Consulting Agreement
This Consulting Agreement ("Agreement") is entered into effective as of the 5th
day of October 1999, by and between SGI International, a Utah corporation (the
"Company"), 0000 Xxxxxxxx, Xxxxx 000, Xx Xxxxx, XX 00000, and Elon A. Place
("Consultant"), 3650/23 So. Xxxxxxx #000, Xxx Xxxxx, XX 00000.
AGREEMENT
NOW, THEREFORE, in consideration of the agreements, covenants, and
conditions contained herein, Company and Consultant hereby agree as follows:
1. Performance by Consultant. Consultant agrees to provide consulting services
(the "Services") to Company as directed by its Chief Executive Officer. Services
shall include, but not be limited to, advice, assistance, and information
supplied by Consultant, or developed with the use of any of Consultant's
information, equipment, personnel, goods or facilities pertaining to the
Company's activities.
2. Payment for Services.
a. Consulting Fee. Company agrees to pay Consultant for the Services at
the rate of Sixty Five Dollars ($65.00) per hour. Consultant shall have the
option to be paid for the services in cash or in restricted stock. The number of
shares of restricted stock shall be determined by dividing the total amount of
the any unpaid invoices by the average bid price of SGI's stock for the 10
trading days commencing on the date hereof. SGI shall include such restricted
stock, if any, in the next Registration Statement or S-8 that it files,
providing there is no limitation or restriction that would preclude it from
doing so.
b. Expenses. Consultant shall be reimbursed for reasonable expenses, including
but not limited to travel, long distance telephone charges, and mileage at the
rate of $.31 a mile.
c. Warrants. The Company will also issue Consultant a warrant for his
Services for 70,000 shares with an exercise price set at the ten day average of
the bid price of SGI's stock commencing on the date hereof. SGI shall include
the restricted stock underlying such warrant in the next Registration Statement
or S-8 that it files, providing there is no limitation or restriction that would
preclude it from doing so.
d. Invoices. Consultant shall invoice Company monthly for Services
rendered during the preceding month. The invoice will include the hours of work
by day and reflect the amount and details of any expenses. Consultant agrees
that Company may audit the billing and expense documentation for a period of one
year from the date of the invoice submittal. Consultant must notify Company by
January 30, 2000, of his election to be paid in restricted stock. All invoices
will be due and payable by Company on or before January 30, 2000.
3. Obligations of Consultant.
a. Key Person. Company and Consultant agree that the Services will be performed
personally by Elon Place or his designee provided such designee is approved by
the Company pursuant to Section 12.
b. Consultations, Reports. Consultant agrees upon reasonable advance
notice to make available Elon Place for meetings requested by the Company. If
Company requests it, Consultant shall prepare and submit to Company a monthly
written report setting forth the status of such work performed in a format to be
mutually agreed upon by Consultant and Company.
c. Regeneration of Lost or Damaged Work. Consultant shall, at its own
expense, promptly replace or regenerate any work that does not meet the
requirements of this Agreement including regeneration of new data and reperform
any work or recover incorrect or mistaken data or information from Consultant's
or Company's data sources. In the event that Consultant fails to perform in
accordance with this paragraph, Company shall have a right to cancel any
restricted stock issued hereunder to the extent necessary to compensate Company
for causing the reperformance of the Services.
4. Obligations of Company. Company agrees to make available to Consultant, upon
reasonable notice, computer programs, data, and any documentation required by
Consultant to perform and complete the Services.
5. Confidentiality, Disclosure, and Ownership.
a. Ownership. Consultant agrees that the Company is the owner of all
right, title and interest in the Confidential information and data (the
"Confidential Information") relating to business, legal and confidential
materials that Company has developed or trade secrets or intellectual property.
Company shall also own all other related material used by, developed and paid
for by it in connection with the performance of any Services provided by
Consultant pursuant to this Agreement.
b. Disclosure. Consultant desires to have the Confidential Information
disclosed to him to enable him to render the Services to Company. Company is
prepared to make such Confidential Information as it deems necessary
available to Consultant for the aforesaid purpose on the following
understanding:
For the purpose of this Agreement:
The term "Confidential Information" shall not include any information
which:
(i) is "publicly available" information. The phrase "publicly available"
information shall mean readily accessible to the public in a written
publication;
(ii) is known to Consultant from sources other than Company or its
Affiliates prior to the receipt of the same hereunder from Company or its
Affiliates;
(iii) is received by Consultant without restriction on disclosure from
a third party who is legally in possession of such information and has a right
to reveal the same to Consultant.
(iv) "Affiliate(s)" of Company shall mean any person or entity directly
or indirectly controlling, controlled by or under common control with Company.
c. Notwithstanding anything herein to the contrary, Consultant shall
have the right to use general skills and capabilities developed as a result of
his performance of Services for his own benefit or the benefit of others subject
to the obligations of Consultant set forth hereinafter.
d. Confidentiality. Consultant agrees to hold the Confidential Information in
confidence and not to reproduce or disclose it to others nor to use it, except
as herein authorized in writing or as may later be authorized in writing
by Company.
e. Usage. Both parties agree that the Consultant may use such Confidential
Information in connection with, but only in connection with, the purpose
previously stated herein.
6. Warranties. Consultant hereby warrants that he will carry out his work in
accord with generally accepted practices. Company's sole remedy shall consist of
the reperformance of any disputed work. Company must notify Consultant of any
dissatisfaction with the work of Consultant within thirty (30) days after
completion of the work in question.
7. Termination. This Agreement shall be effective on the Effective Date and
continue in full force and effect until terminated by either party. Either
party may terminate this Agreement on thirty (30) days notice to the other
party by so stating in writing to the other party.
8. Status, Liability, Indemnity.
a. Independent Contractor. Consultant is and at all times during the
term of this Agreement shall be an independent contractor providing professional
consulting services to Company. Nothing contained in this Agreement shall be
construed to create a relationship of principal and agent, employer and
employee, servant and master, partnership or joint venture between the parties.
Consultant shall have no power to commit or bind Company in any manner
whatsoever.
b. Liability Indemnity. Consultant shall have no liabilities to Company or to
others for acts of Company. Company shall defend, indemnify, and hold harmless
Consultant from and against any and all claims of whatsoever kind and
nature arising out of the acts or omissions of Company, Company's employees,
or others.
9. Disputes. If any dispute of any kind arises between the parties with respect
to the Consultant's performance under this Agreement, then the dispute shall be
submitted to arbitration in San Diego, California to the American Arbitration
Association ("AAA"). The dispute shall be submitted to an arbitrator selected
from a panel of arbitrators submitted to the parties by the AAA. If the parties
fail to agree on an arbitrator, the AAA shall appoint an arbitrator and in the
absence of such appointment, the parties may request an appointment by request
to the San Diego Superior Court. Reasonable discovery shall be allowed in any
such arbitration. The decision of the arbitrator shall be binding to the same
extent as if the award were made by a court of competent jurisdiction.
10. Notices. Any and all notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given or received when delivered
personally or forty eight (48) hours after being mailed, via first class,
postage prepaid, to the addresses set forth immediately below of the parties
hereto or to such other addresses as either of the parties hereto may from time
to time designate in writing to the other party.
Company: SGI International
0000 Xxxxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
Consultant: Elon Place
0000/00 Xx.Xxxxxxx #000
Xxx Xxxxx, XX 00000
11. Applicable Law. The provisions of this Agreement shall be construed and
enforced in accordance with the laws of the State of California.
12. Entire Agreement and Amendments. This Agreement constitutes the entire
understanding and agreement between the parties relating to the subject matter
hereof and supersedes any prior written or oral understanding or agreement
between the parties relating to the subject matter hereof. This Agreement shall
not be amended, altered, or supplemented in any way except by an instrument in
writing, signed by the duly authorized representative of the parties, that
expressly references this Agreement.
13. Waivers. The failure or delay of either party to exercise or enforce at any
time any of the provisions of this Agreement shall not constitute or be deemed a
waiver of that party's right thereafter to enforce each and every provision of
the Agreement and shall not otherwise affect the validity of this Agreement.
14. Severability. If any provision of this Agreement is finally determined to be
contrary to, prohibited by, or invalid under applicable laws or regulations,
such provision shall become inapplicable and shall be deemed omitted from this
Agreement. Such determination shall not, however, in any way invalidate the
remaining provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of day
and year first above written.
Company Consultant
SGI International, Elon A. Place
a Utah Corporation
By: By:
-------------------------------------------------
Xxxxxxx X. Xxxx Xxxx X. Place
President & CEO
