shares of the Company's Common Stock
with an exercise price of $0.2063 per share ("Equity
Warrants"). (O)(ii)
4.23 Form of Warrant Agreement and Warrant Certificate dated
May 20, 1997, between the Company and Jefferies & Company,
Inc., as the Initial Purchaser, with respect to the Note
Warrants. (O)(iii)
4.24 Form of Warrant Agreement and Warrant Certificate dated
May 20, 1997, between the Company and Jefferies & Company,
Inc., as the Initial Purchaser, with respect to the Equity
Warrants. (O)(iv)
4.25 Form of Designation of Amended Series A Preferred Stock
dated May 19, 1997. (O)(v)
4.26 Form of Amended Series A Preferred Stock certificate.
(O)(vi)
4.27 Form of Global Unit Certificate for 75,000 Units
consisting of 13.5% Senior Secured Notes due May 1, 2004 and
Warrants to Purchase Shares of Common Stock. (O)(vii)
4.28 Form of Global Unit Certificate for 293,765 Units
consisting of Amended Series A Preferred Stock and Warrants
to Purchase Shares of Common Stock. (O)(viii)
4.29 Form of Warrant Certificate dated May 20, 1997, issued
to Jefferies & Company, Inc., with respect to 12,755
warrants to purchase shares of Common Stock of the Company
at an exercise price of $0.2063 per share. (O)(ix)
4.30 Form of Stock Purchase Agreement dated effective as of
October 1, 1997, between the Company and William Wang,
whereby the Company issued 800,000 shares of Common Stock to
Mr. Wang, as partial compensation pursuant to a Consulting
Agreement. (Q)(i)
4.31 Form of Stock Purchase Warrants dated effective as of
February 20, 1997, issued to Mr. Patrick B. Collins with
respect to 200,000 warrants to purchase shares of Common
Stock of the Company at an exercise price of $0.25 per
share, issued as partial compensation pursuant to a
Consulting Agreement. (Q)(ii)
4.32 Certificate of Amendment to the Certificate of
Designation of Series F, Cumulative Convertible Preferred
Stock dated January 6, 1998. (R)(ii)
4.33 Form of Stock Purchase Warrants dated January 16, 1998,
issued to Arthur Rosenbloom (6,389), Abby Leigh (12,600) and
Mitch Leigh (134,343) to purchase shares of Common Stock of
the Company at an exercise price of $0.15 per share, on or
before December 31, 2001. (R)(iii)
4.34 Certificate of Designation of Amended Series B,
Cumulative Convertible Preferred Stock dated March 4, 1998.
(R)(iv)
4.35 Correction to Certificate of Designation of Amended
Series B, Cumulative Convertible Preferred Stock dated March
5, 1998. (R)(v)
4.36 Second Correction to Certificate of Designation of
Amended Series B Preferred Stock dated March 19, 1998.
(R)(vi)
4.37 Form of Stock certificate representing shares of Amended
Series B Preferred Stock. (S)(ii)
4.38 Form of Agreement dated March 3, 1998 between the
Company and Arbco Associates, L.P., Kayne Anderson Non-
Traditional Investments, L.P., Offense Group Associates,
L.P. and Opportunity Associates, L.P. for the exchange of
Series B Preferred Stock and associated warrants into
Amended Series B Preferred Stock and warrants. (S)(iii)
4.39 Form of Stock Purchase Warrants dated March 3, 1998
between the Company and the following entities:
Holder Warrants
Arbco Associates, L.P. 85,107
Kayne Anderson Non-Traditional
Investments, L.P. 79,787
Offense Group Associates, L.P. 61,170
Opportunity Associates, L.P. 23,936 (S)(iv)
4.40 Form of Stock Purchase Warrant dated effective as of
June 30, 1998, issued to Mr. Patrick B. Collins with respect
to 17,000 warrants to purchase shares of Common Stock of the
Company at an exercise price of $3.75 per share, issued as
partial compensation pursuant to a Consulting Agreement.*
4.41 Form of Warrant Exchange Agreement and Stock Purchase
Warrant dated September 15, 1998 to purchase an aggregate of
351,015 shares of Common Stock at an exercise price of $2.50
per share, subject to adjustment, issued to Cumberland
Partners in exchange for certain warrants held by Cumberland
Partners.*
5.1 Opinion of Satterlee Stephens Burke & Burke LLP (to be
filed by Amendment).
10.1 Contract for Petroleum Exploration, Development and
Production on Zhao Dong Block in Bohai Bay Shallow Water Sea
Area of The People's Republic of China between China
National Oil and Gas Exploration and Development Corporation
and XCL-China Ltd., dated February 10, 1993. (B)
10.2 Form of Net Revenue Interest Assignment dated February
23, 1994, between the Company and the purchasers of the
Company's Series D, Cumulative Convertible Preferred Stock.
(D)(iv)
10.3 Modification Agreement for Petroleum Contract on Zhao
Dong Block in Bohai Bay Shallow Water Sea Area of The
People's Republic of China dated March 11, 1994, between the
Company, China National Oil and Gas Exploration and
Development Corporation and Apache China Corporation LDC.
(D)(v)
10.4 Consulting agreement between the Company and Sir Michael
Palliser dated April 1, 1994. (F)(i)
10.5 Consulting agreement between the Company and Mr. Arthur
W. Hummel, Jr. dated April 1, 1994. (F)(ii)
10.6 Letter of Intent between the Company and CNPC United
Lube Oil Corporation for a joint venture for the manufacture
and sale of lubricating oil dated January 14, 1995. (G)(i)
10.7 Farmout Agreement dated May 10, 1995, between XCL China
Ltd., a wholly owned subsidiary of the Company and Apache
Corporation whereby Apache will acquire an additional
interest in the Zhao Dong Block, Offshore People's Republic
of China. (G)(ii)
10.8 Modification Agreement of Non-Negotiable Promissory
Note and Waiver Agreement between Lutcher & Moore
Cypress Lumber Company and L.M. Holding Associates, L.P.
dated June 15, 1995. (H)(i)
10.9 Third Amendment to Credit Agreement between Lutcher-
Moore Development Corp., Lutcher & Moore Cypress Lumber
Company, The First National Bank of Lake Charles, Mary
Elizabeth Mecom, The Estate of John W. Mecom, The Mary
Elizabeth Mecom Irrevocable Trust, Matilda Gray Stream, The
Opal Gray Trust, Harold H. Stream III, The
Succession of Edward M. Carmouche, Virginia Martin
Carmouche and L.M. Holding Associates, L.P. dated June 15,
1995. (H)(ii)
10.10 Second Amendment to Appointment of Agent for
Collection and Agreement to Application of Funds between
Lutcher-Moore Development Corp., Lutcher & Moore Cypress
Lumber Company, L.M. Holding Associates, L.P. and The
First National Bank of Lake Charles, dated June 15,
1995. (H)(iii)
10.11 Contract of Chinese Foreign Joint Venture dated July
17, 1995, between United Lube Oil Corporation and XCL
China Ltd. for the manufacturing and selling of
lubricating oil and related products. (H)(iv)
10.12 Letter of Intent dated July 17, 1995 between CNPC
United Lube Oil Corporation and XCL Ltd. for discussion of
further projects. (H)(v)
10.13 Copy of Letter Agreement dated March 31, 1995, between
the Company and China National Administration of Coal
Geology for the exploration and development of coal bed
methane in Liao Ling Tiefa and Shanxi Hanchang Mining
Areas. (I)(i)
10.14 Memorandum of Understanding dated December 14, 1995,
between XCL Ltd. and China National Administration of Coal
Geology. (J)(iv)
10.15 Form of Fourth Amendment to Credit Agreement between
Lutcher-Moore Development Corp., Lutcher & Moore Cypress
Lumber Company, The First National Bank of Lake Charles,
Mary Elizabeth Mecom, The Estate of John W. Mecom, The
Mary Elizabeth Mecom Irrevocable Trust, Matilda Gray
Stream, The Opal Gray Trust, Harold H. Stream III, The
Succession of Edward M. Carmouche, Virginia Martin
Carmouche and L.M. Holding Associates, L.P. dated January
16, 1996. (J)(v)
10.16 Form of Third Amendment to Appointment of Agent for
Collection and Agreement to application of Funds between
Lutcher-Moore Development Corp., Lutcher & Moore Cypress
Lumber Company, L.M. Holding Associates, L.P. and The
First National Bank of Lake Charles, dated January 16,
1996. (J)(vi)
10.17 Copy of Purchase and Sale Agreement dated March 8,
1996, between XCL-Texas, Inc. and Tesoro E&P Company, L.P.
for the sale of the Gonzales Gas Unit located in south
Texas. (J)(vii)
10.18 Copy of Limited Waiver between the Company and
Internationale Nederlanden (U.S.) Capital Corporation
dated April 3, 1996. (J)(viii)
10.19 Copy of Purchase and Sale Agreement dated April 22,
1996, between XCL-Texas, Inc. and Dan A. Hughes Company
for the sale of the Lopez Gas Units located in south Texas.
(K)
10.20 Form of Sale of Mineral Servitude dated June 18, 1996,
whereby the Company sold its 75 percent mineral interest in
the Phoenix Lake Tract to the Stream Family Limited Partners
and Virginia Martin Carmouche Gayle. (L)(i)
10.21 Form of Fifth Amendment to Credit Agreement between
Lutcher-Moore Development Corp., Lutcher & Moore Cypress
Lumber Company, The First National Bank of Lake Charles,
Mary Elizabeth Mecom, The Estate of John W. Mecom, The
Mary Elizabeth Mecom Irrevocable Trust, Matilda Gray
Stream, The Opal Gray Trust, Harold H. Stream III, The
Succession of Edward M. Carmouche, Virginia Martin
Carmouche and L.M. Holding Associates, L.P. dated August
8, 1996. (N)(v)
10.22 Form of Assignment and Sale between XCL Acquisitions,
Inc. and purchasers of an interest in certain promissory
notes held by XCL Acquisitions, Inc. as follows:
Date Purchaser Principal Amount Purchase Price
November 19, 1996 Opportunity Associates, L.P. $15,627.39 $12,499.98
November 19, 1996 Kayne Anderson Non-Traditional
Investments, L.P. $78,126.36 $62,499.98
November 19, 1996 Offense Group Associates, L.P. $39,063.18 $31,249.99
November 19, 1996 Arbco Associates, L.P. $93,743.14 $75,000.04
November 19, 1996 Nobel Insurance Company $15,627.39 $12,499.98
November 19, 1996 Evanston Insurance Company $15,627.39 $12,499.98
November 19, 1996 Topa Insurance Company $23,435.79 $18,750.01
November 19, 1996 Foremost Insurance Company $31,249.48 $25,000.04
February 10, 1997 Donald A. and Joanne R.
Westerberg $25,000.00 $28,100.00
February 10, 1997 T. Jerald Hanchey $168,915.74 $189,861.29
(N)(vi)
10.23 Form of Sixth Amendment to Credit Agreement between
Lutcher-Moore Development Corp., Lutcher & Moore Cypress
Lumber Company, The First National Bank of Lake Charles, The
Estate of Mary Elizabeth Mecom, The Estate of John W.
Mecom, The Mary Elizabeth Mecom Irrevocable Trust,
Matilda Gray Stream, The Opal Gray Trust, Harold H.
Stream III, The Succession of Edward M. Carmouche,
Virginia Martin Carmouche and L.M. Holding Associates,
L.P. dated January 28, 1997. (N)(vii)
10.24 Form of Act of Sale between the Company and The
Schumacher Group of Louisiana, Inc. dated March 31, 1997,
wherein the Company sold its office building. (N)(viii)
10.25 Amendment No. 1 to the May 1, 1995 Agreement with
Apache Corp. dated April 3, 1997, effective December 13,
1996. (N)(ix)
10.26 Form of Guaranty dated April 9, 1997 by XCL-China Ltd.
in favor of ING (U.S.) Capital Corporation executed in
connection with the sale of certain Unsecured Notes issued
by XCL-China Ltd. (N)(x)
10.27 Form of First Amendment to Stock Pledge Agreement dated
April 9, 1997, between the Company and ING (U.S.) Capital
Corporation adding XCL Land Ltd. to the Stock Pledge
Agreement dated as of January 31, 1994. (N)(xi)
10.28 Form of Agreement dated April 9, 1997, between ING
(U.S.) Capital Corporation, XCL-China and holders of the
Senior Unsecured Notes, subordinating the Guaranty granted
by XCL-China in favor of ING to the Unsecured Notes.
(N)(xii)
10.29 Form of Forbearance Agreement dated April 9, 1997
between the Company and ING (U.S.) Capital Corporation.
(N)(xiii)
10.30 Form of a series of Unsecured Notes dated April 10,
1997, between the Company and the following entities:
Note Holder Principal Amount
Kayne Anderson Offshore, L.P. $200,000
Offense Group Associates, L.P. $500,000
Kayne Anderson Non-Traditional
Investments, L.P. $500,000
Opportunity Associates, L.P. $400,000
Arbco Associates, L.P. $500,000
J. Edgar Monroe Foundation $100,000
Estate of J. Edgar Monroe $300,000
Boland Machine & Mfg. Co., Inc. $100,000
Construction Specialists, Inc.
d/b/a Con-Spec, Inc. $500,000 (N)(xiv)
10.31 Form of Subscription Agreement dated April 10, 1997, by
and between XCL-China, Ltd., the Company and the subscribers
of Units, each unit comprised of $100,000 in Unsecured Notes
and 325,580 warrants. (N)(xv)
10.32 Form of Intercompany Subordination Agreement dated
April 10, 1997, between the Company, XCL-Texas, Ltd., XCL
Land Ltd., The Exploration Company of Louisiana, Inc., XCL-
Acquisitions, Inc., XCL-China Coal Methane Ltd., XCL-China
LubeOil Ltd., XCL-China Ltd., and holders of the Unsecured
Notes. (N)(xvi)
10.33 Form of Indenture dated as of May 20, 1997, between the
Company, as Issuer and Fleet National Bank, as Trustee
("Indenture"). (O)(x)
10.34 Form of 13.5% Senior Secured Note due May 1, 2004,
Series A issued May 20, 1997 to Jefferies & Company, Inc. as
the Initial Purchaser (Exhibit A to the Indenture). (O)(xi)
10.35 Form of Pledge Agreement dated as of May 20, 1997,
between the Company and Fleet National Bank, as Trustee
(Exhibit C to the Indenture). (O)(xii)
10.36 Form of Cash Collateral and Disbursement Agreement
dated as of May 20, 1997, between the Company and Fleet
National Bank, as Trustee and Disbursement Agent, and Herman
J. Schellstede & Associates, Inc., as Representative
(Exhibit F to the Indenture). (O)(xiii)
10.37 Form of Intercreditor Agreement dated as of May 20,
1997, between the Company, ING (U.S.) Capital Corporation,
the holders of the Secured Subordinated Notes due April 5,
2000 and Fleet National Bank, as trustee for the holders of
the 13.5% Senior Secured Notes due May 1, 2004 (Exhibit G to
the Indenture). (O)(xiv)
10.38 Registration Rights Agreement dated as of May 20, 1997,
by and between the Company and Jefferies & Company, Inc.
with respect to the 13.5% Senior Secured Notes due May 1,
2004 and 75,000 Common Stock Purchase Warrants (Exhibit H to
the Indenture). (O)(xv)
10.39 Form of Security Agreement, Pledge and Financing
Statement and Perfection Certificate dated as of May 20,
1997, by the Company in favor of Fleet National Bank, as
Trustee (Exhibit I to the Indenture). (O)(xvi)
10.40 Registration Rights Agreement dated as of May 20, 1997,
by and between the Company and Jefferies & Company, Inc.
with respect to the 9.5% Amended Series A Preferred Stock
and Common Stock Purchase Warrants. (O)(xvii)
10.41 Form of Restated Forbearance Agreement dated effective
as of May 20, 1997, between the Company, XCL-Texas, Inc. and
ING (U.S.) Capital Corporation. (O)(xviii)
10.42 Form of Seventh Amendment to Credit Agreement between
Lutcher-Moore Development Corp., Lutcher & Moore Cypress
Lumber Company, The First National Bank of Lake Charles, The
Estate of Mary Elizabeth Mecom, The Estate of John W.
Mecom, The Mary Elizabeth Mecom Irrevocable Trust,
Matilda Gray Stream, The Opal Gray Trust, Harold H.
Stream III, The Succession of Edward M. Carmouche,
Virginia Martin Carmouche and L.M. Holding Associates,
L.P. dated May 8, 1997. (P)(i)
10.43 Form of Eighth Amendment to Credit Agreement between
Lutcher-Moore Development Corp., Lutcher & Moore Cypress
Lumber Company, The First National Bank of Lake Charles, The
Estate of Mary Elizabeth Mecom, The Estate of John W.
Mecom, The Mary Elizabeth Mecom Irrevocable Trust,
Matilda Gray Stream, The Opal Gray Trust, Harold H.
Stream III, The Succession of Edward M. Carmouche,
Virginia Martin Carmouche and L.M. Holding Associates,
L.P. dated July 29, 1997. (P)(ii)
10.44 Form of Consulting Agreement dated February 20, 1997,
between the Company and Mr. Patrick B. Collins, whereby Mr.
Collins performs certain accounting advisory services.
(Q)(ii)
10.45 Form of Consulting Agreement dated effective as of June
1, 1997, between the Company and Mr. R. Thomas Fetters, Jr.,
a director of the Company, whereby Mr. Fetters performs
certain geological consulting services. (Q)(iii)
10.46 Form of Agreement dated October 1, 1997, between the
Company and Mr. William Wang, whereby Mr. Wang performs
certain consulting services with respect to its investments
in China. (Q)(iv)
10.47 Form of Services Agreement dated August 1, 1997,
between the Company and Mr. Benjamin B. Blanchet, an officer
of the Company. (Q)(v)
10.48 Form of Promissory Note dated August 1, 1997, in a
principal amount of $100,000, made by Mr. Benjamin B.
Blanchet in favor of the Company. (Q)(vi)
10.49 Form of Consulting Agreement dated June 15, 1998,
between the Company and Mr. Patrick B. Collins, whereby Mr.
Collins performs certain accounting advisory services.*
10.50 Amended and Restated Long Term Stock Incentive Plan
effective June 1, 1997. (T)(i)
10.51 Form of Restricted Stock Award Agreement.*
10.52 Form of Nonqualified Stock Option Agreement.*
10.53 Appreciation Option for M. W. Miller, Jr. (T)(ii)
10.54 Zhang Dong Petroleum Sharing Contract.*
21.1 Subsidiaries of the Company
XCL-China Ltd.
XCL-China LubeOil Ltd.
XCL-China Coal Methane Ltd.
XCL-Cathay Ltd.
XCL-Texas Inc.
XCL-Acquisitions, Inc.
The Exploration Company of Louisiana, Inc.
XCL Land Ltd.
23.1 Consent of PricewaterhouseCoopers LLP*
23.2 Consent of H.J. Gruy and Associates, Inc.*
23.3 Consent of Satterlee Stephens Burke & Burke LLP
(included in Exhibit 5.1)
24.1 Power of Attorney (U)
99.1 Reserve report dated January 1, 1998, prepared by H.J.
Gruy and Associates, Inc. (V)
_________________________
*Filed herewith.
(A) Incorporated by reference to the Registration Statement
on Form 8-B filed on July 28, 1988, where it appears as
Exhibits 3(c).
(B) Incorporated by reference to a Registration Statement on
Form S-3 (File No. 33-68552) where it appears as Exhibit
10.1.
(C) Incorporated by reference to Post-Effective Amendment No.
2 to Registration Statement on Form S-3 (File No. 33-68552)
where it appears as: (i) Exhibit 4.29; (ii) Exhibit 4.30;
and (iii) through (v) Exhibits 4.34 through 4.36,
respectively.
(D) Incorporated by reference to Amendment No. 1 to Annual
Report on Form 10-K filed April 15, 1994, where it appears
as: (i) Exhibit 4.32; (ii) Exhibit 4.36; (iii) Exhibit
4.37; (iv) through (v) Exhibit 10.41 through Exhibit 10.47,
respectively; and (v) Exhibit 10.49.
(E) Incorporated by reference to an Annual Report on Form 10-
K for the fiscal year ended December 31, 1990, filed April
1, 1991, where it appears as Exhibit 10.27.
(F) Incorporated by reference to Amendment No. 1 to an Annual
Report on Form 10-K/A No. 1 for the fiscal year ended
December 31, 1994, filed April 17, 1995, where it appears
as: (i) through (ii) Exhibits 10.22 through 10.23,
respectively.
(G) Incorporated by reference to Quarterly Report on Form
10-Q for the quarter ended March 31, 1995, filed May
15, 1995, where it appears as: (i) Exhibit 10.26; and (ii)
Exhibit 10.28.
(H) Incorporated by reference to Quarterly Report on Form
10-Q for the quarter ended June 30, 1995, filed August 14,
1995, where it appears as: (i) through (v) Exhibits 10.29
through 10.33, respectively.
(I) Incorporated by reference to Quarterly Report on Form
10-Q for the quarter ended September 30, 1995, filed
November 13, 1995, where it appears as Exhibit 10.35.
(J) Incorporated by reference to Annual Report on Form 10-K
for the year ended December 31, 1995, filed April 15, 1996,
where it appears as: (i) through (iii) Exhibits 4.28
through 4.30, respectively; and (iv) Exhibit 10.31 and
(v) through (vii) Exhibits 10.33 through 10.36,
respectively.
(K) Incorporated by reference to Quarterly Report on Form 10-
Q for the quarter ended March 31, 1996, filed May 15, 1996,
where it appears as Exhibit 10.37.
(L) Incorporated by reference to Quarterly Report on Form 10-
Q for the quarter ended June 30, 1996, filed August 14,
1996, where it appears as Exhibit 10.38.
(M) Incorporated by reference to Quarterly Report on Form 10-
Q for the quarter ended September 30, 1996, filed November
14, 1996, where it appears as (i) through (iii) Exhibits
4.32 through 4.34.
(N) Incorporated by reference to Annual Report on Form 10-K
for the year ended December 31, 1996, filed April 15, 1997,
where it appears as (i) through (iii) Exhibits 4.35 through
4.38; (iv) Exhibit 4.40; and (v) through (xvi) Exhibits
10.39 through 10.50.
(O) Incorporated by reference to Current Report on Form 8-K
dated May 20, 1997, filed June 3, 1997, where it appears as
(i) through (ix) Exhibits 4.1 through 4.9 and (x) through
(xviii) Exhibits 10.51 through 10.59.
(P) Incorporated by reference to Quarterly Report on Form 10-
Q for the quarter ended June 30, 1997, filed August 14,
1997, where it appears as (i) and (ii) Exhibits 10.60 and
10.61.
(Q) Incorporated by reference to Quarterly Report on Form 10-
Q for the quarter ended September 30, 1997, filed November
14, 1997, where it appears as (i) Exhibit 4.52; and (ii)
through (vi) Exhibits 10.61 through 10.66.
(R) Incorporated by reference to Annual Report on Form 10-K
for the year ended December 31, 1997, filed April 15, 1998,
where it appears as (i) Exhibit 4.1; (ii) through (vi)
Exhibits 4.32 through 4.36, respectively.
(S) Incorporated by reference to Amendment No. 1 to Annual
Report on Form 10-K for the year ended December 31, 1997,
filed April 22, 1998, where it appears as (i) Exhibit 3.1;
and (ii) through (iv) Exhibits 4.37 through 4.39,
respectively.
(T) Incorporated by reference to Proxy Statement dated
November 20, 1997 filed November 6, 1997, where it appears
as (i) Appendix C; and (ii) Appendix D, respectively.
(U) Incorporated by reference to Registration Statement on
Form S-1 filed May 6, 1998, where it appears as Exhibit
24.1.
(V) Incorporated by reference to Amendment No. 2 to the
Annual Report on Form 10-K for the year ended December 31,
1997, filed on October 23, 1998, where it appears as Exhibit
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the undersigned registrant pursuant to the
provisions described under Item 14 above, or otherwise, the
undersigned registrant has been advised that, in the opinion of
the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the undersigned registrant of expenses incurred or paid by a
director, officer or controlling person of the undersigned
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
undersigned registrant will, unless, in the opinion of its
counsel, the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Registrant has duly caused this Amendment No. 2 to the
Registration Statement on Form S-1 to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of
Lafayette, State of Louisiana on the 23rd day of October, 1998.
XCL LTD.
/s/ Benjamin B. Blanchet
By:___________________________
Benjamin B. Blanchet
Executive Vice President
Pursuant to the requirements of the Securities Act of 1933,
this Amendment No. 2 to the Registration Statement on Form S-1
has been signed by the following persons in the capacities and on
the dates indicated.
Signature Title Date
--------- ------ ----
/s/ Marsden W. Miller, Jr.
- --------------------------
Marsden W. Miller, Jr. Chairman of the Board and Chief
Executive Officer (principal
executive officer) and Acting
Chief Financial Officer
(principal financial and
accounting officer) October 23, 1998
/s/ John T. Chandler
- ------------------------
John T. Chandler Vice Chairman of the Board October 23, 1998
/s/ Benjamin B. Blanchet
- ------------------------
Benjamin B. Blanchet Executive Vice President
and Director October 23, 1998
/s/ R. Thomas Fetters, Jr. *
____________________________
R. Thomas Fetters, Jr. Director October 23, 1998
/s/ Fred Hofheinz*
- ----------------------------
Fred Hofheinz Director October 23, 1998
/s/ Francis J. Reinhardt, Jr. *
- ------------------------------
Francis J. Reinhardt, Jr. Director October 23, 1998
/s/ Arthur W. Hummel, Jr. *
- -----------------------------
Arthur W. Hummel, Jr. Director October 23, 1998
/s/ Michael Palliser*
- -------------------------
Sir Michael Palliser Director October 23, 1998
- --------------------------
Peter F. Ross Director ------------, 1998
- -------------
* By Benjamin B. Blanchet, Attorney In Fact
XCL LTD.
WARRANT CERTIFICATE
THE WARRANTS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY OTHER FEDERAL OR STATE SECURITIES OR
BLUE SKY LAWS OF ANY OTHER DOMESTIC OR FOREIGN JURISDICTION. NO
OFFER, SALE, TRANSFER, PLEDGE OR OTHER DISPOSITION (COLLECTIVELY,
A "DISPOSAL") OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE MAY
BE MADE UNLESS (i) REGISTERED UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES OR BLUE SKY LAWS OR (ii) XCL LTD. (THE "CO
MPANY") RECEIVES A WRITTEN OPINION OF UNITED STATES LEGAL COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO IT TO THE EFFECT THAT SUCH
DISPOSAL IS EXEMPT FROM SUCH REGISTRATION REQUIREMENTS.
No. PBC-9
WARRANTS TO PURCHASE
COMMON STOCK OF XCL LTD.
Initial Issuance on June 30, 1998
Void after 5:00 p.m. New York Time, June 30, 2003
THIS CERTIFIES THAT, for value received, PATRICK B. COLLINS
or registered assigns (the "Holder") is the registered holder of
warrants (the "Warrants") to purchase from XCL Ltd., a Delaware
corporation (the "Company"), at any time or from time to time
beginning on June 30, 1998 and until 5:00 p.m., New York time, on
June 30, 2003 (the "Expiration Date"), subject to the conditions
set forth herein, at the initial exercise price of $3.75 per
share (the "Initial Exercise Price"), subject to adjustment as
set forth herein (the "Exercise Price"), up to an aggregate of
seventeen thousand (17,000) fully paid and non-assessable common
shares, par value $0.01 per share (the "Common Stock"), of the
Company (the "Shares") upon surrender of this warrant certificate
(the "Certificate") and payment of the Exercise Price multiplied
by the number of Shares in respect of which Warrants are then
being exercised (the "Purchase Price") at the principal office of
the Company presently located at 110 Rue Jean Lafitte, Lafayette,
LA 70508, United States of America.
1. Exercise of Warrants.
(a) The exercise of any Warrants represented by
this Certificate is subject to the conditions set forth below in
paragraph 4, "Compliance with U.S. Securities Laws."
(b) Subject to compliance with all of the
conditions set forth herein, the Holder shall have the right at
any time and from time to time after June 30, 1998 to purchase
from the Company the number of Shares which the Holder may at the
time be entitled to purchase pursuant hereto, upon surrender of
this Certificate to the Company at its principal office, together
with the form of election to purchase attached hereto duly com
pleted and signed, and upon payment to the Company of the
Purchase Price.
No Warrant may be exercised after 5:00 p.m., New York time,
on the Expiration Date, after which time all Warrants evidenced
hereby shall be void.
(c) Payment of the Purchase Price shall be made in
cash, by wire transfer of immediately available funds or by
certified check or banker's draft payable to the order of the Com
pany, or any combination of the foregoing.
(d) The Warrants represented by this Certificate
are exercisable at the option of the Holder, in whole or in part
(but not as to fractional Shares). Upon the exercise of less
than all of the Warrants evidenced by this Certificate, the
Company shall forthwith issue to the Holder a new certificate of
like tenor representing the number of unexercised Warrants.
(e) Subject to compliance with all of the
conditions set forth herein, upon surrender of this Certificate
to the Company at its principal office, together with the form of
election to purchase attached hereto duly completed and signed,
and upon payment of the Purchase Price, the Company shall cause
to be delivered promptly to or upon the written order of the
Holder and in such name or names as the Holder may designate, a
share certificate or share certificates for the number of whole
Shares purchased upon the exercise of the Warrants. Such share
certificate or share certificates representing the Shares shall
be free of any restrictive legend. The Company shall ensure that
no "stop transfer" or similar instruction or order with respect
to the Shares purchased upon exercise of the Warrants shall be in
effect at ChaseMellon Shareholders Services, IRG Plc or any suc
cessor transfer agent for the Common Stock of the Company (the
"Transfer Agent").
2. Elimination of Fractional Interests. The Company
shall not be required to issue certificates representing
fractions of Shares and shall not be required to issue scrip in
lieu of fractional interests. Instead of any fractional Shares
that would otherwise be issuable to the Holder, the Company shall
pay to the Holder a cash adjustment in respect of such fractional
interest in an amount equal to such fractional interest of the
then-current Market Price per share (as defined in Section 7(f)
hereof).
3. Payment of Taxes. The Company will pay all documen
tary stamp taxes, if any, attributable to the issuance and
delivery of the Shares upon the exercise of the Warrants;
provided, however, that the Company shall not be required to pay
any taxes which may be payable in respect of any transfer
involved in the issuance or delivery of any Warrant or any Shares
in any name other than that of the Holder, which transfer taxes
shall be paid by the Holder, and until payment of such transfer
taxes, if any, the Company shall not be required to issue such
Shares.
4. Compliance with U.S. Securities Laws. The Warrants
have not been, and will not be, registered under the United
States Securities Act of 1933, as amended (the "Securities Act"),
or any other federal or state securities or blue sky laws. No
offer, sale, transfer, pledge or other disposition (collectively,
a "Disposal") of the Warrants represented by this Certificate may
be made unless (i) registered under the Act and any applicable
State securities or blue sky laws or (ii) the Company receives a
written opinion of United States legal counsel in form and
substance satisfactory to it to the effect that such Disposal is
exempt from such registration requirements..
5. Transfer of Warrants.
(a) The Warrants shall be transferable only on the
books of the Company maintained at the Company's principal office
upon delivery of this Certificate with the form of assignment
attached hereto duly completed and signed by the Holder or by its
duly authorized attorney or representative, accompanied by proper
evidence of succession, assignment or authority to transfer. The
Company may, in its discretion, require, as a condition to any
transfer of Warrants, a signature guarantee, which may be
provided by a commercial bank or trust company, by a broker or
dealer which is a member of the National Association of
Securities Dealers, Inc., or by a member of a United States
national securities exchange, The Securities and Futures
Authority Limited in the United Kingdom, or The London Stock
Exchange Limited in London, England. Upon any registration of
transfer, the Company shall deliver a new warrant certificate or
warrant certificates of like tenor and evidencing in the
aggregate a like number of Warrants to the person entitled
thereto in exchange for this Certificate, subject to the
limitations provided herein, without any charge except for any
tax or other governmental charge imposed in connection therewith.
(b) Notwithstanding anything in this Certifi-cate
to the contrary, neither any of the Warrants nor any of the
Shares issuable upon exercise of any of the Warrants shall be
transferable, except upon compliance by the Holder with any
applicable provisions of the Securities Act and any applicable
state securities or blue sky laws.
6. Exchange and Replacement of Warrant
Certificates; Loss or Mutilation of
Warrant Certificates.
(a) This Certificate is exchangeable without cost,
upon the surrender hereof by the Holder at the principal office
of the Company, for new warrant certificates of like tenor and
date representing in the aggregate the right to purchase the same
number of Shares in such denominations as shall be designated by
the Holder at the time of such surrender. Any transfer not made
in such compliance shall be null and void and shall be given no
effect hereunder.
(b) Upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or
mutilation of this Certificate and, in case of such loss, theft
or destruction, of indemnity and security reasonably satisfactory
to it, and reimbursement to the Company of all reasonable
expenses incidental thereto, and upon surrender and cancellation
of this Certificate, if mutilated, the Company will make and
deliver a new warrant certificate of like tenor, in lieu thereof.
7. Initial Exercise Price; Adjustment of Exercise
Price and Number of Shares.
(a) The Warrants initially are exercisable at the
Initial Exercise Price per Share, subject to adjustment from time
to time as provided herein. No adjustments will be made for cash
dividends, if any, paid to shareholders of record prior to the
date on which the Warrants are exercised.
(b) In case the Company shall at any time after the
date of this Certificate (i) declare a dividend on the shares of
Common Stock payable in shares of Common Stock, or (ii) subdivide
or split up the outstanding shares of Common Stock, the amount of
Shares to be delivered upon exercise of any Warrant will be
appropriately increased so that the Holder will be entitled to
receive the amount of Shares that such Holder would have owned
immediately following such actions had such Warrant been
exercised immediately prior thereto, and the Exercise Price in
effect immediately prior to the record date for such dividend or
the effective date for such subdivision shall be proportionately
decreased, all effective immediately after the record date for
such dividend or the effective date for such subdivision or split
up. Such adjustments shall be made successively whenever any
event listed above shall occur.
(c) In case the Company shall at any time after the
date of this Certificate combine the outstanding shares of Common
Stock into a smaller number of shares the amount of Shares to be
delivered upon exercise of any Warrant will be appropriately
decreased so that the Holder will be entitled to receive the
amount of Shares that such Holder would have owned immediately
following such action had such Warrant been exercised immediately
prior thereto, and the Exercise Price in effect immediately prior
to the record date for such combination shall be proportionately
increased, effective immediately after the record date for such
combination. Such adjustment shall be made successively whenever
any such combinations shall occur.
(d) In the event that the Company shall at any time
after the date of this Certificate (i) issue or sell any shares
of Common Stock (other than the Shares) or securities convertible
or exchangeable into Common Stock without consideration or at a
price per share (or having a conversion price per share, if a
security convertible into Common Stock) less than the Market
Value per share of Common Stock (as defined in Section 7(f)
hereof), or (ii) issue or sell options, rights or warrants to
subscribe for or purchase Common Stock at a price per share less
than the Market Price per share of Common Stock (as defined in
Section 7(f) hereof), the Exercise Price to be in effect after
the date of such issuance shall be determined by multiplying the
Exercise Price in effect on the day immediately preceding the
relevant issuance or record date, as the case may be, used in
determining such Market Value or Market Price, by a fraction, the
numerator of which shall be the number of shares of Common Stock
outstanding on such issuance or record date plus the number of
shares of Common Stock which the aggregate offering price of the
total number of shares of Common Stock so to be issued or to be
offered for subscription or purchase (or the aggregate initial
conversion price of the convertible securities so to be offered)
would purchase at such Market Value or Market Price, as the case
may be, and the denominator of which shall be the number of
shares of Common Stock outstanding on such issuance or record
date plus the number of additional shares of Common Stock to be
issued or to be offered for subscription or purchase (or into
which the convertible securities so to be offered are initially
convertible); such adjustment shall become effective immediately
after the close of business on such issuance or record date;
provided, however, that no such adjustment shall be made for the
issuance of (s) options to purchase shares of Common Stock
granted pursuant to the Company's employee stock option plans
approved by shareholders of the Company (and the shares of Common
Stock issuable upon exercise of such options) (provided that
option exercise prices shall not be less than the Market Value of
the Common Stock (as defined in Section 7(f) hereof) on the date
of the grant of such options), (t) the Company's warrants to
purchase shares of Common Stock (and the shares of Common Stock
issuable upon exercise of such warrants), outstanding on the date
hereof, (u) the Company's shares of Amended Series A, Cumulative
Convertible Preferred Stock (and the shares of such Preferred
Stock issued in lieu of dividend payments thereunder and the
shares of Common Stock issuable upon conversion or redemption of
such Preferred Stock), outstanding on the date hereof, or (v) the
Company's shares of Amended Series B, Cumulative Convertible
Preferred Stock (and the shares of Common Stock issued in lieu of
dividend payments thereunder and the shares of Common Stock
issuable upon conversion or redemption of such Preferred Stock),
outstanding on the date hereof. In case such subscription price
may be paid in a consideration, part or all of which shall be in
a form other than cash, the value of such consideration shall be
as determined reasonably and in good faith by the Board of
Directors of the Company. Shares of Common Stock owned by or
held for the account of the Company or any wholly-owned
subsidiary shall not be deemed outstanding for the purpose of any
such computation. Such adjustment shall be made successively
whenever the date of such issuance is fixed (which date of
issuance shall be the record date for such issuance if a record
date therefor is fixed); and, in the event that such shares or
options, rights or warrants are not so issued, the Exercise Price
shall again be adjusted to be the Exercise Price which would then
be in effect if the date of such issuance had not been fixed.
(e) In case the Company shall make a distribution
to all holders of Common Stock (including any such distribution
made in connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of its
indebtedness, securities other than Common Stock or assets (other
than cash dividends or cash distributions payable out of
consolidated earnings or earned surplus or dividends payable in
Common Stock), the Exercise Price to be in effect after such date
of distribution shall be determined by multiplying the Exercise
Price in effect on the date immediately preceding the record date
for the determination of the shareholders entitled to receive
such distribution by a fraction, the numerator of which shall be
the Market Price per share of Common Stock (as defined in Section
7(f) hereof) on such date, less the then-fair market value (as
determined reasonably and in good faith by the Board of Directors
of the Company of the portion of the assets, securities or
evidences of indebtedness so to be distributed applicable to one
share of Common Stock and the denominator of which shall be such
Market Price per share of Common Stock, such adjustment to be
effective immediately after the distribution resulting in such
adjustment. Such adjustment shall be made successively whenever
a date for such distribution is fixed (which date of distribution
shall be the record date for such distribution if a record date
therefor is fixed); and, if such distribution is not so made, the
Exercise Price shall again be adjusted to be the Exercise Price
which would then be in effect if such date of distribution had
not been fixed.
(f) For the purposes of any computation under this
Section 7, the "Market Price per share" of Common Stock on any
date shall be deemed to be the average of the closing bid price
for the 20 consecutive trading days ending on the record date for
the determination of the shareholders entitled to receive any
rights, dividends or distributions described in this Section 7,
and the "Market Value per share" of Common Stock on any date
shall be deemed to be the closing bid price on the date of the
issuance of the securities for which such computation is being
made, as reported on the principal United States securities
exchange on which the Common Stock is listed or admitted to
trading or if the Common Stock is not then listed on any United
States stock exchange, the average of the closing sales price on
each such day during such 20 day period, in the case of the
Market Price computation, or on such date of issuance, in the
case of the Market Value computation, in the over-the-counter
market as reported by the National Association of Securities
Dealers' Automated Quotation System ("NASDAQ"), or, if not so
reported, the average of the closing bid and asked prices on each
such day during such 20 day period in the case of the Market
Price computation, or on such date of issuance, in the case of
the Market Value computation, as reported in the "pink sheets"
published by the National Quotation Bureau, Inc. or any successor
thereof, or, if not so quoted, the average of the middle market
quotations for such 20 day period in the case of the Market Price
computation, or on such date of issuance, in the case of the
Market Value computation, as reported on the daily official list
of the prices of stock listed on The London Stock Exchange
Limited ("The Stock Exchange Daily Official List"). "Trading
day" means any day on which the Common Stock is available for
trading on the applicable securities exchange or in the
applicable securities market. In the case of Market Price or
Market Value computations based on The Stock Exchange Daily
Official List, the Market Price or Market Value shall be
converted into United States dollars at the then spot market
exchange rate of pounds sterling (UK) into United States dollars
as quoted by Chemical Bank or any successor bank thereto on the
date of determination. If a quotation of such exchange rate is
not so available, the exchange rate shall be the exchange rate of
pounds sterling in United States dollars as quoted in The Wall
Street Journal on the date of determination.
(g) No adjustment in the Exercise Price shall be
required unless such adjustment would require an increase or
decrease of at least $.02 in such price; provided that any
adjustments which by reason of this Section 7(g) are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment; provided, further that such adjustment
shall be made in all events (regardless of whether or not the
amount thereof or the cumulative amount thereof amounts to $.02
(or more) upon the happening of one or more of the events
specified in Sections 7(b), (c) or (i). All calculations under
this Section 7 shall be made to the nearest cent.
(h) If at any time, as a result of an adjustment
made pursuant to Section 7(b) or (c) hereof, the Holder of any
Warrant thereafter exercised shall become entitled to receive any
shares of the Company other than shares of Common Stock,
thereafter the number of such other shares so receivable upon
exercise of any Warrant shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Shares
contained in this Section 7, and the provisions of this
Certificate with respect to the Shares shall apply on like terms
to such other shares.
(i) In the case of (l) any capital reorganization
of the Company, or of (2) any reclassification of the shares of
Common Stock (other than a subdivision or combination of
outstanding shares of Common Stock), or (3) any consolidation or
merger of the Company, or (4) the sale, lease or other transfer
of all or substantially all of the properties and assets of the
Company as, or substantially as, an entirety to any other person
or entity, each Warrant shall after such capital reorganization,
reclassification of the shares of Common Stock, consolidation, or
sale be exercisable, upon the terms and conditions specified in
this Certificate, for the number of shares of stock or other
securities or assets to which a holder of the number of Shares
purchasable (immediately prior to the effectiveness of such
capital reorganization, reclassification of shares of Common
Stock, consolidation, or sale) upon exercise of a Warrant would
have been entitled upon such capital reorganization,
reclassification of shares of Common Stock, consolidation, merger
or sale; and in any such case, if necessary, the provisions set
forth in this Section 7 with respect to the rights thereafter of
the Holder shall be appropriately adjusted (as determined
reasonably and in good faith by the Board of Directors of the
Company) so as to be applicable, as nearly as may reasonably be,
to any shares of stock or other securities or assets thereafter
deliverable on the exercise of a Warrant. The Company shall not
effect any such consolidation or sale, unless prior to or
simultaneously with the consummation thereof, the successor
corporation, partnership or other entity (if other than the
Company) resulting from such consolidation or the corporation,
partnership or other entity purchasing such assets or the
appropriate entity shall assume, by written instrument, the
obligation to deliver to the Holder of each Warrant the shares of
stock, securities or assets to which, in accordance with the
foregoing provisions, such Holder may be entitled and all other
obligations of the Company under this Certificate. For purposes
of this Section 7(i) a merger to which the Company is a party but
in which the Common Stock outstanding immediately prior thereto
is changed into securities of another corporation shall be deemed
a consolidation with such other corporation being the successor
and resulting corporation.
(j) Irrespective of any adjustments in the Exercise
Price or the number or kind of shares purchasable upon the
exercise of the Warrant, Warrant Certificates theretofore or
thereafter issued may continue to express the same Exercise Price
per share and number and kind of Shares as are stated on the
Warrant Certificates initially issuable pursuant to this Warrant.
(k) The Company may, in its sole discretion, at any
time and from time to time before the Expiration Date, reduce the
Exercise Price to any lower amount by notice to the Holders, in
the manner provided in Section 12.
8. Notices to Warrant Holders. Nothing contained in
this Certificate shall be construed as conferring upon the Holder
the right to vote or to consent or to receive notice as a stock
holder in respect of any meetings of stockholders for the
election of directors or any other matter, or as having any
rights whatsoever as a stockholder of the Company. If, however,
at any time prior to the exercise or expiration of the Warrants,
any of the following events shall occur:
(i) the holders of shares of the Common Stock shall
be entitled to receive a dividend or distribution
payable otherwise than in cash, or a cash dividend
or distribution payable otherwise than out of
current or retained earnings, as indicated by the
accounting treatment of such dividend or dis
tribution on the books of the Company; or
(ii) the Company shall offer to all the holders of its
Common Stock any additional shares of capital stock
of the Company or securities convertible into or
exchangeable for shares of capital stock of the
Company, or any option, right or warrant to sub
scribe therefor; or
(iii) a dissolution, liquidation or winding-up of the
Company (other than in connection with a consoli
dation or merger) or a sale of all or substantially
all of its property, assets and business as an
entirety shall be approved by the Company's Board
of Directors; or
(iv) there shall be any capital reorganization or
reclassification of the capital stock of the
Company (other than a change in the number of
outstanding shares of Common Stock or a change in
the par value of the Common Stock), or
consolidation or merger of the Company with another
entity;
then, in any one or more of said events, the Company shall give
written notice of such event at least fifteen (15) days prior to
the date fixed as a record date or the date of closing the
transfer books for the determination of the stockholders entitled
to such dividend, distribution, convertible or exchangeable secur
ities or subscription rights, options or warrants, or entitled to
vote on such proposed dissolution, liquidation, winding-up or
sale. Such notice shall specify such record date or the date of
closing the transfer books, as the case may be. Failure to give
such notice or any defect therein shall not affect the validity
of any action taken in connection with the declaration or payment
of any such dividend or distribution, or the issuance of any
convertible or exchangeable securities or subscription rights,
options or warrants, or any proposed dissolution, liquidation,
winding-up or sale.
9. Reservation and Listing of Securities.
(a) The Company covenants and agrees that at all
times during the period after June 30, 1998, the Company shall
reserve and keep available, free from preemptive rights, out of
its authorized and unissued shares of Common Stock or out of its
authorized and issued shares of Common Stock held in its
treasury, solely for the purpose of issuance upon exercise of the
Warrants, such number of Shares as shall be issuable upon the
exercise of the Warrants.
(b) The Company covenants and agrees that, upon
exercise of the Warrants in accordance with their terms and
payment of the Purchase Price, all Shares issued or sold upon
such exercise shall not be subject to the preemptive rights of
any stockholder and when issued and delivered in accordance with
the terms of the Warrants shall be duly and validly issued, fully
paid and non-assessable, and the Holder shall receive good and
valid title to such Shares free and clear from any adverse claim
(as defined in the applicable Uniform Commercial Code), except
such as have been created by the Holder.
(c) As long as the Warrants shall be outstanding,
the Company shall use its reasonable efforts to cause all Shares
issuable upon the exercise of the Warrants to be quoted by or
listed on any national securities exchange or other securities
listing service on which the shares of Common Stock of the
Company are then listed.
10. Survival. All agreements, covenants, representations
and warranties herein shall survive the execution and delivery of
this Certificate and any investigation at any time made by or on
behalf of any party hereto and the exercise, sale and purchase of
the Warrants and the Shares (and any other securities or
properties) issuable on exercise hereof.
11. Remedies. The Company agrees that the remedies at
law of the Holder, in the event of any default or threatened
default by the Company in the performance of or compliance with
any of the terms hereof, may not be adequate and such terms may,
in addition to and not in lieu of any other remedy, be
specifically enforced by a decree of specific performance of any
agreement contained herein or by an injunction against a
violation of any of the terms hereof or otherwise.
12. Registered Holder. The Company may deem and treat
the registered Holder hereof as the absolute owner of this
Certificate and the Warrants represented hereby (notwithstanding
any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise of the Warrants, of any
notice, and of any distribution to the Holder hereof, and for all
other purposes, and the Company shall not be affected by any
notice to the contrary.
13. Notices. All notices and other communications from
the Company to the Holder of the Warrants represented by this
Certificate shall be in writing and shall be deemed to have been
duly given if and when personally delivered, two (2) business
days after sent by overnight courier or ten (10) days after
mailed by certified, registered or international recorded mail,
postage prepaid and return receipt requested, or when transmitted
by telefax, telex or telegraph and confirmed by sending a similar
mailed writing, if to the Holder, to the last address of such
Holder as it shall appear on the books of the Company maintained
at the Company's principal office or to such other address as the
Holder may have specified to the Company in writing.
14. Headings. The headings contained herein are for
convenience of reference only and are not part of this
Certificate.
Governing Law. This Certificate shall be deemed to be a
contract made under the laws of the State of Delaware and for all
purposes shall be governed by, and construed in accordance with,
the laws of said state, without regard to the conflict of laws
provisions thereof.
IN WITNESS WHEREOF, the Company has caused this Amended and
Restated Warrant Certificate to be duly executed by its duly
authorized officers under its corporate seal.
Dated: June 30, 1998
XCL LTD.
By: ___________________________
Name: ___________________________
Title: ___________________________
Attest:
____________________________
Corporate Secretary
XCL LTD.
FORM OF ELECTION TO PURCHASE
(To be executed by the registered Holder
if such Holder desires to exercise Warrants)
The undersigned registered Holder hereby irrevocably elects
to exercise the right of purchase represented by this Warrant
Certificate for, and to purchase, Shares hereunder,
and herewith tenders in payment for such Shares cash, a wire
transfer, a certified check or a banker's draft payable to the
order of XCL Ltd. in the amount of , all
in accordance with the terms hereof. The undersigned requests
that a share certificate for such Shares be registered in the
name of and delivered to:
(Please Print Name and Address)
and, if said number of Shares shall not be all the Shares purchas
able hereunder, that a new Warrant Certificate for the balance
remaining of the Shares purchasable hereunder be registered in
the name of the undersigned Warrant Holder or his Assignee as
below indicated and delivered to the address stated below.
DATED: ________________________
Name of Warrant Holder:
(Please Print)
Address:
Signature:
Note: The above signature must correspond in all respects
with the name of the Holder as specified on the
face of this Warrant Certificate, without
alteration or enlargement or any change whatsoever,
unless the Warrants represented by this Warrant
Certificate have been assigned.
XCL LTD.
FORM OF ASSIGNMENT
(To be executed by the registered Holder if such Holder
desires to transfer the Warrant Certificate)
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers to:
(Please Print Name and Address of Transferee)
Warrants to purchase up to Shares represented by this
Warrant Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint
, Attorney, to transfer such Warrants on the books of the
Company, with full power of substitution in the premises. The
undersigned requests that if said number of Shares shall not be
all of the Shares purchasable under this Warrant Certificate that
a new Warrant Certificate for the balance remaining of the Shares
purchasable under this Warrant Certificate be registered in the
name of the undersigned Warrant Holder and delivered to the regis
tered address of said Warrant Holder.
DATED:
Signature of registered Holder:
Note: The above signature must correspond in all respects
with the name of the Holder as specified on the
face of this Warrant Certificate, without
alteration or enlargement or any change whatsoever.
The above signature of the registered Holder must
be guaranteed by a commercial bank or trust
company, by a broker or dealer which is a member of
the National Association of Securities Dealers,
Inc. or by a member of a national securities
exchange, The Securities and Futures Authority
Limited in the United Kingdom or The London Stock
Exchange Limited in London, England. Notarized or
witnessed signatures are not acceptable as
guaranteed signatures.
Signature Guaranteed:
Authorized Officer
Name of Institution
September 15, 1998
XCL Ltd.
110 Rue Jean Lafitte, 2nd Floor
Lafayette, LA 70508
Ladies and Gentlemen:
In connection with the proposed exchange (the "Exchange") of
warrants, each dated May 20, 1998 (the "Old Warrants"), to
purchase an aggregate of 351,015 shares of the common stock, par
value $.01 per share ("Common Stock"), of XCL Ltd. (the
"Company") for one new warrant to purchase an aggregate of
351,015 shares of Common Stock (the "Warrant Shares") at an
exercise price of $2.50 per share, subject to adjustment (the
"Exercise Price"), which expires on September 30, 1998, in
substantially the form attached hereto as Exhibit A (the "New
Warrant", and together with the Warrant Shares, the
"Securities"), we confirm that:
1. We have received a copy of the Company's Annual
Report on Form 10-K for the fiscal year ended December
31, 1997; the Company's Quarterly Report on Form 10-Q
for the fiscal quarter ended June 30, 1998 and the
Preliminary Prospectus dated May 8, 1998 as filed with
the Securities and Exchange Commission (the "SEC") as
part of the Registration Statement on Form S-1 (File
No. 333-51937) (the "Preliminary Prospectus") (which
Preliminary Prospectus is subject to SEC comment and
amendment) and such other information as we deem
necessary in order to make our investment decision to
participate in the Exchange and to acquire the
Securities. We acknowledge that we have read and
agreed to the matters stated in the sections entitled
"Disclosure Regarding Forward Looking Information",
"Risk Factors" and "Selling Security Holders" of such
Preliminary Prospectus which are incorporated by
reference herein and that we are aware of the high
degree of risk attendant to an investment in the
Securities. We have had the opportunity to ask
questions and receive answers from the management of
the Company concerning the terms and conditions of the
Exchange and the Securities and the Company, its
business, financial condition and prospects and to
obtain any additional information which the Company
possesses or can acquire without unreasonable effort or
expense that is necessary to verify the accuracy of the
information that has been furnished to us.
2. We understand that any subsequent transfer of the
Securities is subject to certain restrictions and
conditions set forth in the New Warrant and the
undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Securities except in
compliance with, such restrictions and conditions and
the Securities Act of 1933, as amended (the "Securities
Act") and all applicable State securities laws and the
rules and regulations promulgated thereunder,
including, without limitation, Regulation M promulgated
under the Securities Act.
3. We understand that the Exchange and the issuance of
the Securities have not been registered under the
Securities Act, and that the Securities may not be
offered or sold within the United States or to, or for
the account or benefit of, U.S. persons except as
permitted in the following sentence. We agree, on our
own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should
sell any Securities, we will do so only (i) to the
Company or any subsidiary thereof, (ii) inside the
United States in accordance with Rule 144A under the
Securities Act to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) that,
prior to such transfer furnishes (or has furnished on
its behalf by a U.S. broker-dealer) to the Warrant
Agent (as defined in the New Warrant) if other than the
Company, and to the Company, a signed letter containing
certain representations, warranties and agreements
relating to the restrictions on transfer of the
Securities (the form of which letter can be obtained
from the Company), (iii) outside the United States in
accordance with Rule 904 of Regulation S promulgated
under the Securities Act, (iv) pursuant to an exemption
from registration provided by Rule 144 under the
Securities Act (if available), or (v) pursuant to an
effective registration statement under the Securities
Act, and we further agree to provide to any person
purchasing any of the Securities from us a notice
advising such purchaser that resales of the Securities
are restricted as stated herein and in the New Warrant.
4. We understand that, on any proposed resale of the
Securities, and on any proposed exercise of the New
Warrant by a "foreign person", we (or such foreign
person) will be required to furnish to the Company and
the Warrant Agent (if other than the Company), such
certifications, legal opinions and other information as
they may reasonably require to confirm that the
proposed sale or exercise complies with the foregoing
restrictions. We further understand that the Securities
acquired by us will bear a legend to the foregoing
effect.
5. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act) and have such
knowledge and experience in financial and business
matters as to be capable of evaluating the merits and
risks of our investment in the Securities, and we and
any accounts for which we are acting are each able to
bear the economic risk of our or their investment, as
the case may be.
6. We are acquiring the Securities for our account or
for one or more accounts (each of which is an
institutional "accredited investor") as to each of
which we exercise sole investment discretion.
7. We acknowledge and agree that the New Warrant will be
issued against delivery of the Old Warrants (or
evidence satisfactory to the Company of their
guaranteed delivery) free and clear of all liens,
charges and encumbrances. We acknowledge and agree that
any income tax consequences attributable to the
Exchange and the acquisition of the Securities shall be
borne by the acquirer of the Securities. We represent
and warrant to the Company that no broker-dealer or
other third party has been retained to act as agent for
or represent the undersigned in connection with the
Exchange and that no commission or other remuneration
is being paid or given, or is required to be paid or
given, directly or indirectly, in connection with the
Exchange. We agree, and each subsequent holder of the
New Warrant will agree to execute and deliver to the
Company all such further notices, documentation and
certifications as may be required to be filed under
applicable securities and Federal and State income tax
laws, rules and regulations relating or attributable to
the Exchange, the issuance of the Securities or as the
Company may reasonably request
8. The Company hereby represents, warrants and agrees
with you as follows: (i) in the event that on or prior
to March 15, 1999 the Company makes an offer to the
holders of warrants of the same class or issue as the
Old Warrants to either (x) exchange their warrants for
new warrants with an exercise price which is lower than
the Exercise Price of the New Warrant or (y) reduce the
exercise price of their warrants, or increase the
number of shares subject to such warrants, or both,
either by amendment of the terms of such warrants or
pursuant to the unilateral powers granted the Company
under the terms of such warrants, resulting in such
warrant holders being offered the right to acquire
shares of Common Stock at an effective price per share
below the Exercise Price of the New Warrant, then the
Company shall offer the holder of the New Warrant the
right to acquire that number of shares of Common Stock
at a purchase price of $.01 per share which would
result in an effective reduction in the Exercise Price
of the New Warrant so that it equals such reduced
effective exercise price offered such other warrant
holders; and (ii) the Warrant Shares shall be
considered "Registrable Securities", for purposes of
that certain Registration Rights Agreement dated May
20, 1997 (the benefits of which the Company hereby
agrees to extend to the holder of the New Warrant),
which the Company hereby agrees to include in the
Registration Statement on Form S-1 referred to in
paragraph 1 above pursuant to the "Piggy-Back
Registration Rights" provisions of Section 8(a) of
such Agreement which are incorporated by reference
herein.
You, the Warrant Agent and others are entitled to rely upon
this letter and are irrevocably authorized to produce this letter
or a copy hereof to any interested party in any administrative or
legal proceeding or official inquiry with respect to the matters
covered hereby.
Very truly yours,
CUMBERLAND PARTNERS
By:________________________________
Name:___________________________
Title:____________________________
XCL LTD. HEREBY AFFIRMS
THE REPRESENTATIONS,
WARRANTIES AND AGREEMENTS
SET FORTH IN PARAGRAPH 8, ABOVE.
XCL LTD.
BY:___________________________
ITS: Executive Vice President
DATE: September 16, 1998
EXHIBIT A
XCL LTD.
WARRANT CERTIFICATE
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF
COMMON STOCK ISSUABLE UPON EXERCISE OF THE WARRANTS (THE
"SHARES") HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECUR
ITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY OTHER SEC
URITIES OR BLUE SKY LAWS OF ANY OTHER DOMESTIC OR FOREIGN
JURISDICTION. NO OFFER, SALE, TRANSFER, PLEDGE OR OTHER
DISPOSITION (COLLECTIVELY, A "DISPOSAL") OF THE WARRANTS
REPRESENTED BY THIS CERTIFICATE AND THE SHARES MAY BE MADE UNLESS
(i) REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES
OR BLUE SKY LAWS OR (ii) XCL LTD. (THE "COMPANY") RECEIVES A
WRITTEN OPINION OF UNITED STATES LEGAL COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO IT TO THE EFFECT THAT SUCH DISPOSAL IS
EXEMPT FROM SUCH REGISTRATION REQUIREMENTS.
No.
WARRANTS TO PURCHASE
COMMON STOCK OF XCL LTD.
Initial Issuance on September 15, 1998
Void after 5:00 p.m. New York Time, September 30, 1998
THIS CERTIFIES THAT, for value received, Cumberland Partners
or registered assigns (the "Holder") is the registered holder of
warrants (the "Warrants") to purchase from XCL Ltd., a Delaware
corporation (the "Company"), at any time or from time to time
beginning on September 15, 1998 and until 5:00 p.m., New York
time, on September 30, 1998 (the "Expiration Date"), subject to
the conditions set forth herein, at the initial exercise price of
$2.50 per share (the "Initial Exercise Price"), subject to adjust
ment as set forth herein (the "Exercise Price"), up to an aggre
gate of Three Hundred Fifty One Thousand Fifteen (351,015) fully
paid and non-assessable common shares, par value $0.01 per share
(the "Common Stock"), of the Company (the "Shares", and together
with the Warrants, the "Securities") upon surrender of this
warrant certificate (the "Certificate") and payment of the
Exercise Price multiplied by the number of Shares in respect of
which Warrants are then being exercised (the "Purchase Price") at
the principal office of the Company presently located at 110 Rue
Jean Lafitte, Lafayette, LA 70508, United States of America.
1. Exercise of Warrants.
(a) The exercise of any Warrants represented by
this Certificate is subject to the conditions set forth below in
Section 3, "Compliance with Securities Laws."
(b) Subject to compliance with all of the
conditions set forth herein, the Holder shall have the right at
any time and from time to time after September 15, 1998 to pur
chase from the Company the number of Shares which the Holder may
at the time be entitled to purchase pursuant hereto, upon
surrender of this Certificate to the Company at its principal
office, together with the form of election to purchase attached
hereto duly completed and signed, and upon payment to the Company
of the Purchase Price.
No Warrant may be exercised after 5:00 p.m., New York time,
on the Expiration Date, after which time all Warrants evidenced
hereby shall be void.
(c) Payment of the Purchase Price shall be made in
cash, by wire transfer of immediately available funds or by
certified check or banker's draft payable to the order of the Com
pany, or any combination of the foregoing.
(d) The Warrants represented by this Certificate are
exercisable at the option of the Holder, in whole or in part (but
not as to fractional Shares). Upon the exercise of less than all
of the Warrants evidenced by this Certificate, the Company shall
forthwith issue to the Holder a new certificate of like tenor
representing the number of unexercised Warrants.
(e) Subject to compliance with all of the
conditions set forth herein, upon surrender of this Certificate
to the Company at its principal office, together with the form of
election to purchase attached hereto duly completed and signed,
and upon payment of the Purchase Price, the Company shall cause
to be delivered promptly to or upon the written order of the
Holder and in such name or names as the Holder may designate, a
share certificate or share certificates for the number of whole
Shares purchased upon the exercise of the Warrants. Such share
certificate or share certificates representing the Shares shall
be free of any restrictive legend. The Company shall ensure that
no "stop transfer" or similar instruction or order with respect
to the Shares purchased upon exercise of the Warrants shall be in
effect at ChaseMellon Shareholders Services, IRG Plc or any suc
cessor transfer agent for the Common Stock of the Company (the
"Transfer Agent").
2. Payment of Taxes. The Company will pay all documen
tary stamp taxes, if any, attributable to the issuance and
delivery of the Securities; provided, however, that the Company
shall not be required to pay any taxes which may be payable in
respect of any transfer involved in the issuance or delivery of
any Securities or any Shares in any name other than that of the
Holder, which transfer taxes shall be paid by the Holder, and
until payment of such transfer taxes, if any, the Company shall
not be required to issue such Securities.
3. Compliance with Securities Laws. The Securities
have not been, and are not required to be, registered under the
United States Securities Act of 1933, as amended (the "Act"), or
any other securities or blue sky laws of any other domestic or
foreign jurisdiction (collectively, the "Securities Laws"). No
offer, sale, transfer, pledge or other disposition (collectively,
a "Disposal") of the Securities may be made unless (i) registered
under the Act and any other applicable Securities Laws or (ii)
the Company receives a written opinion of United States legal
counsel in form and substance satisfactory to it to the effect
that such Disposal is exempt from such registration requirements.
4. Transfer of Warrants.
(a) The Warrants shall be transferable only on
the books of the Company maintained at the Company's principal
office upon delivery of this Certificate with the form of
assignment attached hereto duly completed and signed by the
Holder or by its duly authorized attorney or representative,
accompanied by proper evidence of succession, assignment or
authority to transfer. The Company may, in its discretion,
require, as a condition to any transfer of Warrants, a signature
guarantee, which may be provided by a commercial bank or trust
company, by a broker or dealer which is a member of the National
Association of Securities Dealers, Inc., or by a member of a
United States national securities exchange, The Securities and
Futures Authority Limited in the United Kingdom, or The London
Stock Exchange Limited in London, England. Upon any registration
of transfer, the Company shall deliver a new warrant certificate
or warrant certificates of like tenor and evidencing in the
aggregate a like number of Warrants to the person entitled
thereto in exchange for this Certificate, subject to the
limitations provided herein, without any charge except for any
tax or other governmental charge imposed in connection therewith.
(b) Notwithstanding anything in this
Certificate to the contrary, neither any of the Warrants nor any
of the Shares issuable upon exercise of any of the Warrants shall
be transferable, except upon compliance by the Holder with any
applicable provisions of the Act and any other applicable
Securities Laws.
5. Exchange and Replacement of Warrant
Certificates; Loss or Mutilation of
Warrant Certificates.
(a) This Certificate is exchangeable without cost,
upon the surrender hereof by the Holder at the principal office
of the Company, for new warrant certificates of like tenor and
date representing in the aggregate the right to purchase the same
number of Shares in such denominations as shall be designated by
the Holder at the time of such surrender. Any transfer not made
in such compliance shall be null and void and shall be given no
effect hereunder.
(b) Upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or
mutilation of this Certificate and, in case of such loss, theft
or destruction, of indemnity and security reasonably satisfactory
to it, and reimbursement to the Company of all reasonable
expenses incidental thereto, and upon surrender and cancellation
of this Certificate, if mutilated, the Company will make and
deliver a new warrant certificate of like tenor, in lieu thereof.
6. Adjustment of Exercise Price and Number of
Shares Issuable.
The number and kind of Shares purchasable upon the exercise
of each Warrant and the Exercise Price shall be subject to
adjustment from time to time as follows:
(a) Stock Splits, Combinations, etc. In case
the Company shall hereafter (A) pay a dividend or make a
distribution on its Common Stock in shares of its capital
stock (whether shares of Common Stock or of capital stock of
any other class), (B) subdivide its outstanding shares of
Common Stock or (C) combine its outstanding shares of Common
Stock into a smaller number of shares, the (a) number of
Shares purchasable upon exercise of each Warrant immediately
prior thereto shall be adjusted so that the holder of any
Warrant thereafter exercised shall be entitled to receive
the number of Shares which such holder would have owned
immediately following such action had such Warrant been
exercised immediately prior thereto, and (b) the Exercise
Price shall be adjusted by multiplying such Exercise Price
immediately prior to such adjustment by a fraction, the
numerator of which shall be the number of Shares purchasable
upon the exercise of each Warrant immediately prior to such
adjustment, and the denominator of which shall be the number
of Shares purchasable immediately thereafter. An adjustment
made pursuant to this Section 6(a) shall become effective
immediately after the record date in the case of a dividend
and shall become effective immediately after the effective
date in the case of a subdivision, combination or
reclassification. If, as a result of an adjustment made
pursuant to this Section 6(a), the holder of any Warrant
thereafter exercised shall become entitled to receive shares
of two or more classes of capital stock of the Company, the
Board of Directors of the Company (whose determination shall
be conclusive) shall determine the allocation of the
adjusted Exercise Price between or among shares of such
classes of capital stock.
(b) Reclassification, Combinations, Mergers,
etc. In case of any reclassification or change of
outstanding shares of Common Stock (other than as set forth
in paragraph (a) above and other than a change in par value,
or from par value to no par value, or from no par value to
par value), or in case of any consolidation or merger of the
Company with or into another corporation or other entity
(other than a merger in which the Company is the continuing
corporation and which does not result in any
reclassification or change of the then outstanding shares of
Common Stock or other capital stock of the Company (other
than a change in par value, or from par value to no par
value, or from no par value to par value or as a result of a
subdivision or combination)) or in case of any sale or
conveyance to another corporation or other entity of all or
substantially all of the assets of the Company, then, as a
condition of such reclassification, change, consolidation,
merger, sale or conveyance, the Company or such a successor
or purchasing corporation or other entity, as the case may
be, shall forthwith make lawful and adequate provision
whereby the holder of such Warrant then outstanding shall
have the right thereafter to receive on exercise of such
Warrant the kind and amount of shares of stock and other
securities and property receivable upon such
reclassification, change, consolidation, merger, sale or
conveyance by a holder of the number of shares of Common
Stock issuable upon exercise of such Warrant immediately
prior to such reclassification, change, consolidation,
merger, sale or conveyance and enter into a warrant
amendment so providing. Such provisions shall include
provision for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided
for in this Section 6. If the issuer of securities
deliverable upon exercise of Warrants under the supplemental
warrant agreement is an affiliate of the formed, surviving
or transferee corporation or other entity, that issuer shall
join in the supplemental warrant agreement. The above
provisions of this Section 6 (b) shall similarly apply to
successive reclassifications and changes of shares of Common
Stock and to successive consolidations, mergers, sales or
conveyances.
In case of any such reclassification, merger,
consolidation or disposition of assets, the successor or
acquiring corporation or other entity (if other than the
Company) shall expressly assume the due and punctual
observance and performance of each and every covenant and
condition of this Warrant to be performed and observed by
the Company and all the obligations and liabilities
hereunder, subject to such modifications as may be deemed
appropriate (as determined by resolution of the Board of
Directors of the Company) in order to provide for
adjustments of shares of the Common Stock for which each
Warrant is exercisable, which shall be as nearly equivalent
as practicable to the adjustments provided for in this
Section 6. The foregoing provisions of this Section 6(b)
shall similarly apply to successive reorganizations,
reclassifications, mergers, consolidations or dispositions
of assets.
(c) Issuance of Options or Convertible
Securities. In the event the Company shall, at any time or
from time to time after the date hereof, issue, sell,
distribute or otherwise grant in any manner (including by
assumption) to all holders of the Common Stock any rights to
subscribe for or to purchase, or any warrants or options for
the purchase of, Common Stock or any stock or securities
convertible into or exchangeable for Common Stock (any such
rights, warrants or options being herein called "Options"
and any such convertible or exchangeable stock or securities
being herein called "Convertible Securities") or any
Convertible Securities (other than upon exercise of any
Option), whether or not such Options or the rights to
convert or exchange such Convertible Securities are
immediately exercisable, and the price per share at which
Common Stock is issuable upon the exercise of such Options
or upon the conversion or exchange of such Convertible
Securities (determined by dividing (i) the aggregate amount,
if any, received or receivable by the Company as
consideration for the issuance, sale, distribution or
granting of such Options or any such Convertible Security,
plus the minimum aggregate amount of additional
consideration, if any, payable to the Company upon the
exercise of all such Options or upon conversion or exchange
of all such Convertible Securities, plus, in the case of
Options to acquire Convertible Securities, the minimum
aggregate amount of additional consideration, if any,
payable upon the conversion or exchange of all such
Convertible Securities, by (ii) the total maximum number of
shares of Common Stock issuable upon the exercise of all
such Options or upon the conversion or exchange of all such
Convertible Securities or upon the conversion or exchange of
all Convertible Securities issuable upon the exercise of all
Options) shall be less than the current Market Price per
Share of Common Stock (determined pursuant to Section 6(f))
on the record date for the issuance, sale, distribution or
granting of such Options (any such event being herein called
a "Distribution") then, effective upon such Distribution,
the Exercise Price shall be reduced to the price (calculated
to the nearest 1/1,000 of one cent) determined by
multiplying the Exercise Price in effect immediately prior
to such Distribution by a fraction, the numerator of which
shall be the sum of (i) the number of shares of Common Stock
outstanding (exclusive of any treasury shares) immediately
prior to such Distribution multiplied by the current Market
Price per Share of Common Stock (determined pursuant to
Section 6(f)) on the date of such Distribution plus (ii) the
consideration, if any, received by the Company upon such
Distribution, and the denominator of which shall be the
product of (A) the total number of shares of Common Stock
outstanding (exclusive of any treasury shares) immediately
after such Distribution multiplied by (B) the current Market
Price per Share of Common Stock (determined pursuant to
Section 6(f)) on the record date for such Distribution. For
purposes of the foregoing, the total maximum number of
shares of Common Stock issuable upon exercise of all such
Options or upon the conversion or exchange of all such
Convertible Securities or upon the conversion or exchange of
the total maximum amount of the Convertible Securities
issuable upon the exercise of all such Options shall be
deemed to have been issued as of the date of such
Distribution and thereafter shall be deemed to be
outstanding and the Company shall be deemed to have received
as consideration therefor such price per share, determined
as provided above. Except as provided in Sections 6(i) and
(j) below, no additional adjustment of the Exercise Price
shall be made upon the actual exercise of such Options or
upon conversion or exchange of the Convertible Securities or
upon the conversion or exchange of the Convertible
Securities issuable upon the exercise of such Options.
Notwithstanding anything in this Section 6 to the contrary,
neither the payment of dividends on any shares of Amended
Series A Preferred Stock in additional shares of Amended
Series A Preferred Stock, nor the issuance of shares of
Common Stock on conversion of the Amended Series A Preferred
Stock, nor the issuance of shares of Common Stock in payment
of any dividends due on any shares of Preferred Stock of the
Company outstanding on the Issue Date, nor on redemption of
any such shares, nor in payment of any interest due under
the Company's Secured Subordinated Notes, nor upon exercise
of any options granted to management pursuant to an employee
benefit plan approved by stockholders of the Company, nor
upon the exercise of any outstanding Warrants (including
Warrants issued in the Concurrent Debt Offering (as defined
below)), shall require any adjustment to either the Exercise
Price of the Warrants or the number of shares issuable upon
exercise of the Warrants.
(d) Dividends and Distributions. In the event
the Company shall, at any time or from time to time after
the date hereof, distribute to all the holders of Common
Stock any dividends or other distribution of cash, evidences
of its indebtedness, other securities or other properties or
assets (in each case other than (i) dividends payable in
Common Stock, Options or Convertible Securities and (ii) any
cash dividend from current or retained earnings), or any
options, warrants or other rights to subscribe for or
purchase any of the foregoing, then (A) the Exercise Price
shall be decreased to a price determined by multiplying the
Exercise Price then in effect by a fraction, the numerator
of which shall be the current Market Price per Share of
Common Stock (determined pursuant to Section 6(f)) on the
record date for such distribution less the sum of (X) the
cash portion, if any, of such distribution per share of
Common Stock outstanding (exclusive of any treasury shares)
on the record date for such distribution plus (Y) the then
fair market value (as determined in good faith by the Board
of Directors of the Company) per share of Common Stock
outstanding (exclusive of any treasury shares) on the record
date for such distribution of that portion, if any, of such
distribution consisting of evidences of indebtedness, other
securities, properties, assets (other than cash), options,
warrants or subscription or purchase rights, and the
denominator of which shall be such current market price per
share of Common Stock and (B) the number of Shares
purchasable upon the exercise of each Warrant shall be
increased to a number determined by multiplying the number
of shares of Common Stock so purchasable immediately prior
to the record date for such distribution by a fraction, the
numerator of which shall be the Exercise Price in effect
immediately prior to the adjustment required by clause (A)
of this sentence and the denominator of which shall be the
Exercise Price in effect immediately after such adjustment.
The adjustments required by this Section 6(d) shall be made
whenever any such distribution occurs retroactive to the
record date for the determination of stockholders entitled
to receive such distribution.
(e) Self-Tenders. In case of the consummation
of a tender or exchange offer (other than an odd-lot tender
offer) made by the Company or any subsidiary of the Company
for all or any portion of the Common Stock to the extent
that the cash and value of any other consideration included
in such payment per share of Common Stock exceeds the first
reported sales price per share of Common Stock on the
trading day next succeeding the last time tenders or
exchanges may be made pursuant to the tender or exchange
offer (the "Expiration Time"), the Exercise Price shall be
reduced so that the same shall equal the price determined by
multiplying the Exercise Price in effect immediately prior
to the Expiration Time by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding
(including any tendered or exchanged shares) at the
Expiration Time multiplied by the first reported sales price
of the Common Stock on the trading day next succeeding the
Expiration Time, and the denominator of which shall be the
sum of (A) the fair market value (determined by the Board of
Directors of the Company, whose determination shall be
conclusive and described in a resolution of the Board of
Directors) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of
all shares validly tendered or exchanged and not withdrawn
as of the Expiration Time (the shares deemed so accepted, up
to any such maximum, being referred to as the "Purchased
Shares") and (B) the product of the number of shares of
Common Stock outstanding (less any Purchased Shares) on the
Expiration Time and the first reported sales price of the
Common Stock on the trading day next succeeding the
Expiration Time, such reduction to become effective
immediately prior to the opening of business on the day
following the Expiration Time.
(f) Current Market Price. For the purpose of
any computation of current market price, the current "Market
Price per Share of Common Stock" at any date shall be (x)
for purposes of Section 7 herein (dealing with fractional
interests), the closing price on the trading day immediately
prior to the exercise of the applicable Warrant and (y) in
all other cases, the average of the daily closing prices for
the shorter of (i) the 20 consecutive trading days ending on
the last full trading day on the exchange or market
specified in the second succeeding sentence prior to the
Time of Determination (as defined below) and (ii) the period
commencing on the date next succeeding the first public
announcement of the issuance, sale, distribution or granting
in question through such last full trading day prior to the
Time of Determination. The term "Time of Determination" as
used herein shall be the time and date of the earlier to
occur of (A) the date as of which the current market price
is to be computed and (B) the last full trading day on such
exchange or market before the commencement of "ex-dividend"
trading in the Common Stock relating to the event giving
rise to the adjustment required by paragraph (a), (b), (c)
or (d). The closing price for any day shall be the last
reported sale price regular way or, in case no such reported
sale takes place on such day, the average of the closing bid
and asked prices regular way for such day, in each case (1)
on the principal national securities exchange on which the
shares of Common Stock are listed or to which such shares
are admitted to trading or (2) if the Common Stock is not
listed or admitted to trading on a national securities
exchange, in the over-the-counter market as reported by the
Nasdaq NMS or any comparable system or (3) if the Common
Stock is not listed on the Nasdaq NMS or a comparable
system, as furnished by two members of the American Stock
Exchange, Inc. selected from time to time in good faith by
the Board of Directors of the Company for that purpose. In
the absence of all of the foregoing, or if for any other
reason the current Market Price per Share cannot be
determined pursuant to the foregoing provisions of this
Section 6(f), the current Market Price per Share shall be
the fair market value thereof as determined in good faith by
the Board of Directors of the Company.
(g) Certain Distributions. If the Company
shall pay a dividend or make any other distribution payable
in Options or Convertible Securities, then, for purposes of
paragraph (c) above, such Options or Convertible Securities
shall be deemed to have been issued or sold without
consideration.
(h) Consideration Received. If any shares of
Common Stock, Options or Convertible Securities shall be
issued, sold or distributed for a consideration other than
cash, the amount of the consideration other than cash
received by the Company in respect thereof shall be deemed
to be the then fair market value of such consideration (as
determined in good faith by the Board of Directors of the
Company). If any Options shall be issued in connection with
the issuance and sale of other securities of the Company,
together comprising one integral transaction in which no
specific consideration is allocated to such Options by the
parties thereto, such Options shall be deemed to have been
issued without consideration; provided, however, that if
such Options have an exercise price equal to or greater than
the current Market Price per Share of the Common Stock on
the date of issuance of such Options, then such Options
shall be deemed to have been issued for consideration equal
to such exercise price.
(i) Deferral of Certain Adjustments. No
adjustment to the Exercise Price (including the related
adjustment to the number of Shares purchasable upon the
exercise of each Warrant) shall be required hereunder unless
such adjustment, together with other adjustments carried
forward as provided below, would result in an increase or
decrease of at least one percent (1%) of the Exercise Price;
provided, however, that any adjustments which by reason of
this paragraph (i) are not required to be made shall be
carried forward and taken into account in any subsequent
adjustment. No adjustment need be made for a change in the
par value of the Common Stock. All calculations under this
Section 6 shall be made to the nearest 1/1,000 of one cent
or to the nearest l/1,000th of a Share, as the case may be.
(j) Changes in Options and Convertible
Securities. If the exercise price provided for in any
Options referred to in Section 6(c) above, the additional
consideration, if any, payable upon the conversion or
exchange of any Convertible Securities referred to in
Section 6(c) above, or the rate at which any Convertible
Securities referred to in Section 6(c) above are convertible
into or exchangeable for Common Stock shall change at any
time (other than under or by reason of provisions designed
to protect against dilution upon an event which results in a
related adjustment pursuant to this Section 6), the Exercise
Price then in effect and the number of Shares purchasable
upon the exercise of each Warrant shall forthwith be
readjusted (effective only with respect to any exercise of
any Warrant after such readjustment) to the Exercise Price
and number of Shares so purchasable that would then be in
effect had the adjustment made upon the issuance, sale,
distribution or granting of such Options or Convertible
Securities been made based upon such changed purchase price,
additional consideration or conversion rate, as the case may
be, but only with respect to such Options and Convertible
Securities as then remain outstanding.
(k) Expiration of Options and Convertible
Securities. If, at any time after any adjustment to the
number of Shares purchasable upon the exercise of each
Warrant shall have been made pursuant to Sections 6(c) or
(j) above or this Section 6(k), any Options or Convertible
Securities shall have expired unexercised, the number of
such Shares so purchasable shall, upon such Expiration, be
readjusted and shall thereafter be such as they would have
been had they been originally adjusted (or had the original
adjustment not been required, as the case may be) as if (i)
the only shares of Common Stock deemed to have been issued
in connection with such Options or Convertible Securities
were the shares of Common Stock, if any, actually issued or
sold upon the exercise of such Options or Convertible
Securities and (ii) such shares of Common Stock, if any,
were issued or sold for the consideration actually received
by the Company upon such exercise plus the aggregate
consideration, if any, actually received by the Company for
the issuance, sale, distribution or granting of all such
Options or Convertible Securities, whether or not exercised;
provided, however, that no such readjustment shall have the
effect of decreasing the number of such shares so
purchasable by an amount (calculated by adjusting such
decrease to account for all other adjustments made pursuant
to this Section 6 following the date of the original
adjustment referred to above) in excess of the amount of the
adjustment initially made in respect of the issuance, sale,
distribution or granting of such Options or Convertible
Securities.
(l) Other Adjustments. In the event that at
any time, as a result of an adjustment made pursuant to this
Section 6, holders of Warrants shall become entitled to
receive any securities of the Company other than shares of
Common Stock, including shares of Amended Series A Preferred
Stock as provided in Section 6(o) below, thereafter the
number of such other securities so receivable upon exercise
of each Warrant and the Exercise Price applicable to such
exercise shall be subject to adjustment from time to time in
a manner and on terms as nearly equivalent as practicable to
the provisions with respect to the Shares of Common Stock
contained in this Section 6.
(m) Other Action Affecting Common Stock. In
case at any time or from time to time the Company shall take
any action in respect of its outstanding shares of Common
Stock, then the number of Shares for which each Warrant is
exercisable shall be adjusted in such manner as may be
equitable in the circumstances. If the Company shall at any
time and from time to time issue or sell (i) any shares of
any class of common stock other than Common Stock, (ii) any
evidences of its indebtedness, shares of stock or other
securities which are convertible into or exchangeable for
such shares of common stock, with or without the payment of
additional consideration in cash or property, or (iii) any
warrants or other rights to subscribe for or purchase any
such shares of common stock or any such evidences, shares of
stock or other securities referred to in (ii) above, then in
each such case such issuance shall be deemed to be of, or in
respect of, Common Stock for purposes of this Section 6;
provided, however, that, without limiting the generality of
the foregoing, if the Company shall take a record of the
holders of its Common Stock for the purpose of entitling
them to receive a dividend payable in, or other distribution
of, common stock other than Common Stock, including shares
of non-voting common stock, then the number of Shares for
which each Warrant is exercisable immediately after the
occurrence of any such event shall be adjusted to equal the
aggregate number of shares of such common stock and of
Common Stock which a record holder of the same number of
Shares for which each Warrant is exercisable immediately
prior to the occurrence of such event would own or be
entitled to receive after the happening of such event.
(n) Statement of Warrant Certificates.
Irrespective of any adjustment in the number or kind of
Shares issuable upon the exercise of each Warrant or the
Exercise Price, Warrant Certificates theretofore or
thereafter issued shall continue to express the same number
and kind of Shares and Exercise Price as are stated in the
Warrant Certificates initially issuable pursuant to this
Agreement.
(o) Increased Shares or Reduced Exercise Price.
From time to time, the Company may, for a period of not less than
20 days, in its discretion, increase the number of Shares
purchasable upon the exercise of this Warrant, without making any
adjustment to the Exercise Price, or reduce the Exercise Price,
without making any adjustment to the number of Shares purchasable
upon the exercise of this Warrant. The Company hereby represents,
warrants and agrees with you as follows: (i) in the event that on
or prior to the expiration of this Warrant the Company makes an
offer to the holders of warrants dated May 20, 1997 issued
pursuant to a Warrant Agreement dated such date ("Old Warrants")
to either (x) exchange their Old Warrants for new warrants with
an exercise price which is lower than the Exercise Price of this
Warrant or (y) reduce the exercise price of the Old Warrants, or
increase the number of shares subject to such Warrants, or both,
either by amendment of the terms of such Warrants or pursuant to
the unilateral powers granted the Company under the terms of such
Warrants, resulting in such Warrant holders being offered the
right to acquire shares of Common Stock at an effective price per
share below the Exercise Price of this Warrant, then the Company
shall offer the holder of this Warrant the right to acquire that
number of shares of Common Stock at a purchase price of $.01 per
share which would result in an effective reduction in the
Exercise Price of this Warrant so that it equals such reduced
effective exercise price offered such holders of Old Warrants;
and (ii) the Warrant Shares shall be considered "Registrable
Securities", for purposes of that certain Registration Rights
Agreement dated May 20, 1997 (the benefits of which the Company
hereby agrees to extend to the holder of this Warrant), which the
Company hereby agrees to include in the Registration Statement on
Form S-1 filed by the Company with the Securities and Exchange
Commission on May 8, 1998 (File No. 333-51937) pursuant to the
"Piggy-Back Registration Rights" provisions of Section 8(a) of
such Agreement which are incorporated by reference herein.
7. Fractional Interest. The Company shall not
be required to issue fractional shares of Common Stock on the
exercise of Warrants. If more than one Warrant shall be
presented for exercise in full at the same time by the same
holder, the number of full shares of Common Stock which shall be
issuable upon such exercise shall be computed on the basis of the
aggregate number of shares of Common Stock acquirable on exercise
of the Warrants so presented. If any fraction of a share of
Common Stock would, except for the provisions of this Section 7,
be issuable on the exercise of any Warrant, the Company shall
either (i) pay an amount in cash calculated by the Company to
equal the then current Market Price per Share (determined
pursuant to Section 6(f)) multiplied by such fraction computed to
the nearest whole cent or (ii) aggregate all such fractional
shares into a whole number of shares and sell such aggregated
fractional shares on behalf of the holders entitled thereto in a
public or private sale and distribute the net cash proceeds from
the sale thereof to such holders pro rata. While the Company
will endeavor to use its best efforts to secure the best
available sales price for such aggregated fractional shares, such
price shall not necessarily be the highest price obtainable for
such shares. Holders of Warrants, by their acceptances of this
Warrant Certificate, expressly waive any and all rights to
receive any fraction of a share of Common Stock or a stock
certificate or scrip representing a fraction of a share of Common
Stock.
8. Notices to Warrant Holders. Nothing contained
in this Certificate shall be construed as conferring upon the
Holder the right to vote or to consent or to receive notice as a
stockholder in respect of any meetings of stockholders for the
election of directors or any other matter, or as having any
rights whatsoever as a stockholder of the Company. If, however,
at any time prior to the exercise or expiration of the Warrants,
any of the following events shall occur:
(i) the holders of shares of the Common Stock shall
be entitled to receive a dividend or distribution
payable otherwise than in cash, or a cash dividend
or distribution payable otherwise than out of
current or retained earnings, as indicated by the
accounting treatment of such dividend or dis
tribution on the books of the Company; or
(ii) the Company shall offer to all the holders of
its Common Stock any additional shares of capital
stock of the Company or securities convertible into
or exchangeable for shares of capital stock of the
Company, or any option, right or warrant to sub
scribe therefor; or
(iii) a dissolution, liquidation or winding-up of
the Company (other than in connection with a
consolidation or merger) or a sale of all or sub
stantially all of its property, assets and business
as an entirety shall be approved by the Company's
Board of Directors; or
(iv) there shall be any capital reorganization or
reclassification of the capital stock of the
Company (other than a change in the number of
outstanding shares of Common Stock or a change in
the par value of the Common Stock), or
consolidation or merger of the Company with another
entity;
then, in any one or more of said events, the Company shall give
written notice of such event at least fifteen (15) days prior to
the date fixed as a record date or the date of closing the
transfer books for the determination of the stockholders entitled
to such dividend, distribution, convertible or exchangeable secur
ities or subscription rights, options or warrants, or entitled to
vote on such proposed dissolution, liquidation, winding-up or
sale. Such notice shall specify such record date or the date of
closing the transfer books, as the case may be. Failure to give
such notice or any defect therein shall not affect the validity
of any action taken in connection with the declaration or payment
of any such dividend or distribution, or the issuance of any
convertible or exchangeable securities or subscription rights,
options or warrants, or any proposed dissolution, liquidation,
winding-up or sale.
9. Reservation and Listing of Securities.
The Company covenants and agrees that at all times during
the period after September 15, 1998, the Company shall reserve
and keep available, free from preemptive rights, out of its auth
orized and unissued shares of Common Stock or out of its
authorized and issued shares of Common Stock held in its
treasury, solely for the purpose of issuance upon exercise of the
Warrants, such number of Shares as shall be issuable upon the
exercise of the Warrants.
(b) The Company covenants and agrees that, upon
exercise of the Warrants in accordance with their terms and
payment of the Purchase Price, all Shares issued or sold upon
such exercise shall not be subject to the preemptive rights of
any stockholder and when issued and delivered in accordance with
the terms of the Warrants shall be duly and validly issued, fully
paid and non-assessable, and the Holder shall receive good and
valid title to such Shares free and clear from any adverse claim
(as defined in the applicable Uniform Commercial Code), except
such as have been created by the Holder.
(c) As long as the Warrants shall be outstanding,
the Company shall use its reasonable efforts to cause all Shares
issuable upon the exercise of the Warrants to be quoted by or
listed on any national securities exchange or other securities
listing service on which the shares of Common Stock of the
Company are then listed.
10. Survival. All agreements, covenants,
representations and warranties herein shall survive the execution
and delivery of this Certificate and any investigation at any
time made by or on behalf of any party hereto and the exercise,
sale and purchase of the Warrants and the Shares (and any other
securities or properties) issuable on exercise hereof.
11. Remedies. The Company agrees that the remedies
at law of the Holder, in the event of any default or threatened
default by the Company in the performance of or compliance with
any of the terms hereof, may not be adequate and such terms may,
in addition to and not in lieu of any other remedy, be
specifically enforced by a decree of specific performance of any
agreement contained herein or by an injunction against a
violation of any of the terms hereof or otherwise.
12. Registered Holder. The Company may deem and
treat the registered Holder hereof as the absolute owner of this
Certificate and the Warrants represented hereby (notwithstanding
any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise of the Warrants, of any
notice, and of any distribution to the Holder hereof, and for all
other purposes, and the Company shall not be affected by any
notice to the contrary.
13. Notices. All notices and other communications
from the Company to the Holder of the Warrants represented by
this Certificate shall be in writing and shall be deemed to have
been duly given if and when personally delivered, two (2)
business days after sent by overnight courier or ten (10) days
after mailed by certified, registered or international recorded
mail, postage prepaid and return receipt requested, or when
transmitted by telefax, telex or telegraph and confirmed by
sending a similar mailed writing, if to the Holder, to the last
address of such Holder as it shall appear on the books of the
Company maintained at the Company's principal office or to such
other address as the Holder may have specified to the Company in
writing.
14. Headings. The headings contained herein are
for convenience of reference only and are not part of this
Certificate.
15. Governing Law. This Certificate shall be
deemed to be a contract made under the laws of the State of
Delaware and for all purposes shall be governed by, and construed
in accordance with, the laws of said state, without regard to the
conflict of laws provisions thereof.
IN WITNESS WHEREOF, the Company has caused this Warrant Certifi
cate to be duly executed by its duly authorized officers under
its corporate seal.
Dated: September 15, 1998
XCL LTD.
By:_____________________________
Name:______________________
Title:_____________________
Attest:
Corporate Secretary
XCL LTD.
FORM OF ELECTION TO PURCHASE
(To be executed by the registered Holder
if such Holder desires to exercise Warrants)
The undersigned registered Holder hereby irrevocably
elects to exercise the right of purchase represented by this
Warrant Certificate for, and to purchase,
Shares hereunder, and herewith tenders in payment for such
Shares cash, a wire transfer, a certified check or a bank
er's draft payable to the order of XCL Ltd. in the amount of
, all in accordance with the terms hereof. The undersigned
requests that a share certificate for such Shares be
registered in the name of and delivered to:
(Please Print Name and Address)
and, if said number of Shares shall not be all the Shares
purchasable hereunder, that a new Warrant Certificate for
the balance remaining of the Shares purchasable hereunder be
registered in the name of the undersigned Warrant Holder or
his Assignee as below indicated and delivered to the address
stated below.
DATED:
Name of Warrant Holder:
(Please Print)
Address:
Signature:
Note: The above signature must correspond in all
respects with the name of the Holder as
specified on the face of this Warrant Certifi
cate, without alteration or enlargement or any
change whatsoever, unless the Warrants
represented by this Warrant Certificate have
been assigned.
XCL LTD.
FORM OF ASSIGNMENT
(To be executed by the registered Holder if such Holder
desires to transfer the Warrant Certificate)
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers to:
(Please Print Name and Address of Transferee)
Warrants to purchase up to Shares represented by
this Warrant Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint , Attorney, to trans
fer such Warrants on the books of the Company, with full
power of substitution in the premises. The undersigned
requests that if said number of Shares shall not be all of
the Shares purchasable under this Warrant Certificate that a
new Warrant Certificate for the balance remaining of the
Shares purchasable under this Warrant Certificate be regis
tered in the name of the undersigned Warrant Holder and
delivered to the registered address of said Warrant Holder.
DATED:
Signature of registered Holder:
Note: The above signature must correspond in all
respects with the name of the Holder as
specified on the face of this Warrant
Certificate, without alteration or enlargement
or any change whatsoever. The above signature
of the registered Holder must be guaranteed by
a commercial bank or trust company, by a
broker or dealer which is a member of the
National Association of Securities Dealers,
Inc. or by a member of a national securities
exchange, The Securities and Futures Authority
Limited in the United Kingdom or The London
Stock Exchange Limited in London, England.
Notarized or witnessed signatures are not
acceptable as guaranteed signatures.
Signature Guaranteed:
Authorized Officer
Name of Institution
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement"), effective as
of June 15, 1998 and expiring on the later of March 31, 1999 or
the date on which the Company fileds its 1998 Form 10-K report
with the Securities and Exchange Commisison, by and between XCL
Ltd., a Delaware corporation., with offices at 110 Rue Jean
Lafitte, Lafayette, Louisiana 70508 (hereinafter the "Company")
and Patrick B. Collins, 14018 Taylorcrest, Houston, Texas 77079
(hereinafter "Consultant").
W I T N E S S E T H:
WHEREAS, Consultant has substantial experience and
ability in financial reporting and oil and gas accounting; and
WHEREAS, the Company desires to retain and secure for
itself the experience and ability of Consultant for the purpose
of assisting the Company with its financial reporting
requirements; and
WHEREAS, the Company and Consultant desire to enter
into a consulting agreement to set forth this proposed consulting
relationship;
NOW, THEREFORE, the parties to this Agreement hereby
agree as follows:
ARTICLE I
Rights and Duties Under Consulting Agreement
1.1 Term of Agreement and Duties. The Company
and Consultant agree that for the period commencing June 15, 1998
and expiring on the later of March 31, 1999 or the date on which
the company files its 1998 Form 10-K report with the Securities
and Exchange Commission, Consultant shall perform consulting
services for the Company with regard to the financial reporting
obligations of the Company, including oil and gas accounting
matters, review of 1998 financial statements, presentation of
financial statements, projections and footnotes thereto in any
debt and equity offering memoranda of the Company. The
Consultant's duty will also assist the Company and its outside
auditors with regard to any activity involving the preparation or
review of 1998 quarterly 10-Q reports, the annual 1998 10-K
report, and any Securities and Exchange Commission filign or
report the Company is required to file during the term of this
agreement.
1.2 A. Compensation. For consulting
services performed by Consultant during the term of this
Agreement, the Company shall pay Consultant by the issuance of
35,000 shares of Common Stock and warrants to purchase 17,000
shares of Common Stock of the Company at an exercise price of
$3.75 per share, exercisable for a five-year period.
B. Restricted Securities. Consultant
acknowledges that the Common Stock and stock purchase warrants,
and the shares of Common Stock issuable upon exercise thereof,
(hereinafter collectively referred to as the "Securities"), being
delivered pursuant to Section 1.2 of this Agreement, are being
issued (i) without registration under the Securities Act of 1933,
as amended (the "Act"), or any other securities laws; no federal
or state agency has made any finding or determination as to the
fairness for investment, nor any recommendation or endorsement of
an investment in the Securities, and the Securities are
"restricted securities" as defined in Rule 144 promulgated under
the Act; (ii) to you for your own account, for investment and not
with any present intention to distribute or resell, directly or
indirectly, all or any portion of the interest therein; (iii) you
warrant and represent that you are financially able to bear the
economic risk associated with these Securities for an indefinite
period of time with no assurance of any return thereon; (iv) you
warrant and represent that you have the requisite knowledge and
experience in financial matters, and you have had access to all
information regarding the Company and the Securities which you
have requested, to enable you to evaluate the merits and risks
associated with the Securities; (v) you warrant and represent
that, in making your investment decision with respect to the
Securities, you have reviewed the Company's latest Annual Report
on form 10-K and Quarterly Report on Form 10-Q and that you have
solely relied upon your own investigation of the Company and its
affairs, it being understood that the Company makes no
representations and warranties with respect to the Securities or
the Company, it business affairs, financial condition or
prospects; and (vi) acknowledge that; the Securities may not be
sold or offered for sale in the absence of an effective
registration statement for the Securities under the Act, or an
opinion of counsel acceptable to the Company to the effect that
such registration is not required; the certificate(s) evidencing
the Securities may be imprinted with a suitable restrictive
legend substantially to such effect that the Company is under no
obligation to take any steps to register the Securities under the
Act or otherwise cause the Securities to become freely
transferable (including, without limitation, to make the
provisions of Rule 144 available for any resales of the
Securities under such Rule).
1.3 Reimbursement of Expenses. The Company
shall reimburse Consultant for all reasonable and necessary
travel, or other related out-of-pocket expenses actually incurred
by it during the term of this Agreement in carrying out its
duties and responsibilities hereunder.
1.4 Time Requirements under Consulting Agreement.
Subject to the foregoing, Consultant agrees to provide the time
necessary for the performance of its consulting hereunder.
1.5 Place of Performance of Consulting Services.
Consultant shall perform its services hereunder in Lafayette,
Louisiana; Houston, Texas; and/or such other places as the
Company may direct.
1.6 Indemnification. The Company shall
indemnify Consultant for all liabilities in connection with any
proceeding arising from services performed pursuant to this
Agreement, other than liability arising from the Consultants
gross negligence or willful misconduct.
1.7 Confidentiality of Company's Business.
Consultant acknowledges that the Company's business is highly
competitive and that the Company's books, records and documents,
the Company's technical information concerning its products,
equipment, services and processes, procurement procedures and
pricing techniques, the names of and other information (such as
credit and financial data) concerning the Company's customers and
business affiliates, all comprise confidential business
information and trade secrets of the Company and are valuable,
special, and unique proprietary assets of the Company
("Confidential Information"). Consultant further acknowledges
that protection of Company's Confidential Information against
unauthorized disclosure and use is of critical importance to the
company in maintaining its competitive position. Accordingly,
Consulting hereby agrees that he will not, at any time during or
after the term of this Agreement, make any disclosure of any
Confidential Information, or make any use thereof, except for the
benefit of, and on behalf of, the Company. However, the
Consultant's obligation under this Section 1.7 shall not extend
to information which is or becomes part of the public domain or
is available to the public by publication or otherwise than
through the Consultant. The provisions of this Section 1.7 shall
survive the termination of this Agreement. Money damages would
not be sufficient remedy for breach of this Section 1.7 by
Consultant, and the Company shall be entitled to specific
performance and injunctive relief as remedies for such breach or
any threatened breach. Such remedies for a breach of this
Section 1.7 by the Consultant, but shall be in addition to all
remedies available at law or in equity to the Company including
the recovery of damages from the Consultant. For the purposes of
this paragraph, the term Company shall also include affiliates of
the Company.
1.8 Covenants of Consultant. Consultant agrees to
use his best efforts, skill and abilities so long as Consultant's
Services are retained hereunder to promote the best interest of
Company and its business. As part of the consideration for the
compensation to be paid to Consultant hereunder, and as an
additional incentive for the Company to enter into this
Agreement, Company and Consultant agree to the noncompetitive
provisions of this Section 1.8. During the term of this
Agreement, Consultant agrees that:
(i) Consultant will not directly or indirectly for
himself or for others consult, advise, counsel or
otherwise assist any customer, supplier, or direct
competitor of the Company or an affiliate on any matter
involving the Company that, in any manner, would have,
or is likely to have, an adverse effect upon the
Company or any affiliate;
(ii) Consultant will not knowingly or intentionally
do or say any act or thing which will or may impair,
damage, or destroy the food will and esteem of the
Company with any of its suppliers, employees, and
others who may at any time have or have hd business
relations with the Company;
(iii) Consultant will not reveal to any third
person any differences of opinion, if there be such at
any time, between him and the management of the Company
as to the Company's personnel, policies, practices or
prospects; and
(iv) Consultant will not knowingly or intentionally
do any act or thing detrimental to the Company or its
business.
Consultant understands that the foregoing restrictions may
limit Consultant's ability to engage in a business similar to the
Company's business during the period provided for above, but
acknowledges that Consultant will receive sufficiently high
remuneration and other benefits from the Company hereunder to
justify such restrictions. The Company shall be entitled to
enforce the provisions of this Section 1.8 by resorting to
appropriate legal and equitable action.
It is expressly understood and agreed that the Company and
Consultant consider the restrictions contained in this Section
1.8 to be reasonable and necessary for the purposes of preserving
and protecting the goodwill and Confidential Information and
proprietary information of the Company. Nevertheless, if any of
the aforesaid restrictions are found by a court having
jurisdiction to be unreasonable, or over broad as to geographic
area or time, or otherwise unenforceable, the parties intend for
the restrictions therein set forth to be modified by such court
so as to be reasonable and enforceable and, as so modified by the
court, to be fully enforced.
1.9 Independent Contractor:
(i) The parties hereby agree that the services
rendered by Consultant in the fulfillment of the terms
and obligations of this Agreement shall be as an
independent contractor and not as an employee, and with
respect thereto, Consultant is not entitled to the
benefits provided by the Company to its employees
including, but not limited to, group insurance and
participation in the Company's employee benefit and
pension plan. Further, Consultant is not an agent,
partner, or joint venture of the Company. Consultant
shall not represent himself to third persons to be
other than an independent contractor of the Company,
nor shall he permit himself to offer or offer or agree
to incur or assume any obligations or commitments in
the name of the Company or for the Company without the
prior written consent and authorization of the Company.
Consultant warrants that the services to be provided
hereunder will not cause of conflict with any other
duties or obligations of Consultant to third parties.
Consultant shall not subcontract or assign any of the
work to be performed hereunder without obtaining the
prior written consent of the Company, provided,
however, nothing contained herein shall prohibit
Consultant from incorporating and rendering services
hereunder as a corporation.
(ii) Consultant shall be responsible for payment of
all taxes including Federal, State and local taxes
arising out of the Consultant's activities under this
Agreement, including by way of illustration but not
limitation, Federal and State income tax, Social
Security tax, Unemployment Insurance taxes, and any
other taxes or business license fees as required.
ARTICLE II
Miscellaneous
2.1 Succession. This Agreement shall inure to
the benefit of and be binding upon the Company, its successors
and assigns, and upon Consultant. Consultant shall be prohibited
from assigning this Agreement without prior written approval of
the Company.
2.2 Notice. Any notice to be given to the
Company hereunder shall be deemed sufficient if addressed to the
Company in writing and personally delivered or mailed by
certified mail to its office at the address set forth above. Any
notice to be given to Consultant hereunder shall be sufficient if
addressed to it in writing and personally delivered or mailed by
certified mail to its address set forth above. Either party may,
by notice as aforesaid, designate a different address for the
receipt of notice.
2.3 Amendment. This Agreement may not be
amended or supplemented in any respect, except by a subsequent
written instrument entered into by both parties hereto.
2.5 Severability. In the event any provision of
this Agreement shall be held to be illegal, invalid or
unenforceable for any reasons, the illegality, invalidity, or
unenforceablity thereof shall not affect the remaining provisions
hereof, but such illegal, invalid, or unenforceable provision
shall be fully severable and this Agreement shall be construed
and enforced as if the illegal, invalid, or unenforceable
provision had never been included herein.
2.6 Headings. The titles and headings of
Articles and Sections are included for convenience of reference
only and are not to be considered in connection with the
construction or enforcement of the provisions hereof.
2.7 Governing Law. This Agreement shall be
governed in all respects by the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties have executed this
Agreement effective as of the 15th day of June, 1998.
XCL LTD.
By:___________________________
Name:_________________________
Title:__________________________
______________________________
PATRICK B. COLLINS
XCL LTD.
RESTRICTED STOCK AWARD AGREEMENT
XCL LTD., a Delaware corporation (the "Company" or "XCL"),
effective as of the []st of [], 199[], hereby grants to []
("Grantee"), in consideration of services rendered and to be
rendered by the Grantee (the "Award"), [] shares of the Company's
fully-paid and non-assessable common stock, par value $.01 per
share (the "Shares") pursuant to the Company's Long-Term Stock
Incentive Plan, as amended and restated effective as of [], 199[]
(the "Plan"), with such Award to be evidenced by a certificate or
certificates for all Shares registered in the name of the Grantee
which shall be promptly drawn and held for the Grantee by the
Company, subject however to the following terms and conditions:
1. Forfeiture Restrictions. The Shares may not be sold,
assigned, pledged, exchanged, hypothecated or otherwise
transferred, encumbered or disposed of to the extent then subject
to the Forfeiture Restrictions (as hereinafter defined). The
prohibition against transfer and the obligation to forfeit and
surrender Shares to the Company upon termination of employment
are herein referred to as the "Forfeiture Restrictions." The
Forfeiture Restrictions shall be binding upon and enforceable
against any transferee of Shares.
2. Release of Restrictions.
(a) Subject to (b) below, and provided the Grantee
has been continuously employed by the Company from the date of
this Award through the Lapse Date specified in the table below
("Lapse Table"), the Forfeiture Restrictions shall be released as
to the number of Shares on the applicable Lapse Date, but only if
the "Fair Market Value" or "FMV" (as hereinafter defined) of the
Company's common stock, without any allowance for any dividends
of any kind paid by the Company on such common stock, has reached
the required FMV on such Lapse Date:
Lapse Date Number of Shares FMV of Common Stock
[] The first [] $[]
[] An additional [] []
[] An additional [] []
"FMV" of the Company's common stock shall mean the last
sales price, regular way, per share of the common stock on such
day as reported in the principal consolidated reporting system
with respect to the common stock listed on the principal United
States securities exchange on which the common stock is listed or
admitted to trading, or if the common stock is not then listed on
any United States stock exchange, the last sales price reported
on each such day in the National Market System of the National
Association of Securities Dealers' Automated Quotation System
("NASDAQ"), or, if not so reported, the average of the bid and
asked prices on each such day as reported in the "pink sheets"
published by the National Quotation Bureau, Inc. or any successor
thereof, or, if not so reported, the average of the middle market
quotations on each such day as reported on The Stock Exchange
Daily Official List or, if applicable, the closing price on any
stock exchange on which the common stock is traded or, if not so
traded, the FMV shall be determined in good faith by the Board.
If the required FMV of the Company's common stock on
the pertinent Lapse Date is not equal to the FMV specified in the
Lapse Table above for such Lapse Date, the Forfeiture
Restrictions as to such Shares shall not lapse, and such Shares
shall become "Suspended Shares" as of such Lapse Date. The
Forfeiture Restrictions with respect to Suspended Shares shall
lapse, if on any subsequent Lapse Date, the FMV of the Company's
common stock is equal to, or greater than, the required FMV
referenced in the Lapse Table for such Lapse Date.
(b) Paragraph (a) above to the contrary
notwithstanding, the Forfeiture Restrictions on all Shares to the
extent then still applicable shall lapse in full on [], 200[], if
Grantee is employed by the Company on such date. Paragraph (a)
above further to the contrary notwithstanding, the Forfeiture
Restrictions on all Shares to the extent then still applicable
shall lapse in full if Grantee's employment with the Company is
terminated for any reason other than termination of such
employment by the Company for "cause" or termination of such
employment by Grantee without "good reason." For purposes of
this Agreement, the term "cause" shall mean the termination of
Grantee's employment with the Company due to the Grantee's
(i) engagement in gross negligence or willful misconduct in the
performance of his duties with respect to the Company or any of
its affiliates, (ii) conviction of a felony or misdemeanor, (iii)
refusal without proper legal reason to perform his duties and
responsibilities to the Company or any of its affiliates or (iv)
breach of any provision of a written employment agreement between
Grantee and the Company; provided, however, that if Grantee's
employment with the Company is subject to and governed by the
terms of a written employment contract as of the date of
Grantee's termination of employment, the term "cause" for
purposes of this Agreement shall include only those events or
circumstances which, pursuant to the terms of such employment
agreement, enable the Company to terminate Grantee's employment
without liability to Grantee (whether in the nature of breach of
contract damages, liquidated damages, punitive damages,
compensatory damages or otherwise). For purposes of this
Agreement, the term "good reason" shall mean (i) the removal of
Grantee as Vice Chairman of the Company, (ii) a reduction in
Grantee's annual base salary by more than 10% unless such
reduction was pursuant to a Company-wide cost reduction program
pursuant to which all Company employees were treated
substantially equally, (iii) a breach by the Company of any
obligation owed to Grantee under any written agreement between
Grantee and the Company with respect to Grantee's employment
with, or benefits from, the Company or any of its affiliates, or
(iv) death or total disability of Grantee.
(c) Notwithstanding any provision in this Agreement
or the Plan to the contrary, the Forfeiture Restrictions as to
all Shares shall lapse and cease to be applicable upon the
occurrence of an event which constitutes a change of control of
XCL. For purposes of this Paragraph (c), a "change in control of
XCL" shall mean a change in control of a nature that would be
required to be reported in response to Item 5(f) of Schedule 14A
of Regulation 14A promulgated under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"); provided that, without
limitation, such a change in control shall be deemed to have
occurred if (Y) any "person" (as such term is used in Section
13(d) and 14(d) of the Exchange Act), other than XCL or any
person who on the date the Plan is amended is a director or
officer of XCL is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of XCL representing 20% or more of the combined voting
power of XCL's then outstanding securities, unless such person
owns, directly or indirectly, as of the date the Plan is amended,
more than 25% of the combined voting power of XCL's then
outstanding securities, in which case, if any such person (a
"Major Stockholder") becomes the beneficial owner, directly or
indirectly, of 33a% or more of the combined voting power of XCL's
then outstanding securities; provided, further, however, that
acquisition of 33a% or more of such combined voting power shall
not constitute a "change in control of XCL" if (1) such combined
voting power does not exceed 372% or more of the combined voting
power of XCL's then outstanding securities, and (2) either (i) to
the extent any such increase in a Major Stockholder's beneficial
ownership results from a redemption or purchase by XCL of its
securities, or (ii) if the Board of Directors of XCL, by vote of
two-thirds (b) of the full Board, in good faith, determines
(hereinafter referred to as a "Determination") both (A) that such
acquisition does not constitute, in fact, a change in the control
of XCL and (B) that such Major Stockholder does not and cannot
then control XCL or (Z) during any period of two consecutive
years prior to the date of such Determination, individuals who at
the beginning of such period constituted the Board of Directors
cease for any reason to constitute at least a majority thereof,
unless the election of each director who was not a director at
the beginning of such period has been approved in advance by
directors representing at least two-thirds of the directors then
in office who were directors at the beginning of the period.
Further notwithstanding any provision in this Agreement or the
Plan to the contrary, upon the occurrence of a "change in control
of XCL" and the lapse of the Forfeiture Restrictions on the
Shares resulting therefrom, Grantee shall have the right at any
time during the sixty-day period immediately following such
"change in control of XCL" to require the Company to purchase
from Grantee at their then Fair Market Value up to 40% (as
elected by Grantee) of the Shares as to which the Forfeiture
Restrictions lapsed as a result of such "change in control of
XCL". Grantee shall exercise the put option provided pursuant to
the preceding sentence by written notice to the Company
specifying the number of Shares which Grantee demands that the
Company purchase. The purchase price for Shares purchased by the
Company from Grantee pursuant to the put option provided
hereunder shall be paid in cash and in full no later than thirty
days after the date of Grantee's notice to Company of Grantee's
exercise of the put option provided herein and tender of the
Shares as to which such put option is being exercised.
3. Adjustments on Recapitalization. The number of
Shares subject hereto shall be proportionately adjusted for any
increase or decrease in the number of issued Shares resulting
from the subdivision or consolidation of Shares, or the payment
of a stock dividend on the Shares or increase in the Shares
outstanding effected without receipt of consideration by the
Company, provided that any fractional Shares resulting from such
adjustments shall be eliminated.
If the Company shall at any time merge or consolidate with
or into another corporation, Grantee (or other party entitled to
the Award) will thereafter receive the securities or property to
which a holder of the number of Shares then deliverable upon the
lapse of the Forfeiture Restrictions of the Award would have been
entitled upon such merger or consolidation, and the Company shall
take such steps in connection with such merger or consolidation
as may be necessary to assure that provisions of the Plan shall
thereafter be applicable, as nearly as reasonably may be, in
relation to any securities or property thereafter deliverable
upon lapse of the Forfeiture Restrictions of the Award. A sale
of all or substantially all of the assets of the Company for a
consideration (apart from the assumption of obligations)
constituted primarily of securities shall be deemed a merger or
consolidation for the foregoing purposes. In the event of the
proposed dissolution, liquidation or reorganization of the
Company, other than pursuant to a merger or consolidation as
hereinabove provided, the Forfeiture Restrictions on the Award
shall terminate as of a date to be fixed by the Company's
Compensation Advisory Committee; provided that not less than 120
days (or such shorter period as shall elapse between the date the
Board of Directors shall decide upon a dissolution, liquidation
or reorganization and the effective date of such dissolution,
liquidation or reorganization) prior written notice shall be
given to Grantee and Grantee shall have the right, during such
period, to receive unrestricted Shares covered by the Award,
including Shares granted pursuant to the Award as to which the
Forfeiture Restrictions would not otherwise have lapsed.
4. Status of Shares.
(a) The Grantee agrees that (i) the Shares will not
be sold or otherwise disposed of in any manner which would
constitute a violation of any applicable federal or state laws,
(ii) the certificates representing the Shares shall bear such
legend or legends as the Committee deems appropriate in order to
reflect the Forfeiture Restrictions and to assure compliance with
applicable securities laws, (iii) the Company may refuse to
register the transfer of the Shares on the stock transfer records
of the Company if such proposed transfer would constitute a
violation of the Forfeiture Restrictions or, in the opinion of
counsel satisfactory to the Company, any applicable securities
laws, and (iv) the Company may give related instructions to its
transfer agent, if any, to stop registration of the transfer of
Shares.
(b) As the Forfeiture Restrictions on the Award are
released, a certificate without the legend describing such
Forfeiture Restrictions and evidencing the number of Shares with
respect to which restrictions have been released will be
delivered to the Grantee as soon as practicable.
5. Subject to Plan. The Award granted hereunder has
been issued under the Plan and is specifically subject to and
conditioned upon approval by the stockholders of the Company of
the June 1, 1997 amendment and restatement of the Plan and shall
be null and void ab initio if such approval is not obtained. In
addition to the provisions hereof, this Award will be subject to
the power under the Plan of the Company's Compensation Advisory
Committee and the Board of Directors to make interpretations of
the Plan and of any awards granted thereunder, and to make
determinations and take other actions with respect to the Plan;
provided, however, that if any such interpretations,
determinations or other actions shall conflict with any of the
provisions of this Agreement, the provisions shall hereof
control. By acceptance hereof, Grantee acknowledges receipt of a
copy of the Plan and recognizes and agrees that determinations,
interpretations or other actions respecting the Plan may be made
by a majority of the Board of Directors or by the Compensation
Advisory Committee.
6. Securities Laws. Grantee acknowledges that he has
been informed of, or is otherwise familiar with, the nature and
the limitations imposed by the Securities Act of 1933, as amended
(the "Act"), the Exchange Act, state securities or Blue Sky
laws, and the rules and regulations thereunder (in particular,
Rule 144, promulgated under the Act and Section 16 of the
Exchange Act, and Rule 16b-3 promulgated thereunder), concerning
the restricted stock awarded under this Agreement and agrees to
be bound by the restrictions embodied in such Act, the Exchange
Act, state securities or Blue Sky laws, and all the rules and
regulations promulgated thereunder.
7. Grantee a Stockholder. Grantee shall be entitled to
all rights of a stockholder of the Company, including the right
to vote and to receive all dividends and other distributions made
or paid with respect to the Shares.
8. The Company's Right to Terminate Employment. Nothing
contained in this Agreement shall confer upon Grantee the right
to employment by the Company or any of its affiliates.
9. Withholding. Grantee hereby agrees that he will make
such arrangements as the Company deems necessary to discharge any
federal, state or local taxes imposed upon the Company in respect
of this Award.
10. Entire Agreement. This Agreement contains the
entire agreement of the parties relative to the subject matter
hereof, superseding and terminating all prior agreements or
understandings, whether oral or written, between the parties
hereto relative to the subject hereof, and this Agreement may not
be extended, amended, modified or supplemented without written
consent of the parties hereto.
11. Governing Law. This Agreement and all amendments or
changes relating hereto shall be deemed to have been entered into
pursuant to, and shall be governed by, the laws of the State of
Delaware.
12. Notices. Notices given pursuant hereto shall be
registered or certified mail and shall be deemed delivered four
(4) days after deposit in the United States mail, postage
prepaid, addressed as follows:
If to the Company:
XCL Ltd.
110 Rue Jean Lafitte
Lafayette, Louisiana 70508
If to Grantee:
IN WITNESS WHEREOF, this Agreement is executed as of the
[]st day of [], 199[].
Attest
XCL LTD.
By:___________________________
Name:_________________________ By:___________________________
Title:________________________ Name:_________________________
Title:________________________
The undersigned Grantee hereby accepts the foregoing
Restricted Stock Award Agreement dated as of the []st day of [],
199[] (the "Date of Grant"), and the undertaking on his part
contained therein, and agrees to all of the terms and conditions
thereto.
____________________________
Grantee
XCL LTD.
NONQUALIFIED STOCK OPTION AGREEMENT
XCL LTD., a Delaware corporation (the "Company" or "XCL"),
effective as of the []st day of [], 199[], hereby irrevocably
grants to [] ("Optionee") in consideration of services rendered
and to be rendered by the Optionee, the right and option (the
"Option") to purchase [] shares of the Company's fully-paid and
non-assessable common stock, par value $.01 per share (the
"Shares") pursuant to the Company's Long-Term Stock Incentive
Plan, as amended and restated effective as of June 1, 1997 (the
"Plan") on or before [], 200[] (the "Expiration Date"), subject,
however, to the following terms and conditions:
1. Exercise. The Option herein granted may be exercised
subject to the provisions of the Plan and Section 5 hereof, as to
the following amounts of the Shares:
[] Shares on or after []
As to an additional [] Shares on or after []
As to an additional [] Shares on or after []
by giving written notice of such exercise to the Company at any
time (or exercised as to part of each allotment, from time to
time), specifying the number of Shares to be purchased. A
closing shall be held within ten days after receipt of notice of
exercise.
2. Exercise Price. The aggregate purchase price of the
Shares to be purchased pursuant to any exercise of this Option
shall be equal to the product of the number of Shares to be
purchased multiplied by the "Exercise Price", as defined
hereinafter. The Exercise Price for all Shares to be purchased
shall be $[] per Share.
3. Adjustments on Recapitalization. The number of
Shares subject hereto and the Exercise Price per Share shall be
proportionately adjusted for any increase or decrease, after the
date hereof, in the number of issued Shares resulting from the
subdivision or consolidation of Shares, or the payment of a stock
dividend on the Shares or increase in the Shares outstanding
effected without receipt of consideration by the Company,
provided that any Options to purchase fractional Shares resulting
from such adjustments shall be eliminated.
If the Company shall at any time merge or consolidate with
or into another corporation, Optionee (or other party entitled to
the Option) will thereafter receive, upon the exercise of the
Option, the securities or property to which a holder of the
number of Shares then deliverable upon the exercise of the Option
would have been entitled upon such merger or consolidation, and
the Company shall take such steps in connection with such merger
or consolidation as may be necessary to assure that provisions of
the Company's stock option plans shall thereafter be applicable,
as nearly as reasonably may be, in relation to any securities or
property thereafter deliverable upon the exercise of the Option.
A sale of all or substantially all of the assets of the Company
for a consideration (apart from the assumption of obligations)
constituted primarily of securities shall be deemed a merger or
consolidation for the foregoing purposes. In the event of the
proposed dissolution, liquidation or reorganization of the
Company, other than pursuant to a merger or consolidation as
hereinabove provided, the Option shall terminate as of a date to
be fixed by the Company's Compensation Advisory Committee;
provided that not less than 120 days (or such shorter period as
shall elapse between the date the Board of Directors shall decide
upon a dissolution, liquidation or reorganization and the
effective date of such dissolution, liquidation or
reorganization) prior written notice shall be given to Optionee
and Optionee shall have the right, during such period to exercise
this Option as to all or part of the Shares covered thereby,
including Shares as to which the Option would not otherwise be
exercisable.
4. Adjustment upon Exercise. If Optionee exercises this
Option by payment of all or a portion of the Exercise Price with
Shares which Optionee has owned for at least six months, Optionee
will receive an Option to purchase a number of Shares equal to
the number of Shares used in payment of the Exercise Price of the
original Option.
5. Closing. At the closing, full payment of the
aggregate purchase price for the Shares purchased by the Optionee
shall be made to the Company by delivery to the Company of
consideration acceptable to the Company for such Shares and such
Shares will then be delivered to Optionee. No Shares shall be
issued until full payment therefor has been made, and Optionee
shall have none of the rights of a shareholder with respect to
any Shares subject to this Option until a certificate for such
Shares shall have been issued. If the number of Shares purchased
at the closing shall not be all the Shares purchasable under this
Option, a new Nonqualified Stock Option Agreement with the same
terms and conditions as this Option, including, without
limitation, the Expiration Date, shall be issued for the balance
remaining of the Shares purchasable hereunder. Consideration
acceptable to the Company includes (i) cash (including a
certified or official bank check) or the equivalent thereof
acceptable to the Company, (ii) the equivalent fair market value
of Shares, properly endorsed, (iii) the equivalent fair market
value of any other property acceptable to the Company, or (iv)
any combination of (i), (ii) and (iii).
6. Expiration.
(a) The Option shall expire and become null and
void at 5:00 P.M. Lafayette, Louisiana time, on the Expiration
Date. This Option shall not terminate upon the Optionee's
termination of employment with the Company for any reason other
than termination of such employment by the Company for "cause" or
termination of such employment by Optionee without "good reason".
For purposes of this Agreement, the term "cause" shall mean
Optionee's (i) engagement in gross negligence or willful
misconduct in the performance of his duties with respect to the
Company or any of its affiliates, (ii) conviction of a felony or
misdemeanor, (iii) refusal without proper legal reason to perform
his duties and responsibilities to the Company or any of its
affiliates or (iv) breach of any provision of a written
employment agreement between Optionee and the Company; provided,
however, that if Optionee's employment with the Company is
subject to and governed by the terms of a written employment
contract as of the date of Optionee's termination of employment,
the term "cause" for purposes of this Agreement shall include
only those events or circumstances which, pursuant to the terms
of such employment agreement, enable the Company to terminate
Optionee's employment without liability to Optionee (whether in
the nature of breach of contract damages, liquidated damages,
punitive damages, compensatory damages or otherwise). For
purposes of this Agreement, the term "good reason" shall mean (i)
the removal of Optionee as Vice Chairman of the Company, (ii) a
reduction in Optionee's annual base salary by more than 10%
unless such reduction was pursuant to a Company-wide cost
reduction program pursuant to which all Company employees were
treated substantially equally, (iii) a breach by the Company of
any obligation owed to Optionee under any written agreement
between Optionee and the Company with respect to Optionee's
employment with, or benefit from, the Company or any of its
affiliates or (iv) death or total disability of Optionee.
(b) Notwithstanding any provision in this Option to
the contrary, this Option shall become immediately exercisable in
whole or in part, at the election of Optionee, upon the
occurrence of an event which constitutes a change in control of
XCL, provided that under no circumstances shall an option be
exercisable within six months (or such greater or lesser period
prescribed or permitted by any applicable rule promulgated under
the Exchange Act, including, without limitation, Rule 16b-3 from
its grant date. For purposes of this Paragraph (b), a "change in
control of XCL" shall mean a change in control of a nature that
would be required to be reported in response to Item 5(f) of
Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); provided
that, without limitation, such a change in control shall be
deemed to have occurred if (Y) any "person" (as such term is used
in Section 13(d) and 14(d) of the Exchange Act), other than XCL
or any person who on the date the Plan is amended is a director
or officer of XCL is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of XCL representing 20% or more of the
combined voting power of XCL's then outstanding securities,
unless such person owns, directly or indirectly, as of the date
the Plan is amended, more than 25% of the combined voting power
of XCL's then outstanding securities, in which case, if any such
person (a "Major Stockholder") becomes the beneficial owner,
directly or indirectly, of 33a% or more of the combined voting
power of XCL's then outstanding securities; provided, further,
however, that acquisition of 33a% or more of such combined voting
power shall not constitute a "change in control of XCL" if (1)
such combined voting power does not exceed 372% or more of the
combined voting power of XCL's then outstanding securities, and
(2) either (i) to the extent any such increase in a Major
Stockholder's beneficial ownership results from a redemption or
purchase by XCL of its securities, or (ii) if the Board of
Directors of XCL, by vote of two-thirds (b) of the full Board, in
good faith, determines (hereinafter referred to as a
"Determination") both (A) that such acquisition does not
constitute, in fact, a change in the control of XCL and (B) that
such Major Stockholder does not and cannot then control XCL or
(Z) during any period of two consecutive years prior to the date
of such Determination, individuals who at the beginning of such
period constituted the Board of Directors cease for any reason to
constitute at least a majority thereof, unless the election of
each director who was not a director at the beginning of such
period has been approved in advance by directors representing at
least two-thirds of the directors then in office who were
directors at the beginning of the period.
7. Transferability. This Option is granted in
recognition of the personal services of the Optionee to the
Company or its affiliates and is not assignable or transferable
other than by will or by the laws of descent and distribution.
During the lifetime of the Optionee, this Option shall be
exercisable only by him.
8. Subject to Plan. The Option granted hereunder has
been issued under the Plan and is specifically subject to and
conditioned upon approval by the stockholders of the Company of
the June 1, 1997 amendment and restatement of the Plan and shall
be null and void ab initio if such approval is not obtained. In
addition to the provisions hereof, this Option will be subject to
the power under the Plan of the Company's Compensation Advisory
Committee and the Board of Directors to make interpretations of
the Plan and of any options granted thereunder, and to make
determinations and take other actions with respect to the Plan;
provided, however, that if any such interpretations,
determinations or other actions shall conflict with any of the
provisions of this Agreement, the provisions shall hereof
control; and provided further, that this Option shall not be
treated as an incentive stock option as defined in Section 422A
of the Internal Revenue Code of 1986, as amended. By acceptance
hereof, Optionee acknowledges receipt of a copy of the Plan and
recognizes and agrees that determinations, interpretations or
other actions respecting the Plan may be made by a majority of
the Board of Directors or by the Compensation Advisory Committee.
9. Securities Laws. Optionee acknowledges that he has
been informed of, or is otherwise familiar with, the nature and
the limitations imposed by the Securities Act of 1933, as amended
(the "Act"), the Exchange Act, and the rules and regulations
thereunder (in particular, Rule 144, promulgated under the Act
and Section 16 of the Exchange Act, and Rule 16b-3 promulgated
thereunder), concerning the Shares issuable upon exercise of this
Option and agrees to be bound by the restrictions embodied in the
Act, the Exchange Act and all the rules and regulations
promulgated thereunder.
10. Reservation of Shares. The Company will at all
times reserve and keep available out of its authorized Shares,
the required number of Shares issuable upon the exercise of this
Option.
11. Optionee not a Stockholder. Optionee shall not be
entitled by reason of this Option to any rights whatsoever as a
stockholder of the Company.
12. The Company's Right to Terminate Employment.
Nothing contained in this Agreement shall confer upon Optionee
the right to employment by the Company or any of its affiliates.
13. Withholding. Optionee hereby agrees that he will
make such arrangements as the Company deems necessary to
discharge any federal, state or local taxes imposed upon the
Company in respect of this Option.
14. Entire Agreement. This Agreement contains the
entire agreement of the parties relative to the subject matter
hereof, superseding and terminating all prior agreements or
understandings, whether oral or written, between the parties
hereto relative to the subject hereof, and this Agreement may not
be extended, amended, modified or supplemented without written
consent of the parties hereto.
15. Governing Law. This Agreement and all amendments or
changes relating hereto shall be deemed to have been entered into
pursuant to, and shall be governed by, the laws of the State of
Delaware.
16. Notices. Notices given pursuant hereto shall be
registered or certified mail and shall be deemed delivered four
(4) days after deposit in the United States mail, postage
prepaid, addressed as follows:
If to the Company:
XCL Ltd.
110 Rue Jean Lafitte
Lafayette, Louisiana 70508
If to Optionee, to the address below Optionee's
signature.
IN WITNESS WHEREOF, this Agreement is executed as of the
[]st day of [], 199[].
Attest
XCL LTD.
By:___________________________
Name:_________________________ By:___________________________
Title:________________________ Name:_________________________
Title:________________________
The undersigned Optionee hereby accepts the foregoing
Nonqualified Stock Option Agreement dated as of the []st day of
[], 199[] (the "Date of Grant"), and the undertaking on his part
contained therein, and agrees to all of the terms and conditions
thereof.
______________________________
OPTIONEE
Address:
PETROLEUM CONTRACT
FOR
ZHANG DONG BLOCK
SHALLOW WATER AREA, BOHAI BAY
THE PEOPLE'S REPUBLIC OF CHINA
BEIJING, CHINA
AUGUST, 1998
<PAGE.
PETROLEUM CONTRACT BY AND
BETWEEN XCL CATHAY LTD.
AND CHINA NATIONAL PETROLEUM CORPORATION
ON ZHANG DONG BLOCK IN THE BOHAI BAY SHALLOW WATER SEA AREA
OF THE PEOPLE'S REPUBLIC OF CHINA
BEIJING, CHINA
AUGUST 1998
<PAGE>
TABLE OF CONTENTS
Preamble ----------------------------------------- 2
Article 1 Definitions ---------------------------------- 3
Article 2 Objective of the Contract -------------------- 8
Article 3 Contract Area -------------------------------- 9
Article 4 Contract Term -------------------------------- 10
Article 5 Relinquishment of Contract Area -------------- 13
Article 6 Minimum Appraisal Work Commitment
And Expected Minimum Appraisal Expenditures ------ 14
Article 7 Management and its Functions------------------ 17
Article 8 Operator-------------------------------------- 22
Article 9 Assistance Provided by CNPC ------------------ 27
Article 10 Work Program and Budget --------------------- 29
Article 11 Determination of Commerciality -------------- 31
Article 12 Financing and Cost Recovery ----------------- 34
Article 13 Crude Oil Production and Allocation---------- 37
Article 14 Quality, Quantity, Price and
Destination of Crude Oil ------------------------- 43
Article 15 Preference to Employment of
CNPC Personnel, Goods and
Services------------------------------------------ 48
Article 16 Training of CNPC Personnel and
Transfer of Technology --------------------------- 49
Article 17 Ownership of Assets and Data ---------------- 51
Article 18 Associated Natural Gas and
Non-Associated Natural Gas ----------------------- 52
Article 19 Accounting, Auditing and
Personnel Costs ---------------------------------- 55
Article 20 Taxation ------------------------------------ 57
Article 21 Insurance ----------------------------------- 58
Article 22 Confidentiality ----------------------------- 60
Article 23 Assignment ---------------------------------- 62
Article 24 Environmental Protection and Safety --------- 63
Article 25 Force Majeure ------------------------------- 64
Article 26 Consultation and Arbitration ---------------- 65
Article 27 Effectiveness and Termination of the
Contract ----------------------------------------- 67
Article 28 The Applicable Law -------------------------- 69
Article 29 Language of Contract and
Working Language --------------------------------- 70
Article 30 Miscellaneous ------------------------------- 71
Annex I Geographic Location and Coordinates of the
Boundary Lines of the Zhang Dong Contract
Annex II Accounting Procedure
Annex III Personnel Costs
Article IV Data Control Agreement
<PAGE>
PREAMBLE
This Contract is entered into in Beijing on this 20th
_____ day of August of 1998 by and between China National
Petroleum Development Corporation (hereafter abbreviated as
"CNPC"), a company organized and existing under the laws of
the People's Republic of China, having its headquarters
domiciled in Beijing, the People's Republic of China, as one
part; and XCL Cathay Ltd., an international business company
organized under the laws of the British Virgin Islands with
corporate headquarters domiciled in Roadtown, Tortola,
B.V.I., (hereafter referred to as the "Foreign Contractor"),
and being a subsidiary of XCL Ltd., a company organized and
existing under the laws of the State of Delaware, United
States of America, having its corporate headquarters
domiciled in Delaware, as the other part.
WITNESSETH
WHEREAS, all Petroleum resources under the territory,
internal water, territorial sea, and continental shelf of
the People's Republic of China and under all sea areas
within the limits of national jurisdiction over the maritime
resources of the People's Republic of China are owned by the
People's Republic of China;
WHEREAS, the State Council of the People's Republic of
China has authorized CNPC to be responsible for the
negotiation, signature and implementation of the contracts
for the exploitation of China's onshore Petroleum resources
in cooperation with foreign enterprises and to have the
exclusive right to explore for, develop, produce and market
the Petroleum of the Contract Area; and
WHEREAS, the Foreign Contractor desires and agrees to
provide funds, and apply its appropriate and advanced
technology and managerial experience to cooperate with CNPC
for the exploitation of Petroleum resources within the
Contract Area and agrees to be subject to the laws, decrees,
and other rules and regulations of the People's Republic of
China in the implementation of the Contract.
NOW, THEREFORE IT IS MUTUALLY AGREED as hereafter set
forth:
Article 1
Definitions
The following words and terms used in the Contract
shall have, unless otherwise specified in the Contract, the
following meaning:
1.1 "Petroleum" means Crude Oil and Natural Gas
deposited in the subsurface and being extracted or already
extracted, including any valuable non-hydrocarbon substances
produced in association with Crude Oil and/or Natural Gas
separated or extracted therefrom.
1.2 "Crude Oil" means solid and liquid hydrocarbons in
their natural states and also includes any liquid
hydrocarbons extracted from Natural Gas except for methane
(CH4).
1.3 "Natural Gas" means Non-associated Natural Gas and
Associated Natural Gas in their natural state.
1.4 "Non-associated Natural Gas" means all gaseous
hydrocarbons produced from gas reservoirs, and includes wet
gas, dry gas and residue gas remaining after the extraction
of liquid hydrocarbons from wet gas.
1.5 "Associated Natural Gas" means all gaseous
hydrocarbons produced in association with Crude Oil from oil
reservoirs, and includes residue gas remaining after the
extraction of liquid hydrocarbons therefrom.
1.6 "Oil Field" means an accumulation of Petroleum
within the Contract Area composed of one or several oil-
bearing zones, within one trap or within traps of the same,
independent geological structure, which may or may not be
complicated by faulting, and which has been determined to be
of commercial value in accordance with the procedures
stipulated in Article 11 hereof.
1.7 "Gas Field" means an accumulation of Petroleum
within the Contract Area composed of one or several gas-
bearing zones, within one trap or traps of the same,
independent geological structure, which may or may not be
complicated by faulting, and which has been determined to be
of commercial value in accordance with the procedures
stipulated in Article 18 hereof.
1.8 "Petroleum Operations" means the Appraisal
Operations, the Development Operations, the Production
Operations, and other activities related to these Operations
carried out under the Contract.
1.9 "Appraisal Operations" means operations carried
out for the purpose of confirming Petroleum-bearing traps by
means of geological, geophysical, geochemical and other
methods; all the work undertaken to determine the
commerciality of traps in which Petroleum has been
discovered including Appraisal Well drilling and feasibility
studies, Trial Production, formulation of the Overall
Development Program; and activities related to all such
operations.
1.10 "Development Operations" means operations carried
out for the realization of Petroleum production from the
date of approval of the Overall Development Program for any
Oil Field and/or Gas Field by the Department or Unit,
including design, construction, installation, drilling, and
the related research work as well as production activities
carried out before the Date of Commencement of Commercial
Production.
1.11 "Production Operations" means operations and all
activities related thereto carried out for Petroleum
production of an Oil Field and/or Gas Field from the Date of
Commencement of Commercial Production, such as extraction,
injection, stimulation, treatment, storage, transportation,
lifting, etc.
1.12 "Progressive Appraisal and Development Program"
means an operational procedure during which Appraisal
Operations and Development Operations are conducted during
the appraisal period and development and production period
and during which Trial Production, if feasible, is conducted
simultaneously with Appraisal Operations and/or Development
Operations.
1.13 "Basic Block" means a section of the surface of
the earth bounded by the segments of longitude and latitude
of equal distance of ten (10) minutes. demarcated on the
map as Annex I hereto.
1.14 "Contract Area" means a surface area demarcated
with geographic coordinates for the cooperative exploitation
of Petroleum resources, and in the Contract, means the
surface area stipulated in Article 3.1 hereof.
1.15 "Appraisal Area" means a surface area within the
Contract Area which has not been relinquished before the
expiration of the appraisal period and in which Development
Operations have not begun.
1.16 "Development Area" means a portion of the
Contract Area covering an Oil Field and/or Gas Field and any
potential contiguous extension areas to such Field(s) within
the Contract Area which has been designated for development.
The Development Area(s) shall be proposed by the Operator,
demarcated by the Joint Management Committee ("JMC") and
delineated as such in the Overall Development Program
approved by the Department or Unit.
1.17 "Production Area" means a surface area within any
Development Area for the purpose of the performance of the
Production Operations within the said Development Area after
completion of the Development Operations.
1.18 "Date of Commencement of Commercial Production"
means, in respect of each Oil Field, the date on which a
cumulative total of sixty thousand (60,000) metric tons of
Crude Oil shall have been extracted and delivered out of the
Field; in respect of each Gas Field, the date on which a
cumulative total of sixty million (60,000,000) cubic meters
of Natural Gas (under standard atmospheric conditions) shall
have been extracted and delivered out of the Field. If any
field produces both oil and gas, and if the gas is sold,
then the net amount received by the Parties for the gas sold
shall be converted, on an equivalent dollar basis, into a
volume of oil.
1.19 "Calendar Year" means a period of twelve (12)
consecutive Gregorian months under the Gregorian Calendar,
beginning on the first day of January and ending on the
thirty-first day of December of the same year.
1.20 "Contract Year" means a period of twelve (12)
consecutive Gregorian months under the Gregorian Calendar,
within the term of the Contract, beginning on the effective
date of the Contract or any anniversary thereof.
1.21 "Production Year" means, in respect of each Oil
Field and/or Gas Field, a period of twelve (12) consecutive
Gregorian months under the Gregorian Calendar beginning on
the Date of Commencement of Commercial Production of such
Field or any anniversary thereof.
1.22 "Calendar Quarter" means a period of three (3)
consecutive Gregorian months under the Gregorian Calendar
beginning on the first day of January, the first day of
April, the first day of July, or the first day of October.
1.23 "Exploratory Well" means any Wildcat and/or
Appraisal Well drilled within the exploration period,
including dryhole(s) and discovery well(s).
1.24 "Wildcat" means a well drilled on any geological
trap for the purpose of searching for Petroleum
accumulations, including wells drilled for the purpose of
obtaining geological and geophysical parameters.
1.25 "Appraisal Well" means any well drilled for the
purpose of evaluating the commerciality of a geological trap
in which Petroleum has been or may be discovered.
1.26 "Development Well" means a well drilled after the
date of approval of the Overall Development Program for the
purpose of producing Petroleum, increasing production or
accelerating extraction of Petroleum, including production
wells, injection wells and dry holes. Any Appraisal Well
drilled during the production period shall be deemed a
Development Well.
1.27 "Work Program" means all types of plans
formulated for the performance of the Petroleum Operations,
including plans for appraisal, development and production.
1.28 "Overall Development Program" means a plan
prepared by the Operator for the development of an Oil Field
and/or Gas Field which has been reviewed and adopted by JMC,
confirmed by CNPC and approved by the Department or Unit and
such plan shall include, but shall not be limited to,
recoverable reserves, the Development Well pattern, master
design, production profile, economic analysis and time
schedule of the Development Operations.
1.29 "Deemed Interest" means interest on the
development costs calculated in accordance with the rate of
interest stipulated in Article 12.2.3.2. hereof when the
development costs incurred in each Oil Field and/or Gas
Field within the Contract Area are recovered by the Parties.
1.30 "Oil Field and/or Gas Field Straddling a
Boundary" means an Oil Field and/or Gas Field extending from
the Contract Area to one or more other contract areas and/or
areas in respect of which no Petroleum contracts have been
signed.
1.31 "Annual Gross Production of Natural Gas" means
the total amount of Natural Gas produced from each Oil Field
and/or Gas Field within the Contract Area considered
separately in each Calendar Year, less the amount of Natural
Gas used for Petroleum Operations and the amount of losses,
and which is saved and measured by a measuring device at the
Delivery Point as defined in Article 1.43 herein.
1.32 "Annual Gross Production of Crude Oil" means the
total amount of Crude Oil produced from each Oil Field
within the Contract Area considered separately in each
Calendar Year, less the amount of Crude Oil used for
Petroleum Operations and the amount of losses, which is
saved and measured by a measuring device at the Delivery
Point as defined in Article 1.43 herein.
1.33 "Basement" means igneous rocks, metamorphic rocks
or rocks of such nature which, or formations below which,
could not contain Petroleum deposits in accordance with the
knowledge generally accepted in the international oil
industry; and shall also include such impenetrable rock
substances as salt domes, mud domes and any other rocks
which make further drilling impracticable or economically
unjustifiable by the modern drilling technology normally
utilized in the international oil industry.
1.34 "Contractor" means the Foreign Contractor
specified in the Preamble hereto, including assignee(s) in
accordance with Article 23 hereof.
1.35 "Parties" means CNPC and Contractor.
1.36 "Operator" means an entity responsible for the
performance of the Petroleum Operations under the Contract.
1.37 "Subcontractor" means an entity which provides
the Operator with goods or services for the purpose of
implementing the Contract.
1.38 "Third Party" means an individual or entity
except CNPC, the Contractor and any of their Affiliates.
1.39 "Chinese Personnel" means any citizen of the
People's Republic of China, including CNPC's personnel and
Chinese citizens employed by the Contractor and/or the
Subcontractor(s), involved in Petroleum Operations under the
Contract.
1.40 "Expatriate Employee" means any person employed
by the Contractor, Subcontractor(s), or CNPC who is not a
citizen of the People's Republic of China. Overseas Chinese
who reside abroad and have the nationality of the People's
Republic of China and other overseas Chinese abroad, when
they are employed by the Contractor, Subcontractor(s) or
CNPC shall also be deemed to be Expatriate Employees within
the scope of the Contract.
1.41 "Affiliate" means in respect of the Contractor:
(a) any entity in which any company comprising the
Contractor directly or indirectly holds fifty percent (50%)
or more of the voting rights carried by its share capital;
or
(b) any entity which directly or indirectly holds
fifty percent (50%) or more of the aforesaid voting rights
of any company comprising the Contractor; or
(c) any other entity whose aforesaid voting rights are
held by an entity mentioned in (b) above in an amount of
fifty percent (50%) or more;
"Affiliate" means in respect of CNPC, any subsidiary,
branch or regional corporation of CNPC or CNPC and any
entity in which CNPC directly or indirectly holds fifty
percent (50%) or more of the voting rights carried by its
share capital.
1.42 "Department or Unit" means the department or unit
which is authorized by the State Council of the People's
Republic of China to be responsible for administration of
the petroleum industry of the People's Republic of China..
1.43 "Delivery Point" means a point for the delivery
of Petroleum located within or outside the Contract Area and
specified in the Overall Development Program.
1.44 "Date of Commencement of the Implementation of
the Contract" means the first day of the month following the
month in which the Contractor has received the notification
from CNPC of the approval by the Ministry of Foreign Trade
and Economic Cooperation of the People's Republic of China.
1.45 "Dagang" means Dagang Oilfield (Group) Co., Ltd.
1.46 "Trial Production" means, as to any Appraisal Well,
the oil and/or gas production which is produced during the
period from completion of that well to the Date of
Commencement of Commercial Production in the Oil Field or
Gas Field in which that well is located.
1.47 "Pre-Contract Appraisal Costs" is defined in
Article 12.1.1 hereinafter.
1.48 "Remaining Pre-Contract Appraisal Costs" is
defined in Article 13.2.2.2(a)(2) hereinafter.
1.49 "Pre-Contract Development Costs" is defined in
Article 12.1.2 hereinafter.
Article 2
Objective of the Contract
2.1 The objective of the Contract is to appraise,
develop and produce Petroleum that exists and may exist in
the Contract Area.
2.2 The Contractor shall apply a Progressive Appraisal
and Development Program approach in its efforts to comply
with the objectives of the Contract.
2.3 The Contractor shall apply its appropriate and
advanced technology and assign its competent experts to
perform the Petroleum Operations.
2.4 During the performance of the Petroleum
Operations, the Contractor shall transfer its technology to
the Chinese Personnel and train them.
2.5 The Contractor shall pay all appraisal costs
required during Appraisal Operations with the exception of
all previous costs incurred by Dagang. In the event that
any Oil Field and/or Gas Field is developed within the
Contract Area, the development costs of such Oil Field
and/or Gas Field or Fields shall be paid by the Parties in
proportion to their participating interests: fifty-one
percent (51%) by CNPC and forty-nine percent (49%) by the
Contractor. Contractor shall not be responsible for the
prior appraisal costs expended by Dagang, which are agreed
to be $19,312,000 U.S dollars, but Dagang's prior appraisal
costs shall be eligible for in accordance with the
provisions of Articles 12, 13 and 18, below. In the event
that CNPC elects to participate at a level less than fifty-
one percent (51%) of the participating interest, or not to
participate in the development of the Oil Field and/or Gas
Field, the Contractor shall pay the remaining development
costs necessary for the development of the Oil Field and/or
Gas Field in accordance with Article 12.1.2 hereof.
2.6 If any Oil Field and/or Gas Field is developed
within the Contract Area, the Petroleum produced therefrom
shall, from the Date of Commencement of Commercial
Production of such Field, be allocated in accordance with
Articles 12, 13 and/or 18 hereof.
2.7 Nothing contained in the Contract shall be deemed
to confer any right on the Contractor other than those
rights expressly granted hereunder.
Article 3
Contract Area
3.1 The Contract Area as of the date of signature of
the Contract comprises, in part, three (3) blocks, covering
a total of fifty and two tenths (50.2)) square kilometers,
as marked out by the geographic location and the coordinates
of the connecting points of the boundary lines in Annex I
attached hereto.
The said total area of the Contract Area shall be
reduced in accordance with Articles 4, 5, 11 and 18 hereof.
3.2 For the proper execution of operations under the
Contract, the Operator shall be permitted to use those
portions of the seabed, mudflats and land surface inside or
outside the Contract Area under the control of CNPC as may
be necessary for Petroleum Operations, for as long as
Appraisal Operations, Development Operations or Productions
Operations continue. All reasonable costs incurred by CNPC
for this purpose shall be reimbursed by the Operator from
the Joint Account.
3.3 The Operator shall be permitted to use for the
purpose of Petroleum Operations any water source located
within the Contract Area, subject to Government rules any
payment of reasonable charges at the rates not more than
rates charged to other users of similar water sources in the
area.
3.4 If the Operator is unable to secure in its own
name any rights to use of the surface area necessary for
Petroleum Operations or for the delivery of Crude oil to the
delivery point defined in any overall development plan, CNPC
will assist the Operator by securing such rights in CNPC's
name for the benefit of the joint venture. All reasonable
costs incurred by CNPC for this purpose shall be reimbursed
by Operator from the Joint Account.
3.5 Except for the rights as expressly provided by the
Contract, no right is granted in favor of the Contractor to
the surface area, lake bed, stream bed and subsoil or any
bodies of water or any natural resources or aquatic
resources other than Petroleum existing therein, and any
thing under the surface within the Contract Area.
Article 4
Contract Term
4.1 The term of the Contract shall include an
appraisal period, a development period and a production
period.
4.2 The appraisal period, beginning on the Date of
Commencement of the Implementation of the Contract, shall be
divided into three (3) phases and shall consist of five (5)
consecutive Contract Years, unless the Contract is sooner
terminated, or the appraisal period is extended in
accordance with Article 25 hereof and/or Article 4.3 herein.
The three (3) phases shall be as follows:
The first phase of one (1) Contract Year (the
first Contract Year);
The second phase of two (2) Contract Years (the
second Contract Year through the third Contract
Year); and
The third phase of two (2) Contract Years (the
fourth Contract Year through the fifth Contract
Year).
4.3 Where time is insufficient to complete the
appraisal work on a Petroleum discovery prior to the
expiration of the appraisal period or where the time of the
appraisal work on a Petroleum discovery in accordance with
the appraisal Work Program approved by JMC as stated in
Articles 11 and 18 hereof extends beyond the appraisal
period, the appraisal period as described in Article 4.2
herein shall be extended. The period of extension shall be
whatever period CNPC regards as a reasonable period of time
required to complete the above mentioned appraisal work in
order to enable JMC to make a decision on the commerciality
of the said Petroleum discovery in accordance with Article
11 or 18 hereof, and until the Department or Unit approves
or finally rejects the Overall Development Program.
4.4 The development of any Oil Field and/or Gas Field
within the Contract Area shall begin on the date of approval
by the Department or Unit of the Overall Development Program
of the said Oil Field and/or Gas Field, and end on the date
of the entire completion of the Development Operations set
forth in the Overall Development Program, excluding the time
for carrying out additional development projects in the
production period in accordance with Article 11.9 hereof.
The Contractor and CNPC will commence preparation of the
Overall Development Program when appraisal of any potential
Oil Field and/or Gas Field indicates by reinterpretation of
seismic and mapping and integrated reservoir study that such
field is commercial. The Overall Development Program will be
submitted for approval by the Department or Unit as soon as
approved by the JMC.
4.5 The production period of any Oil Field and/or Gas
Field within the Contract Area shall be a period of twenty
(20) consecutive Production Years beginning on the Date of
Commencement of Commercial Production unless otherwise
provided in Article 4.6 herein and Article 18.2 or 25
hereof. Under such circumstances as where the overall
development of an Oil Field and/or Gas Field is to be
conducted on a large scale, and the time span required
therefor is long, or where separate production of each of
the multiple oil or gas producing zones of an Oil Field
and/or Gas Field is required, or under other special
circumstances, the production period thereof shall, when it
is necessary, be appropriately extended with the approval
of the Department or Unit.
4.6 Suspension Or Abandonment Of Production Of An Oil
Field and/or Gas Field.
4.6.1 In the event that the Parties agree to suspend
temporarily production from an Oil Field and/or Gas Field
which has entered into commercial production, the Production
Area covered by that Oil Field and/or Gas Field may be
retained within the Contract Area. In no event shall the
period of such retention extend beyond the date of the
expiration of the production period of that Oil Field and/or
Gas Field except as otherwise provided in Article 25.4
hereof. The duration of the relevant period of production
suspension and the arrangement for the maintenance
operations during the aforesaid period of suspension shall
be proposed by the Operator, and shall be decided by JMC
through discussion. With respect to the aforesaid Oil Field
and/or Gas Field which has been suspended and retained
within the Contract Area, in the event that production is
restored during the period of such retention, the production
period of that Oil Field and/or Gas Field shall be extended
correspondingly. In the event that the Parties fail to
reach an agreement on the restoration of production by the
expiration of the production suspension period decided by
JMC through discussion, the party who wishes to restore
production shall have the right to restore production
solely. The other party may later elect to participate in
production but shall have no rights or obligations in
respect of such Field for the solely restored production
period.
4.6.2 Abandonment Of Production From An Oil Field
and/or Gas Field Within The Production Period.
4.6.2.1 During the production period, either party to
the Contract may propose the abandonment of production from
any Oil and/or Gas Field within the Contract Area, provided,
however, that prior written notice shall be given to the
other party to the Contract. The other party shall make a
response in writing within ninety (90) days from the date on
which the said notice is received. If the other party also
agrees to abandon production from the said Oil Field and/or
Gas Field, then abandonment costs shall be paid by the
Parties in proportion to their participating interests in
the development of such Oil Field and/or Gas Field. From
the date on which the other party makes the response in
writing, the production period of such Oil Field and/or Gas
Field shall be terminated and such Oil Field and/or Gas
Field shall be excluded from the Contract Area.
4.6.2.2 If the Contractor notifies CNPC in writing of
its decision on abandoning production from an Oil Field
and/or Gas Field, and CNPC decides not to abandon production
from such Oil Field and/or Gas Field, then from the date on
which the Contractor receives CNPC's written response of its
aforesaid decision, all of the Contractor's rights and
obligations, including but not limited to the
responsibilities for payment of abandonment in respect of
such Field, shall be terminated automatically, provided that
the Contractor shall not transfer to CNPC any of the
Contractor's liabilities and obligations in respect of the
said Field. The said Field shall be excluded from the
Contract Area.
4.7 The term of the Contract shall not go beyond
thirty (30) consecutive Contract Years from the Date of
Commencement of the Implementation of the Contract, unless
otherwise stipulated hereunder.
Article 5
Relinquishment
5.1 In any of the following cases, the Contractor
shall relinquish the remaining Contract Area except any
Development Area and/or Production Area:
(a) at the expiration of the last phase of the
appraisal period and development period; or
(b) at the expiration of the extended period, in the
event that the appraisal period and development period is
extended in accordance with Article 4.3. or Article 25
hereof.
5.2 At the expiration of the production period of the
last producing Oil Field and/or Gas Field within the
Contract Area, the contractor shall relinquish all rights to
the entire Contract Area.
Article 6
Minimum Appraisal Work Commitment
and Expected Minimum Appraisal Expenditures
6.1 The Contractor shall begin to perform the on
site Appraisal Operations within three (3) months after the
Date of Commencement of the Implementation of the Contract
and spud the first Appraisal Well within ten (10) moths
after the Date of Commencement of Implementation of the
Contract, unless otherwise agreed by the Parties.
6.2 The Contractor shall fulfill the minimum
appraisal work commitment and expected minimum appraisal
expenditures for each phase of the appraisal period in
accordance with the following provisions:
6.2.1 During the first phase of the appraisal
period, the Contractor shall:
(a) reprocess and reinterpret a minimum of
approximately three hundred (300) kilometers of existing 2-
D seismic data and seventy (70) square kilometers of
existing 3-D seismic data, provided necessary support data
is available. Contractor will have access to additional
seismic data outside the Contract Area as needed to make
geological and geophysical evaluations of the Contract Area;
(b) drill one (1) Appraisal Well with the footage of
three thousand (3,000) meters;
(c) spend a minimum of one million ($1,000,000) U.S.
dollars upgrading the artificial island and to recondition
the causeway and causeway drilling pad in preparation of
Petroleum Operations; and
(d) spend a minimum of four million ($4,000,000) U.S.
dollars (including the expenditures described in (c), above)
for such Appraisal Operations.
6.2.2 During the second phase of the appraisal
period, the Contractor shall:
(a) drill two (2) Appraisal Wells, one with the
footage of three thousand (3,000) meters, and one with the
footage of three thousand five hundred (3,500) meters;
(b) if the decision is made to drill from the
artificial island, the Contractor will spend a minimum of an
additional one million ($1,000,000) U.S. dollars upgrading
the drilling rig and other facilities on the artificial
island;
(c) If Contractor concludes and the JMC agrees that it
is feasible from an engineering, geological and economic
viewpoint to reevaluate the nine (9) existing wellbores on
the Contract Area, Contractor will commit to re-evaluate a
minimum of three (3) of the existing wells.
(d) spend a minimum of six million ($6,000,000) U.S.
dollars as its expected minimum appraisal expenditures for
such Appraisal Operations.
(e) Formulate the Overall Development Program if
appraisal of any potential Oil Field and/or Gas Field
indicates that such a field is commercial.
6.2.3 During the third phase of the appraisal period,
the Contractor shall:
(a) drill two (2) Appraisal Wells with the footage of
three thousand (3,000) meters each; and
(b) spend a minimum of six million ($6,000,000) U.S.
dollars as its expected minimum appraisal expenditures for
such Appraisal Operations.
6.2.4 With respect to the minimum appraisal work
commitment for each phase of the appraisal period committed
by the Contractor in accordance with Articles 6.2.1, 6.2.2.
and 6.2.3 herein when calculating whether the minimum
appraisal work commitment has been fulfilled, the number of
Appraisal Wells and the kilometers of seismic lines
reprocessed and reinterpreted shall be the basis of such
calculation. However, the Appraisal Wells abandoned for
technical reasons without reaching their predetermined
geological objective shall not count as Appraisal Wells
actually fulfilled by the Contractor thereunder, without the
consent of CNPC.
6.3 At the expiration of the first phase or the
second phase of the appraisal period, the Contractor has the
following options:
(a) to enter the next phase and continue appraisal; or
(b) to terminate the Contract.
6.4 At the expiration of any phase of the appraisal
period, if the actual appraisal work fulfilled by the
Contractor is less than the minimum appraisal work
commitment set forth for the said appraisal phase and if the
Contractor elects to enter the next phase and continue
appraisal under Article 6.3 (a) herein, the Contractor shall
give reasons to CNPC for the underfulfillment, and with the
consent of CNPC, the unfulfilled balance of the said phase
shall be added to the minimum appraisal work commitment for
the next appraisal phase.
In the event of a commercial appraisal at any time
within the appraisal period, JMC shall, at the request of
any party to the Contract, discuss the possibility of
increasing the appraisal work. Any Appraisal Wells involved
in such increase shall be deducted from the minimum
appraisal work commitment.
6.5 Where the Contractor has fulfilled ahead of time
the minimum appraisal work commitment for any phase of the
appraisal period, the duration of such appraisal phase
stipulated in Article 4.2 hereof shall not be shortened
thereby, and if the appraisal work actually fulfilled by
the Contractor exceeds the minimum appraisal work commitment
for the said appraisal phase, the excess part shall be
deducted from and credited against the minimum appraisal
work commitment for the next appraisal phase.
6.6 If any addition or deduction is made under
Article 6.4 or Article 6.5 herein in regard to the minimum
appraisal work commitment for any phase of appraisal period,
the increased or reduced appraisal work shall become the new
minimum appraisal work commitment for the Contractor to
fulfill in the said phase.
6.7 At the expiration of any phase during the
appraisal period, if the appraisal work actually fulfilled
by the Contractor is less than the minimum appraisal work
commitment for such phase or less than the new minimum
appraisal work commitment as mentioned in Article 6.6
herein, and if, regardless of whether the expected minimum
appraisal expenditures are fulfilled or not fulfilled, the
Contractor elects to terminate the Contract under Article
6.3 (b) herein or if the said phase is the last phase of the
appraisal period, the Contractor shall, within thirty (30)
days from the date of the decision of election to terminate
the Contract or thirty (30) days from the date of the
expiration of the exploration period, pay CNPC any
unfulfilled balance of the minimum appraisal work commitment
(or of the new one) in U.S. dollars after it has been
converted into a cash equivalent using the method provided
in Annex II-Accounting Procedure attached hereto. However,
if the minimum appraisal work commitment for the appraisal
period is fulfilled while its expected corresponding minimum
appraisal expenditures are not fulfilled, the unfulfilled
part shall be deemed as a saving and shall not be paid to
CNPC.
Article 7
Management Organization and Its Functions
7.1 For the purpose of the proper performance of the
Petroleum Operations, the Parties shall establish a Joint
Management Committee (JMC) within forty-five (45) days from
the effective date of the Contract.
7.1.1 CNPC and the Contractor shall each appoint an
equal number of representatives (three to five), to form
JMC, and each party to the Contract shall designate one of
its representatives as its chief representative. All the
aforesaid representatives shall have the right to present
their views on the proposals at the meetings held by the
JMC. When a decision is to be made on any proposal, the
chief representative from each party to the Contract shall
be the spokesman on behalf of the party to the Contract.
The chairman of the JMC shall be the chief
representative designated by CNPC, and the vice chairman
shall be the chief representative designated by the
Contractor. The chairman of JMC shall preside over the
meetings of JMC. In his absence, one representative present
at the meeting from CNPC shall be designated to act as the
chairman of the meeting. In the absence of the vice
chairman, one representative present at the meeting from the
Contractor shall be designated to act as vice chairman at
the meeting. The Parties may, according to need, designate
a reasonable number of advisors who may attend, but shall
not be entitled to vote at JMC meetings.
7.1.2 A regular meeting of JMC shall be held at least
once a Calendar Quarter, and other meetings, if necessary,
may be held at any time at the request of any party to the
Contract, upon giving reasonable notice to the other party
of the date, time and location of the meeting and the items
to be discussed.
7.2 The Parties shall empower JMC to:
7.2.1 Review and adopt the Work Program and budget
proposed by the Operator;
7.2.2 determine the commerciality of each trap on
which a Petroleum discovery has been made in accordance with
the Operator's appraisal report and report its decision to
CNPC for confirmation;
7.2.3 review and adopt the Overall Development Program
and budget for each Oil Field and/or Gas Field;
7.2.4 approve or confirm the following items of
procurement and expenditures:
(a) approve procurement of any item within the budget
with a unit price exceeding Five Hundred Thousand U.S.
dollars (U.S.$ 500,000) or any single purchase order of
total monetary value exceeding Two Million U.S. dollars
(U.S. $2,000,000);
(b) approve a lease of equipment, or an engineering
subcontract or a service contract within the budget worth
more than One Million U.S. dollars (U.S. $1,000,000); and
(c) confirm excess expenditures pursuant to Article
10.2.1 hereof and the expenditures pursuant to Article
10.2.2 hereof;
7.2.5 determine and announce the Date of Commencement
of Commercial Production of each Oil Field and/or Gas Field
within the Contract Area;
7.2.6 determine the type and scope of information and
data provided to any Third Party and Affiliate in relation
to the Petroleum Operations in accordance with Article 22.5
hereof and Annex IV - Data Control Agreement;
7.2.7 demarcate boundaries of the Development Area and
the Production Area of each Oil Field and/or Gas Field;
7.2.8 review and approve plans for transfer of the
Production Operations in accordance with Article 8.7 hereof;
7.2.9 review and approve the insurance program
proposed by the Operator and emergency procedures on safety
and environmental protection;
7.2.10 review and approve personnel training programs;
7.2.11 discuss, review, decide and approve other
matters that have been proposed by either party to the
Contract or submitted by the expert groups or the Operator;
and
7.2.12 review and examine matters required to be
submitted to relevant authorities of the Chinese Government
and/or CNPC for approval.
7.2.13 Approve Trial Production for any Appraisal
Well when feasible.
7.3 Decisions of JMC shall be made unanimously through
consultation. All decisions made unanimously shall be
deemed as formal decisions and shall be equally binding upon
the Parties. When matters arise on which agreement cannot
be reached, the Parties may convene another meeting in an
attempt to find a new solution thereto based on the
principle of mutual benefit.
7.3.1 In the appraisal period, the Parties shall
endeavor to reach agreement through consultation on
appraisal programs and annual appraisal Work Programs. If
the Parties fail to reach agreement through consultation,
the Contractor's proposal shall prevail, provided that such
proposal is not in conflict with the relevant provisions in
Articles 4, 5, and 6 hereof.
7.3.2 If it is considered by the chairman and/or the
vice chairman or their nominees that a matter requires
urgent handling or may be decided without convening a
meeting, JMC may make decisions through conference telephone
calls, telefax transmissions or the circulation of documents
to produce decisions.
7.4 JMC shall establish the following subordinate
bodies:
7.4.1 Secretariat
The secretariat shall be a permanent organization
consisting of two (2) secretaries. One secretary shall be
appointed by each of the Parties. The secretaries shall not
be members of JMC, but may attend meetings of JMC as
observers. The duties of the secretariat are as follows:
(a) to keep minutes of meetings;
(b) to prepare summaries of and resolutions for JMC
meetings;
(c) to draft and transmit notices of meetings: and
(d) to receive and transmit proposals, reports or
plans, etc. submitted by the Operator and/or any party to
the Contract, which require discussion, review and/or
approval by JMC.
7.4.2 Expert Groups
Advisory expert groups shall be established in
accordance with the requirements of the Petroleum Operations
in various periods. Each expert group shall consist of an
equal number of CNPC and the Contractor's personnel, and,
with the agreement of JMC, any other personnel. JMC shall
discuss and decide upon their establishment or dissolution,
size, and the appointment of their leaders in accordance
with requirements of their work. The expert groups shall
have the following functions;
(a) to discuss and study matters assigned to them by
JMC and submitted by the Operator to JMC for its review and
approval and any other matter assigned to them by JMC and to
make constructive suggestions to JMC;
(b) to have access to and observe and investigate the
Petroleum Operations conducted by the Operator at its office
and operating sites as work requires and to submit relevant
reports to JMC; and
(c) to attend meetings of JMC as observers at the
request of JMC.
7.5 When the Contractor acts as the Operator, CNPC
shall have the right to assign professional representatives
to the Operator's administrative and technical departments
which are related to the Petroleum Operations, who may work
on a long-term basis together with the Operator's staff.
The professional representatives shall have access to
the centers of research, design, and data processing related
only to the execution of the Contract and to the operating
sites to observe all of the activities and study all the
information with respect to the Petroleum Operations. Such
access to the aforesaid centers outside the People's
Republic of China shall be decided by JMC through discussion
and shall be arranged by the Operator. The Operator shall
use all reasonable endeavors to assist the professional
representatives to have access to Third Parties' sites. The
Operator's staff shall regularly discuss their work with the
professional representatives of CNPC. The work of
professional representatives of CNPC shall be arranged by
the manager(s) of the departments of the Operator in which
professional representatives work.
Professional representatives of CNPC, except for the
professional representatives in charge of procurement who
shall undertake their functions in accordance with Article
7.6 herein, shall not interfere in the decision making on
relevant matters by departmental manager(s) of the Operator.
However, such professional representatives shall have the
right to make proposals and comments to departmental
manager(s) of the Operator or to report directly to CNPC
representatives in JMC.
When CNPC acts as the Operator, the Contractor may also
assign professional representatives including professional
representatives in charge of procurement.
7.5.1. On the principle of mutual cooperation and
coordination, the Operator shall provide the professional
representatives with necessary facilities and assistance to
perform office work and to observe the operating sites, etc.
7.5.2. The number of professional representatives
shall be decided by JMC though consultations.
7.6 When one of the companies comprising the
Contractor acts as the Operator, in respect of the items
listed in the procurement plan, the procedures and
provisions herebelow shall be followed:
7.6.1. The procurement department of the Operator
shall inform the professional representatives appointed by
CNPC in charge of procurement of all the items of
procurement.
7.6.2. The Operator shall be subject to Articles 15.1
and 15.3 hereof and reach agreement through consultation
with the professional representatives of CNPC in charge of
procurement when preparing the procurement plan in
accordance with the Work Program and budget. The
professional representatives of CNPC in charge of
procurement shall work out an inventory listing the
equipment and materials which can be made and provided in
China and a list of manufacturers, engineering and
construction companies and enterprises in China which can
provide services and undertake subcontracting work.
7.6.3. Unless otherwise agreed upon by the Parties,
the Operator shall, in general, make procurement by means of
calling for bids and shall notify at the same time
manufacturers and enterprises concerned both inside and
outside China, and the work of calling for bids shall be
done within the territory of China.
7.6.4. When any procurement is to be made by means of
calling for bids, the manufacturers and enterprises in China
applying for bidding, which are included in a list delivered
in advance to the Operator by the professional
representative of CNPC in charge of procurement, shall be
invited. The professional representatives of CNPC in charge
of procurement shall have the right to take part in the work
of calling for bids, including examination of the list of
bidders to be invited, preparing and issuing bidding
documents, opening bids, evaluation of bids, negotiation,
and award of contracts through consultation, as well as
negotiation for subcontracts and services contracts.
7.6.5. With respect to the items of procurement by
means of not calling for bids, the Operator's procurement
department and the professional representatives of CNPC in
charge of procurement shall, in accordance with the
provisions specified in Article 7.6.2 herein define which
items are to be procured in the People's Republic of China
and which items are to be procured abroad.
7.6.6 With respect to the use of personnel, equipment
and services to be procured in the People's Republic of
China, it is expressly understood that quality and costs
shall be competitive with personnel, equipment and services
that can be procured outside of the People's Republic of
China subject to Article 15 hereof.
7.7 All costs and expenses with respect to the staff
members of the Parties in the subordinate bodies of JMC
established in accordance with Article 7.4 herein, and those
with respect to the professional representatives referred to
in Article 7.5 herein and wages and salaries, costs and
expenses incurred by the representatives of JMC referred to
in Article 7.1.1 herein while attending JMC meetings shall
be paid by the Operator and charged respectively to the
appraisal costs, development costs and production costs in
accordance with Annex II-Accounting Procedure hereto.
7.8 The specific responsibilities and working
procedures within JMC shall be discussed and determined by
JMC in accordance with the relevant provisions herein.
7.9 For the purpose of assisting the Operator in the
proper implementation of Development Operations, an
Integrated Project Team ( the "IPT") shall be established to
act as a working group under the direction of the Operator.
Within the IPT in working roles, and charged with oversight
of development planning and execution will be a group of six
(6) persons designated by the Parties hereto. The six-
person group (the "Management Group") will consist of three
(3) CNPC designees and three (3) designees of the
Contractor, including one Operator designee who shall be
General Manager of the IPT and one CNPC designee who shall
be Deputy Manager. The Management Group will operate on the
principles of cooperation and mutual consultation. The IPT
shall be established within thirty (30) days from the date
of approval of the Overall Development Program.
The specific organization, staffing and working system
of the IPT and the responsibilities and competence of
various positions, including those of CNPC's personnel
assigned to the IPT, shall be determined by the parties
through consultation based on the principal of efficiency of
operations. The IPT shall comprise those personnel
designated by the parties and the number of CNPC's personnel
shall be no less than one third (1/3) of the total number of
personnel within the IPT. The working location(s) of the
members of the IPT shall be decided according to the needs
of the work.
Article 8
Operator
8.1 The Parties agree that XCL Cathay Ltd. ("XCL")
shall act as the Operator for the Petroleum Operations
within the Contract Area, unless otherwise stipulated in
Article 8.7 herein.
8.2 For the implementation of the Contract, the
companies comprising the Contractor shall register with the
State Administration for Industry and Commerce of the
People's Republic of China in accordance with the relevant
provisions of the said State Administration for Industry and
Commerce and shall obtain the necessary approval from CNPC.
The person in charge of the Operator shall have the
full right to represent the Contractor in respect of the
performance of the Petroleum Operations. The names,
positions and resumes of the staff and an organization chart
of the Operator shall be submitted in advance to CNPC and
the appointment of the Operator's senior staff shall be
subject to the consent of CNPC.
The parent corporation of each company comprising the
Contractor which is not itself a parent corporation shall,
at the request of CNPC, provide CNPC with a written
performance guarantee with terms acceptable to CNPC.
8.3 The Operator shall have the following obligations:
8.3.1 To apply the appropriate and advanced technology
and business managerial experience of the Contractor,
including each company comprising the Contractor or its and
their Affiliates, to perform the Petroleum Operations
reasonably, economically and efficiently in accordance with
sound international practice.
8.3.2 To prepare Work Programs and budgets related to
the Petroleum Operations and to carry out the approved Work
Programs and budgets.
8.3.3 To be responsible for procurement of
installations, equipment, and supplies and entering into
subcontracts and service contracts related to the Petroleum
Operations, in accordance with the approved Work Programs
and budgets and the applicable provisions of Articles 7.2.4,
7.6 and 10.2 hereof.
8.3.4 To prepare in advance, in accordance with
Article 16 hereof, a personnel training program and budget
before the commencement of the Appraisal Operations,
Development Operations and Production Operations,
respectively, and, in accordance with the said program and
budget, to be responsible for preparing an annual personnel
training program and budget and carrying out the annual
program and budget after approval by JMC.
8.3.5 To establish an insurance program, and to enter
into and implement the insurance contracts in accordance
with Article 21 hereof.
8.3.6 To issue cash-call notices to all the parties to
the Contract to raise the required funds based on the
approved budgets and in accordance with Article 12 hereof
and Annex II-Accounting Procedure hereto.
8.3.7 To maintain complete and accurate accounting
records of all the costs and expenditures for the Petroleum
Operations in accordance with the provisions of Annex II-
Accounting Procedure hereto and to keep securely the
accounting books in good order.
8.3.8 To make necessary preparation for regular
meetings of JMC, and to submit in advance to JMC necessary
information related to the matters to be reviewed and
approved by JMC.
8.3.9 To inform directly or indirectly all the
Subcontractors which render services for the Petroleum
Operations in China and all the Expatriate Employees of the
Operator and of Subcontractors who are engaged in the
Petroleum Operations in China that they shall be subject to
the laws, decrees, and other rules and regulations of the
People's Republic of China.
8.3.10 To report its work to JMC as provided in
Article 7.2 hereof.
8.4 In the course of the performance of the Petroleum
Operations, any direct loss arising out of the gross
negligence or willful misconduct of the Operator or its
employees shall be solely borne by the Operator. The
Operator shall make its best efforts in accordance with the
international Petroleum industry practice to include
provisions similar to this Article 8.4 herein in related
subcontracts and service contracts.
8.5 In the course of the performance of the Petroleum
Operations, the Operator shall handle the information,
samples or reports in accordance with the following
provisions:
8.5.1 The Operator shall provide CNPC with various
information and data and the Operator shall have the right
to use and handle such information and data. The
information and data shall be reported to CNPC at the same
time when the Operator reports them to its parent
corporation.
8.5.2 The Operator shall furnish CNPC in a timely
manner with reports on safety, environmental protection and
accidents related to the Petroleum Operations and with
financial reports prepared in accordance with the provisions
of Annex II-Accounting Procedure hereto.
8.5.3 The Operator shall provide the non-operator(s)
with copies of the relevant information and reports
reasonably required by non-operator(s) and referred to in
Articles 8.5.1. and 8.5.2. herein.
8.5.4 The Operator shall, at the request of any party
to the Contract, furnish that party to the Contract with the
following:
8.5.4.1 Procurement plans for purchasing equipment and
materials, inquiries, offers, orders and service contracts,
etc.;
8.5.4.2 Manuals, technical specifications, design
criteria, design documents (including design drawings),
construction records and information, consumption
statistics, equipment inventory, spare parts inventory,
etc.;
8.5.4.3 Technical investigation and cost analysis
reports; and
8.5.4.4 Other information relating to the Petroleum
Operations already acquired by the Operator in the
performance of the Contract.
8.6 In the course of performing the Petroleum
Operations, the Operator shall abide by the laws, decrees,
and other rules and regulations with respect to
environmental protection and safety of the People's Republic
of China and shall endeavor in accordance with
international Petroleum industry practice to:
8.6.1 Minimize the damage and destruction to
environment, community and ecology;
8.6.2 Control blowouts promptly and prevent or avoid
waste or loss of Petroleum discovered in, or produced from,
the Contract Area;
8.6.3 Prevent Petroleum from flowing into low pressure
formations or damaging adjacent Petroleum-bearing
formations;
8.6.4 Prevent water from flowing into Petroleum-
bearing formations through dry holes or other wells, except
for the purpose of secondary recovery;
8.6.5 Prevent land, forests, crops, buildings and
other installations from being damaged and destroyed; and
8.6.6 Minimize the danger to personnel safety and
health.
8.7 Transfer And Take Over Of The Production
Operations.
Before the full recovery of all appraisal and
development costs incurred in accordance with the Work
Program of any Oil Field and/or Gas Field within the
Contract Area, CNPC may, after agreement reached through
consultations with JMC, take over the Production Operations
of that Oil Field and/or Gas Field, if conditions permit.
After the full recovery of all appraisal and development
costs incurred in accordance with the Work Program of any
Oil Field and/or Gas Field within the Contract Area, CNPC
shall, at any time, have the right by giving written notice
to the Contractor, to take over the Production Operations of
that Oil Field and/or Gas Field. The transfer and take over
shall be effected in accordance with the procedures
described hereunder.
8.7.1 The Contractor shall submit a transfer plan of
the Production Operations to CNPC and JMC respectively
within sixty (60) days following the date of receiving the
written notice from CNPC. Such transfer plan shall include,
but not be limited to, a list of various posts to be taken
over by CNPC, a schedule of transfer by stages, inventories
of the relevant facilities and equipment and an inventory of
all documents, manuals, data and information necessary for
the Production Operations. Where the transfer of some of
the Production Operations involves any Third Party, the
Contractor shall consult with CNPC in advance and propose a
solution thereto in the transfer plan. However, this
situation shall not be taken by the Contractor as an excuse
to delay and hinder the transfer of the Production
Operations.
JMC shall, within thirty (30) days after receiving the
said plan, review and approve it.
8.7.2 CNPC shall, within sixty (60) days from the date
of receiving the transfer plan of the Production Operations
approved by JMC, submit to the Contractor and JMC
respectively the lists and resumes of CNPC personnel who
will take over the posts. The personnel named in the lists
shall be persons who have been trained by the Contractor in
accordance with provisions set forth in Article 16 hereof or
personnel who are considered by CNPC to be competent.
Within one hundred and eighty (180) days from the date of
receiving CNPC's lists of the personnel who will take over
the operations, the Contractor shall arrange for such
personnel to undergo step by step practical training for
the posts to be taken over by them and shall assist CNPC to
manage the qualification test.
8.7.3 Within three hundred and thirty (330) days from
the date of receiving the written notice from CNPC, the
Contractor shall submit to JMC a report on the completion of
preparation for the transfer of the Production Operations.
Such report shall include the results of the qualification
test for CNPC's personnel who will take over the Production
Operations and shall be confirmed by JMC within thirty (30)
days after the receipt of the said report. The transfer of
the Production Operations shall begin on the date when JMC
makes such confirmation.
8.7.3.1 When the completion of preparations for the
transfer of the Production Operations is confirmed by JMC,
the Contractor shall, in accordance with the transfer
schedule by stages, transfer to CNPC's take-over personnel
control of all facilities and equipment relating to the
Production Operations in the Oil Field and/or Gas Field, and
all documents, manuals, data and information regarding the
use and operation of such facilities and equipment, so that
CNPC's personnel are able to manage the Production
Operations.
8.7.3.2 If JMC believes that preparations for the
transfer of the Production Operations have not been
completed and sets another deadline for the completion of
preparations for the transfer of the Production Operations,
the preparations for the transfer shall be completed prior
to the deadline and the transfer shall begin thereafter.
8.7.4 The transfer in respect of the accounting and
financial aspects shall be handled in accordance with Annex
II-Accounting Procedure hereto.
8.7.5 During the preparation for the transfer of the
Production Operations and in the course of the actual
transfer, the Contractor shall perform the functions
provided for in Articles 8.3, 8.4, 8.5 and 8.6 herein in
respect of an Oil Field and/or Gas Field undergoing the
transfer of the Production Operations, until the date when
CNPC has completely assumed control of and taken over the
Production Operations of the Oil Field and/or Gas Field.
Thereafter, the functions of the Operator provided for in
Articles 8.3, 8.4, 8.5 and 8.6 herein shall be an analogy
applicable to CNPC.
8.7.6 After CNPC has taken over the Production
Operations and become the Operator of an Oil Field and/or
Gas Field, the Contractor shall still have the obligation
pursuant to Article 2 hereof, to provide CNPC with the
relevant technical and personnel training assistance, and
the costs incurred thereby shall be charged to the operating
costs in accordance with the provisions of Annex II-
Accounting Procedure hereto.
8.7.7 When CNPC takes over the Production Operations
in any Oil Field and/or Gas Field, the Chinese Personnel
employed by the Contractor for the Production Operations of
the said Oil Field and/or Gas Field shall be transferred to
CNPC's employment. If CNPC needs to retain the services of
any of the Expatriate Employees employed by the Contractor
or the Contractor still needs to keep some of the Chinese
Personnel in its employment, an agreement shall be reached
through consultation between the Parties prior to the
transfer.
8.7.8 The expenses incurred in the transfer and take
over of the Production Operations shall be charged to the
operating costs.
8.8 With a view to efficiently conducting the
Petroleum Operations and Work Programs approved by JMC, the
Operator shall have the right to lease and/or use lands with
compensation therefor and to obtain rights of way subject to
Chinese laws and customs. Any costs incurred by the
Operator for this purpose shall be charged to appraisal
costs, development costs and operating costs having regard
to the date on which these costs are actually incurred.
Article 9
Assistance Provided by CNPC
9.1 To enable the Contractor to carry out
expeditiously and efficiently the Petroleum Operations, CNPC
shall have the obligation to assist the Contractor at its
request to:
9.1.1 Obtain the approvals or permits needed to open
accounts with the Bank of China;
9.1.2 Go through the formalities of exchanging foreign
currencies;
9.1.3 Obtain office space, office supplies,
transportation and communication facilities and make
arrangements for accommodation as required;
9.1.4. Go through the formalities of the Customs;
9.1.5 Obtain entry and exit visas for the Expatriate
Employees who will come to China for implementation of the
Contract and for their dependents who will visit them or
reside in China for a long period and provide assistance for
their transportation and moving as well as medical services
and travel in China;
9.1.6 Obtain necessary permission to send abroad, if
necessary, documents, data and samples for analysis or
processing during the Petroleum Operations; and
9.1.7 Contact departments engaged in fishing, aquatic
products, meteorology, ocean shipping, civil aviation,
railway, transportation, communication and services for
supply bases, etc., for relevant matters and otherwise
assist the Contractor in obtaining on a timely basis
approvals necessary for the conduct of the Petroleum
Operations under the Contract.
9.2 In accordance with Article 15 hereof, CNPC shall
assist the Contractor with the recruitment of the Chinese
Personnel.
9.3 CNPC shall, at the request of the Contractor, sell
to the Contractor data and samples concerning the Contract
Area other than those produced as a result of Petroleum
Operations hereunder in accordance with any relevant rules
and regulations and CNPC shall also assist the Contractor to
arrange the purchase of any marine, hydrological,
metrological and other data available from the relevant
departments in China.
9.4 CNPC shall, at the request of the Contractor, also
assist the Contractor with the matters other than those
under Article 9.1, 9.2 and 9.3 herein if possible.
9.5 All expenses incurred in the assistance provided
by CNPC in accordance with this Article 9 shall be paid by
the Contractor and shall be handled in accordance with the
provisions of Annex II-Accounting Procedures hereto.
Article 10
Work Program and Budget
10.1 Before the fifteenth (15th) of September of each
Calendar Year after the Contract becomes effective, the
Operator shall complete and submit to JMC for its review an
annual Work Program and budget for the next Calendar Year.
JMC shall complete the review of the annual Work Program and
budget and submit them to CNPC for review and approval
before the fifteenth (15th) of October of the Calendar Year
in which they are submitted to JMC. Within fifteen (15)
days following the receipt of the annual Work Program and
budget, CNPC shall notify JMC in writing of its approval or
any modifications thereto with its detailed reasons. If
CNPC requests any modifications on the aforesaid annual Work
Program and budget, the Parties shall promptly hold meetings
to make modifications and any modifications agreed upon by
the Parties shall be effected immediately. In case CNPC
fails to notify JMC of its approval within fifteen (15)
days, the annual Work Program and budget proposed by the
Operator shall be deemed to have been approved by CNPC. The
Operator shall make its best efforts to perform the
Petroleum Operations in accordance with the approved or
modified annual Work Program and budget.
10.1.2 The Operator shall submit a preliminary
appraisal Work Program and budget to the JMC prior to
commencement of the drilling of an Appraisal Well.
10.1.3 If the JMC approves the preliminary
appraisal Work Program and budget thereof, they will submit
the preliminary appraisal Work Program and budget thereof to
CNPC for review and approval. Within fifteen (15) days
following the receipt of the preliminary appraisal Work
Program and budget thereof, CNPC shall notify JMC in writing
of its approval or any modifications thereto with its
detailed reasons. If CNPC requests any modifications on the
aforesaid preliminary appraisal Work Program and budget
thereof, the Parties shall promptly hold meetings to discuss
modifications and any modifications agreed upon by the
Parties shall be effected immediately. In case CNPC fails
to notify JMC of its approval or disapproval within fifteen
(15) days following the receipt of the preliminary appraisal
Work Program, the preliminary appraisal Work Program and
budget thereof proposed by the Operator shall be deemed to
have been approved by CNPC. The Operator shall make its
best efforts to perform the Appraisal Operations in
accordance with the approved or modified preliminary
appraisal Work Program and budget thereof.
10.1.4 CNPC and JMC acknowledge that the
preliminary appraisal Work Program may need modifications as
the Operator drills Appraisal Wells. The Operator will
immediately notify CNPC if modifications to the plan
outlined in the preliminary Work Program appear to be
necessary along with detailed reasons. In case CNPC fails
to notify Operator of its approval or disapproval of the
modifications within one hundred twenty (120) hours, the
modifications shall be deemed to have been approved by CNPC.
The modifications to be made shall, in no case, reduce the
minimum appraisal work commitment stipulated in Article 6.2
hereof.
10.2 The Operator may, in accordance with the
following provisions, incur excess expenditures or
expenditures outside the budget in carrying out the Work
Program and budget, provided that the objectives in the
approved Work Program and budget are not changed:
10.2.1 In carrying out an approved budget for a
single item, such as the drilling of a well, the Operator
may, if necessary, incur excess expenditures of no more than
ten percent (10%) of the budgeted amount. The Operator
shall report quarterly the aggregate amount of all such
excess expenditures to JMC for confirmation.
10.2.2 For the efficient performance of the Petroleum
Operations, the Operator may, without approval, undertake
certain individual projects which are not included in the
Work Program and budget, for a maximum expenditure of One
Hundred Thousand U.S. dollars (U.S. $100,000), but the
Operator shall, within ten (10) days after such expenditures
are incurred, report to JMC for confirmation. In case of
emergency, the Operator may incur emergency expenditures for
the amount actually needed but shall report such
expenditures to JMC as soon as they are made. However, the
said emergency expenditures shall not be subject to Articles
10.2.3 and 10.2.4 herein.
10.2.3 In the event that the aggregate of excess
expenditures under Article 10.2.1 herein and expenditures
under Article 10.2.2 herein incurred in a Calendar Year
cause the total expenditures of that Calendar Year to exceed
the approved annual budget, such excess shall not exceed
five percent (5%) of the approved annual budget for that
Calendar Year. If the aforesaid excess is expected to be in
excess of five percent (5%) of the annual budget, the
Operator shall present its reasons therefor to JMC and
obtain its approval for incurring such expenditures.
10.2.4 When JMC confirms the excess expenditures
mentioned in Article 10.2.1 herein, and the expenditures
mentioned in Article 10.2.2 herein;
(a) If expenditures or excess expenditures are
determined to be reasonable, the Operator may incur such
expenditures or excess expenditures again during the same
Calendar Year, subject to Article 10.2 herein; or
(b) If expenditures or excess expenditures are
determined to be unreasonable, the Operator shall not incur
such expenditures or excess expenditures again during the
same Calendar Year and such unreasonable expenditures or
excess expenditures shall be dealt with in accordance with
Article 5.4 of Annex II-Accounting Procedure hereto.
Article 11
Determination of Commerciality
11.1 The preliminary appraisal Work Program in
accordance with Article 10.1.2 will consist of the minimum
Work Program as stipulated in Article 6.2.
11.2 After the approval by the JMC of the
preliminary appraisal Work Program referred to in Article
10.1.3 hereof, the Operator shall carry out the operations
as soon as possible without unreasonable delay in accordance
with the timetable set forth in the approved preliminary
appraisal Work Program referred to in Article 11.1 herein.
11.3 Within one hundred and eighty (180) days after
the completion of the last Appraisal Well, the Operator
shall submit to JMC a detailed report on the appraisal of
the commerciality of the discovered Petroleum-bearing trap.
Under special circumstances, the above-mentioned periods may
be reasonably extended upon agreement of the Parties.
The appraisal report shall include an evaluation of
geology, development, engineering and economics and the
Overall Development Program to be approved. The Overall
Development Program shall include the Maximum Efficient Rate
(MER) determined in accordance with international Petroleum
industry practice.
11.4 Within thirty (30) days following the submission
of the appraisal report on any Crude Oil bearing trap, JMC
shall convene a meeting to review such report. When JMC
decides unanimously after its review that the said Crude Oil
bearing trap is an Oil Field with commercial value and is to
be developed, or the Contractor considers, in accordance
with Article 11.6.2 herein, that a Crude Oil bearing trap is
an Oil Field with commercial value and decides it is to be
developed, JMC shall submit to CNPC for confirmation the
appraisal report and the Overall Development Program of the
said Oil Field to be developed and CNPC shall submit the
Overall Development Program of the Oil Field to the
Department or Unit as soon as possible for its review and
approval. The Operator shall perform the Development
Operations in accordance with the Overall Development
Program of each Oil Field approved by the Department or
Unit. If such Development Operations do not commence within
ninety (90) days after the date of approval of the Overall
Development Program of an Oil Field by the Department or
Unit, or if an intentional delay caused unilaterally by the
Contractor acting as the Operator results in a suspension or
a halt of ninety (90) continuous days in the Development
Operations of an Oil Field, the Contractor shall be deemed
to have automatically waived all its rights in the said Oil
Field.
11.5 If, after the appraisal, JMC determines that a
Crude Oil bearing trap is non-commercial, such Crude Oil
bearing trap may, at the Contractor's option, be retained
within the Contract Area during the term of the appraisal
period; before the expiration of the appraisal period, if,
because of certain positive factors, JMC considers
unanimously that it is necessary to reappraise the
commerciality of the Crude Oil bearing trap, the Operator
shall submit a further appraisal report on such Crude Oil
bearing trap to JMC for its review and adoption; if the
JMC's determination of non-commerciality of such Crude Oil
bearing trap has not altered by the expiration of the
appraisal period, the relevant area of such Crude Oil
bearing trap shall be excluded from the Contract Area.
11.6 If JMC can not reach an agreement on the
commerciality of a Crude Oil bearing trap, the Parties
shall make their best efforts to seek another solution
thereto. However, if JMC can not reach an agreement on the
commerciality of any Crude Oil bearing trap within ninety
(90) days following the submission of the appraisal report
prepared by the Operator in accordance with Article 11.3
herein or any further appraisal report prepared by the
Operator in accordance with Article 11.5 herein, then such
trap shall be dealt with in accordance with the following
procedure:
11.6.1 If the Contractor considers a Crude Oil bearing
trap without commercial value, then the Contractor shall be
deemed to have waived its rights to participate in the
development of that Crude Oil bearing trap. The relevant
area covered by that Crude Oil bearing trap shall, however,
be retained within the Contract Area until the expiration of
the appraisal period. In case that CNPC decides, within the
appraisal period, to develop solely and to pay the
development costs of such Oil Field, then, at any time
within the development period, the Contractor shall be
allowed to elect to participate in the development. If the
Contractor decides, within the development period of such
Oil Field, to participate in the development of such Oil
Field by giving a written notice to CNPC, then, the
Contractor shall pay CNPC an amount of money, in addition to
the forty-nine percent (49%) of the development costs spent
by CNPC on the said Oil Field with Deemed Interest thereon
up to the date of the Contractor's submission of the written
notice to CNPC. Such amount shall be equal to three times
(300%) the foregoing development costs paid by CNPC with
Deemed Interest thereon and such amount of money shall not
be recovered by the Contractor after commercial production
of the Oil Field commences. Thereafter, the development
costs to be incurred in such Oil Field shall be provided by
the Parties in proportion to their respective participating
interests. In the event that the Contractor still decides
not to participate in the development of the said Oil Field
by the expiration of the development period of such Oil
Field, then the said Oil Field shall be excluded from the
Contract Area upon the Date of Commencement of Commercial
Production of the said Oil Field.
11.6.2 If CNPC considers a Crude Oil bearing trap to
have no commercial value while the Contractor considers that
it is a Crude Oil bearing trap having commercial value, the
Contractor may solely provide the entire development costs
and undertake development of the said Oil Field, and the
said Oil Field shall be deemed as an Oil Field in which CNPC
has no participating interests. The entire risk related to
the development costs spent for the said Oil Field shall be
borne solely by the Contractor.
11.6.3 Unless otherwise decided by CNPC, the
Development Operations and Production Operations of an Oil
Field solely financed by CNPC shall still be, upon agreement
between the Parties through consultation, performed by the
Operator subject to agreement on terms and conditions
entered into by CNPC and the Operator.
11.7 In the event of an Oil Field and/or Gas Field
Straddling a Boundary, CNPC shall arrange for the Contractor
and the neighboring parties involved to work out a unitized
Overall Development Program for such Oil Field and/or Gas
Field and to negotiate the relevant provisions thereof.
11.8 If a Petroleum-bearing trap without commercial
value within the Contract Area can be more economically
developed as a commercial Oil Field by linking it up with
facilities located outside the Contract Area, the
development of such Oil Field shall be dealt with in the
same manner as provided in Article 11.7 herein.
11.9 The procedures specified in this Article 11 shall
be applied, by analogy, to determination of additional
development projects in any Oil Field and/or Gas Field
within the Contract Area during the production period, such
projects being designed to increase the level of production
and/or total quantity of Petroleum recoverable from the said
Field.
11.10 It is anticipated that Trial Production will
be conducted in connection with Appraisal Operations. If
Trial Production is to be conducted in any Oil Field and/or
Gas Field within the Contract Area, the Parties shall agree
to the procedure of such Trial Production.
Article 12
Financing and Cost Recovery
12.1 Funds required for the Petroleum Operations shall
be raised by the Operator in accordance with Work Programs
and budgets determined pursuant to the relevant provisions
of the Contract, the provisions described in Annex II-
Accounting Procedure hereto, and the provisions described
herebelow.
12.1.1 All of the appraisal costs required for
Appraisal Operations shall be provided by the Contractor,
with the exception of the previous costs incurred by Dagang
which are calculated to be nineteen million three hundred
twelve thousand ($19,312,000) U.S. dollars (hereinafter
referred to as Dagang's "Pre-Contract Appraisal Costs").
However, the appraisal costs required for the fulfillment of
the minimum appraisal work commitment shall be deemed the
equity capital of the Contractor.
12.1.2 With the exception of the previous
development costs incurred by Dagang, which are calculated
to be eleven million six hundred eighty one thousand
($11,681,000) U.S. dollars (hereinafter referred to as
Dagang's "Pre-Contract Development Costs"), which are to be
borne solely by Dagang, the development costs required for
Development Operations in each Oil Field and/or Gas Field
within the Contract Area shall be provided by CNPC and the
Contractor in proportion to their respective participating
interests: fifty-one percent (51%) by CNPC and forty-nine
percent (49%) by the Contractor, unless CNPC applies
provisions in the second paragraph of this Article 12.1.2
herein.
In the event that CNPC, at its option, decides not to
participate in the development of an Oil Field and/or Gas
Field, or decides to participate in the development to an
extent less than fifty-one percent (51%) of the
participating interest, CNPC shall notify the Contractor in
writing of its decision to not participate or to participate
at a specific percentage which is less than fifty-one (51%)
participating interest before the appraisal report is to be
reviewed by JMC pursuant to Article 11.4 or Article 18.2.2
hereof. In such case, if CNPC does not participate in the
development of such Field, the development costs therein
shall be borne solely by the Contractor, or in the event
CNPC participates in the development of such Field to an
extent of less than fifty-one percent (51%) of the
participating interests, such development costs shall be
borne by the Parties in proportion to their actual
respective participating interests.
12.1.3 The operating costs incurred for the
performance of the Production Operations of each Oil Field
and/or Gas Field before the Date of Commencement of
Commercial Production shall be considered as development
costs. The operating costs so incurred after the Date of
Commencement of Commercial Production shall be paid
respectively by CNPC and the Contractor in proportion to
their participating interests of the development costs of
the said Field.
12.1.4 For the purpose of implementation of the
Contract, CNPC shall agree that the Contractor may, when
financing, use the entitlement of its share of production
under the Contract as a security for loans, provided that
the Contractor shall apply to CNPC in advance and the
application therefor shall be examined by CNPC, and provided
further that the right and interests of CNPC under the
Contract shall not be impaired thereby.
12.2 All the costs incurred in the performance of
Petroleum Operations shall be recovered in accordance with
Annex II-Accounting Procedure hereto and the provisions
described as follows:
12.2.1 The operating costs for any given Calendar Year
actually incurred by CNPC and the Contractor in respect of
each Oil Field pursuant to Article 12.1.3 herein shall be
recovered in kind by the Parties out of the Crude Oil
produced from the said Oil Field during that Calendar Year
in accordance with Annex II-Accounting Procedure hereto,
after the operating costs have been converted into a
quantity of Crude Oil on the basis of the Crude Oil price
determined in accordance with Article 14 hereof.
Unrecovered operating costs shall be carried forward to the
succeeding Calendar Year.
12.2.2 The appraisal costs incurred by the Parties
shall be recovered as follows:
After the Date of Commencement of Commercial Production
of an Oil Field within the Contract Area, the appraisal
costs incurred by the Parties in respect of the Contract
Area shall be recovered in kind out of the Crude Oil
produced from any Oil Field within the Contract Area in
accordance with Article 13.2.2 hereof, after the appraisal
costs have been converted into a quantity of Crude Oil based
on the Crude Oil price determined in accordance with Article
14 hereof. The appraisal costs shall be recovered without
interest.
If no Oil Field and/or Gas Field is developed within
the Contract Area, the appraisal costs incurred by the
Parties shall be deemed as their loss. Under no
circumstances shall CNPC or Contractor be required to
reimburse the Parties for such loss.
12.2.3 The development costs in respect of each Oil
Field incurred by CNPC and the Contractor and Deemed
Interest thereon for each Oil Field shall be recovered as
follows:
12.2.3.1 After the Date of Commencement of Commercial
Production of any Oil Field within the Contract Area, the
development costs in respect of such Field incurred by CNPC
and the Contractor and Deemed Interest thereon calculated in
accordance with Article 12.2.3.2 herein shall be recovered
in kind out of the Crude Oil produced from such Field in
accordance with Article 13.2.2.2 hereof, after the
development costs have been converted into a quantity of
Crude Oil based on the Crude Oil price determined in
accordance with Article 14 hereof.
12.2.3.2 Deemed Interest on the development costs
incurred by CNPC and the Contractor for each Oil Field
and/or Gas Field within the Contract Area shall be
calculated with the fixed annual compound rate of nine
percent (9%) from the first day of the month following the
month in which such development costs expended by each party
to the Contract are actually received in the bank account of
the Joint Account opened by the Operator. Dagang's Pre-
Contract Development Costs will earn Deemed Interest at the
fixed annual compound rate of nine percent (9%), commencing
from the date that the Overall Development Program for the
Oil Field and/or Gas Field has received all necessary
approvals. The detailed method of such calculation shall
be as provided in Annex II-Accounting Procedure hereto.
12.2.4 The amount of Crude Oil up to a quantity of
sixty thousand (60,000) metric tons extracted and delivered
from an Oil Field before the Date of Commencement of
Commercial Production shall be allocated in accordance with
Article 13 hereof.
12.3 The provisions in Article 12.2 herein shall
apply, by analogy, to Gas Fields.
Article 13
Crude Oil Production and Allocation
13.1 The Operator shall, in accordance with the
production profile, adjusted as the case may be, set forth
in the Overall Development Program for each Oil Field as
approved by the Department or Unit, work out a Crude Oil
production plan for each Oil Field in each Calendar Year and
carry out Crude Oil production pursuant to such plan.
13.2 The Annual Gross Production of Crude Oil of each
Oil Field within the Contract Area in each Calendar Year
within the production period shall be allocated in
accordance with the following sequence and proportions.
13.2.1 The percentages of the Annual Gross Production
of Crude Oil specified in paragraphs (a) and (b) hereunder
shall be used for payments of the Value-Added Tax and
royalty, respectively, and shall be paid in kind to the
relevant authorities of the Chinese Government through CNPC.
(a) Value Added Tax shall be paid in accordance with
relevant regulations of the People's Republic of China; and
(b) Royalty shall be paid in accordance with relevant
regulations of the People's Republic of China.
13.2.2 Sixty percent (60%) of the Annual Gross
Production of Crude Oil shall be deemed as the "cost
recovery oil" and shall be used for payments for cost
recovery in the following sequence:
13.2.2.1 Payment in kind for the operating costs
actually incurred but not yet recovered by the Parties
pursuant to Article 12.2.1 hereof after the price of the
said "cost recovery oil" has been determined in accordance
with Article 14 hereof.
13.2.2.2 The remainder of the "cost recovery oil"
shall, after payment for operating costs in accordance with
Article 13.2.2.1 herein, be deemed as "investment recovery
oil". Such "investment recovery oil" shall be used for the
recovery of the appraisal costs in respect of the Contract
Area which were incurred and not yet recovered by the
Parties, and shall be used for the recovery of the
development costs in respect of the Oil Field itself which
were incurred and not yet recovered by CNPC and the
Contractor in accordance with Articles 12.2.2 and 12.2.3
hereof, and Deemed Interest thereon. The method of recovery
and the recovery sequence are as follows:
(a) Beginning in the Calendar Year during which the
production of any Oil Field within the Contract Area
commences, the "investment recovery oil" referred to in
Article 13.2.2.2 herein, based on the price which has been
determined in accordance with Article 14 hereof shall be
paid in kind first to the Parties for the recovery of the
appraisal costs thereon which were incurred in respect of,
and have not yet been recovered from, the Contract Area.
Such "investment recovery oil" for any Calendar Year shall
be shared by the Parties for the recovery of the unrecovered
appraisal costs on the following basis:
(1) "Investment recovery oil" shall be allocated 49% to
recover Contractor's appraisal costs and 51% to recover
Dagang's Pre-Contract Appraisal Costs.
(2) If, at the end of the appraisal period, the
Contractor's appraisal costs do not exceed eighteen million,
five hundred fifty-five thousand ($18,555,000) U.S. dollars,
then the portion of Dagang's Pre-Contract Appraisal Costs
that will not be recovered proportionate with Contractor's
appraisal costs (hereinafter referred to as Dagang's
"Remaining Pre-Contract Appraisal Costs") shall be carried
forward to be recovered as at the same time as development
costs are recovered on the first Oil field to attain
Commencement of Commercial Production, as provided in
Article 13.2.2.2 (b)(1),below. Remaining Pre-Contract
Appraisal costs shall accrue Deemed Interest beginning on
the first day of the Contract Year following the end of the
appraisal period described in Article 4.2.
(3) If Contractor's appraisal costs exceed eighteen
million, five hundred fifty-five thousand ($18,555,000) U.S.
dollars, then, after Dagang has fully recovered all of its
Pre-Contract Appraisal Costs, Contractor's remaining
appraisal costs shall be recovered from 100% of "investment
recovery oil", as an incentive to Contractor's appraisal
efforts.
The unrecovered appraisal costs shall be carried forward to
succeeding Calendar Years until fully recovered.
(b)(1) In the case of the first Oil Field to attain
Commencement of Commercial Production, beginning in the
Calendar Year during which the appraisal costs incurred by
the Parties in respect of the Contract Area have been fully
recovered, the remainder of the "investment recovery oil" of
such Oil Field shall be used for the simultaneous recovery
of (1) the development costs incurred and not yet recovered
respectively by CNPC and the Contractor and Deemed Interest
thereon in respect of such Field, (2) Dagang's Pre-Contract
Development Costs and Deemed Interest thereon calculated in
accordance with Article 12.2.3.2, above, and (3) Dagang's
Remaining Pre-Contract Appraisal Costs without Deemed
Interest on the following basis:
I. Until Dagang has fully recovered its Pre-Contract
Development Costs together with Deemed Interest thereon
together with its Remaining Pre-Contract Appraisal Costs
together with Deemed Interest thereon, such "investment
recovery oil" shall be shared on the following basis after
the price of such remainder of the "investment recovery oil"
has been determined in accordance with Article 14 hereof:
(1) the Contractor's share of such "investment
recovery oil" shall be based on the ratio of
(A) Contractor's share of the budgeted costs
to develop the Oil Field, as set forth in the approved
Overall Development Program
to
(B) (1)CNPC's share of the budgeted costs to
develop the Oil Field, as set forth in the approved Overall
Development Program, plus (2) Dagang's Pre-Contract
Development Costs, plus (3) Dagang's Remaining Pre-Contract
Appraisal Costs;
(2) the balance of "investment recovery oil"
shall be allocated to CNPC and Dagang. The unrecovered
development costs and Deemed Interest thereon, unrecovered
Pre-Contract Development Costs and Deemed Interest thereon,
and unrecovered Pre-Contract Appraisal Costs and Deemed
Interest thereon shall be carried forward to succeeding
Calendar Years until fully recovered.
II. After Dagang has fully recovered its Pre-Contract
Development Costs together with Deemed Interest thereon
together with its Remaining Pre-Contract Appraisal Costs
together with Deemed Interest thereon, such "investment
recovery oil" for any Calendar Year shall be used for the
simultaneous recovery of the development costs incurred and
not yet recovered respectively by CNPC and the Contractor
and Deemed Interest thereon is respect of such Field in
proportion to their respective participating interests
therein after the price of such remainder of the "investment
recovery oil" has been determined in accordance with Article
14 hereof. The unrecovered development costs and Deemed
Interest thereon shall be carried forward to succeeding
Calendar Years until fully recovered.
(b)(2) In the case of each Oil Field other than the
first Oil Field to attain commencement of Commercial
Production, beginning in the Calendar Year during which the
appraisal exploration costs incurred by the Parties in
respect of the Contract Area have been fully recovered, the
remainder of the "investment recovery oil" of such an Oil
Field shall be used for the simultaneous recovery of the
development costs incurred and not yet recovered
respectively by CNPC and the Contractor and Deemed Interest
thereon in respect of such Field in proportion to their
respective participating interests therein after the price
of such remainder of the "investment recovery oil" has been
determined in accordance with Article 14 hereof. The
unrecovered development costs and Deemed Interest thereon
shall be carried forward to succeeding Calendar Years until
fully recovered.
(c) During the production period of an Oil Field,
costs for an additional development project incurred
pursuant to Article 11.9 hereof and Deemed Interest thereon
shall be recovered together with the unrecovered development
costs and Deemed Interest thereon. If the development costs
and Deemed Interest thereon have been fully recovered, then
costs for the said additional development project and Deemed
Interest thereon shall be recovered from the "investment
recovery oil" of such Field referred to in Article 13.2.2.2
herein in accordance with the provisions specified in
Article 13.2 herein. The unrecovered costs for the
additional development project and Deemed Interest thereon
shall be carried forward to succeeding Calendar Years until
fully recovered.
(d) After the recovery of an Oil Field's development
costs and Deemed Interest thereon and/or costs for the
additional development project and Deemed Interest thereon
from the said Field by the Parties, the remainder of the
"investment recovery oil" shall automatically be regarded as
part of the "remainder oil" referred to in Article 13.2.3
herein. By the date of expiration of the production period
of an Oil Field pursuant to Article 4.5 hereof, if any
development costs and Deemed Interest thereon and/or costs
for the additional development project incurred in respect
of such Field and Deemed Interest thereon have not yet been
fully recovered, then such unrecovered costs and Deemed
Interest thereon shall be regarded as a loss, and the
Parties shall bear the loss in proportion to their
respective participating interests. Any unrecovered Pre-
Contract Appraisal Costs and Deemed Interest thereon or Pre-
Contract Development Costs and Deemed Interest thereon shall
be regarded as a loss and be borne by Dagang.
13.2.3 The remainder of the Annual Gross Production of
Crude Oil after the allocation referred to in Articles
13.2.1 and 13.2.2 shall be deemed as "remainder oil". Such
"remainder oil" shall be divided into "share oil" of the
Chinese side and "allocable remainder oil". The "allocable
remainder oil" of each Oil Field in each Calendar Year shall
be equal to the "remainder oil" of that Calendar Year
multiplied by the factor (x) for each Oil Field within the
Contract Area in that Calendar Year. The factor (X) of each
Oil Field in each Calendar Year shall be determined in
accordance with the following successive incremental tiers
on the basis of the Annual Gross Production of Crude Oil
from such Oil Field during that Calendar Year.
Annual Gross Production Factors in Percentage
of Crude Oil Applicable to Each
from Production Tier of
Each Oil Field Each Oil Field within
(Thousands of Metric Tons) the Contract Area
- -------------------------- ----------------------
Equal to or less than 300 X 1 = 96%
Over 300 to 600 X 2 = 92%
Over 600 to 1200 X 3 = 90%
Over 1200 to 1,800 X 4 = 86%
Over 1,800 to 2,400 X 5 = 82%
Over 2,400 to 3,500 X 6 = 78%
Over 3,500 X 7 = 73%
An example of application in calculating the factor
(X):
Assuming that there are two producing commercial Oil Fields
A and B within the Contract Area and the Annual Gross
Production of Crude Oil from Oil Field A in a Calendar Year
is one (1) million metric tons, and that from Oil Field B is
one point five (1.5) million metric tons, the factor (X) of
Oil Field A in that Calendar Year shall be:
300X + 300X + 400X
X= ____1______2_______3 x 100% = 92.4%
1,000
and the factor (X) of Oil Field B in that Calendar Year
shall be:
300X + 300X + 600X + 300X
X= ____1______2_______3_______4 x 100% = 90.8%
1,500
13.2.4 The "allocable remainder oil" of each Oil Field
in each Calendar Year referred to in Article 13.2.3 herein
shall be shared by the Parties in proportion to their
respective participating interests in the development costs,
fifty-one percent (51%) for CNPC and forty-nine percent
(49%) for the Contractor. In the event that CNPC does not
participate in the development of an Oil Field within the
Contract Area, the Contractor shall obtain one hundred
percent (100%) of the "allocable remainder oil" of that
Field. In the event that CNPC participates to an extent
less than fifty-one percent (51%) in the development of an
Oil Field within the Contract Area, the "allocable remainder
oil" of such Field in that Calendar Year shall be shared by
the Parties in proportion to their actual respective
participating interests in such Oil Field.
13.3 Pursuant to the method of allocation specified in
this Article, the Contractor may obtain an aggregate amount
of Crude Oil consisting of the following three categories:
13.3.1 The total amount of Crude Oil as converted from
the actual operating costs paid by the Contractor in all Oil
Fields in proportion to its participating interests in the
development costs stipulated in 12.1.3 hereof when
recovering such costs;
13.3.2 The total amount of the "investment recovery
oil" from all Oil Fields due to the Contractor provided for
in Article 13.2.2.2 herein; and
13.3.3 The total amount of the "allocable remainder
oil" of all Oil Fields due to the Contractor in accordance
with Article 13.2.4 herein.
13.4 In the event that the Contractor wishes to
purchase a portion of or all of the total amount of the
Crude Oil obtained by CNPC from the "investment recovery
oil" in addition to the Crude Oil obtained by the Contractor
in accordance with Article 13.3 herein, the Parties shall
negotiate the terms and conditions of purchasing such Crude
Oil and reach an agreement as a supplementary document
hereto.
13.5 CNPC and each company comprising the Contractor
shall, throughout the entire Contract term, have the right
and obligation, in each Calendar Quarter to lift and take,
and separately dispose of their respective full shares of
all Crude Oil produced, and determined pursuant to Articles
13.3 and 13.4 herein.
In the event that the Crude Oil production of any Oil
Field is reduced because CNPC or any company comprising the
Contractor does not lift and take its full share of Crude
Oil or lifts nothing, then such reduction in Crude Oil
production shall not affect the full shares of Crude Oil due
to or the shares of Crude Oil available to be lifted and
disposed of by the other party as provided in Article 13.6
(c) herein.
13.6 A Crude Oil lifting procedure shall be agreed
upon by the Parties no later than six (6) months prior to
the Date of Commencement of Commercial Production within the
Contract Area, and shall include, but not be limited to:
(a) Operator's notification of Crude Oil production to
CNPC and the Contractor;
(b) Notification by CNPC and each company comprising
the Contractor of its expected offtake to the Operator;
(c) Operator's notification to CNPC and each company
comprising the Contractor of the final Crude Oil lifting
schedule which shall be binding on CNPC and each company
comprising the Contractor;
(d) Limitation and calculation of overlift and
underlift of CNPC and each company comprising the
Contractor; and provisions to ensure timely and ratable
lifting of Crude Oil;
(e) Determination of allowable operational tolerance
of liftings; and
(f) other terminal procedures as may be required to
reflect the particular circumstances.
13.7 For the purpose of implementing the procedures as
described in Article 13.6 herein, CNPC and each company
comprising the Contractor shall jointly set up a Crude Oil
lifting coordination group consisting of representatives
each appointed by CNPC and each company comprising the
Contractor, with the representative of CNPC as the chairman.
Such group shall be responsible for the preparation of Crude
Oil lifting plans of Calendar Year, of Calendar Quarter and
of calendar month and shall also be responsible for the
reasonable and unified arrangements and adjustments of the
aforesaid Crude Oil lifting plans through close contact with
any operator in charge of the storage and loading
facilities.
Article 14
Quality, Quantity,
Price and Destination of Crude Oil
14.1 In accordance with Article 13.3 hereof, the
Contractor may obtain the aggregate amount of three (3)
categories of the Crude Oil referred to in Articles 13.3.1,
13.3.2 and 13.3.3 hereof. In addition the Contractor may
purchase a portion or all of the total amount of the Crude
Oil allocated to CNPC from the "investment recovery oil" in
all Oil Fields within the Contract Area in accordance with
Article 13.4 hereof.
14.2 Quality of the Crude Oil.
14.2.1 The quality analysis of the Crude Oil produced
from each Oil Field within the Contract Area shall be
undertaken at the Delivery Point. Such analysis shall be
carried out on a sample taken by the State Administration of
Import and Export Commodity Inspection (hereafter referred
to as the "Administration") or any representative agency
delegated by the Administration pursuant to standards issued
by the State Bureau of Standardization of the People's
Republic of China or by the Department or Unit.
14.2.2 The Crude Oil quality analysis referred to in
Article 14.2.1 above shall include the following:
(a) density at 20 degrees Centigrade, in grams per
cubic centimeter;
(b) sulfur content, in weight percentage;
(c) water content, in weight percentage; and
(d) basic sediment content, in weight percentage.
14.3 Quantity of the Crude Oil.
14.3.1 The quantity measurement of the Crude Oil
produced from each Oil Field within the Contract Area, when
being lifted, shall be made at a Delivery Point and with
measuring devices both to be agreed upon by the Parties. A
relevant measuring organization of the Chinese Government or
a representative agency delegated thereby shall, at
appropriate regular intervals, calibrate all the measuring
devices, conduct special testing and issue certificates or
confirmation with respect thereto before the measuring
devices are put into use. The quality and quantity of the
Crude Oil delivered shall be authenticated in accordance
with the commodity quality certificate and weight
certificate issued by the Administration and such quality
and quantity shall be the basis for the accounting
settlement.
14.3.2 If any party to the Contract believes that the
Crude Oil measuring devices, sampling or analysis are
inaccurate, or has any objection to the results specified in
the above mentioned certificates, on-site investigations,
technical exchanges and discussions may be conducted by the
Parties to resolve the issue in a manner satisfactory to the
Parties.
14.4 Determination of the Crude Oil Price.
14.4.1 The price of various grades of the Crude Oil
shall be expressed as FOB price at the Delivery Point.
Determination of the Crude Oil price shall be made with
reference to the prevailing price in arm's length
transactions of the long term contract sales of similar
quality crude oil on the main world oil markets and the
adjustments in such price shall be made in accordance with
such determinants as the quality of the Crude Oil, the terms
of delivery, transportation, payment and other terms.
The aforesaid price in arm's length transactions in
this Article refers to a price at which a seller sells its
crude oil to a buyer who is independent of the seller, but
not including the prices used by them for government to
government transactions which do not reflect international
oil market price, crude oil exchange, barter or spot
transactions.
14.4.2 Where the Crude Oil produced from each Oil
Field within the Contract Area differs in grades, the prices
of such Crude Oil with different quality shall be
individually determined.
14.4.3 The price of the Crude Oil produced from all
the Oil Fields within the Contract Area shall be denominated
in U.S. dollars per metric ton. However, if an
international currency other than the U.S. dollar prevails
on the main world oil markets as the pricing unit of crude
oil, the Parties may also use that international currency
therefor upon mutual agreement.
14.4.4 Procedure for the Determination of the Crude
Oil price.
14.4.4.1 The Crude Oil price shall be determined each
Calendar Quarter. In case the crude oil price prevailing on
most world oil markets fluctuates, CNPC and the Contractor
each shall have the right to propose, at any time, that a
new Crude Oil price be negotiated and determined.
14.4.4.2 The Contractor shall, no later than forty-
five (45) days prior to commencement of any Calendar
Quarter, notify CNPC of its proposed price for the Crude Oil
to be lifted in such Calendar Quarter (for the purpose of
this Article thereafter referred to as the said Calendar
Quarter).
14.4.4.3 CNPC shall notify the Contractor of its
decided price within ten (10) days after the receipt of the
aforesaid proposed price notified by the Contractor. In the
absence of a different price notified by CNPC to the
Contractor within ten (10) days after the receipt of the
aforesaid notification, the proposed price notified by the
Contractor as referred to in Article 14.4.4.2 herein shall
be applied to the Crude Oil to be lifted in the said
Calendar Quarter.
14.4.4.4 The Contractor shall, within five (5) days
following its receipt of notice of a price decided by CNPC,
state to CNPC whether the price is acceptable. If it is
acceptable, the said decided price shall be regarded as the
price agreed upon by the Parties for the said Calendar
Quarter. If not acceptable, the Parties shall, within ten
(10) days, carry out further negotiation in an amicable
manner to determine the price for the said Calendar Quarter.
14.4.4.5 In the event that the Parties still cannot
reach an agreement on the Crude Oil price for the said
Calendar Quarter through further negotiations by the
Parties, the Contractor may lift the Crude Oil in accordance
with the quota specified for the said Calendar Quarter in
Article 13.2 hereof, and the Crude Oil price for the
preceding Calendar Quarter shall apply provisionally to the
Crude Oil of such quota and/or the payment shall be made
accordingly. Then, the Parties shall negotiate further on
the Crude Oil price for the said Calendar Quarter taking
into account relevant independent and non-proprietary market
data on Third Party long-term-contract-sales of crude oil in
substantial quantities on the main world oil markets,
adjusted for quality, transportation and other applicable
differentials. The Parties shall each take into account the
information supplied and discussed and attempt to agree on a
Crude Oil price based upon such information by the end of
the said Calendar Quarter.
(A) In the event that the Parties still cannot reach
an agreement on the Crude Oil price by the end of the said
Calendar Quarter, then the Crude Oil price shall be the
weighted average FOB price of the Crude Oil of the same or
similar quality sold by CNPC and/or the Contractor to a
Third Party or Third Parties and produced in the said
Calendar Quarter from the Oil Fields described hereafter,
adjusted for such differences as the quality, delivery,
transportation, payment and other terms, but excluding the
government to government transactions which do not reflect
international oil market price, crude oil exchange, barter
or spot transactions.
The application of the above-mentioned price of Crude
Oil sold to a Third Party or Third Parties shall be in the
following sequence:
(i) Firstly, the price, calculated and determined in
accordance with the above-mentioned stipulations, of the
Crude Oil produced from the relevant Oil Field or Oil Fields
in the Contract Area and sold to a Third Party or Third
Parties shall be applied;
(ii) In the event no sales as referred to in paragraph
(i) above were made in the said Calendar Quarter, the price,
calculated and determined in accordance with the above-
mentioned stipulations, of the Crude Oil produced from other
Oil Fields in the Contract Area and sold to a Third Party or
Third Parties shall be applied; and
(iii) In the event no sales mentioned in paragraphs
(i) and (ii) above were made in the said Calendar Quarter,
the price, calculated and determined in accordance with the
above-mentioned stipulations, of the Crude Oil produced from
the oil fields of other contract areas for Chinese-foreign
cooperative exploitation of petroleum resources and sold to
a Third Party or Third Parties shall be applied;
(B) In the event there are no such Third Party sales
of the Crude Oil during the said Calendar Quarter, then the
Crude Oil price for the said Calendar Quarter shall be equal
to the same Crude Oil price of the preceding Calendar
Quarter adjusted by the differences in the individual
arithmetic average of the daily weighted average of the
official government selling price of a basket of three or
more internationally traded Crude Oils in the said Calendar
Quarter compared with that of such basket of Crude Oils for
the preceding Calendar Quarter. The adjusted price shall be
the Crude Oil price for the said Calendar Quarter. The
Crude Oils selected for the basket shall each be similar in
quality to that from the Contract Area and chosen from
different countries and shall reflect the conditions of the
main world oil markets and shall be mutually agreed upon by
the Parties at a reasonable time prior to the Date of
Commencement of the Commercial Production of Crude Oil.
(C) If the Parties are unable to agree on a Crude Oil
Price for a Calendar Quarter in which Crude Oil is first
produced and delivered from or the production of Crude Oil
is restored in a Field in the Contract Area, then the Crude
Oil for the Calendar Quarter shall be priced and/or paid in
accordance with the arithmetic average price of the prices
finally proposed by the Parties in the Calendar Quarter.
Based on the Crude Oil price agreed upon by the Parties for
the succeeding Calendar Quarter, the Crude Oil price for the
Calendar Quarter shall be determined by adjusting
retroactively by the differences between the arithmetic
average prices of the basket of the Crude Oils for the
Calendar Quarter and the succeeding Calendar Quarter in
accordance with the calculation method referred to in
paragraph 14.4.4.5 (B) herein.
14.4.4.6 If, due to the delayed announcement of crude
oil prices by the main world oil-producing countries or the
main world oil markets, or if, as agreed by CNPC and the
Contractor, an unstable main world oil market exists, then
the period for the determination of the price referred to in
Article 14.4.4.2 herein may be extended to the end of the
said Calendar Quarter in question.
14.4.4.7 If the Crude Oil prices are adjusted
retroactively by the main world oil-producing countries,
then the Crude Oil price may be retroactively adjusted by
the Parties after consultation, provided that the period for
such retroactive adjustment shall not exceed the current
Calendar Quarter.
14.4.5 The Crude Oil for each Calendar Quarter due to
CNPC pursuant to Article 13 hereof shall be converted into
an amount of money in the currency utilized pursuant to
Article 14.4.3 herein based on the Crude Oil price for that
Calendar Quarter finally determined in accordance with the
aforesaid provisions specified in Article 14.4 herein and
such amount of money shall be entered into the Joint Account
as of the date on which such Crude Oil is lifted.
14.4.6 The Crude Oil for each Calendar Quarter due to
the Contractor pursuant to Article 13 hereof shall be
converted into a amount of money in the currency utilized
pursuant to Article 14.4.3 herein based on the Crude Oil
price for the Calendar Quarter finally determined in
accordance with the aforesaid provisions specified in
Article 14.4 herein and such amount of money shall be
entered into the Joint Account as of the date on which the
Crude Oil is lifted.
14.4.7 Notwithstanding any provision in this Article
14.4 to the contrary, if Contractor agrees to sell its share
of production into the Chinese domestic market by a sale to
CNPC or its designated subsidiary, the realized price
received by the Contractor shall be deemed a Third Party
price for the purposes of this Article 14.4.
14.5 Terms of payment for the purchased Crude Oil
pursuant to Article 13.4.
14.5.1 Before the Crude Oil price is determined, the
time limit for payment shall be agreed upon by the Parties
through consultation in accordance with the practice then
prevailing on the main world oil markets.
14.5.2 In case the Contractor is in default of such
payment, the Contractor shall pay interest on arrears of the
payment, starting from the first day of such default. The
interest rate shall be the seven day term London Interbank
Offered Rate (LIBOR) for U.S. dollars quoted by Midland Bank
in London at eleven (11:00) a.m. on the first working day
following the due date of payment plus five percent (5%).
14.6 Destination of the Crude Oil.
14.6.1 The destination of the Crude Oil lifted by the
Contractor shall be at the discretion of the Contractor,
except as stipulated in Article 14.6.2 herein.
14.6.2 In accordance with the decisions of the Chinese
Government, CNPC shall notify the Contractor of any
prohibited destinations which infringe on the political
interests of the People's Republic of China. The Contractor
shall not deliver the Crude Oil to the prohibited
destinations as notified.
Article 15
Preference to the Employment of the
Chinese Personnel, Goods and Services
15.1 The Contractor shall give preference to CNPC
and/or local goods, equipment and service when procuring
necessary goods, and leasing equipment as well as entering
into subcontracts or other service contracts for the
performance of the Petroleum Operations provided that they
are competitive in terms of price, quality, term of
delivery, technology and service.
15.2 The Contractor shall give preference to the
employment of CNPC Personnel in the performance of the
Petroleum Operations. For this purpose, the Contractor
shall submit in advance to CNPC and JMC, respectively, all
plans for the employment of CNPC Personnel listing all the
posts and the number of persons involved. CNPC shall, in
accordance with the plan, provide or assist in recruiting
Chinese employee candidates for such employment. For the
performance of Petroleum Operations, the Contractor shall
have the obligation to employ competent CNPC Personnel and
to employ those who have become qualified after being
trained in accordance with the training program. The
Contractor shall, in the employment, give preference to the
CNPC Personnel who have participated in the training program
provided by the Contractor.
15.3 The engineering design corporations under CNPC
shall have the right to participate in the master designs
and engineering designs made by the Contractor for the
purpose of the implementation of the Contract. Engineering
design companies within the territory of the People's
Republic of China shall be given preference in entering into
the subcontracts for the aforesaid master designs and
engineering designs, provided that their technical level,
price and delivery time are competitive.
15.4 After the Contractor signs equipment leasing
contracts, service contracts or subcontracts with CNPC or
its Affiliates in accordance with Article 15.1 herein, the
Contractor shall endeavor to provide technical assistance to
CNPC or its Affiliates, at the request of CNPC, so as to
enable them to meet the needs of operations to be
undertaken. The expenses so incurred shall be borne by CNPC
or its Affiliates.
Article 16
Training of Chinese Personnel and Transfer of Technology
16.1 In the implementation of the Contract, the
Contractor or its Affiliates, including each company
comprising the Contractor, shall apply in the Petroleum
Operations their appropriate and advanced technology and
managerial experience, including their proprietary
technology, e. g. patent, know-how or other confidential
technology, etc. At the same time, the Contractor shall
have the obligation to transfer technology and experience,
the necessary data and/or information for mastering those
technologies and experience, to CNPC and its Affiliates.
Provided however, such technology to be transferred shall be
proprietary to the Contractor and if the transfer of any of
such technology is restricted in any way during the term of
the Contract, the Contractor shall, to the extent reasonably
possible, endeavor to obtain permission for the transfer of
such restricted technology. In the Petroleum Operations,
the Contractor shall train, in planned, systematic and
various ways, the Chinese Personnel relating to the
implementation of the Contract, for the purpose of improving
their knowledge and skill, so that such Chinese Personnel
shall gradually reach the level of knowledge and skill as
that possessed by the Contractor's employees.
16.2 Within ninety (90) days following the Date of
Commencement of the Implementation of the Contract, the
Contractor shall, after consultation with CNPC, complete and
submit a training and technology transfer program for the
Chinese Personnel in the appraisal period and the
corresponding budget to JMC for review and approval, and
upon approval by JMC, put it into practice. The Contractor
shall, after the consultation with CNPC, complete and submit
training and technology transfer programs and corresponding
budgets for the Chinese Personnel in the development period
and production period, respectively, to JMC for its review
and approval before the commencement of Development
Operations and Production Operations, and upon approval by
JMC, put them into practice in time so as to have ample time
in advance for such training and technology transfer.
16.3 The purpose, requirement, fields of
specialization, scope of personnel, specific job categories,
type, method, etc. shall be determined through consultations
by the Parties.
16.4 The expenses and costs incurred for performing
the training and technology transfer program stipulated in
this Article shall be charged to the appraisal costs if such
costs are incurred before the date of approval of the
Overall Development Program of the first Oil Field and/or
Gas Field, and shall be charged to the development costs if
such costs are incurred after the date of approval of the
Overall Development Program of the first Oil Field and/or
Gas Field, and before the Date of Commencement of Commercial
Production of the first Oil Field and/or Gas Field, or shall
be charged to the operating costs if such costs are incurred
after the Date of Commencement of Commercial Production of
the first Oil Field and/or Gas Field.
16.4.1 The annual Work Program and Budget shall
include provisions for meeting the training and technology
transfer requirements of this Article 16. The training
program for CNPC Personnel shall be formulated to meet the
needs of the Petroleum Operations and shall be based on
principles of mutual benefit and efficiency of operation.
To the extent practicable, the training program shall
principally consist of CNPC Personnel working directly with
personnel of the Operator on matters that relate to the
Petroleum Operations or in other ways agreed by the Parties.
The Parties shall establish the content and associated costs
for training and technology transfer through discussions
within the JMC and this amount shall be included in the
annual Work Program and Budget. The Parties agree that the
budget for the annual training program for all Petroleum
Operations shall be fifty thousand ($50,000) U.S. dollars
during Phase 1 of the Appraisal Period and eighty thousand
($80,000) U.S. dollars per year during Phases 2 and 3.
During Development Operations, the budget for the annual
training program shall be increased to one hundred fifty
thousand ($150,000) U.S. Dollars per year. These amounts
shall include the cost of training provided by the Operator.
Such costs and expenditures incurred during the production
period shall be determined by the Parties at the first
meeting of the JMC in the production period.
16.5 In the course of the implementation of the
Contract, the Parties shall have scientific and technical
cooperation and exchange in connection with the Petroleum
Operations. The relevant provisions concerning the plan,
participating personnel and the type related to the
scientific and technical cooperation and exchange shall be
determined by the Parties. The expenses required by
scientific and technical cooperation and exchange shall be
included in the budget specified in Article 16.2 herein and
charged to the Joint Account. In the scientific and
technical cooperations, all inventions, experiments or
research results shall be shared by and belong to the
Parties who, subject to the provisions of Article 22 hereof,
shall not disclose them to any Third Party.
16.5.1 In the course of the implementation of the
Contract, those scientific research projects which are
required by the Petroleum Operations but not carried out by
the Parties, with the approval of JMC, may be commissioned
to, and carried out by, a Third Party, and the Parties shall
enter into subcontracts or service contracts with relevant
scientific departments within the territory of China,
provided that they are competitive. The aforesaid required
expenses shall be included in the budget specified in
Article 16.2 herein and charged to the Joint Account. All
inventions and experimental or research results developed
from the aforesaid research projects carried out by a Third
Party delegated by the Operator shall also be shared by and
belong to the Parties who, subject to the provisions of
Article 22 hereof, shall not disclose any of them to any
Third Party. The Operator shall endeavor to incorporate the
provisions herein in the subcontracts or service contracts
signed with the Third Party.
16.6 The advanced technology and managerial
experience, including proprietary technology, e. g. patent,
know-how or other confidential technology that the
Contractor shall transfer to CNPC, shall remain the
exclusive property of the owner and also be subject to the
confidentiality restrictions of Article 22 hereof.
Article 17
Ownership of Assets and Data
17.1 All assets purchased, installed and constructed
under the Work Program and budget for an Oil Field and/or
Gas Field within the Contract Area shall be owned by CNPC
from the date on which all the development costs actually
incurred by the Contractor in the development period of such
Oil Field and/or Gas Field have been fully recovered or from
the date on which the production period expires, even though
the aforesaid costs have not been fully recovered. The
Operator shall be responsible for the acceptance inspection
or testing of the said assets and CNPC may, as it deems
necessary, send its experts to participate in such
acceptance inspection or testing. In the production period,
the Operator may use these aforesaid CNPC-owned assets free
of charge for performing the Petroleum Operations. Such
assets shall not be used in any operations other than the
Petroleum Operations or any operations by Third Parties
without the consent of the Parties.
17.2 Equipment and facilities which are owned by a
Third Party and are either leased by the Operator or
temporarily brought into the territory of the People's
Republic of China for the performance of the Petroleum
Operations shall not be deemed as assets owned by CNPC.
Such equipment and facilities may be exported from the
People's Republic of China, but, export formalities shall be
handled by CNPC.
17.3 The ownership of all of the data, records,
samples, vouchers, and other original data obtained in the
course of performing the Petroleum Operations shall vest in
CNPC.
Article 18
Associated Natural Gas
and Non-associated Natural Gas
18.1 Associated Natural Gas.
18.1.1 The Associated Natural Gas produced from any
Oil Field within the Contract Area shall be primarily used
for purposes related to the operations of production and
production enhancement of Oil Fields such as gas injection,
gas lifting and power generation.
18.1.2 Based on the principle of full utilization of
the Associated Natural Gas and with no impediment to normal
production of the Crude Oil, the Overall Development Program
of each Oil Field shall include a plan of utilization of the
Associated Natural Gas. If there is any excess Associated
Natural Gas in any Oil Field after utilization pursuant to
Article 18.1.1 herein (hereafter referred to as "excess
Associated Natural Gas"), the Operator or the Contractor
shall carry out a feasibility study regarding the
utilization of such excess Associated Natural Gas of such
Oil Field. Such feasibility study, if carried out before
the Development Operations of an Oil Field, shall be
included as part of the feasibility study on the development
of the Oil Field. With respect to any Oil Field already
under commercial production, if a further feasibility study
on the utilization of its excess Associated Natural Gas is
required, such study shall be carried out by the Operator
and a report thereon shall be submitted to JMC for review
and discussion. If the Parties decide to utilize the excess
Associated Natural Gas of any Oil Field, the construction of
facilities for such utilization and the production of the
excess Associated Natural Gas shall be carried out at the
same time as the Oil Field construction and production.
18.1.2.1 If the Parties agree that the excess
Associated Natural Gas of an Oil Field has no commercial
value, then such gas shall be disposed of by the Operator,
provided that there is no impediment to normal production of
the Crude Oil.
18.1.2.2 If any party to the Contract considers
unilaterally that the excess Associated Natural Gas of an
Oil Field has commercial value, such gas may be utilized by
that party to the Contract at its own expense without
affecting the amount of "cost recovery oil" and "allocable
remainder oil" due to the other party to the Contract which
does not invest in such utilization.
18.1.2.3 If the Parties agree that excess Associated
Natural Gas of an Oil Field has commercial value, they shall
make further investment in its utilization in proportion to
their respective participating interests in the development
of the Oil Field. If the Parties disagree on the commercial
utilization of such excess Associated Natural Gas of that
Oil Field, they shall, guided by the principle of mutual
benefit, carry out further negotiations to find a new
solution to utilization of the said excess Associated
Natural Gas and reach an agreement in writing. If the
Parties fail to reach an agreement through such
negotiations, CNPC shall reserve the right to dispose of
such excess Associated Natural Gas unilaterally.
18.1.3 Expenses incurred in the utilization of the
Associated Natural Gas of any Oil Field as stipulated in
Article 18.1.1 herein, and those incurred in carrying out a
feasibility study on the utilization of the excess
Associated Natural Gas after commencement of commercial
production of the Oil Field referred to in Article 18.1.2
herein shall be charged to the development costs of the Oil
Field.
18.2 Non-associated Natural Gas.
18.2.1 When any Non-associated Natural Gas Field
(hereafter referred to as the "Gas Field") is discovered
within the Contract Area, the Parties shall carry out
friendly negotiations regarding the development and
production of the Gas Field with a view to reaching an
agreement of principle, which shall form a supplementary
document to the Contract, and shall include the following
principles:
18.2.1.1 The price of the Natural Gas produced from
the Contract Area shall be determined based on general
pricing principles prevailing internationally taking into
consideration such factors as the market, the grade, quality
and quantity of the Natural Gas, etc.;
18.2.1.2 The Contract term for the Gas Field within
the Contract Area shall be separately determined according
to the conditions for development, production of such Field
and marketing of the Natural Gas; and
18.2.1.3 The allocation of the Natural Gas shall be in
conformity with the general principles of allocation for the
Crude Oil stipulated in Article 13 hereof. However, the
percentages of the allocation shall be adjusted by the
Parties through negotiations in light of actual conditions
in the Gas Field so that the Contractor shall be able to
obtain a reasonable economic benefit.
Following the signature of the agreement of principle
herein, the Operator shall work out an evaluation Work
Program for the discovered Gas Field in accordance with the
terms and conditions in the said agreement of principle and
submit it to JMC for its review and approval. Upon approval
by JMC, the Operator shall carry out an evaluation Work
Program. The expenses incurred by the Operator in carrying
out the said evaluation Work Program shall be charged to the
appraisal costs of the Contract Area.
18.2.2 After completion of evaluation of a Gas Field,
the Operator shall submit a report thereon to JMC for review
and discussion.
18.2.2.1 If JMC decides unanimously that a gas
reservoir is noncommercial, the corresponding area covered
by the gas reservoir may be retained in the Contract Area
during the appraisal period. But if, at the expiration of
the appraisal period, JMC still considers the said gas
reservoir to be noncommercial, the area covered by the gas
reservoir shall be excluded from the Contract Area. For a
Gas Field which has potential commercial value but which has
not been developed due to a lack of market or a shortage of
consuming facilities, the period for which the Gas Field is
retained in the Contract Area may be extended at the request
of any party to the Contract. Such extended period,
however, shall not exceed three (3) consecutive Contract
Years after the date of expiration of the appraisal period
hereunder. In case the time needed for the market to
develop or for the consuming facilities to be constructed
for the Gas Field exceeds such extended period, a further
extended period shall be subject to the approval of the
relevant authorities of the Chinese Government.
Prior to the expiration of the appraisal period, if
JMC considers that a gas reservoir which has been determined
to be noncommercial needs to be reappraised because of some
favorable factors, the Operator shall work out a new
evaluation report on that gas reservoir and submit it to JMC
for review and approval.
18.2.2.2 If the Contractor considers any gas reservoir
to be non-commercial, the Contractor shall be deemed to have
waived its rights of participating in the development of
that gas reservoir.
18.2.2.3 Where the Parties consider a gas reservoir to
be commercial, the Parties shall negotiate to reach an
agreement on the development of the said gas reservoir,
based on the terms and conditions provided in the agreement
of principle referred to in Article 18.2.1 herein. The
agreement concerning the development shall be a
supplementary document and an integral part hereof. If the
Parties fail to reach such agreement through negotiations
within three (3) years after the date of commencement of
such negotiations, CNPC shall have the right unilaterally to
put up the gas reservoir for bidding. In such case, the
Contractor shall still be entitled to participate in the
bidding.
18.3 If CNPC utilizes unilaterally the excess
Associated Natural Gas of an Oil Field or develops solely a
Gas Field and requires to apply thereto the Contractor's
appropriate and advanced technology and managerial
experience, the Parties shall negotiate terms and conditions
related thereto and the Operator shall carry out the
operations after an agreement has been reached on such terms
and conditions.
Article 19
Accounting, Auditing and Personnel Costs
19.1 Accounting.
Annex II - Accounting Procedure hereto contains the
guidelines for the Operator to keep accounting books and
records and make financial settlements. The Operator shall
keep and settle the accounts for all the financial
activities in respect of the Contract Area and maintain all
the accounting books and records in accordance with Annex II
- - Accounting Procedure hereto in order to accurately reflect
the appraisal costs, development costs with Deemed Interest
thereon and operating costs incurred in the performance of
Petroleum Operations in respect of the Contract Area, as
well as quantity and monetary value of the production and
allocation of Crude Oil and Natural Gas. The Operator shall
submit detailed statements and relevant written reports to
JMC and the departments concerned.
19.2 Auditing.
19.2.1. Any Non-Operator party to the Contract shall
have the right to audit all the Operator's Joint Account
accounting books and records after the end of each Calendar
Year and to give the Operator a written notice of the
auditing results. The audit of any Calendar Year shall be
completed within twenty-four (24) months after the end of
such Calendar Year. If written notice of the auditing
results and exceptions are not given by the non-Operator
party within such period or if the annual Joint Account
accounting books and records of the Operator are not audited
by any non-Operator party within such period, the Operator's
Joint Account accounting books and records shall be deemed
correct. A special auditing of the Operator's Joint Account
accounting books and records may be made due to some special
requirements during a Calendar Year.
19.2.2 If the auditing referred to in Article 19.2.1
herein is conducted, the Operator shall be given thirty (30)
days notice prior to the date of commencement of such
auditing. There shall be no impediment to normal Petroleum
Operations during any audit.
19.2.3 The auditors shall be entitled to access to all
relevant Joint Account records, files and other information
and may inspect such sites and facilities as are necessary.
19.2.4 Upon receipt of a notice of the non-Operator
party's exceptions to the auditing results, the Operator
shall resolve these matters in due time (no later than sixty
(60) days thereafter).
19.3 Personnel Costs.
19.3.1 The personnel costs means that remuneration and
other related charges paid on the basis of the working time
spent by personnel who are engaged in administration,
management, accounting, finance, tax, employee relations,
procurement, legal affairs, computer services, engineering,
geology, geophysics, drilling and the Production Operations
as well as all other work for the implementation of the
Contract.
19.3.1.1 The salaries or wages of personnel in various
subordinate bodies of JMC and of all employees engaged in
the performance of the Petroleum Operations shall be
included in the personnel costs as provided in Article
19.3.1 herein.
19.3.1.2 Personnel costs which are classified as the
overhead of the superior management organization pursuant to
Article 5.2.18 of Annex II - Accounting Procedure hereto
shall not be included in the personnel costs mentioned
herein.
19.3.2 After the Date of Commencement of the
Implementation of the Contract, the Operator shall work out
a staffing plan for its organization and planned personnel
costs with respect thereto (including an itemized plan of
personnel costs, such as basic salary or wage, overseas
allowance and area allowance, etc.) before the beginning of
each Calendar Year and submit such plan with the annual
Work Program and budget to JMC for review and examination.
CNPC shall have the right to audit the personnel costs
charged to the Joint Account.
19.3.3 The level of the salaries and wages paid to the
representatives appointed by CNPC to JMC established in
accordance with Article 7.1 hereof, the Chinese Personnel
working in various subordinate bodies of JMC established in
accordance with Article 7.4 hereof, the professional
representatives assigned by CNPC to all administrative and
technical departments of the Operator (the Contractor) in
accordance with Article 7.5 hereof and CNPC's personnel
employed by the Contractor shall be determined by the
Parties in the negotiations of the Contract.
The salaries and wages of the Chinese Personnel other
than CNPC's personnel employed by the Operator shall be
determined through consultation and specified in the
employment contracts. The settlement of accounts for the
salaries and wages of the Chinese Personnel mentioned in
Article 19.3.3 herein shall be made between CNPC and the
Operator, and the Operator shall not be liable for any
individual income tax thereon.
Before the Date of Commencement of Commercial
Production of the first Oil Field and/or Gas Field, the
level of the salaries and wages and other related charges
paid to the Expatriate Employees shall be made by the
Contractor through consultation with CNPC. After the Date
of Commencement of Commercial Production of the first Oil
Field and/or Gas Field, the level of the salaries and wages
and other related charges paid to the Expatriate Employees
shall be discussed and agreed by the Parties.
Article 20
Taxation
20.1 The Contractor shall pay taxes to the Government
of the People's Republic of China subject to the tax laws
and regulations of the People's Republic of China.
20.2 The Contractor shall advise the Subcontractors
who render services for the Contract that they and their
employees shall pay taxes to the Government of the People's
Republic of China subject to the tax laws and regulations of
the People's Republic of China.
Article 21
Insurance
21.1 The Operator shall work out an insurance program
for the Appraisal Operations and submit it to JMC for review
and approval within one hundred and twenty (120) days after
the Date of Commencement of the Implementation of the
Contract. The Operator shall, on behalf of the Parties,
obtain the insurance contracts in accordance with such
program as approved by JMC before commencement of Petroleum
Operations within the Contract Area.
Similar provisions shall apply in respect of
Development Operations and Production Operations.
21.2 All of the insurance items as approved in the
insurance program shall be insured in accordance with the
laws and regulations of the People's Republic of China and
on terms and conditions competitive with world markets.
21.3 The insurance program worked out by Operator
shall include, but not be limited to, the following
insurance covering;
(a) damages and expenses to all drilling installation
and equipment, including damages and expenses to the
properties used on worksites and supply bases for the
Petroleum Operations, while the equipment and properties
owned by a Third Party rendering services to the Operator
shall be handled in accordance with Article 21.5 herein;
(b) damages and expenses to any of the equipment or
installations for production, storage and transportation,
and buildings in the course of construction and
installation;
(c) damages and expenses to the Crude Oil and/or
Natural Gas production installations, facilities, equipment
and pipelines;
(d) liability to Third Parties;
(e) liability for pollution and expenses for cleaning
up in the course of drilling and the Production Operations;
(f) expenses for killing blowouts;
(g) liability incurred by the Operator in hiring
drilling rigs, vessels and aircraft serving the Petroleum
Operations; and
(h) losses and expenses incurred during the
transportation and storage in transit of goods shipped from
different parts of the world to the worksites.
21.4 In the insurance contracts, the deductibles borne
by the Operator alone shall be determined by the Parties
through consultation, and losses within the deductible
limits shall be borne by the Parties.
21.5 When signing subcontracts or lease contracts, the
Operator shall endeavor to compel Subcontractors and lessors
to insure their risks under the relevant subcontracts in
accordance with the laws and regulations of the People's
Republic of China.
21.6 In the course of the Petroleum Operations, the
Parties shall cover separately accidental death and personal
injury insurance with respect to personnel assigned by them
respectively. The premiums in respect thereof shall be
dealt with in the following way: the premiums for
accidental death and personal injury insurance with respect
to personnel whose costs are charged to the Joint Account
pursuant to the provisions of the Contract shall be charged
to the Joint Account, and those with respect to other
personnel shall be borne respectively by the Parties by
which they are assigned.
21.7 Insurance companies owned by or affiliated with
any party to the Contract, or the Parties themselves, may
approach insurer(s) for reinsurance if they are interested
in covering any part of the insurance program hereof.
21.8 All motor vehicles serving the Petroleum
Operations in communication, transportation and special
project shall be insured in accordance with the laws and
regulations of the People's Republic of China.
21.9 The premiums of insurance in the appraisal period
and the development period shall be charged to the appraisal
costs and development costs respectively and those in the
production period shall be charged to the operating costs.
21.10 Any claim under the insurance of the agreed
insurance program charged to the Joint Account shall be
handled by the Operator and any recovery made from insurers
shall be credited to the Joint Account.
Article 22
Confidentiality
22.1 CNPC shall, in conformity with applicable laws
and regulations of the Government of the People's Republic
of China on confidentiality and by taking into account the
international practice, determine the confidentiality
periods for which the Contract and all documents,
information, data and reports related to the Petroleum
Operations within the Contract Area shall be kept
confidential.
22.2 Without the written consent of the other party,
no party to the Contract shall disclose, in the
confidentiality periods, the Contract, documents,
information, data and reports referred to in Article 22.1
herein or any other information regarded by JMC as
confidential, to any Third Party except the Third Parties in
Article 22.5 herein and to any Affiliates not directly
connected with the implementation of the Contract, and no
party to the Contract shall otherwise transfer, present,
sell or publish them in any way within the confidentiality
periods. However, if the Department or Unit decides to
invite any Third Party to conduct cooperative exploration
for and development of Petroleum in the sedimentary basin in
which the Contract Area is located and/or other adjacent
areas, CNPC may furnish the following original data and
information or the interpretation thereon with respect to
the Contract Area to the relevant Third Parties:
(a) original data and information held by CNPC for
over two (2) years; and
(b) interpretation of original data and information,
which has been held by CNPC for over five (5) years
CNPC shall require relevant Third Parties to undertake
to keep confidential the aforesaid data, information, and
interpretation thereon furnished to tthem by CNPC.
22.3 During the term of the Contract and after
termination of the Contract, CNPC shall not disclose to any
Third Party any patent, know-how or proprietary technology
transferred to CNPC by the Contractor without the written
consent of the Contractor except for any technology, the
patent of which has expired and any proprietary and
confidential technology which have entered the public
domain.
22.4 After the termination of the Contract or after
any assignment of rights and/or obligations of the Contract
under Article 23 hereof, the Contractor and any assignee
shall, within the confidentiality periods, continue to be
obliged to keep confidential documents, information, data
and reports mentioned in Article 22.2 herein except for
official documents and information published with the
consent of the Parties.
22.5 For the implementation of the Contract, the
Operator may, after review by JMC and CNPC, furnish the
necessary documents, information, data and reports to Third
Parties and Affiliates related to the Petroleum Operations.
The Third Parties and Affiliates include:
22.5.1 Banks or other credit institutions from which
finance is sought by any party to the Contract for the
implementation of the Contract;
22.5.2 Third Parties and Affiliates which provide
services for the Petroleum Operations, including
Subcontractors and other service contractors; and
22.5.3 An assignee or assignees to whom the rights and
obligations under the Contract are intended to be assigned.
22.6 Necessary information, documents, data and
reports may be furnished by the Contractor in accordance
with the laws of its home country to the government and
stock exchange provided that the Contractor reports to JMC
in advance.
22.7 CNPC and each company comprising the Contractor,
when furnishing the documents, information, data and reports
to Third Parties and Affiliates as mentioned in Article 22.5
herein, shall require them to assume the confidentiality
obligations as set forth herein, or shall bear full
responsibility for any violation thereof.
Article 23
Assignment
23.1 The Contractor may assign part or all of its
rights and/or obligations under the Contract to its
Affiliate with the prior consent of CNPC and in accordance
with the following provisions:
(a) the Contractor shall submit to CNPC copies of a
written agreement on the corresponding part of its rights
and/or obligations to be assigned;
(b) the Contractor shall guarantee in writing to CNPC
the performance of the assigned obligations;
(c) no such assignment shall interfere with the
performance of the Petroleum Operations or affect the
organizational structure.
23.2 The Contractor may assign part or all of its
rights and/or obligations under the Contract to any Third
Party, provided that such assignment shall be agreed to by
CNPC in advance and approved by Ministry of Foreign Trade
and Economic Cooperation in China ("MOFTEC"). However, CNPC
shall have the right of first refusal with respect to such
assignment provided that the conditions offered by CNPC are
comparable.
23.3 CNPC may authorize its subsidiaries, branches,
regional corporations or its Affiliates to implement the
Contract, but CNPC shall remain responsible for the
performance of the Contract.
23.4 CNPC may assign part of its rights and/or
obligations hereunder to a Chinese Government controlled
Third Party, provided that prior written consent of the
Government of the People's Republic of China shall be
obtained. CNPC shall guarantee the performance of the
assigned obligations and such assignment shall not interfere
with the performance of Petroleum Operations.
Article 24
Environmental Protection and Safety
24.1 In the performance of the Petroleum Operations,
the Operator shall be strictly subject to the laws, decrees
and regulations on environmental protection and safety
promulgated by the Chinese Government and make its best
efforts to prevent pollution and damage to the atmosphere,
oceans, rivers, lakes, ground water, harbors, land and
ecology and secure the safety and health of the operating
personnel. The Operator shall use all reasonable endeavors
to eliminate promptly any pollution occurring in the
performance of the Petroleum Operations and minimize its
consequences. Economic loss caused by any pollution shall
be charged to the Joint Account, unless otherwise provided
in Article 8.4 hereof.
24.2 When competent authorities under the Chinese
Government assign any person to inspect environmental
protection and safety within the scope of the Petroleum
Operations according to the laws, decrees, rules and
regulations, the Operator shall provide all necessary
facilities and assistance to enable the inspectors to carry
out such inspection smoothly.
24.3 In the performance of the Petroleum Operations
in any fixed fishing net casting area and/or aquatic
breeding area, the Operator shall make prior contact with
the appropriate authorities of the Chinese Government.
24.4 Before the commencement of Appraisal Operations,
the Operator shall provide CNPC with documentation on the
possible impact by the Appraisal Operations on the
environment and the adopted measures to prevent pollutions.
Before the Development Operations the Operator shall provide
CNPC with an environment impact statement as an integral
part of the Overall Development Program of the Oil Field
and/or Gas Field.
24.5 During the term of the Contract, the Operator
shall, after the completion of various Petroleum Operations,
level or restore or reclaim the land of the operating sites
in accordance with the local rules and regulations.
Article 25
Force Majeure
25.1 Except as to any payment under the Contract, no
party to the Contract shall be considered in default of the
performance of any of its obligations hereunder, if any
failure to perform or any delay in performing its
obligations is in conformity with all the events described
as follows:
The performance of any obligations hereunder is
prevented, hindered or delayed because of any event or
combination of events which could not be foreseen and/or
which is beyond the control of such party;
The normally occurring weather conditions, such as
wind, wave and current, of the Contract Area shall not be
considered as an event of force majeure.
Any such event or combination of events is the direct
cause of preventing, hindering or delaying of such party's
performance of its obligations hereunder; and
When any such event or combination of events has
occurred, such party has taken all reasonable actions to
overcome any cause that prevents, hinders or delays
performance of its obligations and shall in so far as is
practicable continue to perform its obligations hereunder.
25.2 Notice of any event of force majeure and the
conclusion thereof shall forthwith be given to the other
party by the party claiming force majeure.
25.3 In the event of force majeure, the Parties shall
immediately consult in order to find an equitable solution
thereto and shall use all reasonable endeavors to minimize
the consequences of such force majeure.
25.4 If the Petroleum Operations in the Contract Area
are partially or entirely suspended as a result of the force
majeure referred to in Article 25.1 herein, the period of
the Petroleum Operations may be extended by a period not
exceeding the corresponding period of such suspension.
Within fifteen (15) days following the end of each Calendar
Year, the Operator shall report to JMC in writing on the
suspension of the Petroleum Operations caused by force
majeure, if any, during the preceding Calendar Year.
25.5 Should, however, the Force Majeure condition
continue for a period of twenty-four (24) consecutive
months, then Contractor shall have the option to terminate
this Contract without any further liability.
Article 26
Consultation and Arbitration
26.1 The Parties shall make their best efforts to
settle amicably through consultation any dispute arising in
connection with the performance or interpretation of any
provision hereof.
26.2 Any dispute mentioned in Article 26.1 herein that
has not been settled through such consultation within ninety
(90) days after the dispute arises may be referred to
arbitration at the request of and by either party to the
Contract. The arbitration shall be conducted in accordance
with the following provisions:
26.2.1 If agreed upon by the Parties, such dispute
shall be referred to arbitration conducted by the China
International Economic and Trade Arbitration Commission
("CIETAC") in accordance with the provisional arbitration
proceeding rules thereof.
26.2.2 If the Parties fail to reach an agreement on
the arbitration arrangement mentioned in Article 26.2.1
herein, the Parties shall establish an ad hoc arbitration
tribunal to conduct arbitration in accordance with the
following provisions:
26.2.2.1 The ad hoc arbitration tribunal shall consist
of three (3) arbitrators. The Parties shall each appoint an
arbitrator and the two arbitrators so appointed shall
designate a third arbitrator. If one of the Parties does
not appoint its arbitrator within sixty (60) days after the
first appointment, or if the two arbitrators once appointed
fail to appoint the third within sixty (60) days after the
appointment of the second arbitrator, the relevant
appointment shall be made by the Arbitration Institute of
the Stockholm Chamber of Commerce, Sweden.
26.2.2.2 The third arbitrator shall be a citizen of a
country which has formal diplomatic relations with both the
People's Republic of China and any home country of the
companies comprising the Contractor, and shall not have any
economic interests of relationship with the Parties.
26.2.2.3 The place of arbitration shall be determined
by the Parties through consultations or, failing the
agreement of the Parties by a majority of arbitrators of the
ad hoc arbitration tribunal.
26.2.2.4 The ad hoc arbitration tribunal shall conduct
the arbitration in accordance with the arbitration rules of
United Nations Commission on International Trade Law
("UNCITRAL") of 1976. However, if the above-mentioned
arbitration rules are in conflict with the provisions of
this Article 26 including the provisions concerning
appointment of arbitrators, the provisions of this Article
26 shall prevail.
26.3 Both the Chinese and English languages shall be
official languages used in the arbitration proceedings. All
hearing materials, statements of claim or defence, award and
the reasons supporting them shall be written in both Chinese
and English.
26.4 Any award of arbitration shall be final and
binding upon the Parties.
26.5 The right to arbitrate disputes under the
Contract shall survive the termination of the Contract.
Article 27
Effectiveness and Termination of the Contract
27.1 After the Contract is signed, it shall be
approved by the Ministry of Foreign Trade and Economic
Cooperation of the People's Republic of China. The Contract
shall be effective on the date of such approval. However,
the Contractor's obligations shall begin on the Date of
Commencement of the Implementation of the Contract, as
defined in Article 1, herein above. CNPC shall notify the
Contractor of the said approval in writing as soon as
possible.
27.2 All annexes to the Contract shall be regarded as
integral parts of the Contract. If there is any
inconsistency between the provisions of the annexes and the
main body of the Contract, the main body of the Contract
shall prevail. All references to the "Contract" hereof
refer to the main body of the Contract.
27.3 If in the course of implementation of the
Contract the Parties decide through consultation to make
amendment to or supplement to any part of the Contract, a
written agreement signed by the authorized representatives
of the Parties shall be required. Such written agreement
shall be subject to the approval of the Ministry of Foreign
Trade and Economic Cooperation should there be any
significant modifications hereof. Such agreement shall be
regarded as an integral part of the Contract.
27.4 The Contract shall terminate under any of the
following circumstances:
27.4.1 exercise of the Contractor's election to
terminate the Contract under Article 6.3 (b) hereof;
27.4.2. failure to identify any commercial oil or gas
reservoir within the Contract Area by the expiration of the
appraisal period or the extended appraisal period granted
under Articles 4.3 or 18.2.2.1 hereof;
27.4.3 if there is only one (1) commercial Oil Field
or Gas Field in production in the Contract Area, on
termination of the production period of such Field;
27.4.4. if there are two (2) or more commercial Oil
Fields or Gas Fields in production in the Contract Area, on
termination of the production period of the Field with the
latest termination date; or
27.4.5 at the end of the last day of the thirtieth
(30th) Contract Year from the Date of Commencement of the
Implementation of the Contract, unless the production period
is extended by approval of the Department or Unit under
Article 4.5. hereof or unless otherwise stipulated in
Articles 4.6.1, 18.2.1.2 or 25.4 hereof.
27.5 Before the expiration of the first phase of the
appraisal period as specified in Article 4.2 hereof, the
Contractor shall not propose terminating the Contract unless
the Contractor has fulfilled the minimum appraisal work
commitment for the first phase of the appraisal period ahead
of time.
27.6 If either party to the Contract commits a
material breach of the Contract, the other party to the
Contract shall have the right to demand that such breach be
remedied within a reasonable specified period of time. If
such breach is not remedied within such period of time, the
complaining party shall have the right to terminate the
Contract by giving ninety (90) days' written notice to the
defaulting party. However, such material breach of the
Contract and unremedied material breach shall have been
judged by the final award of arbitration in accordance with
Article 26 hereof.
27.7 Notwithstanding the provisions in Article 6.8
hereof, CNPC has the right to unilaterally terminate the
Contract, except as otherwise provided in Article 25
hereof, in the event the Contractor failed to:
(1) spud the first Appraisal Well within ten (10)
months after the Date of Commencement of Implementation of
the Contract provided in Article 6.2 hereof; or
(2) fulfill the minimum appraisal work commitment as
specified in Article 6.2.1 herein at the expiration of the
first phase of the appraisal period specified in Article 4.2
hereof.
The Contractor shall within thirty (30) days from the
date CNPC decides to terminate the Contract as specified
above, pay CNPC any unfulfilled balance of the minimum
appraisal work commitment in the said period in U.S. dollars
after it has been converted into a cash equivalent using the
method provided in Annex II - Accounting Procedure.
Article 28
The Applicable Law
28.1 The validity, interpretation and implementation
of the Contract shall be governed by the laws of the
People's Republic of China. Failing the relevant provisions
of the laws of the People's Republic of China for the
interpretation or implementation of the Contract, the
principles of the applicable laws widely used in the
petroleum resources countries acceptable to the Parties
shall be applicable.
28.2 If a material change occurs to the Contractor's
economic benefit after the effective date of the Contract
due to the promulgation of new laws, decrees, rules and
regulations or any amendment to the applicable laws,
decrees, rules and regulations made by the People's Republic
of China, the Parties shall consult promptly and make
necessary revisions and adjustments to the relevant
provisions of the Contract in order to maintain the
Contractor's normal economic benefits hereunder.
Article 29
Language of Contract and Working Language
29.1 The text of the Contract, annexes and
supplementary documents attached hereto shall be written in
both Chinese and English languages, and both versions shall
have equal force and effect.
29.2 The Parties agree that both Chinese and English
shall be used as working languages. After the effective
date of the Contract, technical documents and information
concerning the Petroleum Operations hereunder shall, in
general, be written in English except for technical
documents and information available previously and from
Third Parties.
Unless otherwise agreed by CNPC, documents and
information in respect of administration shall be written in
both Chinese and English. Forms for production and other
reports and records shall be printed with headings in both
Chinese and English and may be filled out in either Chinese
or English.
Article 30
Miscellaneous
30.1 All notices and documents required hereunder
shall be deemed to have been properly given and delivered to
either party to the Contract only when received.
30.2 Notices and documents shall be delivered by hand
or sent by mail, registered airmail or telefax to address
hereunder specified:
Address of CNPC: Address of the Contractor:
Liu Pu Kang 110 Rue Jean Lafitte
Beijing 100724 Lafayette, LA 70508
U.S.A.
People's Republic of China Telefax: 318-237-0168
Tel. No. 86-10-620906007
Tel. No. 86-10-620906008
Telefax No.: 86-10-62096006
For the attention of: For the attention of:
Zeng Xingqiu Danny M. Dobbs
30.3 Each party to the Contract may change its address
or representative by a written notice to each other party to
the Contract.
30.4 The Contractor's participating interest hereunder
as of the effective date of the Contract is one hundred
percent (100%) held by XCL Cathay LTD.
30.5 The Contractor shall pay CNPC a signature fee of
Three Hundred Thousand U.S. dollars (U.S.$300,000) within
thirty (30) days from the effective date of the Contract;
and Two Hundred Thousand U.S. dollars (U.S.$200,000) payable
within thirty (30) days of the date of approval of the
Overall Development Program of the first Oil Field and/or
Gas Field by the Department or Unit. Such signature fee
shall, in no case, be charged to the Joint Account, nor be
deemed recoverable costs.
30.6 Companies comprising the Contractor agree to
undertake the obligation of the Contractor under the
Contract jointly and severally.
In witness whereof, THIS CONTRACT is signed in Beijing
by the authorized representatives of the Parties hereto on
the first above-mentioned date.
CHINA NATIONAL XCL CATHAY LTD.
PETROLEUM CORPORATION
By: ________________________ By:______________________
CONSENT OF INDEPENDENT ACCOUNTANTS
October 20, 1998
We consent to the inclusion in this registration statement
on Form S-1 of our reports, both of which include an explanatory
paragraph regarding the Company's ability to continue as a going
concern, dated April 10, 1998, on our audits of the consolidated
financial statements and financial statement schedule of XCL Ltd.
and financial statements of XCL-China Ltd. We also consent to
the references to our firm under the captions "Experts."
/s/ PRICEWATERHOUSECOOPERS LLP
Miami, Florida
CONSENT OF H.J. GRUY AND ASSOCIATES, INC.
The Board of Directors
XCL, Ltd.
110 Rue Jean Lafitte
Lafayette LA 70508
Gentlemen:
We hereby consent to the use of the name H.J. Gruy and Associates,
Inc. and references to H.J. Gruy and Associates, Inc. and to the
references to our report dated October 12, 1998 (Proved Reserves,
Zhao Dong Block, China) prepared for XCL Ltd. in the filing of
Amendment No. 2 to the Registration Statement on Form S-1 of
XCL Ltd.
Yours very truly,
/s/ James H. Hartsock
By:James H.Hartsock, PhD, PE
Title:Executive Vice President
Houston, Texas
October 12, 1998
H.J. Gruy and Associates, Inc. 1200 Smith Street, Suite 3040,
Houston, Texas 77002 o (713) 739-1000
